2 Consideration of Applicable Statutory
Preconditions and Tests
The preconditions and tests
5. The relevant statutory tests for us to consider
are set out in the following sections of the LRRA: 1 (requirement
for removal or reduction of a legislative burden), 3 (preconditions),
13 (consultation) and 14 (requirements for laying). House of Commons
Standing Order No. 141 also requires us to have regard to whether
a draft Order appears to make inappropriate use of delegated legislation
and to whether the draft Order gives rise to any issue under the
criteria for consideration of statutory instruments set out in
Standing Order No. 151.
6. Section 1 of the LRRA stipulates that Minister
of the Crown have power to make orders (legislative reform orders)
to remove or reduce burdens, or overall burdens, resulting directly
or indirectly for any person from any legislation (the phrase
"overall burdens" having the effect of permitting orders
in which some burdens are increased but the net effect is to reduce).
[4]
7. The preconditions in section 3 are that:
| a) |
The policy objective intended to be secured by the provision could not be satisfactorily secured by other means;
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| b) |
The effect of the provision is proportionate to the policy objective;
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| c) |
The provision, taken as a whole, strikes a fair balance between the public interest and the interest of any person adversely affected by it;
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| 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;
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| f) |
The provision is not of constitutional significance.
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8. Section 13 of the LRRA requires Ministers to consult
organisations representative of interests substantially affected
by the proposals, together with, inter alia, relevant defined
statutory bodies and such other persons as are appropriate. If,
as a result of that consultation, it appears appropriate to the
Minister to change the whole or any part of the proposals, there
must be further consultation with respect to the changes.
9. Section 14 requires that, on laying of the draft
Order, an explanatory document must explain the powers in the
LRRA under which the draft Order is to be made, introduce and
give reasons for the provision, explain why the section 3 tests
are considered satisfied, assess the extent of removal or reduction
of burdens, identify and give reasons for any function of legislating
(and relevant procedural requirements attached thereto), and give
details of the consultation, the responses to consultation, and
any changes made.
10. The criteria for assessing statutory instruments
under Standing Order 151 are principally: whether the measure
imposes a charge on public revenues; whether it contains an ouster
of court jurisdiction; whether it has purported retrospective
effect without authority in the parent statute; unjustifiable
delay in publication or laying; doubtful vires or unexpected use
of statutory powers under which it is made; need for elucidation;
and defective drafting.
Application of tests and preconditions
to current proposal
11. The current situation means that consular clients
are potentially faced with the need to travel to an area where
a consular officer is available. The alternative is that a consular
officer travels to the relevant territory. Neither situation is
particularly satisfactory or consistent with the facility of operation
apparently intended by the CPA 2004.[5]
The ED sets out several instances of the inconvenience caused
by the current position, including cancellations of planned ceremonies
with concomitant expense, not to mention distress. We agree
that this constitutes a burden within the terms of the LRRA, which
includes within its definition of "burden" both financial
cost and administrative inconvenience.[6]
12. We do not believe that requiring civil partnerships
to be conducted by consular officers when no such requirement
exists in relation to marriage can in any sense be construed as
a "necessary protection." All the other preconditions
in section 3 appear to be met self-evidently: the objective can
only be achieved through a change to the law, the measure is proportionate
and does not affect any pre-existing rights or freedoms, and there
are no adversely affected persons.
13. The consultation procedure set out in paragraph
3 of this Report meets the requirements of section 13, and the
procedural requirements for laying set out in section 14, including
provision of a satisfactory ED, have been complied with. There
appear to be no objections under the Standing Orders. We therefore
conclude that all relevant preconditions and tests have been met.
4 Section 2 of the LRRA deals with power to promote
regulatory principles and is not relevant to the present measure Back
5
See Impact Assessment Back
6
Section 1(3)(a) and (b) Back
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