APPENDIX 1: CORRESPONDENCE WITH THE
Letter from the Chairman to the Lord Chancellor,
23 January 2006
The Committee, which I chair, has noted with interest
the publication of the Legislative and Regulatory Reform Bill.
Whilst, in due course when it comes before the House of Lords,
we shall of course carry out in-depth scrutiny of its provisions,
on a preliminary reading the bill appears to be of first class
constitutional significance. The Committee has therefore asked
me to write to you, in your capacity as the Government's guardian
of the constitution, to outline the nature of the concerns raised
by the proposed legislation, and to do so before second reading
in the Commons.
As you know, the Committee eschews comment on the
policy underlying measures it scrutinises. We will not therefore
seek to question the objective, as explained in the Cabinet Office's
press release, to tidy up and improve the processes involved in
regulation and reduce red tape. But we are concerned by the potential
of the Bill's proposals, if enacted, markedly to alter the respective
and long-established roles of Ministers and Parliament in the
legislative process. This is because Part 1 of the Bill seeks
to confer unprecedentedly wide powers on Ministers to make Orders
to amend, repeal and replace any legislation (and to grant
powers in respect of rules of the common law in relation to Law
Commission recommendations), with only a very restricted role
for Parliament in the process. The reforms thus have the potential
to be so far reaching that especial consideration will need to
be given by the Committee to the risk of inadvertent and ill considered
May I add that it is disappointing that the Bill
was not first published in draft, as this is the sort of constitutional
reform measure that would benefit greatly from effective pre-legislative
I am sending a copy of this letter to Jim Murphy
MP at the Cabinet Office.
Reply from the Lord Chancellor to the Chairman, 8
I am replying to your letter of 23 January on the
Legislative and Regulatory Reform Bill. I am grateful for an early
indication of the Committee's thinking on the Bill and for the
opportunity to comment on it.
Your letter expresses concern about what the Committee
sees as the unprecedentedly wide order making powers that would
be available to Ministers to seek amendments to primary legislation
and, in the case of orders implementing Law Commission recommendations,
the common law. The Committee considers that these proposals would
alter the respective and long-established roles of the Ministers
and Parliament in the legislative process. You describe the role
of Parliament in the process of scrutiny of the orders envisaged
in the Bill as "very restricted".
I accept that the power to make orders in the Bill
is wide ranging. However, in developing the proposals set out
in the Bill the Government has been mindful at all times of the
need to balance the objectives of the Bill with the need for sensitivity
in managing the relationship between the executive and the legislature.
It might therefore be of assistance to the Committee if I set
out some of the thinking behind the Bill.
The Bill replaces the Regulatory Reform Act 2001,
in which I have a special interest, as I was the Minister responsible
for its passage through the House of Lords. The 2001 Act itself
succeeded the Deregulation and Contracting Out Act 1994. Both
Acts were intended to remove onerous restrictions upon business
by the appropriate use of Henry VIII powers. The 2001 Act extended
these powers so that they could reform entire regimes and remove
restrictions from the public sector as well as business.
During the passage of the 2001 Act through Parliament,
the Government undertook to review its operation. This review
took place last year. We found that the powers and procedures
available under the 2001 Act had not enabled us to meet its objectives.
This conclusion was reached after careful consideration and was
supported by consultation on proposals for reforming the 2001
Act. The Bill currently before Parliament therefore develops the
powers in the 2001 Act in order to allow Government and Parliament
to support business and the public and voluntary sectors in their
work by providing improved means to deliver the Government's Better
Regulation objectives. Similarly, the proposal in the Bill to
give effect to Law Commission recommendations will enable the
Government and Parliament to deliver worthwhile and carefully
considered law reform in a timely fashion. This is something that
has not proved possible under the 2001 Act, despite the expectations
of Ministers and the scrutiny committees.
In bringing this package of reforms before Parliament
the Government shares the Committee's sensitivity to ensuring
that any power to amend primary legislation via orders is used
proportionately and that the possibility of abuse is minimised.
The Government considers that its proposals balance the need for
effective delivery with effective safeguards to guarantee appropriate
levels of scrutiny. The Procedures in the Bill are designed to
ensure a level of scrutiny proportionate to the size, complexity
and relative level of controversy of each proposed order and to
determine this on a case by case basis. Furthermore, Parliament
has the final say in what degree of scrutiny is appropriate and
could, for example, require that all Orders be made superaffirmative.
