Legislative reform orders and orders under the Fire and Rescue Services Act 2004, and the Localism Act 2011

31.36‘Henry VIII clauses' (see para 31.1 ) are sometimes included in statutes to enable the executive to make delegated legislation which amends the statutes themselves; but the scope of such a power is normally quite limited. There are however three relatively recent examples of wide powers that are subject to special procedures.

The Legislative and Regulatory Reform Act 2006 (c 51), Part 1, gives Ministers a power to make orders to amend any Act of Parliament, subordinate instrument etc, in circumstances where they consider that making the order would serve the purpose of removing or reducing ‘any burden … resulting … for any person from any legislation’ or in order to promote regulatory principles.1 There have been two previous similar order-making powers: deregulation orders under the Deregulation and Contracting Out Act 1994 (c 40) and regulatory reform orders under the Regulatory Reform Act 2001 (c 6).2 Section 3 of the 2006 Act sets out the preconditions for making such orders, notably requiring Ministers to consider that the policy objective could not be satisfactorily secured by non-legislative means and that the provision is not of constitutional significance. Sections 4–11 set out exclusions from the power and when consents are required to exercise it. Section 12 then introduces the procedure for making such orders. Following consultations specified in section 13, the Minister lays a draft order before Parliament, accompanied by an explanatory document including the Minister's views on why various of the statutory conditions are satisfied, and the details of the consultation, representations received and any changes made as a result of them. The document also contains the Minister's recommendation as to whether the draft order should be proceeded with in Parliament under the negative, affirmative or super-affirmative procedure.

The Fire and Rescue Services Act 2004 (c 21), s 5A(1),3 empowers specified fire and rescue authorities to do anything they consider appropriate for the purposes of the carrying-out of any of their functions, or for purposes incidental to those functions.4 Section 5C empowers Ministers to amend, repeal, revoke or disapply provisions in primary legislation by order, where they think that such a provision constrains relevant fire and rescue authorities from exercising those powers. Ministers are required to consider that the effect of the provision is proportionate to the policy objective, could not be satisfactorily secured by non-legislative means and that the provision is not of constitutional significance.5 Following consultations,6 the Minister lays a draft order before Parliament, accompanied by an explanatory document including the Minister's views on why various of the statutory conditions are satisfied, and the details of the consultation, representations received and any changes made as a result of them. The document also contains the Minister's recommendation as to whether the draft order should be proceeded with in Parliament under the negative, affirmative or super-affirmative procedure.7

The Localism Act 2011 (c 20), s 1, empowers local authorities to do anything individuals can do (subject to exceptions in ss 2–4). Section 5 empowers Ministers, where they think that a statutory provision constrains relevant local authorities from exercising powers conferred by s 1, to amend, repeal, revoke or disapply that provision by order. Section 6 sets out the preconditions for making such orders, which are analogous to those in the Fire and Rescue Services Act described above. Section 7 then introduces the procedure for making such orders. Following consultations specified in s 5 and possibly further consultation, the Minister lays a draft order before Parliament, accompanied by an explanatory document including the Minister's views on why various of the preconditions are satisfied, and the details of the consultation, representations received and any changes made as a result of them. The document also contains the Minister's recommendation as to whether the draft order should be proceeded with in Parliament under the negative, affirmative or super-affirmative procedure.

In Parliament, orders under these provisions are examined by the Regulatory Reform Committee in the Commons and by the Delegated Powers and Regulatory Reform Committee in the Lords. Either Committee may recommend ‘upgrading’ the proposed procedure (from negative to affirmative or super-affirmative, or from affirmative to super-affirmative), and such a recommendation has effect unless the relevant House rejects the committee's recommendation.8 To be effective, any decision to upgrade must be made within 30 days beginning with the day on which the draft order was laid before Parliament, not counting periods of prorogation or dissolution or when either House is adjourned for more than four days.9 A decision by either House to upgrade affects the procedure in both.

The Committees are also charged with examining each draft order for its compliance with the conditions in the Act, and also with regard to those matters which would otherwise be examined by the Joint Committee on Statutory Instruments. In the case of the Commons Committee, the procedure is set out in detail in Standing Order No 141 (for legislative reform orders) and Standing Order No 142 (in the case of orders under the 2004 and 2011 Acts).

