Legislative and Regulatory Reform Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Legislative and Regulatory Reform Bill

Legislative and Regulatory Reform Bill
Part 1 — Power to reform legislation etc
1

A
Bill
[AS AMENDED IN STANDING COMMITTEE A]
To
enable provision to be made for the purpose of reforming legislation and
implementing recommendations of the Law Commission, the Scottish Law
Commission and the Northern Ireland Law Commission; to make provision
about the exercise of regulatory functions; to make provision about the
interpretation of legislation relating to the European Communities and the
European Economic Area; to make provision relating to section 2(2) of the
European Communities Act 1972; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Power to reform legislation etc
Order-making power
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Purpose
(1)
A Minister of the Crown may by order make provision for either or both of the
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following purposes—
(a)
reforming legislation;
(b)
implementing recommendations of any one or more of the United
Kingdom Law Commissions, with or without changes.
(2)
An order under this section must be made in accordance with this Part.
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(3)
In this Part “legislation” means a provision of—
(a)
any public general Act or local Act, or

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(b)
any Order in Council, order, rules, regulations, scheme, warrant,
byelaw or other subordinate instrument made under a public general
Act or local Act,

but does not include any instrument which is, or is made under, Northern
Ireland legislation.
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(4)
In this Part “the United Kingdom Law Commissions” means—
(a)
the Law Commission;
(b)
the Scottish Law Commission; and
(c)
the Northern Ireland Law Commission.
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Provision
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(1)
An order under section 1 may for either purpose specified in subsection (1) of
that section make provision amending, repealing or replacing any legislation.
(2)
Provision under subsection (1) may amend, repeal or replace legislation in any
way that an Act might, and in particular may amend, repeal or replace
legislation so as to—
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(a)
confer functions on any person (including functions of legislating or
functions relating to the charging of fees);
(b)
modify the functions conferred on any person by legislation;
(c)
transfer, or provide for the transfer or delegation of, the functions
conferred on any person by legislation.
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This is subject to sections 4 to 7.
(3)
An order under section 1 may for the purpose specified in subsection (1)(b) of
that section also make—
(a)
provision amending or abolishing any rule of law;
(b)
provision codifying rules of law.
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(4)
An order under section 1 may make such consequential, supplementary,
incidental or transitional provision (including provision amending, repealing
or replacing any legislation or other provision) as the Minister making it
considers appropriate.
(5)
An order under section 1 may bind the Crown.
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Preconditions
(1)
A Minister may not make an order under section 1 containing—
(a)
provision under section 2(1), other than provision which merely
restates legislation, or
(b)
provision under section 2(3)(a),
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unless he considers that the conditions in subsection (2), where relevant, are
satisfied in relation to that provision.
(2)
Those conditions are that—
(a)
the policy objective intended to be secured by the provision could not
be satisfactorily secured by non-legislative means;
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(b)
the effect of the provision is proportionate to the policy objective;
(c)
the provision, taken as a whole, strikes a fair balance between the
public interest and the interests of any person adversely affected by it;
(d)
the provision does not remove any necessary protection;

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(e)
the provision does not prevent any person from continuing to exercise
any right or freedom which that person might reasonably expect to
continue to exercise.
(3)
A Minister may not make an order under section 1 containing—
(a)
provision under section 2(1) which merely restates legislation, or
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(b)
provision under section 2(3)(b),

unless he considers that the condition in subsection (4) is satisfied in relation to
that provision.
(4)
That condition is that the provision made would make the law more accessible
or more easily understood.
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Restrictions
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Subordinate legislation
(1)
Provision under section 2(1) may not confer a function of legislating on a
Minister of the Crown (alone or otherwise) unless the conditions in subsections
(2) and (3) are satisfied.
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(2)
The condition in this subsection is that the function is exercisable by statutory
instrument.
(3)
The condition in this subsection is that such a statutory instrument—
(a)
is subject to annulment in pursuance of a resolution of either House of
Parliament; or
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(b)
is not to be made unless a draft of the statutory instrument has been laid
before and approved by a resolution of each House of Parliament.
(4)
Subsection (1) does not apply to provision which merely restates legislation.
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Taxation
(1)
Provision under section 2(1) may not impose or increase taxation.
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(2)
Subsection (1) does not apply to provision which merely restates legislation.
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Criminal penalties
(1)
Provision under section 2(1) may not create a new offence that is punishable,
or increase the penalty for an existing offence so that it is punishable—
(a)
on indictment, with imprisonment for a term exceeding two years; or
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(b)
on summary conviction, with—
(i)
imprisonment for a term exceeding the normal maximum term;
or
(ii)
a fine exceeding level 5 on the standard scale.
(2)
In subsection (1)(b)(i), “the normal maximum term” means—
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(a)
in relation to England and Wales—
(i)
in the case of a summary offence, 51 weeks; and
(ii)
in the case of an offence triable either way, twelve months; and
(b)
in relation to Scotland or Northern Ireland, six months.

