LEGISLATIVE REFORM ORDER-
MAKING POWERS

Guidance note for officials

LEGISLATIVE AND REGULATORY
REFORM ACT 2006

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This guidance is for
official use only.

http://bre.berr.gov.uk/regulation/reform/bill/

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Executive Summary

EXECUTIVE SUMMARY
What Legislative Reform Orders Can Do …

What is a Legislative Reform Order?
A Legislative Reform Order (LRO) is a statutory instrument made under the powers
of the Legislative and Regulatory Reform Act 2006 (LRRA) which can amend primary
legislation. The LRRA repeals the Regulatory Reform Act 2001 (RRA) and LROs
replace Regulatory Reform Orders (RROs).

LROs form a key part of the better regulation agenda and provide a legislative
mechanism for turning the aims of better regulation into reality for end-users.

Key Features
•  Under section 1 of the LRRA a Minister of the Crown can make an LRO for the
purpose of removing or reducing any burden resulting from legislation. A
”burden” is defined as a financial cost; an administrative inconvenience; an
obstacle to efficiency, productivity or profitability; or a sanction, criminal or
otherwise, which affects the carrying on of any lawful activity (section 1(3)).
•  This definition of a burden under the LRRA is intended to be less restrictive
than the definition under the RRA. It focuses on the removal and reduction of
burdens, is therefore outcome-focussed and dispenses with many of the
technical requirements imposed by the RRA.
•  Comparing the position before and after the LRO has been made, the Minister
must consider that there is a person for whom a burden or the overall burdens
will have been removed or reduced.
•  LROs may reform one or more Acts, various forms of subordinate legislation,
and Measures of the National Assembly for Wales (Assembly Measures) so as
to deal, for example, with cases where a burden stems from overlapping
legislation.
•  LROs can repeal and replace, amend or re-state legislation which is imposing
burdens on any person, including a business, an individual, a voluntary
organisation, or a charity.
•  LROs can impose new burdens only in limited circumstances. It is possible
under section 1 to remove or reduce a burden for one person and in so doing
impose or increase a burden for another, but only if the increase is the result
of the removal or reduction of a burden on a person. There must be a close
nexus between the removal and the imposition of a burden.
•  Under section 2 of the LRRA a Minister can make an LRO to ensure that
regulatory functions are exercised so as to comply with the Better Regulation
Commission’s five Principles of Good Regulation. These are that regulatory
activities should be carried out in a way that is transparent, accountable,
proportionate, consistent, and targeted only at cases in which action is needed
(section 2(3)).

•  Section 20 of the LRRA enables the order-making powers under sections 1
and 2 to be exercised together with the power under section 2(2) of the
European Communities Act 1972 (ECA). This will enable a single LRO to
implement Community law under section 2(2) of the ECA and, for example,

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remove or reduce burdens resulting from pre-existing statutory provisions
which are thought to be unnecessary following the implementation of new EC
requirements.

Preconditions and Restrictions
Any LRO must meet the stringent preconditions set out in section 3 of the LRRA. An
LRO may only be made if a Minister considers that the following preconditions, where
relevant, are satisfied:
•  There are no non-legislative alternatives that will achieve the intended
outcome of the provision;
•  The effect of the provision is proportionate to the policy objective;
•  The provision strikes a fair balance between the public interest and the
interests of any person adversely affected by it;
•  The provision does not remove any necessary protection;
•  The provision does not prevent anyone from continuing to exercise any right
or freedom which they might reasonably expect to continue to exercise;
•  The provision is not constitutionally significant; and
•  Where a provision will restate an enactment, it makes the law more accessible
or more easily understood.

An LRO cannot:
•  deliver highly controversial reforms;
•  remove burdens which fall solely on Ministers or Government Departments
(i.e. someone else must also benefit), except where the burden affects the
Minister or 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; a body or office which has been created by the LRO
itself;
•  Impose, abolish or vary taxation;
•  create a new criminal offence or increase a penalty for an existing offence
above certain limits. It can re-state existing penalties over those limits;
•  provide authorisation for forcible entry, search or seizure or for the compelling
of giving of evidence unless the LRO repeals provisions to that effect and the
new provision is exercisable for similar purposes;
•  amend or repeal any provision of Part 1 of the LRRA; or the Human Rights Act
1998;
•  make provision (other than consequential, supplementary, incidental or
transitional provision) within the legislative competence of the National
Assembly for Wales, other than consequential, supplementary, incidental or
transitional provision without the agreement of the Assembly;
•  make provision that the Welsh Ministers, the First Minister for Wales or the
Counsel General to the Welsh Assembly Government (Counsel General)
could make except with the agreement of the Welsh Ministers. LROs which
confer a function on the Welsh Ministers, the First Minister of Counsel
General, or which modify or remove or restate any of their functions, cannot
be made except with the approval of the Welsh Ministers;
•  make provision which would be within the legislative competence of the
Scottish Parliament if contained in an Act of that Parliament;
•  amend or repeal any Northern Ireland legislation.

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Executive Summary

• LROs may not remove burdens arising solely by common law. Common law
elements can only be dealt with to the extent of tidying up the boundary of a
statutory scheme.

How are Legislative Reform Orders made?

Pre-consultation - To identify whether your proposals would be appropriate for
delivery by LRO, you should fill in the proforma (link to GSI website) together with
your departmental lawyers. Your departmental BRE contact may also be able to
provide advice about what in broad terms is and is not possible by LRO. Should
departmental lawyers have difficult legal questions about whether policies are within
the vires of the LRRA, BERR legal will be able to help further. Most LROs have an
effect in Wales, and therefore you should at this point also contact Welsh Assembly
Government officials so that the implications of the proposed LRO with regard to
Wales can be worked out (in certain instances, consent of Welsh Ministers, or of the
Assembly is required, and in other circumstances Welsh Ministers must be
consulted). (See Appendix A for contact details).

Consultation – Before laying an LRO, the LRRA requires a Minister to consult those
organisations that appear to him to be representative of interests substantially
affected by the proposals, as well as relevant bodies such as the Welsh Ministers
and the Law Commission, the Scottish Law Commission or the Northern Ireland Law
Commission. Consultation DA/LP clearance

Drafting an LRO – As LROs amend primary legislation they cannot be laid before
Parliament until they are cleared by Parliamentary Counsel. In cases where the LRO
proposes amendments to Welsh Assembly Measures or modifies functions of the
Welsh Minister the consent of the National Assembly for Wales or the Welsh
Ministers must be obtained.

Parliamentary Scrutiny – After consultation and once Parliamentary Counsel has
cleared the draft LRO, the LRRA requires a draft of the LRO and explanatory
document to be laid before Parliament to assist Parliament in scrutinising the draft
LRO. LP Cabinet Committee clearance must be obtained to lay the draft LRO and
the Explanatory Document before Parliament. Please contact LP Secretariat before
sending the clearance letter. The LRO will then be subject to concurrent scrutiny by
the Regulatory Reform Committee in the House of Commons and the Delegated
Powers and Regulatory Reform Committee in the House of Lords. See Appendix A
for contact details.

In the Explanatory Document, the Minister must recommend one of three alternative
procedures for Parliamentary scrutiny: negative, affirmative or super-affirmative
procedure. The Parliamentary procedure recommended by the Minister will depend
on factors such as the significance and controversiality of the draft LRO and must be
cleared with Commons and Whips Offices before the LRO and Explanatory
Document are laid in Parliament.

Although the Minister can make the recommendation about procedure, the
Parliamentary Committees have the final say about which procedure will apply.

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Parliament can require a more onerous procedure to that recommended by the
Minister, but not a less onerous one.

Negative Resolution Procedure – This allows Parliament 40 days to scrutinise a
draft LRO after which a Minister can make the LRO if neither House of Parliament
has resolved during that period that the LRO should not be made.

Affirmative Resolution Procedure – This allows Parliament 40 days to scrutinise a
draft LRO after which a Minister can make the LRO if it is approved by a resolution of
each House of Parliament.

Super-Affirmative Resolution Procedure – This is a two-stage procedure during
which there is opportunity for the draft LRO to be revised by the Minister. This allows
Parliament 60 days of initial scrutiny, when the Parliamentary Committees may report
on the draft LRO, or either House may make a resolution with regard to the draft
LRO. The Minister must have regard to any such reports or resolutions.

If, after the expiry of the 60-day period, the Minister wishes to make the LRO with no
changes, he must lay a statement giving details of any representations made. The
Parliamentary Committees then have a further 15 or 25 days of scrutiny. If the
Committees raise no objections, and each House of Parliament has approved it by
resolution, the Minister may then make an LRO in the terms of the draft.

If the Minister wishes to make material changes to the draft LRO he must lay the
revised draft LRO and a statement giving details of any representations made during
the scrutiny period and of the revised proposal before Parliament. The Minister may
only make the LRO if it is approved by a resolution of each House of Parliament. If
the draft LRO is one which makes proposals that trigger the need for consent of the
Welsh Ministers or the Assembly, material changes to the draft LRO at this stage
may trigger a further need for consent from Wales before the LRO can be made.

Under each procedure, the Parliamentary Committees have the power to recommend
that the Minister not make the draft LRO (in other words veto the further passage of
the LRO). If one or both of the Parliamentary Committees makes such a
recommendation, a Minister may only proceed with it if the recommendation is
overturned by a resolution of the relevant, or both Houses.

Process and indicative timetable for making an LRO

Timetable
The average time for the RROs under the RRA from issue of consultation document
to RRO being made was 11 months. The average time super-affirmative LROs will
take is likely to be similar to that for RROs under the RRA. For LROs subject to the
negative or affirmative resolution procedure, the time an LRO will take will be
reduced to 40 days of Parliamentary scrutiny and should therefore be around two
months less. An indicative timetable is as follows:

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How to calculate how long an LRO will be in Parliament
To calculate the time necessary for Parliamentary scrutiny of a negative and affirmative
LRO and the first scrutiny stage of a super-affirmative LROs, non-sitting Fridays and
weekends should be included, but not Parliamentary recesses of more than 4
days.

The time Parliamentary Committees have to consider an unrevised or revised super-
affirmative LRO at the second scrutiny stage is measured in sitting days, which
means that non-sitting Fridays and weekends are not included.

It should also be noted here that the Parliamentary Committees enjoy the right of
veto of LROs on any grounds and at any time.

Resources and Throughput

Resources
An LRO is an excellent option for giving legislative effect to necessary reform that
would not otherwise find Parliamentary time. However, the work is heavily front-
loaded with policy and legal resources needed for the preparation of the consultation
document, the draft LRO and the Explanatory Document. At the very outset, your
Department should therefore be prepared to commit a similar amount of resources to
preparing an LRO as it would to preparing a Bill.

Parliamentary Counsel
As Parliamentary Counsel will have a role in approving the text of the draft LRO, you
will need to factor in to your planning the other demands on Counsel’s time and
availability. There are special procedures aimed at ensuring that Parliamentary
Counsel is involved at an early stage and can plan his workload. The main features
of the process are that:

•  Departmental lawyers will agree with BERR legal (legal advisers to the
BRE) when an LRO is ready to go to Parliamentary Counsel for checking;

•  Allow up to 12 weeks for Parliamentary Counsel to comment on the draft
LRO; and

•  The draft LRO should ideally be prepared alongside the consultation
document and, in any event, shortly afterwards, rather than being left until
a late stage. See Appendix D for procedures for working with
Parliamentary Counsel.

Throughput
Please note that the parliamentary Scrutiny Committees have indicated that they are
content to consider “up to two items laid in any sitting week, provided that at least
one of those is a draft super-affirmative LRO, at "final stage" scrutiny.

In order to ensure an even flow of LROs, BRE asks that you seek clearance from
BRE for a date for laying a draft LRO. This is to allow BRE to liaise with
Parliamentary business managers as well as the relevant Committees to achieve a
steady flow of LROs.

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Chapter 1: Introduction

CHAPTER 1: INTRODUCTION

Who is this Guidance for?

1.1 This guidance is intended for official use within central Government
Departments, and is for policy administrators and legal advisers. It is intended
to provide a user-friendly and step-by-step explanation of the order-making
powers under Part 1 of the Legislative and Regulatory Reform Act 2006 (LRRA),
and to detail the steps that departments need to take to ensure its effective use.
This guidance has been prepared in conjunction with the Welsh Assembly
Government and could also be used by Welsh Assembly Government officials.

1.2  The text of the LRRA , which came into force on 8 January 2007, is available on
the BRE website.

1.3  This guidance should be read in conjunction with the LRRA (as amended by the
Government of Wales Act 2006) and the Explanatory Notes for the Act, also on
the BRE website. It is produced by the Better Regulation Executive (BRE) in
the Department for Business, Enterprise and Regulatory Reform (see Appendix
A for contact details), and comments and suggestions for its improvement would
be welcomed.

1.4  Further detail on the background to and development of the Act is available from
the BRE website. Relevant Government undertakings made during the passage
of the Bill through Parliament are set out at Appendix B.

Order-making powers

1.5  An LRO under the Legislative and Regulatory Reform Act is a powerful tool.
Part 1 of the LRRA includes two order-making powers which a Minister may use
to amend primary legislation.

1.6  The power under section 1 allows a Minister to make an LRO for the purpose of
removing or reducing any burden, or the overall burdens, resulting directly or
indirectly from legislation. “Burden” is defined as:
•  a financial cost;
•  an administrative inconvenience;
•  an obstacle to efficiency, productivity or profitability;
•  a sanction, criminal or otherwise, which affects the carrying on of any
lawful activity.

1.7  This definition of burden differs from that in the Regulatory Reform Act 2001
(RRA). It is outcome-focussed on burdens being removed or reduced from
business, voluntary and charitable organisations as well as individuals. Unlike
the concept of burden under the RRA, it is not bound by technical analysis of
what constitutes a legal burden.

1.8  The order-making power under section 2 allows a Minister to propose an LRO
which he considers would serve the purpose of securing that regulatory
functions are exercised so as to comply with the Better Regulation

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Chapter 1: Introduction

Commission’s five Principles of Good Regulation. These are that regulatory
activities should be carried out in a way that is transparent, accountable,
proportionate, consistent, and targeted only at cases in which action is needed.

1.9  Before attempting to use an LRO to implement a policy proposal, you must be
absolutely certain that you understand what is involved, have gone through this
guidance, the LRRA and the Explanatory Notes carefully and have completed
the proforma at Appendix E. BRE will be happy to provide any additional
information or answer any questions you might have.

Why use an LRO?

1.10 The order-making process is rigorous – but it is also more straightforward than
Bill work. Because LROs are classed as secondary legislation, you will not have
to compete for space in the main legislative programme as you would for a Bill.
As a result, they are an excellent option for giving legislative effect to necessary
reform that would not otherwise find Parliamentary time.

1.11 Another advantage of LROs over Bills is that they are not tied to Parliamentary
annuality. So you could introduce a proposal to Parliament shortly before the
end of one session and be able to continue with it at the beginning of the next.
Unlike Bills, LROs do not fall at the end of one session. You can even continue
with a draft LRO brought forward in one Parliament into the next.

1.12 Unlike Bills, the department responsible is directly in charge of progress, which
is not influenced by pressure of other Parliamentary business. The order-
making route offers a more secure route for giving effect to a desired policy
outcome, assuming that it is within vires and is not “highly controversial”.

1.13 LROs also differ from a Bill in that all the work is front-loaded. Therefore, all
issues must be resolved and the final policy must be fully thought through and
justified at the outset of the pre-legislative scrutiny process. Unlike a Bill,
content cannot be amended as is possible for a Bill going through the House.
Under the super-affirmative procedure, however, the Minister may, in the light of
Committee recommendations or representations, amend the draft LRO.

1.14 The width of the order-making power brings with it some stringent safeguards.
Consequently, LROs should NOT be seen as means of EITHER:

•  fast-tracking proposals (we expect LROs to take an absolute minimum of 7
months from policy formulation to completion); OR

•  dealing with highly controversial or Party-political measures; OR

• By-passing
Parliamentary scrutiny.

Resources Needed

1.15 The order-making process ensures that Parliament gets to scrutinise each
proposed LRO carefully. As LROs are capable of achieving large-scale

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Chapter 1: Introduction

reform, they will require equivalent resources – both policy and legal - to
Bills.

1.16 The upshot is that your Department must be prepared to commit a similar
amount of resources to preparing an LRO as it would be for a Bill, and that
these resources must be in place at the very outset. In this way, you can
ensure that your LRO proceeds with the minimum of problems.

