ANNEX A
Recommendation 1
The Cabinet Office should carry out post-implementation
reviews of the costs and benefits estimated for each RRO, feeding
the findings in to a review of the Regulatory Impact Assessment
(RIA) process.
As with RIAs, post-implementation reviews need to
be proportionate to the impact of the policy. The Cabinet Office
encourages Departments to carry out post-implementation reviews
of the estimated costs and benefits contained in RIAs. Departments
are currently reviewing their regulations and drafting simplification
plans, which include measures to reduce administrative burdens
on business, and will be published by PBR 2006. Guidance on RIAs
was updated last year to emphasise the importance of post-implementation
review.
Recommendation 2
Departments should be assessed on their progress
in removing unnecessary regulations and controls and not simply
on their progress in simplifying measures.
Measures to simplify include measures to remove unnecessary
controls, whether these controls are contained in legislation
or elsewhere. There will be a requirement for the plans departments
are publishing by PBR 2006 to be revised annually. The Panel for
Regulatory Accountability (PRA) has been established to hold departments
to account for their regulatory performance. It scrutinises all
new regulatory proposals that impose a significant cost on
business. In doing so it provides a rigorous mechanism through
which the flow of new regulations is reduced, and through which
the quality of the regulations that it approves is enhanced.
The Better Regulation Commission will also work with the PRA in
scrutinising simplification plans.
Recommendation 3
All responses to the consultation on the Bill
should be published on the BRE website.
The BRE will publish all non-confidential consultation
responses on its website.
Recommendations 4 and 5
Following the precedent of the Scotland Act 1998,
order-making powers should be prohibited from reforming specified
areas (e.g. defence, Parliament).
The Bill should allow Parliament to:
i) veto the delivery of individual proposals
by order; and
ii) prevent the Government from reintroducing
an order to address this policy problem for two years after the
veto.
We acknowledge the concerns expressed by the Committee
and others regarding the breadth of the powers contained within
Part 1 of the Bill.
We have learnt the lessons from the 2001 Act, and
the Bill provides a flexible power to effectively deliver better
regulation. The better regulation aims in Clause 12 give an indication
of the intended use of the power.
There are a number of safeguards which ensure that
the order-making power will be used appropriately, such as the
general conditions and the topic specific restrictions on the
order-making powers. There are also procedural safeguards that
flow from the requirements for consultation, an explanatory document
and Parliamentary scrutiny.
Additionally, we have re-iterated two commitments
- that highly controversial proposals are not appropriate for
delivery by order, and that the Government will not force an order
through in the face of opposition from the Parliamentary Scrutiny
Committees, effectively giving the Committees a veto over individual
orders.
Important substantive safeguards come from the preconditions
in clause 3.
Where the Minister makes an order either reforming
the law (other than restating legislation) or amending or abolishing
the common law he must consider that the following conditions
(where relevant) are satisfied:
- There are no non-legislative solutions which
will satisfactorily remedy the difficulty which the order is intended
to address
- The effect of the order is proportionate to the
policy objective;
- The order strikes a fair balance between the
public interest and the interests of any person adversely affected
by it;
- The order does not remove any necessary protection;
- The order does not prevent anyone from continuing
to exercise any rights or freedoms which they might reasonably
expect to continue to exercise.
Where the Minister makes an order that restates legislation
or codifies the common law then he must only make an order where
he considers that it would make the law more accessible or more
easily understood. "Restating" legislation means replacing
the legislation with alterations only of form or arrangement.
Removing an ambiguity is not restating legislation for these purposes.
The preconditions on satisfactoriness and proportionality
derive from better regulation policy. Legislation should not
be made unless it is necessary to deal in a satisfactory way with
the difficulty which it is intended to address, and legislation
should not go further than is needed to remedy the problem which
it is intended to address.
A number of topic specific restrictions also apply
to the order-making powers, ensuring that orders cannot create
criminal penalties or authorize forcible entry, search or seizure,
or compel the giving of evidence inappropriately. In addition
to the topic specific restrictions carried forward from the 2001
Act, a new restriction has been added, so that orders cannot create
or increase taxation.
As the Bill enters Committee Stage, the Government
will listen carefully to the views of Parliament and seek its
support in achieving the right balance between powers and protections.
Recommendation 6
The Committees should have the power to suggest
amendments to super-affirmative orders, so that if both Houses
agreed to the amendments, the orders could only be made if the
amendments were accepted.