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(3)
In the case of an offence which, if committed by an adult, is triable either on
indictment or summarily and is not an offence triable on indictment only by
virtue of—
(a)
Part 5 of the Criminal Justice Act 1988 (c. 33), or
(b)
section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995
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(c. 46),

the reference in subsection (1)(b)(ii) to a fine exceeding level 5 on the standard
scale is to be construed as a reference to the statutory maximum.
(4)
If an order under section 1 containing provision under section 2(1) creating an
offence, or altering the penalty for an offence, is made before the date on which
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section 281(5) of the Criminal Justice Act 2003 (c. 44) comes into force, the order
must provide that, in relation to a summary offence committed before that
date, any reference to a term of imprisonment of 51 weeks is to be read as a
reference to six months.
(5)
If an order under section 1 containing provision under section 2(1) creating an
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offence, or altering the penalty for an offence, is made before the date on which
section 154(1) of the Criminal Justice Act 2003 comes into force, the order must
provide that, in relation to an offence triable either way committed before that
date, any reference to a term of imprisonment of twelve months is to be read as
a reference to six months.
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(6)
Subsection (1) does not apply to provision—
(a)
which merely restates legislation;
(b)
to the extent that it implements recommendations of any one or more
of the United Kingdom Law Commissions.
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Forcible entry etc
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(1)
Provision under section 2(1) may not—
(a)
authorise any forcible entry, search or seizure; or
(b)
compel the giving of evidence.
(2)
Subsection (1) does not prevent an order under section 1 from extending any
power for purposes similar to those to which the power applied before the
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order was made.
(3)
Subsection (1) does not apply to provision—
(a)
which merely restates legislation;
(b)
to the extent that it implements recommendations of any one or more
of the United Kingdom Law Commissions.
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Devolution
8
Scotland
An order under section 1 may not, except by virtue of section 2(4), make
provision which would be within the legislative competence of the Scottish
Parliament if it were contained in an Act of that Parliament.
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9
Wales
An order under section 1 may not make any provision—

Legislative and Regulatory Reform Bill
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(a)
conferring a function on the Assembly,
(b)
modifying or removing a function of the Assembly, or
(c)
restating any provision which confers a function on the Assembly,
except with the agreement of the Assembly.
Procedure
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Procedure: introductory
(1)
An order under section 1 must be made by statutory instrument.
(2)
A Minister may not make an order under section 1 unless—
(a)
he has consulted in accordance with section 11;
(b)
following that consultation, he has laid a draft order and explanatory
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document before Parliament in accordance with section 12; and
(c)
the order is made, as determined under section 13, in accordance
with—
(i)
the negative resolution procedure (see section 14);
(ii)
the affirmative resolution procedure (see section 15); or
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(iii)
the super-affirmative resolution procedure (see section 16).
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Consultation
(1)
If a Minister proposes to make an order under section 1 he must—
(a)
consult such organisations as appear to him to be representative of
interests substantially affected by the proposals,
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(b)
where the proposals relate to the functions of one or more statutory
bodies, consult those bodies, or persons appearing to him to be
representative of those bodies,
(c)
consult the Assembly where the proposals, so far as applying in or as
regards Wales, relate to any matter in relation to which the Assembly
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exercises functions (and where the Assembly’s agreement is not
required under section 9),
(d)
where the order is made for the purpose of implementing a
recommendation of any one or more of the United Kingdom Law
Commissions, consult that Commission or those Commissions, and
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(e)
consult such other persons as he considers appropriate.