Timetable
1.17 The average time for RROs under the RRA Act 2001 from issue of consultation
document to LRO being made was 11 months. For LROs subject to the super-
affirmative resolution procedure the average time needed to make the LRO is
likely to be similar under the LRRA 2006. For LROs subject to the negative or
affirmative resolution procedure, the Parliamentary scrutiny period will be
reduced to 40 days. Time needed to make a negative or affirmative LRO from
issue of the consultation document should therefore be around 9 months.

Role of Government Department, BRE and BERR legal in the order-
making process

1.18 As opposed to arrangements under the RRA 2001, departments will be
responsible for the entire process of making an LRO.

1.19 However, you should keep BRE and BERR legal informed throughout the policy
development process. You should also keep Welsh Assembly Government
officials involved in the progress of your LRO, except where it is beyond doubt
that there is no requirement for agreement of the Assembly, Welsh Ministers or
consultation with the Welsh Ministers.

The Department’s Responsibilities
1.20 Chapters 3-7 of this guidance set out in detail each of the procedural steps for
making an LRO, but in summary the Government department proposing the
LRO will be responsible for:

• Establishing whether an LRO is the appropriate mechanism for delivering the
desired policy reform, including filling in the pro-forma;

• Drafting consultation document and LRO;

• contacting BERR legal for agreement that the draft LRO is ready to send to
Parliamentary Counsel;

• Leaving at least 12 weeks for Parliamentary Counsel to consider the draft
LRO;

• Preparing and getting collective DA and LP agreement for a consultation
document and partial Impact Assessment on the proposed LRO as set out in
Cabinet Committee Business guidance.

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Chapter 1: Introduction

• Consulting Welsh Assembly Government officials at an early stage to work out
implications of proposals for Wales, and to ensure that requirements to consult
or obtain consent of Welsh Ministers are complied with, and that Welsh
Ministers have an opportunity to put the proposals to the Assembly for
approval where that is required;

• Publishing the consultation document;

• Providing BERR legal and Parliamentary Counsel with new instructions
following consultation if the draft LRO has been amended;

• Preparing the Explanatory Document, including a full Impact Assessment
(RIA);

• Securing collective LP agreement for laying the draft LRO, Explanatory
Document and RIA after contacting LP Secretariat to discuss timings and the
Leader of the Common’s availability;

• Agreeing with BRE (who in turn will agree with the Commons and Lords Whips
and the Committees) an appropriate time for laying the draft LRO in
Parliament;

• Reminding the relevant Parliamentary Committees at least a week in advance
of the laying date;

• Laying in Parliament the draft LRO, the Explanatory Document and Impact
Assessment;

• For a super-affirmative LRO, giving written or oral evidence to the
Committees;

• For a super-affirmative LRO, laying the draft LRO for second stage scrutiny;

• In the case of affirmative and super-affirmative LROs, ensuring the Minister
makes the motion for Parliament to agree to the making of the LRO.

1.21 Good relations with the scrutiny Committees will be critical to the success of
your proposal. BRE therefore recommends that you get in touch early on with
the Committee clerks to discuss your proposals. It may be that early meetings
with the Clerks and their lawyers will help forestall misunderstandings or
indicate areas where further evidence to the Committee would be helpful.

The Role of the BRE
1.22 Under the LRRA 2006, BRE is responsible for keeping an overview of the
Government-wide order-making programme. In practice this means that BRE
will take much less of a hands-on role in the evolution of individual LROs. Your
individual departmental contacts in BRE will be able to discuss policy proposals
with you and they will also be able to put you in touch with BRE colleagues who
can help with specific LRRA 2006 issues (For a list of BRE contacts, see
Appendix A).

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Chapter 1: Introduction

1.23 BRE has an advisory role under the LRRA 2006 order-making programme that
you can make use of as you see fit. The only point in the process at which you
must seek BRE’s agreement is the proposed date for laying a draft LRO
before Parliament.

1.24 This is because BRE is responsible for the relationship with Parliament
concerning the Government’s overall LRO programme. As a result of the time
constraints which the Act requires for the Parliamentary scrutiny of LROs,
Committees wish to ensure that there is a coordinated and steady flow of LROs,
and not a barrage of LROs being laid in Parliament at any one time. To ensure
Parliamentary Committees can manage their work-load effectively, BRE needs
to agree with them a timetable for laying LROs with both the Commons and
Lords Whips and the Committees. This is why we ask that you agree with the
BRE appropriate timing for laying your draft LRO. (See Appendix A for contact
details).

1.25 If your LRO is time-critical you will need to make this clear at the outset.

1.26 Managing a steady flow of LROs in this way will ensure that the Government
respects the offer given by Parliamentary Scrutiny Committees that they are
content to consider up to two items laid in any sitting week, provided that at
least one of those is a draft super-affirmative LRO, at "second-stage" scrutiny.
The Committees are also content to deal with the laying before Parliament of up
to two of the less complex proposals at "first-stage" scrutiny.”

1.27 In summary, this means that the main changes in working practices under the
2006 Act are that you will not need to ask from BRE:

• Clearance of the consultation document for a proposed LRO;

• Clearance of the explanatory document laid in Parliament alongside the draft
LRO;

• Clearance of the draft LRO, though you will still need to secure clearance with
BERR legal and Parliamentary Counsel.

1.28 The other main change is that the department will be responsible for laying in
Parliament any proposed LRO, rather than the BRE doing so as was the case
for RROs under the RRA 2001.

Role of BERR lega
1.29 Although you should always discuss any legal issues with your departmental
lawyers in the first instance, BERR legal (Laura Milton: 7215 2325) can provide
legal advice about the LRRA order-making powers at an early stage if
necessary.

1.30 Once the departmental lawyer has finished drafting the LRO, you must send it to
BERR legal. BERR legal will then consider any vires issues and must clear the
draft LRO before it is sent to Parliamentary Counsel. Before you lay the
proposed LRO, you must have secured clearance from BERR legal and
Parliamentary Counsel.

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Conclusion
1.31 Do not let the process put you off. An LRO can achieve a great deal by means
of a simple, yet rigorous Parliamentary process and may be the best chance of
delivering your proposal in a timely way. By making sure you have taken careful
account of the issues set out in this guidance, you will be all the nearer to
ensuring the successful implementation of your proposal.

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Chapter 2: How the order-making powers work

CHAPTER 2: HOW THE ORDER-MAKING POWERS WORK

Diagram of relevant vires questions

Is the Minister satisfied that
reforming primary
legislation is the best way to
No
achieve the policy goal ?
Yes
Is the proposed LRO within
the vires of section one and /
or two, including:
* If a section 1 LRO, does the
burden arise from legislation?
* To the extent that the
reform removes or reduces a
burden, would anyone other
Proposal is NOT suitable
than a minister or
for LRO in its current
Government department
shape. Minister may decide
benefit?
to reformulate policy to fit or
No
* Does the burden being
to pursue proposal via
removed affect the Minister
primary legislation or other
or Government department
route
exercising regulatory
functions?
* Does your proposal fit in
with the devolution
settlements? In particular you
will need the consent from
Wales if you propose to vary
or remove one or more of
their transferred functions.
Yes
If your LRO imposes new
No
burdens is it possible to do
so under section 1?
Yes
Is the proposed LRO highly
Yes
controversial?
No
would the LRO meet the
No
preconditions in section 3?
Yes
Do any of the restrictions in
Legislative Reform Order
Yes
sections 4,5,6,7,8 apply to
No
making power can be used
the LRO?

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Chapter 2: How the order-making powers work

HOW THE ORDER-MAKING POWERS WORK

Introduction

2.1  This chapter will take you step-by-step through the early stages of the process
for making an LRO. It will show you the questions you will need to address to
ensure that your proposal is suitable for the Legislative and Regulatory Reform
Act (LRRA) order-making process. The chapter will therefore also cover the
limitations of the LRRA order-making powers.

2.2  Once you have established what your policy goal is, you will need to work your
way through the questions carefully. BRE will ask you to complete the
proforma (Appendix C) when you first contact them – its aim is to ensure that
there is an early and shared understanding of whether your proposals ‘fit’ with
the order-making powers.

Is the Minister satisfied that reforming primary legislation is the best way to
achieve the policy goal?
2.3  Before embarking on an LRO, you should make sure that you have considered
all the options for achieving your policy goal. For example, you may be able to
achieve the desired result by means of secondary legislation, using a specific
order-making power under an existing Act. Or you may find that a non-
legislative path is best – improved guidance available on the internet for
example, or a voluntary code of practice, or some form of self-regulation. You
can find more details on alternatives to legislation in the BERR  Impact
Assessment Guidance.

2.4  You should also bear in mind that, insofar as the proposed LRO affects Wales,
the Welsh Assembly Government might already have its own plans to make
changes in the area covered by the LRO, for example by using Welsh
Ministers’ powers to make subordinate legislation, or by proposing an
Assembly Measure to make the changes. You will therefore need to be in
contact with Welsh Assembly Government officials to advise you on the
position in Wales.

Political Considerations when using an LRO

2.5  Apart from excluding LROs from making provision of constitutional significance,
the LRRA itself does not set limits on how significant or controversial an LRO
made under it can be. However, clearly whether an LRO is controversial
should be a key consideration in the formation of your policy. As LROs are
means of giving legislative effect to policies that could otherwise only be
passed as primary legislation, you need to be aware of Parliamentary
sensitivities, and in particular the undertaking given to Parliament that the
Government will not pursue “highly controversial” measures by LRO or force
through LROs in the face of opposition from the parliamentary Committees (see
the precise wording of the undertakings given in Parliament at Appendix B).

2.6  In considering the political aspects of your proposal, the following elements
should be uppermost in your mind:

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Chapter 2: How the order-making powers work

Is the proposal ready?
•  One of the key differences between an LRO and a piece of primary legislation
is that a draft LRO, regardless of what Parliamentary procedure the Minister
has recommended, cannot be amended by the Committees. The Committees
do report on a super-affirmative proposal, but neither they nor their relevant
House of Parliament are able to amend it directly as the initiative of
amendment lies solely with the Minister.  So you should make sure that you
will be able to offer the Committees a finished product.

Is the Welsh Assembly Government content for the proposed LRO to
proceed?
•  You should make sure that the Welsh Assembly Government (WAG) is
content for you to proceed with the proposed LRO. For any LRO which
includes provision requiring the consent of the Assembly, the Welsh Ministers
or both, you should consult Welsh Assembly Government (WAG) officials to
see whether the proposed legislative changes are ones that WAG might
propose, in relation to Wales, to take forward themselves.

How strong will objections from interested parties be?
•  You are obliged under the LRRA to consult all interested parties on your
proposal and the Minister must take account of their responses. If your proposal
is likely to be greeted with significant hostility by any particular group, you may
well find it difficult to show the parliamentary Committees that you have taken
account of their views. This does not mean that you are bound to reflect every
shade of opinion in your proposals. But you must be able to show that any
justified concerns have been addressed properly, either in the draft proposal as
laid or by other means.

Is there cross-party consensus for your proposal?
•  The order-making process is based on consensus in Parliament. Without
broad consensus, you will find it difficult to get your proposals past the relevant
scrutiny Committees in Parliament: The Lords Delegated and Regulatory Reform
Committee and the Commons Regulatory Reform Committee. Clearly it is not
possible to draw up in advance a list of politically controversial items. It has to be
a case-by-case judgement. The undertaking that highly controversial proposals
will not be pursued by LRO, means that any proposals with contentious elements
will need careful handling as they go through the Committees. As the Government
has committed itself to maintaining the co-operative relationship between
Government and the Committees, you will need to work harder at getting all sides
on board than you might with primary legislation.  In the end, for highly
contentious and political matters, you may find that primary legislation remains
the best option.

•  Neither Committee is whipped and, while the Government has a majority on
the Commons Committee, it has not often divided. The Government does not
have a majority on the Lords Committee, although it should be noted that it too
does not behave in a party political way. Under the terms of the Act, either
Committee can veto a draft LRO from progressing. Although in principle such a
Committee veto could be overturned by either House, as noted above the
Government has given an undertaking that it would not force LROs through in the

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Chapter 2: How the order-making powers work

face of opposition from the Committees (for instance by overturning a Committee
veto by whipping a vote on the floor of the House).

•  As both Committees have equal status in scrutinising LROs, you will not be
able to overturn a Lords Committee recommendation that the LRO should not be
made, or a defeat on the motion for the proposed LRO on the floor of the House
of Lords with a majority in the Commons. The fact that this would not be politically
possible is underlined by the undertaking that LROs will not be forced through by
the Government in the face of opposition from the relevant parliamentary
Committees.

2.7  So in summary, to ensure that your LRO has the greatest chance of being
made, you must have a reasonable expectation of broad support in both
Houses. It is worth noting that the Committees have both offered to consider
requests from departments for ‘without prejudice’ advice on issues of
appropriateness and of vires. BRE can highly recommend this, should you think
it appropriate, although you would need to have worked up the proposal in
detail and be clear what questions you have for the Committees.

Is the policy significant enough?
•  Although it may be unwise to try to implement a very significant proposal
using an LRO, on the other hand, you should also bear in mind that, as the
LRO procedure is rigorous and time-consuming, the Committees may look
askance at a department that is seeking to use an LRO to implement what
may be seen as trivial measures. Both Commons and Lords Committees
have in the past criticised the Government for introducing excessively limited
reform by LRO. This attitude is likely to continue under the LRRA.

“the order before us is not just the stuff

of lawyers’ law, it is the stuff of the
minutiae of lawyers’ law”

Lord Evans of Temple Guiting, Lords debate on

RRO (Execution of Deeds and Documents) Order
2005, 7 June 2005.

•  So, in scoping your proposal, you should consider the boundaries carefully.
If the impact of your proposal is likely to be very minor, try to establish
whether there is an alternative route for implementation, or whether it may
be more appropriate to include the provision in a more wide-ranging
reform. However, if for whatever reason, you can only bring forward by
LRO a very minor proposal, it would be sensible to raise this and the
reasons for it with the Committees first, either at official level or through
Ministers (BRE can advise).

How high a political priority is your proposal?
•  That a particular proposal is one of the Government’s political priorities is
not a bar to it being given legal expression via an LRO. Indeed, this may
well be the best option in some instances. For example, reforming the
Local Government licensing structure for a particular sector in LRO to
reduce or remove burdens on business may be a pressing political need,

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Chapter 2: How the order-making powers work

but one that might not be able to secure a place in a busy Parliamentary
session.

•  Under the RRA 2001, the order-making process was used to implement a
manifesto commitment (see the vaccine damage RRO). Provided the
Committees are likely to be happy with the proposal, there is no reason
why it could not be enacted via an LRO. However, you will need to bear in
mind that backbenchers on both sides of the House will often expect
detailed and prolonged debate on flagship Government proposals which
they will not get if the proposal is in the form of an LRO. Ministers will also
be keen to make the most of the presentational opportunities afforded by a
full debate in the chamber of both Houses. You will therefore need to
consider carefully the political ramifications of proceeding with an LRO.
Ultimately, the decision on whether the policy proposal is suitable for a
LRO in political terms must be for Ministers.

The scope of the order-making powers in legal terms

Section 1 and 2 order-making powers: Introduction
2.8  Legislation is your starting point for any LRO. LROs under section 1 of the Act
must be for the purpose of removing or reducing any burden or the overall
burdens resulting directly or indirectly from legislation. Burden is defined as:
•  A financial cost;
•  An administrative inconvenience;
•  An obstacle to efficiency, productivity or profitability; or
•  A sanction, criminal or otherwise, which affects the carrying on of
any lawful activity.

2.9  As well as the paragraphs below, please also refer to the Explanatory Notes on
the Act for more information about what the definition of burden can include.

2.10  LROs under section 2 must be for the purpose of securing that regulatory
functions are exercised so as to comply with the Better Regulation
Commission’s 5 principles of better regulation. These are that regulatory
activities should be carried out in a way which is transparent, accountable,
proportionate, consistent and targeted only at cases in which action is needed.

2.11  It is possible to deliver an LRO partly under section 1 and partly under section 2
if necessary.

2.12 LROs can make any provision for the above two purposes, but there are three
main ways in which an LRO can change legislation:

•  repeal:
the LRO would simply strike out pieces of legislation from the
statute book. For example, you could strike out an Act, several Acts or parts of
an Act or Acts.

EXAMPLE
You could use the power to amend selected provisions within one or more

Acts without repeal or restatement.