The Parliamentary Committees that examine orders
made by super-affirmative procedure under the 2001 Act can propose
amendments. Whilst the Government can take a view on whether
to accept the amendments it would like to avoid a situation where
an entire order is lost on the basis of a single amendment; in
practice Departments have usually accepted recommendations in
Committee reports.
For example, the Delegated Powers and Regulatory
Reform Committee (DPRRC) questioned the proposal under the Regulatory
Reform (Business Tenancies) (England and Wales) Order 2003 to
amend a provision in the Landlord and Tenant Act 1954. The Act
allowed landlords and tenants to agree a lease which excluded
security of tenure, as long as both parties agreed and the court
approved the lease. The RRO proposed that the process of court
approval be downgraded. The DPRRC were not satisfied that sufficient
evidence had been provided to justify downgrading the process,
and were specifically concerned that the proposal might not maintain
necessary protections for tenants. The department undertook further
research and subsequently the concerns of the Committee were allayed
and the RRO was subsequently successfully made. This example
demonstrates both the effectiveness of Parliamentary scrutiny
and the way that the conditions act as a restriction on the order-making
power.
Recommendation 7 - 10
The Bill should provide for more Parliamentary
scrutiny of orders, so that either:
i) Committees have 30 days rather than 21 days
to decide whether an order should undergo negative, affirmative
or super-affirmative procedure; and following this 30 days, Parliament
should have up to 30 further days to scrutinise orders;
ii) No orders should undergo negative procedure;
Parliament should have 60 days to either decide whether an order
should undergo affirmative or super-affirmative procedure, or
to scrutinise orders; and Parliament should have up to 30 further
days to scrutinise orders; or
iii) No orders should undergo negative procedure;
orders should undergo super-affirmative procedure by default;
Parliament should have 60 days to either decide whether an order
should undergo affirmative or super-affirmative procedure, or
to scrutinise orders; and Parliament should have up to 30 further
days to scrutinise orders.
We welcome the Regulatory Reform Committee's recognition
of the rationale behind our proposals on procedures. These are
practical suggestions and we will consider them carefully. The
most important thing about procedures is that they should work
well. The Government values the Committee's expertise in this
area and will consult with stakeholders as the Bill receives scrutiny
during its Parliamentary passage.
Recommendation 11
An additional option to those detailed in the
Bills Regulatory Impact Assessment which leaves the outer limit
on coverage unspecified while identifying areas that should be
off limits, as not appropriate for delegated legislation, and
also tightening aspects of Parliamentary control.
We welcome the RRC's continued constructive approach
and its recognition of the need for a flexible order making power
capable of removing unnecessary regulation, and the fact that
its recommendations are designed to "leave the outer limit
on coverage (of the order-making power) unspecified while identifying
areas that should be off limits, as not appropriate for delegated
legislation, and also tightening aspects of Parliamentary control",
but without altering the fundamental structure of the Bill. The
Government will consider the RRC's recommendations carefully,
and the RIA will be updated as necessary if substantive changes
are made to the Bill.
Recommendations 12
Changes should be made to the standing orders
setting the RRC's terms of reference, so that the RRC can:
i) assess proposals in terms of the new preconditions
for orders
ii) conduct inquiries on the wider better regulation
iii) forbid for 2 years the laying of an order
which has been vetoed by the Committee
iv) trigger debates if the Committee believes
an order is of political or legal importance
v) be given extra resources to deal with the
increased flow of orders
Appropriate changes may be required to Standing Orders
to enable delivery by the legislative framework put in place.
We believe the new Standing Order should generally replicate the
principle of the current one, namely that the Standing Orders
reflect the conditions on the order-making power. Resources are
a matter for the House, but we recognise the potential resource
implications and would want to see a scrutiny process that is
as effective as possible.
As the amendment of Standing Orders ultimately rests
with the House Authorities we will liase with them and the Committee
as necessary to ensure that Standing Orders appropriate for the
scrutiny and delivery of the intended flow of Orders under the
new powers are in place. Any changes necessary will be discussed
when the Bill has progressed.
Specifically with regard to Recommendation 13, we
welcome the agreement in principle that has been given to widen
the Terms of Reference of the Committee. A wider remit for the
RRC would also allow the Committee to contribute to further progressing
the Better Regulation Agenda.
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