The onus is therefore on the Government to justify why less onerous
scrutiny is appropriate.
The Government has already made clear its intention
that it will not use the powers in the Bill to implement highly
controversial proposals or to press on with proposals to which
the committees object.
Taking these provisions with the preconditions on
the exercise of the powers, the obligation to consult on proposals
to make an order and to lay draft orders and explanations before
both Houses, I am confident that the Bill will provide sufficient
guarantees that the powers are used appropriately.
I note your disappointment that the Bill was not
subject to pre-legislative scrutiny. I share your view of the
value of this process. Equally there are difficult decisions to
be taken on which Bills can be made available for pre-legislative
scrutiny, bearing in mind the Government's and Parliament's priorities.
In this case the proposal for a Bill was the subject of public
consultation last summer. One feature of the responses to that
consultation was that the need to deliver the Better Regulation
agenda was urgent. The Government therefore concluded that it
should bring forward its proposals for legislation to enable the
delivery of that agenda as soon as possible.
As ever, the Government will of course pay close
attention to the views of individual Parliamentarians and Committees
of both Houses as the Bill progresses through Parliament. We have
already received the report of the Regulatory Reform Committee
and are considering it carefully. The Government therefore looks
forward to engaging with the Committee on the Bill.
I am copying this letter to Jim Murphy.
Letter from Jim Murphy, MP to Andrew Miller, MP,
12 April 2006
As you know, the Legislative and Regulatory Reform
Bill has potential to make a real impact on reducing burdensome
regulation. This Bill is the third attempt by a government since
1994 to have an Act that can improve the way we regulate for the
public sector, businesses, charities and the voluntary sector.
We must get this third attempt right if we are not to put our
shared ambitions on the better regulation agenda at risk.
As I've mentioned before, the Regulatory Reform Committee
and its equivalent in the Lords have played an important role
in constructively scrutinising the proposals in the Bill. And
I would like to thank you for the important contribution you made
during the Bill's committee stage.
The Bill's passage so far has served to confirm the
general consensus that the 2001 Act is not up to the job of delivering
the action on red tape that businesses, public servants and voluntary
workers tell me they need. That's because the 2001 Act is too
narrowly defined and too complicated to use. The new Legislative
and Regulatory Reform Bill aims to deal with these shortcomings.
However in its current form, the Bill has caused
some people to voice concern about the order making power of the
Bill. Some of the wilder concerns have ranged from government
being able to use the power to abolish trial by jury to repealing
the Magna Carta. These and other farfetched concerns about our
constitutional arrangements could never happen as a result of
this Bill. Similar wild accusations were made in 1994 and 2001
and proved to be groundless.
However, I have listened to more measured concerns
about using the power for changes to legislation that deliver
no better regulation benefit. Again I must stress that this Bill
is to deliver our better regulation agenda and nothing else.
I am writing to you today to confirm my intention
to move this debate on to the real agenda of better regulation
and to remove any cause for concern that the Legislative and Regulatory
Reform Bill could ever be used for anything other than achieving
our better regulation objectives.
Let me be quite clear, safeguards already in the
Bill ensure that the order-making power cannot be used to remove
necessary protections, rights or freedoms. And I have already
made a commitment to give Parliament a statutory veto on the face
of the Bill. In addition, I am now looking into making the power
more clearly focused on delivering better regulation objectives.
But I am determined that the power is framed in such a way that
we still are able to deliver real change, including the initiatives
that departments will be proposing in their forthcoming simplification
plans and the benefits of our ambitious admin burdens reduction
programme. There is real determination in Government to deliver
on these commitments.
The types of initiative we would want to use the
Bill for include the simplification and consolidation of legislation
so it is easier for business, the public and voluntary sectors
to work with; ensuring that inspection is risk-based to reduce
regulatory burdens; the streamlining of consent regimes to make
them more transparent; the reduction of administrative burdens
and the exemption in certain key instances of SMEs, charities
and others from burdensome regulation.
I hope to bring forward appropriate amendments by
Commons Report Stage to achieve these aims.
All those who want to see real action taken to lighten
the regulatory load on business, our public services and the voluntary
sector will be reassured by focussing the order making power on
better regulation objectives. There will now be a clear expectation
from businesses, the public sector and voluntary workers that
this Bill receives broad support.