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Chapter 2: How the order-making powers work

•  amend:
the LRO would simply insert amendments into existing
legislation, which would remain on the statute book.

•  repeal and replace:
the LRO would repeal provisions in legislation and
make replacement provision in a single LRO. This route may be simpler if the
scale of the amendments are such that it would make better sense in drafting
terms to start afresh. Under this scenario, it would be possible to restate in
the LRO large swathes of existing provision, with or without amendment as
well as to make whatever new provision was necessary.

2.13  The Act defines legislation as meaning:

•  a public general Act or local Act (whether passed before or after the
commencement of the LRRA);
•  any Order in Council, order, rules, regulations, scheme, warrant,
byelaw or other subordinate instrument made at any time under an
Act or Assembly Measure or Act of the Assembly; or
•  an Assembly Measure or Act of the Assembly

2.14  The definition of legislation does not include any Northern Ireland legislation.

2.15  LROs under both sections 1 and 2 are not restricted to changing a single piece
of legislation. Your proposed reform can apply to a whole regulatory regime,
addressing a number of different pieces of legislation if necessary.

2.16  Once you have established the existence of relevant legislation, you must be
able to show how you mean to reform it and why you believe the reform is
necessary. The order-making powers are drafted in a way that places the
emphasis for making the argument for the LRO firmly in the hands of policy
officials. It is up to you as policy officials to compile substantial and persuasive
evidence to support the need for the proposed legislative reform which the
Minister can then draw on for his argument at to why he considers the LRO is
necessary.

Section 1 Order-making power

2.17  For LROs under section 1, you should be able to show:
•  What the estimated burden is;
•  Who is affected by the burden; and
•  How your proposed LRO will remove or reduce the burden.

2.18 Section 1 requires the Minster to consider that the LRO would reduce or
remove a burden on a person (which could be a business; a charitable or
voluntary sector; an identifiable category of person such as a party to a
contract; or individual people in a private capacity). So ideally it should be
possible to illustrate this with empirical evidence by estimating the level of
burden to be removed/reduced if the proposals were to come into force.

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link to page 24 Chapter 2: How the order-making powers work

Burdens
2.19  “Financial cost” covers any financial costs, including administrative and policy
costs resulting from understanding and complying with legislation. So, for
instance, section 1 could be used to reduce or remove the costs imposed on a
business or charity resulting from filling in health and safety forms required by
legislation. Or it might be used to reduce or remove the costs resulting for a
person of having to apply for a licence or consent to build an extension to a
commercial property.

2.20  “Administrative inconvenience” covers instances where there is not necessarily
a financial cost. For example, reducing an individual’s bother by removing the
requirement that an individual must request a new driving licence every time
that person moves house because an up-to-date address must always be on
the driving licence.

Removing an “Obstacle to efficiency”
2.21  An obstacle to efficiency could cover a provision in legislation which prevents a
regulator carrying out its functions of inspection and enforcement in a risk-
based way. However, the Explanatory Notes make clear, it is important to
distinguish efficiency from effectiveness. It cannot be said to be an obstacle to
efficiency that a regulator does not have other functions which might be
desirable from a policy perspective, even if those functions would make the
regulator more effective in achieving certain policy objectives.

Removing an “Obstacle to productivity”
2.22  In most instances there will be overlap between reducing or removing financial
costs and administrative inconvenience on the one hand, and removing an
obstacle to productivity on the other hand. However, where it would be more
persuasive to argue that an LRO removed or reduced an obstacle to the
productivity of the company or the UK as a whole, the definition of burden in
section 1 would allow it.

2.23  The Treasury identifies the five key drivers of productivity growth as being
competition, innovation, investment, skills and enterprise1. Where a Minister is
satisfied, on the basis of relevant evidence that a burden resulting from
legislation is an obstacle to one of these five drivers, it may be possible by
LRO to remove or reduce the burden

2.24 For instance if legislation currently limits the patenting of goods to certain
classes of product it would be possible to extend those classes to capture a
new class of goods thereby removing an obstacle to productivity by
encouraging innovation. Another example might be where legislation governing
how a certain type of company may be operated needs to be updated so that
the UK can continue to keep its productivity advantage over other countries. If it
can be shown that that type of company is a substantial driver of UK
productivity because it is the dominant investment vehicle used in the UK for
small, highly innovative and competitive companies and that the complicated
nature of the legislation is driving investment abroad, then it could be argued
that the LRO will remove an obstacle to productivity.

1 Productivity in the UK 6: Progress and new evidence, HM Treasury document published alongside
2006 Budget, March 2006.

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Chapter 2: How the order-making powers work

2.25 However, it is important to note the (legal) distinction between promoting
productivity and removing or reducing an obstacle to productivity. If for the
purpose of increasing productivity you were seeking to extend a body’s
statutory power or requirement to promote skills by funding training (for
instance because you believed more people should benefit from skills
improvement), it would not be possible to do so by LRO under section 1. This is
because in legal terms you would be promoting productivity rather than
removing an obstacle to productivity arising from legislation.

Removing an “Obstacle to profitability”

2.26  This limb could cover the opportunity cost of complying with legislation. As the
Explanatory Notes explain, this is the cost of complying with legislation, for
example, where compliance with the legislation means a loss of a financial
benefit that could otherwise have been obtained. So for instance, an LRO could
remove or reduce restrictions on the sale of methylated spirits on a Sunday.
There are no actual costs imposed upon a business when it is prohibited from
trading such spirits on a Sunday, only a loss of profit as a result of the ban.

Removing or reducing a Sanction, Criminal or Otherwise
2.27 The fourth definition of burden is a sanction, criminal or otherwise, which
affects the carrying on of any lawful activity. For example, this makes it possible
by LRO to reduce or remove sanctions for offences which relate to the carrying
on of any lawful activity (for instance supplying financial services) if it is no
longer considered to be targeted or appropriate. Supplying financial services is
intrinsically lawful so that that the sanction against supplying them – say
‘without the appropriate qualifications to do so’ might validly be removed,
whereas there can be no removal by LRO of a sanction against theft.

Mergers and removing burdens from the form of legislation
2.28  Where burdens are removed or reduced, section 1 can be used to deliver the
merger of two or more bodies into one. As long as burdens are removed or
reduced, it is possible under section 1 to change or abolish regulatory functions
as part of the merger. LROs under section 1 may also make provision creating
or abolishing a body or office.

2.29  LROs under section 1 may also make provision that can be shown to remove
or reduce financial cost or administrative inconvenience resulting from the form
of legislation, for example where legislation is hard to understand or unclear.
LROs could be used to restate and bring together provisions governing an area
which are contained in many different pieces of legislation, for instance, by
removing a financial cost or administrative inconvenience for a Small and
Medium Sized Enterprise in finding out how to comply with all health and safety
at work legislation which are covered by a number of different pieces of
legislation.

Limits of Section 1 LROs

Burdens must result from legislation
2.30 An LRO under section 1 can only be used to remove or reduce burdens
resulting directly or indirectly from legislation. So an LRO could not be used, for

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Chapter 2: How the order-making powers work

example, to remove or reduce burdens which arise from the absence of
legislation. It is possible to make limited changes to the common law by a
section 1 LRO, but only within the context of reform of legislation. Equally, you
should not use an LRO to deal solely with secondary legislation or statutory
instruments, as you should be able to use specific order-making powers that
allow you to do this.

2.31   LROs under section 1 may remove or reduce a burden that is the indirect
result of legislation. An example of this would be the cost borne by the
consumer of a business complying with legislation that it then passes on in the
form of higher prices. If you are seeking to remove or reduce a burden that
results indirectly from legislation, you must nevertheless be able to show that
indirect link backed by evidence. So for instance if you are seeking to amend
legislation because you believe it is inappropriately burdensome and has
caused business to pass on their compliance costs to their customers, you
would ideally be able to show the cost to consumers before and after the
legislation creating the burden came into force.
Burdens on a Minister of Government department
2.32  An LRO under section 1 cannot be used to amend legislation for the purpose of
removing or reducing burdens falling solely on a Minister or a Government
Department,  except where the burden affects the Minister or Government
Department in the exercise of a regulatory function. Regulatory functions for the
purpose of the LRRA are defined in section 32. Examples of regulatory
functions carried out by departments include the Company Law regulatory
functions within DTI, or the Pesticides Directorate, which exercises regulatory
functions as part of DEFRA.

2.33  There is no legal definition of what constitutes a Government department. On
the whole, Government departments are staffed by civil servants and are
funded by Parliamentary votes. The following table could be a useful guide:

Examples of Government
Examples of other public
Departments
sector bodies
Whitehall Departments
NHS trusts
Local
authorities
Non-Ministerial Departments, e.g.:
Police authorities
Food Standards Agency
Non-departmental Government
Office of Fair Trading
bodies, e.g. Environment agency

2.34  However, there can be no hard-and-fast rule. You should take legal advice on
the merits of each individual case.

Does your LRO impose new burdens?
2.35  Under the LRRA, there are only limited circumstances in which it would be
possible to impose new burdens. This is one of the main differences between
the LRRA order-making powers and that in the RRA.

2.36  There are two main situations in which LROs can impose new burdens. The
first is where the imposition of the burden serves the wider purpose of removing
or reducing burdens. An LRO could for example remove obligations to supply

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Chapter 2: How the order-making powers work

50 items of information and replace this requirement with an obligation to
supply 10 other pieces of information instead. So for instance if you placed on a
risk-basis the statutory reporting mechanisms and inspection systems for fire
safety in public buildings, this would be possible by LRO under the LRRA as
long as you could show that the new regime was less burdensome overall for
the manager of a public building for instance than the old regime.

2.37  The second way in which new burdens can be imposed by LRO is where the
imposition or increase of a burden is the result of the removal or reduction of a
burden on someone else. So for instance, it is possible to remove or reduce
statutory reporting mechanisms for the fire safety of public buildings, even if
that results in the need for the regulator to change the way in which it inspects
public buildings for fire safety.

2.38  It is possible to remove a burden of one type (e.g. obstacle to productivity) but
impose a burden of another type (e.g. administrative inconvenience/financial
cost) if the Ministers considers that the overall burdens on a person were
reduced or if you can show that the one type of burden imposed is the result of
the other type of burden removed.

2.39  It is not possible for an LRO to remove one burden, but impose an entirely
unrelated burden.

Consequential, supplementary, incidental or transitional provision
2.40  If your LRO removes or reduces burdens, it can make such consequential,
supplementary, incidental or transitional provision (including provision made by
amending or repealing any enactment or other provision) as the Minister
considers appropriate. A substantial reform may contain some elements that
are not directly concerned with the reduction or removal of burdens. You can
include these as part of the LRO, if they flow naturally from the central reform.

Section 2 LROs

2.41  LROs under section 2 should show clearly how they make provision which
ensures that regulatory functions are exercised in ways consistent with the
Better Regulation Commission’s five principles of better regulation: that
regulatory activities should be transparent, accountable, proportionate,
consistent and targeted only at cases where action is needed.

2.42  Provision can be made under section 2 to
•  modify the way in which a regulatory function is exercised by any person;
•  amend the constitution of a statutory regulator;
•  transfer or delegate regulatory functions; or
•  amend or repeal an enactment.

2.43  It is possible under section 2 to create a new body to which regulatory functions
are transferred. It is also possible by LRO under section 2 to abolish a body as
long as the regulatory functions for which that body was responsible, continue
to be carried out by a different body.

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Chapter 2: How the order-making powers work

2.44  The LRRA does not use or define the term regulator, but instead gives a broad
definition of “regulatory functions” in Section 32 of the LRRA. As the
Explanatory Notes make clear, the first limb of the definition in section 32 is
aimed at functions of regulating, for example regulating by producing rules, or
imposing requirements which apply to a category of persons. The second limb
of the definition covers functions of enforcing or securing compliance with or
enforcing those rules or regulations.

2.45  This means that section 2 LROs could modify the way in which a regulatory
function is exercised by a body or person. For instance, for the purpose of
ensuring greater transparency and accountability, an LRO may impose a
requirement on a regulator that if a major change is to be made in how
regulatory functions are carried out, an assessment of the likely impact of
implementing the proposed changes must be made and published. For the
purposes of transparency and accountability, section 2 could also be used to
impose a duty on a regulator from time to time to publish a statement setting
out how it proposes to secure that its regulatory functions do not involve the
imposition or maintenance of unnecessary burdens. Section 2 could also be
used to require a regulator to carry out its inspection functions on a risk-basis if
you can show that this would mean the regulatory functions were carried out in
a way targeted only at cases in which action is needed. Further examples of
the sort of provision that a section 2 LRO could make can be found in the
Explanatory Notes (paras 44-46).

Hampton Mergers
2.46 In March 2005, Philip Hampton, Chairman of Sainsbury’s published an
independent review: Reducing administrative burdens: effective inspection and
enforcement. Among other recommendations, in this report he recommended
that 31 of the 63 national regulators should be consolidated into seven thematic
bodies to reduce overlapping regulatory requirements on the regulated and
make inspection and enforcement more effective. As long as you can show that
a proposed LRO would ensure that regulatory functions would satisfy the
purpose of securing that regulatory functions are exercised so as to comply
with the 5 principles, section 2 could be used to deliver Hampton type mergers
of regulators. This is because Section 2 can be used to transfer regulatory
functions from one body to another.

Limits of Section 2 LROs

2.47 Section 2 LROs cannot include provision conferring any new regulatory
function or modifying or abolishing any existing regulatory function. For
instance, if as part of a Hampton type merger, you wish to abolish a body, you
can only do so if all the regulatory functions of the body which you are seeking
to abolish continue to be carried out by the new body.

2.48  If you wish to abolish certain regulatory functions by LRO because you think
they are no longer appropriate, you may be able to do so by LRO under section
1, if you can show how the proposal would remove or reduce burdens arising
from legislation.

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Does your proposal fit in with the devolution settlement?

2.49  The LRRA applies to the whole of the UK – but its application in the different
parts of the country reflects the devolution settlements of Scotland and Wales.
It is very important that you ensure your proposals fit in with these settlements.
If, after considering the relevant settlements, you are still unsure as to how the
settlements might affect your proposal, you should contact the Scotland and
Wales Offices or the Scottish Executive or the Scottish Parliament and Welsh
Assembly Government directly.

EXAMPLE

An order dealing with the way the Inland Revenue collects income tax would apply in

Scotland, as income tax is not devolved, but an LRO could not make any provision about

schools in Scotland because education policy is devolved.

2.50  The powers of the devolved legislatures and administrations are governed by
the Acts establishing them (the Northern Ireland Act 1998 2 , the Scotland Act
1998 3 and the Government of Wales Act 2006 4). The principles and practice
which should govern relationships between the Government and the devolved
administrations have been set out in the Memorandum of Understanding
available on the Ministry of Justice website.

•  Scotland:

Although the Act applies to the whole of the UK, its application in Scotland
is limited. You can only extend LROs to Scotland if they concern matters
reserved to Westminster. Conversely, you cannot use an LRO if it
concerns a policy area which would be within the legislative competence of
the Scottish Parliament if contained in an Act of that Scottish Parliament.
So you cannot amend or repeal Acts of the Scottish Parliament,
instruments made under them, or Acts of the Westminster Parliament
which make provision about devolved matters. However, LROs can make
consequential, supplementary, incidental or transitional provision in relation
to such legislation.

•  Northern Ireland
The Act extends to Northern Ireland, but with considerable limitations.
Section 10 prevents an LRO made under LRRA from amending or
repealing any Northern Ireland legislation, except in relation to the powers
to make consequential, supplementary, incidental or transitional provision.

•  Wales
The Welsh Ministers do not have their own LRO making powers. You
should always assume that your LRO will apply to Wales, unless or until
the Welsh Ministers make it clear they would prefer that the Government
develop England-specific proposals. If a single LRO for both England and

2 available at http://www.legislation.hmso.gov.uk/acts/acts1998/19980047.htm
3 available at http://www.legislation.hmso.gov.uk/acts/acts1998/19980046.htm
4 available at http://www.opsi.gov.uk/ACTS/acts2006/20060032.htm

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Chapter 2: How the order-making powers work

Wales is not agreed, the Welsh Ministers/Assembly may decide to proceed
with their own reforms, not using an LRO. Alternatively, specific
arrangements would need to be negotiated on specific arrangements for
Wales, for inclusion in the LRO that is ot provide for reform in England,
with the Wales Office facilitating that negotiation. (You should be aware
that Parliament would be unlikely to welcome two similar LROs covering
the same policy area and differing only in geographical applications, i.e
one applying to England the other to Wales.)

