Draft Legislative Reform (Civil Partnership) Order 2010 - Regulatory Reform Committee Contents

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;
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 interest of any person adversely affected by it;
d) The provision does not remove any necessary protection;
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;
f) The provision is not of constitutional significance.

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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