Legislative Reform Orders

Legislative Reform Orders

Section 1 of the Legislative and Regulatory Reform Act 2006 (the “LRRA”) gives Ministers certain powers to make orders (“legislative reform orders”) that remove or reduce burdens resulting directly or indirectly from legislation, and section 2 makes similar provision in relation to orders that promote principles of better regulation.  Section 3 sets out facts that the Minister proposing to make a legislative reform order has to address.  They include positive tests (need for legislation, proportionality and fair balance of interests) and negative ones (no removal of necessary protection, no unreasonable interference with rights and freedoms, no constitutional significance).  The Minister can only proceed if satisfied that all relevant section 3 tests are passed.

The LRRA cannot be used to:

• impose, abolish or vary any tax;

• create a new criminal offence or increase the penalty for an existing offence so that it is punishable above certain limits;

• provide for novel powers covering forcible entry, search or seizure, or the giving of evidence under compulsion;

• amend or repeal any provision of Part 1 of the LRRA;

• amend or repeal any provision of the Human Rights Act 1998;

• remove burdens arising solely from common law;

• remove or reduce burdens which fall solely on Ministers or Government Departments, except where they affect the Minister or Government Department in the exercise of a regulatory function;

• confer or transfer any function of legislating on anyone other than a Minister, persons or bodies that have statutory functions conferred on or transferred to them by an enactment, or a body or office which has been created by the legislative reform order itself.

The Government has also undertaken that the LRRA will not be used to deliver highly controversial proposals.

Before a Minister may make a legislative reform order, he or she must take the following three steps:

• consult widely with those affected by the proposals

• lay before Parliament a draft order and explanatory document, and allow time for Parliamentary consideration

• obtain Parliament’s sanction for making the order.

Only once all these steps have been successfully completed may the order become law.

The role of the Committee in considering draft orders

The Committee receives copies of all consultation documents issued by the Government, together with the non-confidential consultation responses and details of any changes to the draft order made as a result of those responses, but its formal duties do not begin until the Government has laid before Parliament a proposal for an order.

When the draft order is laid before Parliament, the Minister must recommend one of three possible parliamentary procedures for dealing with it.  In summary, they are: 

• The negative resolution procedure, under which the order may be made unless Parliament either disagrees within 40 days of laying or (within 30 days) recommends one of the other procedures;

• The affirmative resolution procedure, under which both Houses of Parliament must expressly approve the draft order before the order can be made.  They have 40 days to consider it first.  They can also (within 30 days) recommend upgrading the procedure to super-affirmative;

• The super-affirmative procedure, which requires the Minister to have regard to representations, House of Commons and House of Lords resolutions, and Committee recommendations that are made within 60 days of laying, in order to decide whether to proceed with the order and (if so) whether to do so as presented or in an amended form.  Again, an order dealt with under this procedure must be expressly approved by both Houses of Parliament before it can be made. 

In practice, the House of Commons delegates the decisions on whether to upgrade the procedure and whether to approve or disapprove the draft order to the Regulatory Reform Committee (although it can override those decisions if it wishes).  It can also go further than disapproval by recommending a veto (which can be rejected by resolution of the House in the same Session).

The Committee considers whether the proposed order meets all the criteria laid down by the LRRA and by the Standing Order that governs the Committee’s work.  (See draft legislative reform order criteria) http://www.parliament.uk/parliamentary_committees/regulatory_reform_committee/regulatory_reform_criteria.cfm  It considers the draft order and the explanatory document laid alongside it. It may then seek further written or oral evidence either from the Government Department concerned or from other interested parties.

Once the Committee is satisfied that it has all the information it requires, it makes a substantive report to the House assessing the proposal against all the relevant criteria.

Consideration in the House of legislative reform orders

The final stage of the parliamentary process in respect of legislative reform orders that are subject to the affirmative or super-affirmative procedures is the consideration by each House of a motion to approve the draft order.  The procedure followed in the House of Commons, which is governed by Standing Order No. 18, will depend on the Committee’s conclusions concerning the draft order:

• if the Committee recommends unanimously that the draft order should be approved, the question is put forthwith, without debate

• if the Committee’s recommendation that the draft order should be approved is made only after a division in Committee, there may be up to an hour and a half’s debate on the motion to approve the draft order

• if the Committee recommends that the draft order should not be approved, there may be up to three hours’ debate on a motion to disagree with the Committee’s report, following which, if that motion is agreed to, the motion to approve the draft order is put forthwith, with no further debate.

A resolution to reject a veto commendation is taken on the floor of the House without any time limit specified in Standing Orders.

Once the draft order has been approved by both Houses of Parliament, the Minister may bring it into law.