EXAMPLE
Your p
  roposal may seek to reform the way that social landlords are regulated in
England and Wal

es. Social landlords in Wales are the responsibility of the Welsh
Ministe
  rs, and any changes would almost certainly involve amending the functions of
the Welsh Ministers. Before proceeding, you must gain the Welsh Ministers’ explicit

consent. If you do not, your proposal will not be legal. If it is not possible to agree with

Welsh Ministers a way forward for a single LRO making the same provisions for
England a

nd Wales, it may be possible to negotiate specific provisions for Wales,
with the Wal

es Office facilitating, or the Welsh Ministers/Assembly may want to

proceed with their own reforms using their own powers.

2.51  Because LROs generally will apply in Wales as well as in England, you should
get in touch with WAG officials at the earliest possible stage. (See Annex A for
contact details). This will enable WAG officials to advise you on whether the
Welsh Ministers have plans for reform in a similar area, and will allow WAG
officials to consult Welsh Ministers on their preferred way forward: either joining
in your LRO or using their own powers to make subordinate legislation or
proposing an Assembly Measure. If the outcome is that there is to be a single
LRO applying to both England and Wales, early consultation with WAG officials
will also enable you to ascertain whether any of the statutory requirements in
the 2006 Act to consult the Welsh Ministers, or to obtain the consent from
Welsh Ministers and/or Assembly, are likely to apply in the case of your
proposed LRO.

2.52  You must consult the Welsh Ministers where the proposals, so far as applying
in or as regards Wales, relate to any matter in relation to which the Welsh
Ministers, the First Minster for Wales or the Counsel General to WAG exercise
functions. Such consultation can take the form of correspondence between
your Minister and the relevant Welsh Minister.

2.53  You must gain the consent of the Welsh Ministers where your proposal:
•  Would be within the legislative competence of the Welsh Assembly, if
it were contained in an Assembly Measure or Act of the Assembly;
•  confers a function on the Welsh Ministers, the First Minister for Wales
or the Counsel General to the Welsh Assembly Government;
•  modifies or removes a function of Welsh Ministers, the First Minister
for Wales of the Counsel General to the Welsh Assembly
Government;
•  restates any provision which confers a function on Welsh Ministers,
the First Minister for Wales of the Counsel General to the Welsh
Assembly Government; or

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Chapter 2: How the order-making powers work

•  could be made by the Welsh Ministers, the First Minister for Wales of
the Counsel General to the Welsh Assembly Government in the
exercise of any of their functions.

2.54  Such consent can be obtained through correspondence between your Minister
and the relevant Welsh Minister. You should seek an “outline” consent from
the Welsh Ministers before the formal consultation exercise so that you can
refer to it in the Explanatory Document which is required when the proposed
LRO is first laid in Parliament for scrutiny. It would be open to the Welsh
Ministers to attach whatever caveats to this outline consent they thought
appropriate in case the proposal were to be subsequently amended. This
approach would mean that:

•  it would then be relatively straightforward to refresh the Welsh
Ministers’ consent when the LRO is ready to be made;
•  the Welsh Ministers would be involved early in the appropriate policy
discussions; and
•  the likelihood of unforeseen problems late in scrutiny or approval
stages would be reduced.

2.55  You must obtain the agreement of the Assembly if your LRO would make
provision which would be within the legislative competence of the Assembly if
the provision were contained in an Assembly Measure (or in an Act of the
Assembly, if and when the Assembly Act provisions in the Government of
Wales Act 2006 come into force). It will be for Welsh Ministers to seek the
agreement of the Assembly. The Assembly’s agreement will be required to the
final draft of the LRO that is to be laid before Parliament, and Welsh Ministers
will arrange for that draft to be laid before the Assembly for debate and
approval. Welsh Ministers may feel that it would be wise to consult the
Assembly at an earlier stage, for example, during the statutory consultation
period under the 2006 Act, to avoid any problems at the later stage when they
are seeking the agreement of the Assembly. WAG officials will be able to keep
you updated on the process for obtaining the consent of the Assembly.

2.56  The following table is a rough guide to establish whether your proposal affects
the devolved functions, although you should not see it as a replacement for
legal advice:

Example of devolved functions
Example Westminster
responsibilities
Health Service
Police (except funding of
police authorities)
Education
Prisons (except for example
provision of health services in
prisons)
Local authorities
Courts (some devolved
functions in relation to Welsh
language and some tribunals)
Agricultural issues
Inland revenue
Industry/economic development
Benefits agency

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link to page 32 Chapter 2: How the order-making powers work

Environment

2.57  Correspondence between you and WAG officials, and between your Minister
and the relevant Welsh Ministers will be in confidence. The Memorandum of
Understanding provides more guidance on working with the Welsh Ministers,
including commitments to confidentiality of such discussions.

2.58  In the case of a super-affirmative LRO, if changes are made to the draft LRO
after the Welsh Ministers and/or the Assembly have given consent and before
the LRO is made, you may need to seek a refreshed consent from the Welsh
Ministers and/or Assembly5. Consent is not needed if the LRO makes only
consequential, supplementary, incidental or transitional provision under
sections 1 (8) and 2 (7).

Territoriality - Channel Islands and the Isle of Man
2.59 The Act provides that an LRO which amends or repeals any legislation
extending outside England, Wales, Scotland and Northern Ireland may have
the same extent as that legislation. Therefore, if the primary legislation extends
to the Channel Islands and/or the Isle of Man, the LRO which amends that
legislation can do likewise.

EXAMPLE
If you were seeking to reform merchant marine legislation, you would have to ensure that
the territorial extent of the primary legislation corresponds to that you wish to see affected
by your reform. You cannot extend the territorial extent of the original legislation in an LRO.

2.60 However, you cannot amend a piece of primary legislation that does not
currently affect the Channel Islands and/or the Isle of Man so as to extend its
provisions to cover them. The LRO cannot have a greater territorial extent than
the original legislation.

2.61  Before embarking on any reform that involves the Isle of Man or the Channel
Islands, make sure you contact the Constitution Unit at the Ministry of Justice.
See Annex A for contact details.

Sub-delegation

2.62  In contrast to LROs under the 2001 Act, LROs under this Act can confer new
functions of legislating.

2.63  The categories of persons on whom powers of legislating can be conferred are
restricted to:
a)  A Minister of the Crown;
b)  Persons on or to whom functions are conferred or have been
transferred by an enactment (local authorities and regulators for
example); and

5 Amendments will be made to the Act with regards to Wales following the enactment of the Government of Wales Act 2006.
Once these amendments have been made, the requirements with regards to Wales may change.

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link to page 33 Chapter 2: How the order-making powers work

c)  A body, or the holder of an office, which have been created by the
LRO itself. If an LRO is merging bodies into a new body, the Act
permits the LRO to confer on this new body the power to legislate.

2.64  An LRO may confer a function of legislating on the Welsh Ministers, the First
Minister for Wales or the Counsel General to the Welsh Assembly.

Example

When reforming a regulatory regime to reduce or remove burdens, it may be sensible to

extend a Minister’s regulation making powers provided by an existing Act, to increase the
frequency of fire safety inspection on buildings that house highly flammable substances, but

reduce the frequency on inspection of those buildings that are at low risk of fire and instead

increase their self assessment requirements

2.65  If your LRO confers a power to legislate on a Minister, the LRRA stipulates that
when the Minister comes to exercise this power (once the LRO has been
passed), he must do so by making a Statutory Instrument (SI) laid in Parliament
for approval. The LRRA also requires that you must stipulate in the ‘parent’
LRO whether the SI would be subject to the affirmative resolution procedure or
the negative resolution procedure. This applies also to such powers conferred
on the Welsh Ministers, the First Minister for Wales or the Counsel General.
The affirmative or negative resolution procedure in that context, however, is a
reference to the procedure in the National Assembly for Wales6.

2.66  However, a power to legislate conferred by an LRO on someone who falls
within the second or third categories of person in section 4(1), does not have to
be exercised by a Statutory Instrument approved by Parliament. This is
because the power to legislate could be exercised, for instance, by Local
Authorities who are given the power to issue byelaws, or a regulator set up by
the LRO who is given the power to set statutory standards of inspection. It
would not necessarily always be appropriate for such powers to be subject to
Parliamentary approval using SI procedures. The Act then provides you with
flexibility to restrict these legislative powers as you consider appropriate.

2.67  An LRO cannot make provision for anyone on whom an LRO confers powers to
legislate, to delegate further any function of legislating. However, the LRRA
would not prevent an LRO restating a provision already in legislation which
itself conferred a function of legislating, even if it did not comply with the
restrictions in section 4.

2.68  Despite this restriction on further legislative sub-delegation and the restriction
on whom legislative powers can be conferred, this is a substantial widening of
the order-making power compared with that in the 2001 Act. It is therefore
particularly important that you ensure the Explanatory Document laid alongside
the LRO includes a convincing argument why the sub-delegation of legislative
powers by LRO is necessary and define clearly what the power to legislate
permits. Where the LRO confers powers on a Minister, the Explanatory

6 SI 2007/1388 Government of Wales Order amending the LRRA.

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Chapter 2: How the order-making powers work

Document will need to explain why the Minister has chosen either an SI subject
to the affirmative or negative resolution procedure. Your Parliamentary branch
is best placed to tell you how these procedures work in practice.

2.69  It is worth noting that the Regulatory Reform Committees – and not other
Committees such as the Joint Committee on Statutory Instrument – would
scrutinise any proposed LRO relying on the power to legislate granted by an
LRO, as they will be familiar with the subject matter from their earlier
consideration of the LRO.

Preconditions

2.70 Section 3 of the Act places preconditions on the use of the order-making
powers under sections 1 and 2. No LRO can be made unless the Minister is of
the opinion that every one of these preconditions (where relevant) has been
satisfied. In order to convince Parliament, you must address each of these
preconditions and provide evidence of how the proposal meets each relevant
one in the Explanatory Document.

2.71  These tests are not purely black and white tests. Instead, they are tests that
rely to an extent on intuition and knowledge of political and sociological
sensitivities. They must be approached in this way, and whether the LRO
meets the preconditions in section 3 will be judged by Parliamentary
Committees on this basis. The key to a well-prepared LRO, therefore, is
twofold: to have a general awareness of the whole range of Parliamentary
concerns (from the local to the party-political); and ensure that you address as
many as you think might be raised by providing clear and substantive evidence
as well as detailed reasoning to show why the Minister has reached the opinion
that the LRO meets the preconditions. This is not just a procedural hurdle. It is
a legal requirement, without which your LRO will not be valid.

2.72  The Parliamentary scrutiny committees that also examined Regulatory Reform
Orders (RRO) were particularly concerned to ensure that the conditions of the
RRA, which are similar to those in section 3 of the LRRA were met. You should
expect that they will continue to do so under this Act.

Example

The Lords Delegated Powers and Regulatory Reform Committee (DPRRC) questioned the

proposal under the 2003 Business Tenancies Regulatory Reform Order to amend a

provision in the Landlord and Tenant Act 1954. The Act allowed landlords and tenants to

agree a lease which excluded security of tenure, as long as both parties agreed and the
court approved the lease. The Regulatory Reform Order proposed that the process of Court

approval be downgraded. The DPRRC were not satisfied that sufficient evidence had been

provided to justify downgrading the process, and were specifically concerned that the

proposal might not maintain necessary protections for tenants. The department undertook

further research which allayed the concerns of the Committee and the RRO was
subsequently made successfully.

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Chapter 2: How the order-making powers work

2.73  This example demonstrates how important it is that you include sound evidence
and detailed reasoning in the Explanatory Document for the Minister to draw on
in his opinion that the LRO meets all the preconditions.

2.74  In addition to being satisfied that the conditions in section 3 are met, you should
also bear in mind that:
•  the Human Rights Act 1998 requires that the Minister must not act
incompatibly with the Convention Rights when making the LRO; and
•   the Minister is under a public law duty to act reasonably when making the
LRO, and particularly when deciding whether or not the preconditions are met.
2.75  The first precondition under section 3(2)(a) is founded on the better regulation
principle that legislation should not be made unless it is absolutely necessary.
So the Explanatory Document will need to provide evidence that you have
considered non-legislative means to deliver the desired policy outcomes and
why you have concluded that these are not appropriate. For instance with a
section 1 LRO, you must be sure that the aim of removing or reducing burdens
could not be achieved by an alternative to legislation such as issuing guidance.

2.76  The precondition under section 3(2)(b) is that you will also need to show that
the effect of the LRO provision is proportionate to the policy objective and that
it does not go further than is needed to remedy the problem which it is intended
to address. Evidence from the consultation should help illustrate this. The
issues that you need to show are: that the aims of the LRO are legitimate and
well-defined; and that the way in which the Minister proposes to achieve the
aim is both lawful and workable. In summary, this test is whether the Minister
has properly balanced the aim with the chosen means.

2.77  The precondition in section 3(2)(c) requires that the Minister is satisfied that
provision in the LRO, taken as a whole, strikes a fair balance between the
public interest and the interests of any person adversely affected by it. Again,
evidence from the consultation should illustrate this. In the Explanatory
Document you should be able to point to the consultees who agreed that the
LRO strikes a fair balance and those that did not. The Parliamentary
Committees are likely to be influenced in their opinion on this specific point by
looking at the number of yes and no answers provided.

2.78 You must ensure that your proposal would not remove any necessary
protection. An LRO can only be made if the Minister is of the opinion that it
does not do so. Such protection relates to the checks and balances associated
with a particular regulatory regime. The protection does not have to be
statutory in nature and does not have to be for the purposes originally intended
by Parliament. For instance, the Sunday trading laws originally were passed
for reasons of religious observance, whereas now they are just as likely to be
seen as providing protection for employees.

2.79  The concept of necessary protection can, for example, relate to economic,
health and safety protection and the protection of civil liberties. It can also
extend to protection for the environment and national heritage.

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Chapter 2: How the order-making powers work

2.80  Remember that not all protection need be seen as necessary forever. For
example, the law forbidding 16- and 17-year-olds from working in the bar areas
of public houses was amended in 1997. The legal protection of young people
in these circumstances was no longer deemed necessary, although the
Department involved had to provide compelling evidence to support this view.

2.81  The precondition in section 3 (2)(e) is that the provision made by LRO does not
prevent any person from continuing to exercise any right or freedom
which that person might reasonably expect to continue to exercise. This
precondition recognises that there are certain rights that it would not be fair to
take away from people by an LRO made under this Act. This includes human
rights, but it is wider than that and could for instance include the statutory right
to receive compensation from an employer following a serious accident at work.

2.82  The last test under section 3 (2)(f) is that provision in the LRO must not be of
constitutional significance. This precondition is targeted at making clear that
LROs cannot be used for the delivery of significant constitutional reform, but
can make constitutionally insignificant changes to legislation which could be
considered constitutional.

2.83  For instance, the precondition permits changes to requirements to serve a
notice in criminal justice legislation which were administratively inconvenient,
where that minor but worthwhile reform was not constitutionally significant –
and met the other pre-conditions, including those protecting necessary
protections and rights and freedoms. Another possible example could be
amendment to asylum and immigration legislation to reduce the burden of
unnecessary form-filling. The legislation itself could be considered as
constitutionally significant, but such amendment would not be constitutionally
significant and clearly rooted in better regulation aims.

2.84  An example of the type of proposal which this precondition would preclude
would be any proposal to permit the Prime Minister to sack judges by amending
the Supreme Court Act 1981.

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Chapter 3: Procedural Steps – preparing the consultation document

CHAPTER 3: PROCEDURAL STEPS – CONSULTATION

Diagram of necessary steps before issuing consultation document

37

Chapter 3: Procedural Steps – preparing the consultation document

CONSULTATION CHECKLIST
1.  Has the consultation document been cleared by your lawyers?
2.  Does it cover the key arguments/issues in Chapter 3 below?
3.  Does it include a partial Impact Assessment (IA)?
4.  Does it include the standard wording on disclosure of responses?
5.  Is the note on Parliamentary process attached?
6.  Have you allowed adequate time for comment from other Government departments and the devolved
administrations?
7.  If the proposal extends to Wales, have you consulted the Welsh Assembly Government and the
Wales Office?
8.  Has the consultation document and partial RIA been agreed collectively by DA/LP Cabinet
Committees?
9.  Are you sending it to representatives of all interested parties?
10.  Have you sent 10 hard copies of the final document to the RRC and 20 hard copies to the DPRRC?
11.  Have you sent 1 hard copy of the list of consultees with addresses to the RRC and 1 copy to the
DPRRC?
12.  Have you sent hard as well as electronic copies of the consultation document and the list of
consultees to the RRC and the DPRRC, and only electronic copies to the BRE?
13.  Have you placed a copy of the document on the Internet, with a link to the relevant BRE webpage?
14.  Is the explanatory note (at Appendix G) attached?