But this subsection does not apply to the extent that subsection (2) applies.
(2)
To the extent that a Minister proposes to make an order under section 1 for the
purpose of implementing a recommendation of any one or more of the United
Kingdom Law Commissions without material changes, the Minister must
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carry out such consultation as he considers appropriate having regard to the
consultation carried out by that Commission or those Commissions.
(3)
If, as a result of any consultation required by subsection (1) or (2), it appears to
the Minister that it is appropriate to change the whole or any part of his
proposals, he must undertake such further consultation with respect to the
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changes as he considers appropriate.
(4)
If, before the day on which this section comes into force, any consultation was
undertaken which, had it been undertaken after that day, would to any extent

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have satisfied the requirements of this section, those requirements shall to that
extent be taken to have been satisfied.
(5)
Where—
(a)
proposals for an order under section 1 are the same as proposals for an
order under section 1 of the Regulatory Reform Act 2001 (c. 6),
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(b)
consultation has at any time been undertaken in relation to the
proposals under section 5 of that Act, and
(c)
that consultation satisfied the requirements of that section in relation to
the proposals,

the requirements of this section shall be taken to have been satisfied in relation
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to the proposals.
(6)
In subsection (1)(b) “statutory body” means—
(a)
a body established by or under any enactment; or
(b)
the holder of any office so established.
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Draft order and explanatory document laid before Parliament
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(1)
If, after the conclusion of the consultation required by section 11, the Minister
considers it appropriate to proceed with the making of an order under section
1, he must lay before Parliament—
(a)
a draft of the order, together with
(b)
an explanatory document.
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(2)
The explanatory document must—
(a)
explain whether the provision contained in the order is made for the
purpose in section 1(1)(a) or (b) or both;
(b)
introduce and give reasons for the provision;
(c)
explain why the Minister considers that—
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(i)
the conditions in section 3(2) are satisfied (where relevant); or
(ii)
the condition in section 3(4) is satisfied;
(d)
to the extent that it is appropriate to do so having regard to the likely
effect of the order, include an assessment of—
(i)
the savings or the increase in costs likely to result from the
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provision; and
(ii)
the other benefits and disbenefits of the provision;
(e)
identify and give reasons for—
(i)
any powers to legislate conferred by the order; and
(ii)
the procedural requirements attaching to those powers; and
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(f)
give details of—
(i)
any consultation undertaken under section 11;
(ii)
any representations received as a result of the consultation;
(iii)
the changes (if any) made as a result of those representations.
(3)
In the case of any provision contained in the order which is made solely for the
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purpose in section 1(1)(a), if the Minister considers that the provision would
have the effect of—
(a)
simplifying or modernising legislation,
(b)
making the overall effect of legislation less onerous, or
(c)
removing inconsistencies or anomalies in legislation,
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he must under subsection (2)(b) explain why.

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(4)
In the case of any provision contained in the order which is made for the
purpose in section 1(1)(b), the explanatory document must under subsection
(2)(b)—
(a)
identify the recommendations being implemented;
(b)
identify the manner in which the order is intended to implement each
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of the recommendations; and
(c)
give details of, and reasons for, any differences between the
recommendations and the Minister’s proposals.
(5)
Where a person making representations in response to consultation under
section 11 has requested the Minister not to disclose them, the Minister must
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not disclose them under subsection (2)(f)(ii) if or to the extent that to do so
would (disregarding any connection with proceedings in Parliament)
constitute a breach of confidence actionable by any person.
(6)
If information in representations made by a person in response to consultation
under section 11 relates to another person, the Minister need not disclose the
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information under subsection (2)(f)(ii) if or to the extent that—
(a)
it appears to the Minister that the disclosure of that information could
adversely affect the interests of that other person; and
(b)
the Minister has been unable to obtain the consent of that other person
to the disclosure.
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(7)
Subsections (5) and (6) do not affect any disclosure that is requested by, and
made to, a committee of either House of Parliament charged with reporting on
the draft order.
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Determination of Parliamentary procedure
(1)
The explanatory document laid with a draft order under section 12 must
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contain a recommendation by the Minister as to which of the following should
apply in relation to the making of an order pursuant to the draft order—
(a)
the negative resolution procedure (see section 14);
(b)
the affirmative resolution procedure (see section 15); or
(c)
the super-affirmative resolution procedure (see section 16).
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(2)
The explanatory document must give reasons for the Minister’s
recommendation.
(3)
Where the Minister’s recommendation is that the negative resolution
procedure should apply, that procedure shall apply unless, within the 21-day
period—
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(a)
either House of Parliament requires that the super-affirmative
resolution procedure shall apply, in which case that procedure shall
apply; or
(b)
in a case not falling within paragraph (a), either House of Parliament
requires that the affirmative resolution procedure shall apply, in which
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case that procedure shall apply.
(4)
Where the Minister’s recommendation is that the affirmative resolution
procedure should apply, that procedure shall apply unless, within the 21-day
period, either House of Parliament requires that the super-affirmative
resolution procedure shall apply, in which case the super-affirmative
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resolution procedure shall apply.