If the super-affirmative procedure is applicable, there is a period of 60 days after laying in which either committee may recommend that the draft order should be proceeded with unamended, that a revised draft order should be laid, or that the draft order should not be proceeded with.10 Except in the last case, the Minister, after taking into account the recommendations of the Committees and any other representations made, may decide to proceed with the draft order in its original form or lay a revised draft order, in either case laying a statement of the representations received and of any revisions proposed. The Committees consider the draft order again (in its original or revised state as the case may be) and report on whether it should be approved. If both Houses then approve the draft order, it can be made.

If the affirmative procedure applies, the Committees may, within a period of 40 days after laying, report whether the draft order should be approved. If both Houses approve the draft order after the expiry of the period, it may then be made.

If the negative procedure applies, the Committees may, within a period of 40 days after laying, report whether the draft order should be made. Unless either House resolves that the draft order shall not be made within this period, it may be made without any further parliamentary proceedings.11

The legislation provides that if a Committee of either House recommends that no further proceedings be taken under the draft order (or revised draft order), or in the case of the negative procedure that the Minister should not make an order in the terms of the draft, the order may not be made unless the relevant House, in the same session, rejects the Committee's recommendation. The Commons Committee has, on one occasion, disapproved a draft order while stating that it did not intend to engage the statutory provisions.12

There have been relatively few examples of such orders; a list of legislative reform orders considered by the Committees is kept by the House of Lords Delegated Powers and Regulatory Reform Committee, and, in general, there have been at most four a year.13

Footnotes

  1. 1. Legislative and Regulatory Reform Act 2006, ss 1, 2. A ‘burden’ covers a financial cost, an administrative inconvenience, an obstacle to efficiency, productivity or profitability or a sanction affecting the carrying on of any lawful activity. For an order under s 2 (Power to promote regulatory principles), see SI 2008/960.
  2. 2. For the procedures under the 1994 and 2001 Acts, see Erskine May (22nd edn, 1997), pp 593–95, and ibid (23rd edn, 2004), pp 689–93. The 2001 Act provided that regulatory reform orders could contain powers to make ‘subordinate provisions orders'. The effect of the relevant parts of that Act are preserved so that such orders may continue to be made (Legislative and Regulatory Reform Act 2006, s 30(4)).
  3. 3. Inserted by the Localism Act 2011.
  4. 4. Section 5B of the Fire and Rescue Services Act 2004 provides exceptions to this power.
  5. 5. Section 5D of the 2004 Act.
  6. 6. Specified in s 5C of the 2004 Act.
  7. 7. See s 5E of the 2004 Act.
  8. 8. For examples of upgrading recommendations by committees, see LJ (2006–07) 837; CJ (2008–09) 99. In addition, either House may upgrade the procedure by resolution (s 15(6)(a)).
  9. 9. This method of calculation applies to all periods of days specified in the Act: note that it differs from that used under the Statutory Instruments Act 1946.
  10. 10. See Third Report of the Regulatory Reform Committee, Draft Legislative Reform (Horseracing Betting Levy) Order 2018, HC 1756 (2017–19) and Forty-first Report from the House of Lords Delegated Powers and Regulatory Reform Committee, Draft Legislative Reform (Horserace Betting Levy) Order 2018, HL 249 (2017–19), for an example of an order recommended to be treated as super-affirmative, where both the Commons and Lords Committees recommended that the proposed reforms were unsuitable for taking forward through delegated legislation.
  11. 11. For further details of the procedures, see ss 15–19 of the Legislative and Regulatory Reform Act 2006 which is materially applied to the other two Acts.
  12. 12. HC 181 (2008–09), para 22. The recommendation was disagreed to in the House and the draft Order agreed to, CJ (2008–09) 239, 250.
  13. 13. See www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-regulatory-reform-committee/lros/alphabetical-list-of-lros/; there have been two orders under the Localism Act, The Harrogate Stray Act 1985 (Tour de France) Order 2014 (SI 2014/1190) and The Harrogate Stray Act 1985 (Tour de Yorkshire) Order 2017 (SI 2017/34).