The aims of LRO consultation

3.1  Section 13 of the LRRA requires that the Minister consult on the proposed draft
LRO.

3.2  In one respect, the aim of consulting on a proposed draft LRO is no different
from consulting on any other policy proposal: to get feedback from those
affected by the policy proposal about its suitability and workability. However, a
consultation on a draft LRO must also address whether the order-making
process is the appropriate mechanism for legislative reform and whether the
proposal meets all the criteria set out under the LRRA 2006 for using LROs.
The consultation document should also prompt views from stakeholders about
what the appropriate Parliamentary resolution procedure is for the LRO.

3.3  This means that, unless it is possible to develop the policy to a point of being
fairly clear what the draft LRO would look like, it may be necessary to consult in
two stages – first on the broad policy aims and then on the detail of a draft
LRO.

3.4  This does not mean that you cannot consult on a proposed LRO as part of
consultation on a wider policy issue. However, it does mean that if you do
propose to use an LRO to bring about part of wider reform, you need to include
in the consultation document on the wider issue, sufficient detail about the
proposed LRO for a consultee to reach an informed view about whether the
LRO proposal would meet all the LRRA safeguards.

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Chapter 3: Procedural Steps – preparing the consultation document

3.5  It is also possible in a consultation document to propose an LRO as one of two
alternative possible delivery mechanisms for a policy. However, again, if you
choose to do this and wish only to consult once, there must be sufficient detail
about the proposed LRO for consultees to come to an informed decision about
whether the LRO meets all the safeguards in the LRRA 2006.

3.6  Although you need to have developed in detail the policy that your proposed
LRO is aimed to deliver before going out for consultation, you do not have to
include the actual legal draft of the LRO in the consultation document.

3.7   The advantage of not including the draft legal instrument is that you can
consult with stakeholders while Parliamentary Counsel is considering the draft
LRO, thereby saving time.

3.8  The advantage of including the draft wording of the LRO in the consultation is
that consultees have a chance to comment on the precise formulation of the
proposed LRO which may be particularly beneficial for detailed technical
proposed changes to legislation. A further advantage is that consulting on the
draft LRO could throw up matters which otherwise may not have been raised
until Parliamentary scrutiny stage and could therefore save time further down
the line. The disadvantage may be that consultees concentrate on the actual
drafting of the LRO, instead of providing clear views on the broader policy
intentions. In addition, if you do publish the draft LRO in the consultation, you
will have to have cleared it with BERR legal and Parliamentary Counsel
beforehand.

Consultation Code of Practice
3.9  All consultations should be carried out in accordance with the Government’s
Code of Practice issued by BERR.

The role of BRE
3.10 Your usual departmental BRE contact can provide general advice about
drafting an LRO consultation document. As opposed to arrangements under
the 2001 RRA, you do NOT need to clear a consultation document with BRE.

3.11  Attached at Appendix E is a BERR template for an LRO consultation document.
You should refer to this when drafting your consultation.

Role of Scrutiny Committees
3.12  The Committees are charged with scrutinising both whether draft LROs are
within the vires of the LRRA 2006 and the policy of draft LROs. Once the
Committees come to scrutinise the draft instrument, responses to the
consultation will form an important body of evidence for their decision on a draft
LRO. For this reason, a copy of the list of those consulted (including their
addresses) as well as a copy of the consultation document should be sent to
both Committees when they are first issued.

3.13 In the House of Commons, the Committee itself has been prepared at a
preliminary stage to give a view (without commitment) as to whether an early
proposal is suitable for an LRO at all under the 2001 Act and that offer
continues under the LRRA. But the Committee should only be approached if

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link to page 40 Chapter 3: Procedural Steps – preparing the consultation document

you have concrete proposals (and evidence explaining the need for them) to
discuss with the officials. (See Appendix A for contact details) This is not the
case for the DPRRC. The DPRRC legal adviser is prepared to offer a
preliminary view on legal vires of a draft LRO once cleared by Parliamentary
Counsel.

What are the process milestones?

DA/LP Collective agreement to the LRO policy of reform
3.14 You will need to get Domestic Affairs (DA) Cabinet Committee collective
agreement to the policy of the proposed reform as you plan to express it in a draft
consultation document and draft partial RIA. The DA clearance letter should be
sent from your Secretary of State and be addressed to the Deputy Prime Minister
(who chairs the Committee) and copied to all DA Committee members. (For full
membership of all Cabinet Committees, please see the Cabinet Office website7)

3.15 When it comes to your Minister writing to seek DA policy clearance for the
proposed reform, you should be confident that other Government departments,
and the devolved administrations where appropriate, in principle do not oppose
your proposed LRO.

Other Government departments
3.16  Before writing around for collective agreement and at an early stage if possible, it
is therefore worth discussing your policy with other interested departments. Doing
so could avoid last minute hitches and poor legislation. Some consultation, e.g.
with the Treasury on any proposal involving actual or potential public expenditure
is more basic and needs to be considered when building up proposals, not merely
when they are being worked up in detail. Other departments may be interested in
varying degrees.

3.17  The following checklist of departmental interests is not intended to be exhaustive
and it is the responsibility of the lead department to establish at an early stage
whether other departments have interests in policy proposals and need to be
consulted or kept informed:

Department/
Interest
body

BERR (Better
All LRO proposals so that BRE has an overview of the whole
Regulation
LRO programme. If necessary, you should discuss with your
Executive policy  relevant BRE policy teams individual proposed LROs.
teams);
Cabinet Office Any proposal, involving a machinery of government change (i.e.
(Central
a transfer of function between Ministers, or from a Minister to a
Secretariat)
NDPB); to create or abolish a NDPB; which may have
implications for the jurisdiction of the Parliamentary
Commissioner for Administration; which may have implications
for House of Commons disqualification
Crown
Any proposals creating new offences
Prosecution
Service

7 http://www.cabinetoffice.gov.uk/secretariats/committees/

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Chapter 3: Procedural Steps – preparing the consultation document

Department/
Interest
body

Devolved
Any proposal which may have implications for Scotland, Wales
Administrations,
or Northern Ireland (which in practice will mean the great
Scotland Office,  majority) will have to be discussed with the Offices of the
Wales Office,
Secretaries of State and with the devolved administrations.
and Northern
Ireland Office.
Foreign and
Any proposal, which has implications for foreign or
Commonwealth
Commonwealth relations; which has implications for the
Office
European Union; which may be extended to the dependent
territories;
HMRC
Any proposal which has implications for the application of VAT,
Excise Duty or Customs Duty, or where import or export
restrictions are to be imposed or removed and any proposal
which could have direct or indirect effects on tax charges or
reliefs;
HM Treasury
Any proposal involving actual or potential public expenditure, or
reduction in revenue;
Home Office
Any proposals to create or alter criminal offences or penalties;
with implications for the police; to create new powers of entry
which may affect emergency procedures and services or home
defence (in such cases the Civil Contingencies Unit, Cabinet
Office and the Scottish Home and Health Department should
also be consulted); which may be extended to the Channel
Islands or the Isle of Man
Ministry of
Any proposal involving major changes in the civil law; which
Justice
would confer additional functions on the courts or on tribunals,
or which would be likely to increase civil litigation or the number
of criminal prosecutions; to create a new office for which
appointment would be made by The Queen by Letters Patent
(any such proposal requires the express approval of the Lord
Chancellor)

Any proposal raising significant human rights issues
Ministry of
Any proposal, which may need separate consideration for
Defence
service personnel

The Devolved Administrations and the Territorial Offices of the Channel Islands
and the Isle of Man
3.18  If your proposals have implications for areas of devolved responsibility, you
must ensure that you consult the devolved administrations and the territorial
offices at an early stage before proceeding with your proposals and seeking DA
Committee clearance. If your proposal concerns the whole of the UK, you will
almost certainly need to include the territorial offices within the normal
collective agreement process. Even when your proposal applies only to
England, there will frequently be a knock-on effect in the other parts of the UK,
particularly in relation to Wales. Cases where the proposals have no such
repercussions will be exceptional.

3.19  More information on this is covered in chapter 2 above and as mentioned
above guidance on how to work with the devolved administrations is contained
in the Memorandum of Understanding.

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link to page 42 Chapter 3: Procedural Steps – preparing the consultation document

Obtaining the Queen’s Consent
3.20  If your proposal affects in any way the personal property or interests of the Crown
or the interests of the Duchies of Lancaster or Cornwall, the Consent of the
Queen or, as regards the Duchy of Cornwall, of the Prince of Wales must be
obtained. When you come to laying the draft LRO, you should make clear to the
Committees that this consent has been obtained. The Queen’s Consent must
also be signified orally to both Houses: in the Lords this is by a Minister who is a
Privy Counsellor.

3.21 It is not possible to lay down strict rules as to when to seek The Queen’s
Consent, and you should seek legal advice if in any doubt. For further advice,
please see Appendix L.

Drafting the Consultation Document

3.22 Once you have discussed your LRO proposal with other Government
departments, the devolved administrations, the territorial offices, and you have
obtained the Queen’s consent if necessary, as well as Domestic Affairs (DA)
Committee agreement for the policy, it is time to draft the consultation
document.

3.23 Failure to meet section 13 requirements for LRO consultation will almost
certainly lead to the failure of your proposal when it comes before Parliament. It
is therefore very important that the consultation document meets the
requirements in section 13 of the Act and the expectation of the Parliamentary
Committees. The Parliamentary Committees will judge your proposed LRO on
whether the consultation was adequate, meaningful and genuinely enabled
consultees to understand, judge and comment on your proposals and their
effects8.

3.24  The consultation document should be written in plain English and assume no
prior knowledge of the topics under discussion. You should explain the current
arrangements, what you want to change, why and how. You should include all the
information necessary for someone with no knowledge of the policy area to be
able to come to an informed and reasoned view about whether the proposals
meet the terms of the LRRA and what their likely effect will be. You must seek
specific views about the extent to which the proposal meets the safeguards and
other requirements in the LRRA. Parliamentary Committees will be particularly
interested in whether your proposals meet the preconditions in section 3, so it
essential that these are addressed.

3.25  The consultation document should also invite views about which of the three
Parliamentary resolution procedures should apply to the draft LRO. In essence,
you must use the consultation exercise as the means for gathering the
information needed so that the Minister can provide a robust and well-argued
Explanatory Document as required by section 14 of the LRRA.


8 Regulatory Reform Committee Standing Order 114 (3) ‘(..) the committee shall include in its
consideration in each case whether provision in the draft Order --- (..) (k) ‘ has been the subject of,
and takes appropriate account of, adequate consultation’.

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Chapter 3: Procedural Steps – preparing the consultation document

3.26  Given the provisional nature of consultation on prospective use of the order-
making power, you MUST include – without any alteration of substance - the
form of words set out at Appendix E as an Appendix to your consultation
document. You should note that the form of words has been agreed with the
two Parliamentary Committees in order to explain the role of Parliamentary
scrutiny committees in the process and so as to observe parliamentary
privilege. Check

3.27  The content of consultation responses will normally be disclosed to Parliament
except in the unusual circumstances set out in section 14(3) and (4) of the
LRRA See x for more details. The standard wording regarding disclosure can
be found in the template consultation document and must be included in all
consultation documents.

3.28  Please note that a consultation must be issued in the name of a Minister at
Westminster.

3.29 Examples of published consultation documents can be found on the BRE
website. These should provide some guidance about what a good consultation
document looks like. Please also refer to the consultation template at Appendix
E.

Drafting the LRO

3.30  The Department that is responsible for the policy will draft the proposed LRO,
but this will need to be checked by BERR legal and cleared by Parliamentary
Counsel. If a draft LRO is to be included in the consultation document,
Parliamentary Counsel will need to approve it before the consultation document
is published. You should also allow the Welsh Assembly Government time to
provide comments on the consultation document.

3.31  BERR legal has produced guidance in liaison with Parliamentary Counsel on
”Responsibilities of departments and Parliamentary Counsel in drafting Orders”
(in Appendix D). Points to note include :

•  the draft instrument should in the first instance be sent to BERR legal.
BERR legal will consider the vires of the draft LRO and must clear the
LRO before the LRO can be sent to Parliamentary Counsel;
•  the department and Parliamentary Counsel together will form a view of
the best time for sending instructions to Parliamentary Counsel within the
overall timetable of the LRO;
•  Instructions to Parliamentary Counsel should not normally be sent until
the policy is completely settled; and
•  Instructions should include an account of the policy as it stands and an
explanation of how the draft LRO gives effect to the policy, drawing
attention to any particular drafting or vires issues.
3.32  The timetable should normally allow 12 weeks for Counsel to approve the LRO.

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Chapter 3: Procedural Steps – preparing the consultation document

3.33  BERR legal have drafted a standard form preamble which should be used for
all LROs. See Appendix J.

Partial Impact Assessment

3.34 Undertakings were given by Ministers (see Appendix B) that an IA would be
completed for all LRO proposals, in line with BRE guidance on Impact
Assessments which requires a partial  Impact Assessment to accompany each
consultation and a full IA to accompany each legislative proposal. The partial IA
for the consultation document should contain all the required elements, including
other options, a risk assessment, an analysis of the effects on small businesses
and an assessment against the competition filter. The partial IA must be sent with
the draft consultation document when the Minister is seeking to obtain collective
LP Committee agreement.

3.35  As with the consultation document, once you come to laying the draft LRO in
Parliament, the Committees will expect you to have informed your consultees as
fully as possible of the benefits and the costs of your policy, so that they can
comment on them and provide detailed information as necessary. If you have any
questions, your Departmental Better Regulation Unit (BRU) will be able to help
you with the partial IA.

3.36 Once the consultation is over and you are ready to lay the proposal before the
Parliamentary scrutiny committees, you must prepare a full IA as also laid down
in the BRE Guide.

LP Collective Agreement to go out for Consultation

3.37  You should already have collective agreement to the policy of your draft LRO
usually from DA Cabinet Committee.

3.38  Before embarking on the public consultation, you will need to seek collective
agreement for the publication, timing and specific content of the consultation
and partial RIA from Legislative (LP) Programme Committee. You will need to
circulate the draft consultation document and partial RIA to LP Committee at
this stage. Before you do so, you should contact LP Secretariat to discuss your
plans. Please see Appendix A for contact details.

3.39 You should also check internally and with other Government departments
whether there are other forthcoming consultations on a similar issue, so that
they can cross-refer coherently or even be combined with the consultation on
the draft LRO if appropriate or possible. This is to ensure stakeholders are not
consulted separately on similar or related matters.

3.40  In the unusual situation that you have not already secured policy clearance
from DA Cabinet Committee, it is possible to seek clearance from both LP and
DA Committees in a joint DA/LP clearance letter.

3.41 The LP clearance letter should be sent from your Secretary of State and
addressed to ‘the Leader of the House of Commons and Lord Privy Seal’.

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Chapter 3: Procedural Steps – preparing the consultation document

Further information on Cabinet Committee business can be found in the BERR
guidance

Who to Consult and for How Long

Who to consult
3.42  Section 13 of the LRRA requires the Minister to consult such organisations as
appear to be representative of interests substantially affected by the proposals,
and such other persons as are considered appropriate. Make sure you
include in the consultation not just those who are likely to benefit by the
change but also those who may have been protected in some way by the
legislation under review and especially those who may be adversely
affected by the reform.

3.43  In cases where their agreement is not already required, Section 13 of the LRRA
stipulates that you should consult with the Welsh Ministers where your
proposals, so far as applying in or as regards Wales, relate to any matters in
relation to which the Welsh Ministers, the First Minster for Wales or the
Counsel General to the Welsh Assembly exercise functions. This requirement
should be interpreted widely, for example, anything which affects local authority
functions would be captured since the Welsh Ministers have responsibility for
local Government in Wales.

3.44  Section 13 also requires that where appropriate, you should consult the Law
Commission, the Scottish Law Commission or the Northern Ireland Law
Commission.

How long to consult for
3.45  The period of consultation should follow the general guide time of 12 weeks,
although there may be exceptional circumstances (for instance where earlier
consultation has already been completed) in which a shorter period could be
justified. The main test for deciding whether a shorter period of consultation
would be appropriate, is whether you think your arguments for conducting a
shorter period of consultation will convince the Parliamentary Committees. As
noted earlier on in this chapter, Members of the Parliamentary Committees will
want to be assured that the Government has conducted adequate consultation
to get wide-scale stakeholder feedback. You must therefore be able to
demonstrate that sufficient steps have been taken to ensure that the consultation
was adequate in spite of the reduced consultation time.

3.46  What is considered “adequate” will largely depend on the nature of the proposals.
The more complex or controversial the proposals, the longer you will need
to allow for comment. You will also need to take into account that some
consultees will need to undertake further consultation;  for example, if you are
consulting representative bodies or local authorities you need to allow time for
them to consult their members. This is why a minimum of 12 weeks is advised by
the BRE.

Publication
3.47  There are central requirements that need to be borne in mind for the day of
publication of the consultation- and beyond.

45

Chapter 3: Procedural Steps – preparing the consultation document

Press and PQs
3.48 It is normal practice for the policy Department to publish a copy of the
consultation document on the departmental website and to issue a Press
Notice to announce the launch of the consultation document. This should
include standard wording on the LRRA.

3.49  For major items, you should:

•  arrange for Parliament to be informed on the day publication of the
consultation document through ‘inspired’ PQs (please consult your
Parliamentary Branch for further information); and

•  liaise with the Strategic Communications Unit at No. 10 to ensure that it
fits with other planned Government announcements.

Additional Parliamentary requirements for the consultation document
3.50  When publishing the consultation document, please send 10 hard copies to the
RRC, and 3 hard copies to the DPRRC. Electronic versions should also be sent
to both committee clerks. (See Appendix A for contact details)

3.51  You should also send hard and electronic copies of a full list of names and
addresses of consultees to the Parliamentary Scrutiny Committees and to the
BRE.

3.52  You should be aware that both the RRC and the DPRRC will need to receive
copies of all consultation responses when you lay your draft LRO for scrutiny.
This is subject to any issues regarding disclosure.

What if consultation was completed before the LRRA 2006 came into force?
3.53  Section 13(3) provides that if this is the case it is not necessary to repeat
consultation as long as the consultation which took place before
commencement of the LRRA 2006 satisfies the consultation requirements of
the LRRA.

3.54  Section 13(4) provides that if you have consulted under the RRA, but now need
to pursue the proposal by LRO under the LRRA, you do not need to consult
again as long as the consultation under the RRA met all the requirements for
consultation of that Act.

46

Chapter 4: Procedural Steps – Preparing to lay the LRO

CHAPTER 4: PROCEDURAL STEPS – PREPARING TO LAY THE LRO

47

Chapter 4: Procedural Steps – Preparing to lay the LRO

Checklist for proposed draft LRO and explanatory document

1.  Was a draft of the order prepared as the consultation document was drafted? If yes, go to point 7.
2.  Are any amendments to the proposal necessary as a result of consultation?
3.  Has the draft order been shown, as necessary, to legal advisers to the devolved administrations?
4.  If the approval of Wales is required, has such approval in principle been sought?
5.  Has the draft order been sent to BERR legal for checking and agreement that draft is ready to go to
Parliamentary Counsel?
6.  Have you allowed 12 weeks for Parliamentary Counsel to check the order and approve it?
7.  Do you have LP clearance for the proposed draft LRO, the explanatory document and full RIA?
8.  Does the draft LRO contain the standard preamble in Appendix H?
9.  Does the explanatory document provide the information required by section 14 of the LRRA?
10.  Is a full Impact Assessment included in or annexed to the explanatory document?
11.  If this is one of a series of orders on the same topic, is this made clear in the explanatory document?
12.  Does the explanatory document contain the dates during which consultation took place?
13.  Has a list of all consultees including their addresses been appended to the explanatory document?
14.  Does the explanatory document contain a statement about applicability to Scotland, Northern Ireland and
Wales?
15.  Is a list of statutes affected by the LRO attached to the explanatory document along with any relevant extracts?
16.  Have you prepared clearly legible and up-to-date copies of the consolidated text of the relevant legislation and
the “Pre-consolidated Text” (if appropriate) and checked that electronic and printed copies are the same?
17.  Have the consolidated text and “Pre-consolidated Text” been certified as accurate by your lawyers?
18.  Do you have a complete set of the consultation responses to send to the Parliamentary Committees?
19.  Have you prepared a press notice?

Results of the Consultation Exercise

4.1  The consultation responses may not indicate wholehearted support for the
policy. Unlike other consultation exercises, you will not be able to proceed
simply on the basis of a conclusion that on balance there was a majority in
favour. What you must do is to identify any concerns raised by consultees and
address them. This will mean giving reasons for disagreeing – or setting out
what can be done to meet their concerns in the Explanatory Document.

4.2  Where a couple of parties have expressed continued opposition to the
proposal, the Committees have called them in to debate the merits of their
respective positions during an evidence session, as happened during the Home
Office’s proposed RRO on Sunday trading
(http://www.cabinetoffice.gov.uk/regulation/reform/orders/suntrad.asp). The
LRO process does not require 100% unanimity – but it would be hard to
proceed in the face of a generally hostile response to the consultation exercise.

4.3  The Committees will expect you to have included those who might be adversely
affected by your policy on the consultation list, and be able to demonstrate that
you have considered carefully what changes or actions might be needed in
order to address all the concerns raised as a result of the consultation exercise.

48

Chapter 4: Procedural Steps – Preparing to lay the LRO

Do you need to change the Proposal in substance as a result of the
Consultation Exercise?
4.4  It may be that representations received during the consultation indicate that there
is good reason for altering the proposal.

4.5  If you decide to alter your policy, you will need to clear this with your minister
and if necessary seek collective agreement and, where relevant refresh any
“outline” consent from the Welsh Ministers. (See chapter 2)

Do you need to re-consult following consultation?
4.6  If your Minister decides that the proposed LRO needs to change as a result of
the consultation, you may consider it necessary to consult again on those
elements of the proposal that have been changed (see section 13(2) LRRA).
As a general rule, you will probably only need to re-consult if you are altering
the proposals in such a way as to make them substantially different to the
proposals on which you consulted. If you do decide to re-consult, it may be
acceptable to consult only some of the original consultees or an entirely new
class of consultees because of the nature or limited effect of the change. Then
again, it may be helpful to inform all consultees if the change to the proposals is
substantive so that they comment on it. Your BRU or departmental BRE
contact can advise in specific cases.

4.7  Dropping one or more proposals entirely may not require further consultation,
unless doing so alters the nature and effect of the remaining proposals. If you
do decide to drop a proposal, the explanatory document should refer briefly to it
– and the reasons for doing so.

Collective Agreement for Re-Consultation
4.8  If you do need to re-consult, you may need to seek collective agreement from DA
and LP Committees again.  This will depend on whether the changes on which
you will be consulting go beyond the terms of the original policy clearance.

4.9  You should consider the needs of the devolved administrations since they may be
affected by the changes and further consents or consultation may be required.
As appropriate, you should also involve other statutory consultees such as the
Law Commission again.

Revising the Draft LRO

4.10  You should already have a draft LRO which was prepared before or during
consultation period, checked with BERR legal and then approved by
Parliamentary Counsel.

4.11  You will now need to consider incorporating any changes required as a result of
the consultation exercise and then finalising the draft LRO for parliamentary
scrutiny.

4.12  If you consider changes need to be made to the draft LRO, the final draft will
need to be checked again by BERR legal and approved by Parliamentary
Counsel before laying. It would be helpful to flag up the changes you have made
either using tracked changes or in a covering letter. BERR legal will be primarily
49

Chapter 4: Procedural Steps – Preparing to lay the LRO

concerned with legal vires. This will be an iterative process involving BERR legal
and Parliamentary Counsel.

4.13  Even if there have been only minor changes, BERR legal should be shown the
amended draft, and Parliamentary Counsel must approve it.

4.14  Where an LRO affects a devolved territory, you should make sure that you or
your opposite numbers in the Scotland, Wales and Northern Ireland Offices have
sent it to their legal advisers and to the devolved administrations.

4.15 A “Pre-consolidated Text” will be needed where the LRO inserts amendments
into existing legislation (see paragraph 3.3.1 on the two types of LRO). You
should note that the Parliamentary scrutiny committees will require them when
the proposed LRO is laid for scrutiny, and so should not leave drafting the “Pre-
consolidated Text” until the last minute (see Box 6.1). A “Pre-consolidated Text”
may not be needed where the LRO repeals and replaces entire provisions - and
you should check with the Clerks to the Committees in cases of doubt.

Drafting the Explanatory Document

4.16  The explanatory document has to be laid at the same time as the draft LRO
(section 14(1)). The Explanatory Document is your chance to set out all the
arguments in support of your proposal, to provide factual evidence gathered from
the consultation exercise and to convince the two Parliamentary Committees that
the LRO is worthwhile, sensible and within the vires of the LRRA order-making
powers. The Explanatory Document should seek to address any possible
reservations or criticisms of the proposed LRO provisions head-on and should
also draw on the Impact Assessment. It should also cover all the aspects in the
Regulatory Reform Committee Standing Orders (See Appendix H).

4.17 As much effort as possible should be put in to delivering a polished and
persuasive narrative in the Explanatory Document. This will help smooth the
passage of the LRO through Parliament. Section 14 sets out the issues that must
be covered by the explanatory document.

4.18 Section 15 requires that the Explanatory Document include the Minister’s
recommendation as to which Parliamentary procedure should apply to the LRO
and give the reasons for that recommendation. An explanation may be necessary
to convince the Committees of the proposed procedure. For, although the
Minister can recommend a procedure for a particular LRO, the Committees, (and
the two Houses themselves) have the final say and can require a more onerous
procedure within the first 30 days of the LRO being laid if they are not convinced
by the Minister’s arguments. For example, the Committees can “bump up” the
procedure from negative to affirmative, affirmative to super-affirmative or negative
to super-affirmative resolution. It is worth noting that the Committees cannot
require a less rigorous procedure than the one the Minister has recommended.

What Parliamentary Resolution Procedure to recommend?
4.19 The level of scrutiny recommended by the Minister will depend on factors such as
the complexity, the potential scope and impact of the LRO and on the level of
opposition to the proposals that is evident from the consultation exercise. There
50

Chapter 4: Procedural Steps – Preparing to lay the LRO

are no definite rules about what procedure to recommend. You should base your
choice on consultation responses and your political sense about what would be
an appropriate procedure. BRE would be happy to advise in individual cases.

4.20 Under the negative resolution procedure the Minister may make an LRO
unless within 40 days of the LRO being laid, either House of Parliament passes a
resolution that the LRO may not be made or the Committee vetoes the proposal.
This procedure affords the least Parliamentary influence over an LRO and would
therefore be most suitable for minor and technical LROs. An example of the kind
of proposal envisaged for delivery by the negative resolution procedure is the
Welsh Ombudsman RRO which was made under the RRA. This removed the
obstacle preventing Welsh Administration Ombudsman from undertaking
investigations as a “Local Commissioner” even though he was a Commissioner
of the Commission for Local Administration in Wales. It therefore allowed one
person to take on these two closely related roles, thereby saving bureaucracy
and increasing the efficiency of the Welsh Administration Ombudsman.
(http://www.cabinetoffice.gov.uk/regulation/reform/orders/welom.asp)

4.21  Under the affirmative resolution procedure, the Minister may make an LRO if after
40 days of the draft being laid in Parliament, the draft LRO is approved by a
resolution of each House of Parliament. This procedure may be appropriate for
LROs that have more extensive impact, but which are still straightforward and
about which consultation respondents did not raise any real concerns.

4.22  The super-affirmative resolution procedure is a two-stage procedure with the first
scrutiny period lasting 60 days and the second scrutiny period lasting 15 sitting
days or 25 sitting days (depending on whether the draft LRO has been revised
unexpectedly). During the first scrutiny period the Committees simultaneously
consider and may report on the draft LRO, or make a resolution on it. The
Committees often take evidence from both stakeholders and the Minister or
departmental officials during this period. Once the Committees have given their
recommendations, there is opportunity for the draft LRO to be revised by the
Minister. The Minister then must lay an unrevised or revised LRO. The
Committees then have a further 15 sitting days to consider an unrevised draft
LRO or 25 sitting days to consider a revised LRO. At the end of the second
scrutiny period the Minister can then make the LRO if it is approved by a
resolution of each House of Parliament and has not been vetoed by either or both
Committees.

4.23  This procedure is the only one that gives the Parliamentary Committees a chance
to recommend changes to the LRO. It is therefore the procedure that is
appropriate for complex and wider-reaching LROs. A complex LRO such as the
2005 Fire Safety RRO which simplified and rationalised existing fire safety
legislation and replaced 50 pieces of legislation with one simple, risk-based
regime applying to all buildings that the public might use, would be appropriate for
Parliamentary consideration under the super-affirmative resolution procedure.

4.24  As noted above, the Committees have the final say about what procedure will
apply to any given LRO, so you must be prepared for the fact that you cannot
guarantee the LRO will be made under the negative or affirmative procedure, until
51

Chapter 4: Procedural Steps – Preparing to lay the LRO

the first 30 days have passed and neither Committee has required a more
onerous resolution procedure.

4.25  If either Committee does ‘bump up’ the resolution procedure for the proposed
LRO, the preamble to the LRO will need to be changed to reflect the new
procedure.

What should the explanatory document include?
4.26  The explanatory document should start with the recital at Appendix  E and must:

•
explain under which order-making power or powers the provisions are
made;

•
introduce and give reasons for the provision;

•
explain why the Minister believes all the relevant preconditions in section
3(2) are met or that the LRO would make the law more accessible and
more easily understood;

•
contain a recommendation by the Minister for the Parliamentary resolution
procedure and give reasons for the Minister’s recommendation;

•
if it is a LRO under section 1, show how the provisions will remove or
reduce burdens. This assessment is likely to be crucial for Parliamentary
Committees’ judgement whether to recommend the LRO be made;

•
Identify and give reasons for the LRO conferring any powers to legislate,
and what Parliamentary resolution procedures will apply to exercising
these functions of legislating;

•
give details of consultation and consultation responses.

•
include the dates of any consultations, a full list of all those consulted
indicating which have responded, and mention that the consultation
document has previously been sent to the Parliamentary Committees. It
should also set out a full analysis of the substantive comments from the
consultation exercise, together with the Department's responses to them;
and

•
provide details of any changes made to the LRO as a result of the
consultation. If no changes are to be made to the proposals to meet any
objections, the summary will need to explain why this is not considered to
be necessary.

4.27  In addition, the Regulatory Reform Committee Standing Orders state explicitly
that the Committee, as well as looking at the issues above required by the LRRA
will include in its recommendation of whether an LRO should be made other
matters including:

•
whether the LRO has been the subject of, and takes appropriate account
of, adequate consultation;
52

Chapter 4: Procedural Steps – Preparing to lay the LRO

•
whether the proposal “imposes a charge on the public revenues or
contain provisions requiring payments to be made to the Exchequer or
any government department or to any local or public authority in
consideration of any licence or consent or of any services to be rendered,
or prescribe the amount of any such charge or payment”. Clearly, any
major change to a regulatory regime will have a financial impact. You
may be requiring people or business to pay a new or increased levy to
join a licensing regime, or you may be imposing new financial burdens on
local or central government to police a new regime. Of course, the
financial implications of your LRO need to pass all the safeguards in the
Act. But you will also have to show in detail in your explanatory document
what these new charges are. The Committees will report on this issue.

•
The document must also contain a statement that the proposal is
compatible with the European Convention on Human Rights, together
with a broad description of the main human rights issues concerned (see
Appendix I).

•
whether the proposal appears to be incompatible with any obligation
resulting from membership of the European Union. No LRO therefore,
can be at odds with EC law. Make sure that you explain how your LRO
fits in with our European obligations.  The Committee will report on this
issue.

4.28 The Explanatory document should therefore address all the issues in the
Regulatory Reform Committee Standing Orders (Appendix H) as well as those
set out in section 14.

4.29  There are two main approaches to the treatment and analysis of the consultation
responses:

•  summarise the individual responses, and provide a departmental
response against each item. This approach is thorough but labour-intensive
- it is probably best suited to the simpler proposals and those where there are
relatively few respondents analysis; or

•  address issues raised thematically. This may be appropriate for more
complex proposals or those where a wide range of views have been
expressed.

4.30  Under either approach, you will need to cover all the main points arising from the
consultation, reflecting accurately all the main arguments, particularly those made
against the proposals.

4.31  Please note that the disclosure provisions in the Act mean that, if a respondent
requests that his or her response is not disclosed, you will either have to write
back requesting a change of mind or anonymise the response. If a response is
anonymised you will still have to identify the issues raised and respond to them.
Please also note that the Committees can request sight of the response as
53

link to page 54 Chapter 4: Procedural Steps – Preparing to lay the LRO

originally submitted if they so wish – the purpose of this procedure is to guard
against undue influence being brought to bear on Ministers.

4.32 Where there are factual disagreements arising from the consultation, in particular
on the financial implications, for example, for local authorities or other
enforcement agencies, the Committees will expect every effort to have been
made to resolve these before the draft LRO is brought forward. It will not be
sufficient simply to report a difference of opinion on the facts.

4.33  If you plan to lay more than one LRO on the same topic over a period, you should
make this clear in the explanatory document. The Committees will be looking for
a coherent approach - and it helps to set out the wider picture together with a
timetable for achieving it.

4.34  For all the reasons set out above, the scrutiny committees take the quality of the
explanatory document very seriously. Poorly Explanatory Documents are less
likely to convince the Committees that you have done a thorough job of preparing
the proposed legislation, would prompt more written questions from the
Committees and could at the margin even contribute to the LRO being vetoed or
a recommendation that it should not be made. The key is to undertake a thorough
analysis of those issues mentioned in the bullet points above, which address the
requirements of section 14 of the Act and the relevant Parliamentary Standing
Order. Advice from the DPRRC is that its members find an explanatory document
which takes each policy in turn and sets out why and how it meets each statutory
test is most useful.

Preparing the Full Impact Assessment

4.35  A full Impact Assessment has to accompany the laying of the draft LRO for
scrutiny. This should build on the partial RIA provided with the consultation
document. The consultation responses should help fill in any missing
information about the costs and benefits, whether quantifiable or not.

4.36  The full RIA accompanying the LRO should follow the general guidance on
RIAs issued by the Department for Business, Enterprise and Regulatory
Reform (BERR) available on the BRE website:
http://www.cabinetoffice.gov.uk/regulation/ria/ria_guidance/index.asp

Technical Standards Directive

4.37  If the Technical Standards Directive9 applies, you will need to submit the draft
LRO to the European Commission and observe a 3 month standstill period
before the LRO is made or brought into force. This should be factored into your
project planning in LRO to ensure smooth completion.

4.38  You submit your proposal via a central contact point in the Department of Trade
and Industry.


9 98/34/EC
54

Chapter 4: Procedural Steps – Preparing to lay the LRO

4.39  You should explain in the Explanatory Document the purpose, duration and
outcome of any such scrutiny by the European Commission.

LROs requiring formal Consent from the Welsh Ministers

4.40  If your LRO will affect Wales, relates to matters in relation to which the Welsh
Ministers, the First Minister or the Counsel General exercise functions, you are
required to have consulted the Welsh Ministers.

4.41  Please note too that you must gain the consent of the Welsh Ministers where
your proposal confers, modifies, removes or restates a function of Welsh
Ministers, the First Minister for Wales or the Counsel General to the Welsh
Assembly Government. You must gain consent of the National Assembly for
Wales if your LRO makes provision within the legislative competence of the
Assembly, if it were contained in an Assembly Measure or Act of the Assembly.

4.42  Strictly speaking, formal consent is only required at the moment the Minister
formally makes the LRO. However, as stated in chapter 2, our strong advice is
that you discuss your proposal with Welsh Assembly Government officials from
am early stage to ensure any concern of the Welsh Ministers is addressed
early on in the LRO process.

4.43  Under the RRA 2001 a procedure has been established that the Assembly’s
and Welsh Ministers’ consent has to be signified by way of a motion debate in
plenary session of the full Assembly. The Assembly carries a motion to the
effect that it agrees that an LRO in the form of a draft lying in the table office be
made. Provision has been made for Assembly officers to consent to an LRO in
the form of a draft being made, if the Assembly is not sitting.

Clearance of Proposal by Collective Agreement

4.44 You will need to write to Legislative Programme Committee for collective
clearance of the proposed LRO, explanatory document and full RIA before they
can be laid in Parliament. When writing for LP clearance, you must include in
the letter a statement to the effect that the proposals are compliant with the
conditions of the LRRA. When project planning your LRO proposal, you will
need to allow two weeks to obtain this clearance.
55

Chapter 5: Procedural Steps – Laying the draft LRO

CHAPTER 5: PROCEDURAL STEPS – LAYING THE DRAFT
LRO
Have you agreed with BRE
Preparation for laying the
and Commons and Lords
Give notice of laying date to
LRO
Whips a laying date for the
committees
LRO?
Lay the LRO in Parliament
and publicise this
Committees require or
Committees agree to LRO
Committees require or
agree to super-affirmative
under negative procedure
agree to affirmative LRO
LRO
Or
Or
Presentation to committees
Committees recommend
by Minister and/or officials
Either
Either
LRO not be made or veto it
during first scrutiny stage
Consideration of Committee
Committees agree to LRO
Committees agree to LRO
reports
Are there any
LRO made unless prayed
LRO made after approval
representations made
Do both committees
against in either House
by resolution in each House
during the sixty day period
No
endorse the proposal as it
that will lead you to amend
stands?
the proposal?
Yes
No
Is there need for further
If the Committee reports
consultation ?
recommend amendments ,
Yes
are they acceptable?
Yes
No
See Chapter 4 on
consultation.
Is there scope for
negotiation with the
Committees?
Yes
Yes
Do you need to amend the
proposal following re-
consultation?
Yes
No
Amend the proposal
Yes
Yes
LRO is not made unless
Minister moves a motion to
LRO can progress to
overturn committees’
second stage scritny (see
recommendation (or
chapter 6 )
defeats a motion against a
non-vetoed negative)
No

56

Chapter 5: Procedural Steps – Laying the draft LRO
Checklist for laying the LRO
1.  Have you agreed a target laying date with BRE?
2.  Have you got collective LP Committee agreement to the latest
version of the draft statutory instrument and the Explanatory
document?
3.  Have you prepare a press notice for the laying date and checked
with Strategic Communications Unit in No.10 as to timing?
4.  Have you prepared all the supporting material ready for laying
(consolidated text, pre-consolidation text, list of addresses of
consultation stakeholders)?
5.  Have you prepared copies of the final RIA to send to the House
libraries?
6.  Have you given Parliament and BRE at least one week’s notice of
your proposed laying date?

Preparing to lay the draft LRO

5.1  Departments are responsible for laying the draft LRO and all the accompanying
documents. This is different to the arrangements under the RRA 2001 where
BRE was responsible for laying.

5.2  Once the proposal has been firmed up and you have agreed a target laying
date with BRE, you should seek collective agreement from LP Cabinet
Committee for the proposal to be laid.

5.3  Before sending the LP clearance letter, you should contact LP Secretariat in
the Cabinet Office to discuss you plans and timing. (Please see Appendix A for
contact details). You should seek collective LP agreement on a final draft of the
statutory instrument and the explanatory document (including a full RIA) which
should accompany the letter from the relevant departmental Minister to the
Leader of the House. The letter will normally reserve your Minister’s right to
make minor changes both to the Explanatory Document and to the draft
statutory instrument.

5.4  Members of LP Committee should then normally be given 2 working weeks
within which to respond.  You will need to have good reason for requesting a
quicker turn-around time. If the full two weeks cannot be given for clearance, it
helps if policy officials have resolved all outstanding policy issues with their
opposite numbers in other departments, particularly any devolution issues.

5.5  The Chairman of LP Committee (the Leader of the House and Lord Privy Seal)
then writes to the relevant departmental Minister to confirm the Committee’s
decision. This gives you the authority to proceed with laying the proposed LRO
in Parliament. You may have to chase any outstanding responses in LRO to
ensure that the decision is timely.

5.6  At this stage only a draft of the LRO and explanatory document (including a full
RIA) are formally required to be laid before both Houses. However, the
Parliamentary Committees have asked for additional information to be provided at
the same time as the documents are laid. You will therefore need to provide
them with:
57

Chapter 5: Procedural Steps – Laying the draft LRO

•
the addresses of all those consulted (which in most cases should be the
same as the list provided at the time the consultation exercise started);

•
a list of all relevant statutes (we suggest this is annexed to the
explanatory document) along with copies of the relevant parts of those
statutes;

•
a copy of all responses to the consultation;

•
if your LRO inserts amendments into existing legislation:

  a consolidated text of all the legislation to be amended, signed and
certified as accurate by Departmental lawyers on the face of the text;

  a “Pre-consolidated Text” (if your reform merely involves a simple
amendment of legislation) that is a text showing what the Act(s) being
amended would look like if all the amendments proposed in the draft
LRO were passed, also signed and certified as accurate by
Departmental lawyers on the face of the text.

5.7  In order to lay the proposed LRO on the specified date, your Parliamentary
Branch will need to lay the LRO and explanatory document in the Commons
Vote Office, the Lords Printed Paper Office, the Regulatory Reform Committee,
and the Delegated Powers and Regulatory Reform Committee. In total your
Parliamentary Branch will need to have:

•  161 draft LROs

•  161 explanatory documents (including list of statutes)

•  28 consolidated texts

•  2 list of names and addresses of those consulted

•  2 full sets of responses

5.8  Copies of these documents should be delivered to Parliament at the same time
that you lay the proposed LRO. Appendix G provides precise details.

5.9  At the point of laying, you will also need to provide electronic copies of the final
versions of the documentation to both the Parliamentary Committees and the
BRE.

Give Notice
5.10 BRE provide the Scrutiny Committees every quarter with a schedule of
forthcoming LRO work – this is a forward look for the next two months. This
forward look report is collated in liaison with departmental Better Regulation
58

Chapter 5: Procedural Steps – Laying the draft LRO
Units. The Committees will therefore be aware, up to a couple of months in
advance, that your proposal will be coming to them for scrutiny.

5.11  Nearer the time, you should agree with BRE when your proposal will be laid,
and inform the clerks to the Committees of the agreed date as soon as
possible. Contact your Parliamentary Branch about further information.

5.12  You should check with the Strategic Communications Unit in No. 10 that the
planned announcement to accompany the laying of the proposed LRO will not
conflict with other Government announcements. Your Press Office will be able
to advise.

5.13  You will help the Committee staff if you can let them have early sight of the
documentation in advance of the proposed LRO being laid. This has worked
well in the past with LROs under the 2001 Act and can mean that the clerks
spot mistakes that can be corrected before laying. The main advantage is that
the Committee can consider your proposal at its first available meeting. The
more time-critical your proposed LRO is the more important this is.

5.14  You should accordingly send all documents relevant to the proposed LRO to
the Clerk of the Regulatory Reform Committee, and the clerk of the Delegated
Powers and Regulatory Reform Committee in the Lords at least a week before
the proposed LRO is to be laid. (See Appendix A for contact details). The
purpose of this is to enable the Clerks to prepare briefing papers for the first
available Committee meeting after laying date. These advance copies are
provided electronically.

5.15  Please note that any documents sent to the Scrutiny Committees in advance of
laying are sent on the express understanding that they are drafts and subject to
revision, and that they are for the Committee staff only and are not circulated to
Committee members. They can therefore refer to embargoed information if
need be.

Laying the Proposed LRO
5.16 The Department and its Parliamentary Branch must lay the draft LRO,
explanatory document and other required documentation, and provide the
Committees with their copies at the same time.

5.17  The two Scrutiny Committees that will consider the proposal are:

• the
Regulatory Reform Committee in the House of Commons. Its reports
and the list of proposals it is currently considering together with time
remaining are on the website; and

•  the Delegated Powers and Regulatory Reform Committee in the Lords. Its
reports are also on the website.

5.18  If for any reason you wish to withdraw the proposed LRO after it has been laid,
you should inform your Parliamentary Branch urgently as they are the ones
who must do it by laying letters informing the Commons Vote Office, the Lords
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link to page 60 link to page 60 Chapter 5: Procedural Steps – Laying the draft LRO
Printed Paper Office and the two relevant Committees that a LRO should be
withdrawn.

Publicity
5.19  After you have laid the proposed LRO, BRE will publish the proposed LRO and
Explanatory Document on its website at
http://bre.berr.gov.uk/regulation/reform/bill/

5.20 You may wish to consider also publishing the proposal on your own
departmental website.

5.21  The Committees have also asked that steps be taken to ensure that all those
who were consulted on the proposals are made aware that a draft LRO has
been laid. In most cases this will only require Departments to release a press
notice when the draft LRO is laid (press notices should be produced for all draft
LROs), although it may well be advisable to contact all consultees directly.

LROs that remain subject to the negative or affirmative resolution
procedure

5.22  If the Minister has recommended the proposed LRO should be subject to the
negative or affirmative resolution procedure, Parliament has 3010 days from the
moment of laying to recommend a more onerous procedure. If after the 30
days, the Committee does not request a more onerous procedure the process
will be as follows:

•  Negative resolution procedure: If after 40 days, neither Committee
recommends that the LRO not be made or vetoes the LRO, the Minister can
make the LRO (details provided in chapter 7). If either Committee makes a
recommendation that the LRO not be made, including in the terms of the veto
under s16 (4), the Minister may not make the LRO, unless the Committee’s
recommendation is overturned by resolution of the House in the same
Parliamentary session11.

•  Affirmative resolution procedure: If after 40 days neither Committee
recommends that the LRO not be made, the Minister can make the LRO after
approval by resolution in each House of Parliament (more detail provided in
chapter 7). If either Committee recommends that the LRO not be made, in the
terms of the veto under s17 (3), the Minister may not make the LRO, unless
the recommendation by either or both Committees is overturned by resolution
of the relevant House in the same Parliamentary session.


10 All statutory periods of Parliamentary time include non-sitting Fridays and weekends, but not
Parliamentary recesses of more than 4 days. The 15 or 25 days of Parliamentary scrutiny period the
Committees enjoy for second stage scrutiny of super-affirmative LROs as a result of Regulatory
Reform Committee Standing Orders, must be calculated by counting only sitting days.
11 The Government has given an undertaking (see Appendix B) that the Govdernment will not force
through LROs in the face of opposition from the parliamentary Committees. This means that
overturning a Committee recommendation that an LRO should not be made, would be politically highly
charged territory.
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Chapter 5: Procedural Steps – Laying the draft LRO
5.23  If Parliament has agreed that your proposed LRO be subject to either the
negative or affirmative procedure, the rest of this chapter is not of direct
relevance and you can go to the start of chapter 7.

Super-affirmative Procedure: Initial Scrutiny

5.24  The initial scrutiny period lasts 60 days (including weekends but excluding any
recesses of more than 4 days). This period is a statutory requirement in the
LRRA 2006 and is non-negotiable.

5.25  The Committees will consider the proposal against the requirements of the LRRA
2006, in particular the list of preconditions in section 3 and the requirements for
the Explanatory Document in section 14 and 15. The Commons Regulatory
Reform Committee will also consider the proposal against the other provisions of
its Standing Orders (for instance, whether the LRO has been subject to adequate
consultation). See Appendix H for full text of RRC Standing Orders.

5.26  Please note that, at the discretion of the Committee, any MP interested in the
subject-matter can attend its meetings and question witnesses – but cannot vote
on Committee business. The Committees can also hold joint sessions if they
wish.

5.27 The Clerk will usually write with requests for information directly to the
responsible officials. It is the officials’ responsibility to supply evidence direct to
the Committees. There is no specific format required for the evidence, and a
letter will usually suffice. The Committees may also write to your Minister
asking questions. A prompt and full reply to any such letter is important.

Presentation by Officials
5.28 During this initial scrutiny period of 60 days, rather than rely merely on
correspondence, the Committees may invite oral evidence from departments, but
will not do so in every case. Deadlines set by the Committees for providing
evidence must be met. Ministers are expected to attend to give evidence if
invited to do so.

5.29  However, with RROs under the RRA 2001, it has become standard practice,
cleared with DA Cabinet Committee, that officials separately can give a factual
presentation on the proposal at an informal session with the Commons
Committee – and the Lords Committee should they request it too. It is expected
that the same arrangement will apply to the first scrutiny period of a super-
affirmative LRO. The presentation usually happens at the first available
Committee meeting after laying, which, in the Commons, usually takes place on
Tuesday mornings at 9:30am. No formal transcript is taken. The DPRRC in the
Lords would not as a rule take evidence on a draft LRO, but on occasion it may
decide that evidence about compliance with various of the preconditions is
necessary.

5.30  The Commons Committee expect the team giving the presentation to be able to
talk authoritatively about the proposal and its context. Usually Departments
have fielded 2 or 3 officials – the team leader and legal adviser. The
presentation is factual in nature, explaining the background, the current law and
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Chapter 5: Procedural Steps – Laying the draft LRO
the burdens that flow from it – as well as how you propose the reform will
address them. It usually lasts 20 – 30 minutes followed by questions from
members.

5.31 Under the 2001 Act, the Committees have also taken evidence from other
interested parties such as local authorities and industry representatives where
relevant. Both Committees also take expert advice if they so wish.

5.32  Committee members will have particular interests and approaches based on
their party and constituency, and it may be worth doing some research
beforehand either at Dods-on-Line or on the Early Day Motion database. As
was noted above, the Committee will be particularly interested in the
consultation – who was contacted, the responses stakeholders provided and
the steps the Minister took to address any issues raised. Members will also be
very interested in the arguments why the draft LRO meets all the preconditions
in section 3.

5.33 The Committee will usually write with further questions following the
presentation. These can be detailed and will need to be addressed in
correspondence.

5.34 The Committee staff are often willing to discuss with departments any evidence
received from other stakeholders. Departments are expected to use this
opportunity to raise any comments on the evidence. It is also normal for
Government written evidence to be circulated to other witnesses and published
on the Parliament website.

5.35  Timescales for responding to the Committees will usually be very tight, but the
Committees are willing to receive documents by fax in the first instance.

5.36  Please note that written evidence and transcripts of oral evidence will be
published as an annex to the Committee’s report.

Consideration of Committee Reports

5.37  At the end of the 60 days the Committees will report on their findings and state
either that:
•  a draft LRO in the same terms as the proposals should be laid before the
Houses for final scrutiny; or
•  the proposals should be amended before a draft LRO is laid before
Parliament; or
•  the LRO should not be proceeded with.

5.38  If either or both of the Committees have decided to veto the proposed LRO, the
Government can either

•  Abandon its proposal altogether; or

•  withdraw the draft LRO and re-lay an amended version; or

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Chapter 5: Procedural Steps – Laying the draft LRO
•  seek to overturn that veto by a resolution of the House. You should note
however, that this is the nuclear option and that the Government has
renewed its undertaking given for RROs under the 2001 Act, that it will not
pursue the making of an LRO in the light of opposition from the
Committees (Appendix B).

5.39 Following anything other than a proposed veto, the departmental Minister is
required to take account of the Committees’ reports and any other
representations made during the 60 day period before finalising the draft LRO
(including making any necessary changes to the preamble).

5.40 Such representations may come from individuals or public or private
organisations. It is open to you to whether to amend the draft LRO in response to
a representation.

5.41 You will, therefore, need to consider each representation carefully, and detail its
contents and your reaction to it in the statement that accompanies the draft LRO
for final scrutiny (see chapter 7). You will need to assess the implications of any
such change as part of your consideration.

Technical or Minor Changes
5.42  The Committees may recommend that, before the draft LRO is laid for second
stage or final scrutiny, the Department should amend it in some respect or
undertake further consultation.

5.43  It may be that the changes recommended concern ambiguity of drafting or
technical deficiencies. In such circumstances, you should consult BERR legal
who keep a watching brief on technical drafting issues, and may be aware of
previous correspondence on the point. Parliamentary Counsel should be
involved if any changes affect the drafting of primary legislation. There would
probably be no need for wider clearance if the substance of the proposal was
unaffected.

If the Committee reports recommend amendments, are they acceptable?
5.44  There is no obligation to accept all of the Committees’ recommendations, but you
will need to have very good reasons for not doing so. For, if one of the
Committees does not find your reasons satisfactory, then the task of gaining
approval for the LRO will be much more difficult. At worst, the Committee may
veto the LRO in these circumstances. To maximise the chance of the LRO still
being made, any reasons for the Minister’s disagreement with the Committees will
need to be set out clearly in the accompanying statement for the revised LRO
when it is laid as a draft for second stage or final scrutiny.

Need for Further Consultation?

5.45  The Committees may recommend that you need to consult again on aspects of
the proposal or with different consultees. They may also recommend that the
consultation cover particular amendments that the Minister should, in their
view, make to the proposals.

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Chapter 5: Procedural Steps – Laying the draft LRO
5.46  If you decide to re-consult, you may consult only on those aspects of the
proposed LRO that are affected, rather than re-starting the entire consultation
exercise. If you are amending only one provision in a proposed LRO, you
should consult on that alone providing you can give sufficient context for the
consultees to be able to respond fully and from an informed stand-point. In
such cases you will need to determine whether the amended provision affects
any of the other provisions, or is affected by them to the extent that its effect
cannot be determined in isolation. If the latter is the case the relevant original
provisions should be included in any further consultation.

5.47  As part of their deliberations when the proposal comes before Members again,
the Committees will consider once more whether adequate consultation took
place. You should therefore consider carefully whom to consult and whether
you are asking for sufficient information to be able to satisfy the Committees.

5.48  The simple rule about who to consult remains that everyone affected by the
changes made to the LRO and anyone who might have something to say about
them should be consulted if that is felt necessary. If your amendments mean
that your proposed LRO now affects someone materially not previously
affected, then you should consult them.

5.49  You should, of course again follow the Consultation Code of Practice  for any
further consultation exercise.

5.50  If the proposed changes to the proposed LRO are substantive, you should use
the consultation exercise to revise the data on costs and benefits so that you
can refresh the full IA and attach it to the accompanying Statement at final
scrutiny stage.

Do you need to amend the Proposal following Re-consultation?
5.51  You will need to consider your proposal in the light of the responses to the
consultation exercise. You may find that the proposal needs further changes,
and you will need to clear them with your Ministers.

5.52  If the proposed amendments go outside the scope of the original request for
collective agreement, you may need to seek this again. (See chapter 3)

5.53 You will also need to refresh the consent of the Welsh Assembly and/or
Ministers if the amendments would trigger the requirements in LRRA to seek
their agreement.

5.54  Once any necessary agreements and consents have been secured, you should
re-cast the draft LRO, ensure that your departmental lawyer amends the
proposal in line with agreed policy and make sure the lawyer sends it to BERR
legal for checking before they send it on to Parliamentary Counsel before laying
it in Parliament. (Chapter 7)

Rejecting a Committee Recommendation?

5.55 If all avenues of compromise between the Minister and the Parliamentary
Committees have been exhausted, Ministers would be expected to withdraw it, or
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Chapter 5: Procedural Steps – Laying the draft LRO
to bring it forward as primary legislation. This is to honour the Minsiterial
undertaking given during the Legislative and Regulatory Reform Bill’s passage
through Parliament that the Government will not force through LROs in the face of
opposition from the Parliamentary Committees.

5.56  In theory, the Government does have the extreme option of trying to overturn the
Committees’ decision by a resolution of both Houses. If the Minister has decided
to do this, they would need to have very good reasons to present in support of the
decision in debate.

5.57  It must be stressed that, if your Minister wishes to press ahead with the
LRO in this way, it would very much be a last resort. Given the potential
impact on other LROs and on Parliamentary time, you would need to clear
such an approach with the Business Managers through LP Committee
and with the BRE.

What if the Committees do not agree with one another about an
LRO?

5.58 Under the RRA 2001, the Commons and Lords Committees always agreed about
the recommendation for a proposed RRO. However, with regards to future LROs
it may be the case that the Scrutiny Committees do not agree their
recommendations or that their recommendations on identical issues take a
different form or approach.  In such circumstances, you will need to consider the
extent to which you will be able to broker a compromise deal between the
Committees, which will involve close liaison with the Committee Clerks and if
necessary the BRE. However, if a compromise position between the Committees
cannot be reached, the LRO will fall if one of the Committees opposes it.

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Chapter 6: Procedural Steps: Super-affirmative procedure – Second
stage or Final Pre-legislative scrutiny

CHAPTER 6: PROCEDURAL STEPS: SUPER-AFFIRMATIVE
PROCEDURE – SECOND STAGE SCRUTINY

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stage or Final Pre-legislative scrutiny

Checklist for laying for final pre-legislative scrutiny

1.  If you do not propose to revise the draft LRO, it is only necessary to lay an
accompanying statement, i.e there is no need to relay the draft LRO.
2.  Have you considered any necessary changes to the draft order requested
by the Committees?
3.  Have you amended the order in response to any representations received
during the 60 day period?
4.  Have you explained the reasoning for any changes to the draft order in the
Accompanying Statement?
5.  Have you made any necessary changes to the preamble?
6.  Have you included a commencement date?
7.  Have you got Welsh Ministers/Assembly consent where appropriate?
8.  If appropriate, has the final version of the Pre-consolidated text been
certified as accurate and dated by your lawyers?
9.  Have you sent 165 copies of the draft order and accompanying statement
(and 28 Consolidated Texts, and 3 copies of the Pre-consolidated Text as
appropriate) to Parliament?
10.  Have you sent one electronic copy of each of these consolidated texts to
the BRE?
11.  Have you placed copies of your documents on the internet?

Laying an Unrevised draft LRO

6.1  If after the end of the first stage scrutiny period, you wish to make the
LRO in the terms of the draft considered by the Committees you do not
need to re-lay the draft LRO, but only need to lay a statement in
Parliament which provides details of any representations made by
stakeholders. The Commons Regulatory Reform Committee Standing
Orders state that the Committee then has 15 sitting days for final
consideration of the LRO and the accompanying statement.

6.2  The final stages of the process for making the LRO is covered in
Chapter 7.

6.3  If the Minister wishes to lay a revised draft LRO, the following stages will
be necessary.

Preparing the revised draft LRO

6.4  For LROs that are revised, as well as any changes requested by the
Committees, you will need to ensure that:

•  any necessary changes are made to the preamble and Explanatory
Note;

•  the draft LRO includes a commencement date. This can be either a
specified date or a formula such as “this order will come into force 28
days after the day on which it is made”. There are no hard and fast
rules about how long to leave between an LRO being made and
coming into force - an LRO can commence the day after it is made
should you so wish. Please note: an LRO which comes into force on
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stage or Final Pre-legislative scrutiny

the same day as it is made takes effect from the beginning of the day;
it is therefore technically retrospective, as it will probably be signed
during office hours. This is not acceptable without the prior approval of
the Attorney-General.

•  the following wording appears in italics at the top of the first page: “A
draft LRO laid before both Houses of Parliament under section 18 (7)
of the Legislative and Regulatory Reform Act”. If you forget to
change the recital and the reference to section 14(1) remains,
then formally you will be starting the initial scrutiny again.

Preparing the Accompanying Statement
6.5  Section 18(3) of the Act requires a statement be laid before Parliament
alongside the draft LRO. If the LRO has not been revised since the first
scrutiny stage, this accompanying statement should state whether any
representations were made during the first 60 day scrutiny period and
provide details about any representations.

6.6  If the Minister wishes to lay a revised draft LRO, the accompanying
statement should summarise the reports of both the Committees and
explain the changes, if any, that have been made to the proposals as a
result. (Section 18(7). It should also say whether any other
representations were received during the 60-day period and, if so,
whether any changes were made as a result. Where relevant, it should
also explain the reasons for not accepting a recommendation of the
Committee, and the supporting evidence for that decision. If you have
undertaken re-consultation, you should include an analysis of the
responses including a description of the substantive points raised and the
Department’s reaction to them. If the changes to the proposal are
substantive, you should include a refreshed full Impact Assessment. This
should based as appropriate on any information provided during a re-
consultation exercise.

6.7  It is important to report the Committees’ recommendations and
conclusions accurately.  In particular you should not refer to the
Committees having “approved” the draft LRO. The safest bet is to quote
recommendations and conclusions verbatim from their reports. It is not
necessary to repeat large sections of discussion. Rather the statement
should concentrate on recommendations and the Department’s response
to them, and on the Report’s conclusions.

Preparing other required documents
6.8  The other required documents are:

•  Consolidated text and Pre-consolidation text: If the draft
instrument differs from the proposal at initial scrutiny, a copy of the
Consolidated Text and Pre-consolidated Text should be attached to
the statement, signed and certified as accurate by Departmental
lawyers on the face of the text as before;

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stage or Final Pre-legislative scrutiny

•  Names and addresses: the Committees need the full names and
addresses of those who have made representations so that they
can contact them if need be. Any person who makes
representations will also be sent the relevant Press Releases by the
Committees when they report;

•  Full set of responses:
if any representations were received
during the 60 day scrutiny period, they should be forwarded to the
Committee. Similarly if you re-consulted, you should attach the
responses.

6.9  These documents should be provided electronically wherever possible
in addition to the paper versions.

Giving Notice
6.10  There is generally no need to seek collective agreement to lay the draft
LRO for final scrutiny. This is because the initial collective agreements
from DA and LP Cabinet Committee are sufficient. The only circumstance
where collective agreement might be needed is if the proposal is amended
substantively before being laid for final scrutiny.

6.11  Please liaise with BRE about timing for laying your final draft LRO. If there
are particular reasons why the draft LRO needs to be laid quickly, you can
do so at the earliest opportunity, subject only to giving the two Committees
a week’s notice.

6.12  As at initial scrutiny, you can supply Committees with electronic copies
of the paper documents. This approach is particularly worth considering
if:

•  your proposal is time-critical – as before advance sight of the
documentation will enable the Committee staff to prepare the
necessary briefing papers which could mean that the Committee will
be able to consider the draft LRO at the first available meeting. In
turn this could mean that they report early during the 15 or 25 sitting
day final scrutiny period; or
•  there are a number of changes to the proposal – the final scrutiny
stage is relatively short as it is meant as a final check that the
Department honoured any undertakings and has responded
appropriately to any recommendations or representations.

6.13 As before please note that, any documents sent to the scrutiny
Committees in advance of laying are sent on the express understanding
that they are draft and subject to revision, and that they are for the
Committee staff only and are not circulated to Committee members.

6.14  As the final scrutiny stage completes the pre-legislative stages of the
LRO process, you should give notice by e-mail to:

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stage or Final Pre-legislative scrutiny

• the
Chief Whip’s Offices so that steps can be taken to prepare for
including the draft LRO on the Parliamentary Order Papers (agenda
of the day’s Parliamentary business). This is by way of advance
warning as the Committees could issue their final report within 15,
or in the case of a revised draft LRO, 25 sitting days. This step is
most important in the Lords given the need to negotiate a slot with
the Opposition and other groups;

• your
Parliamentary Branch as they assume responsibility for the
affirmative motion stage and then making the LRO; and

• your
departmental lawyer who will need to prepare the final
version of the LRO (i.e. no longer a draft) ready for eventual
signature by the Minister.

Laying the Draft LRO for final scrutiny

6.15  Once any necessary changes have been made to the draft LRO, it can be
re-laid for final scrutiny by the Committees.

6.16 Your Parliamentary Branch should lay the draft LRO, accompanying
statement and Pre-consolidated Text (if appropriate) and provide the
Committees with their copies at the same time. You will need 161 copies
of the draft LRO and accompanying documents (and 3 of the Pre-
consolidated Text if appropriate). Appendix G provides precise details.

6.17  The draft LRO does not need to be printed by TSO – it will be laid and
presented to the Committees in typescript form. It is open to Departments
to print and publish the draft LRO if they wish, provided the text of the
printed version is exactly the same as the text that is laid, but you must
not lay this printed version – it would be treated as a “new” LRO and
formally would have to go back to for further scrutiny. If for any
reason you wish to withdraw the draft LRO after it has been laid your
Parliamentary Branch will have to do so.

6.18  As with initial scrutiny, you should send the documentation to the BRE
so it can be put on their website.  It is up to Departments whether to
issue a Press Release to mark the final laying – but in practice this
tends not to happen given the proximity to the motion to approve and
making of the LRO.

6.19  Unlike the 60 day period the final or second stage scrutiny period is not a
statutory requirement but is set out in Standing Orders.

6.20  In the Commons, the final scrutiny period lasts for up to 15 sitting days
for LROs that have not been revised after the first scrutiny period and up
to  25  sitting days for LROs that have been revised after first scrutiny
period. These periods are set out in the Standing Orders for the Commons
Regulatory Reform Committee and ONLY include sitting days.
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stage or Final Pre-legislative scrutiny

6.21 Its purpose is to check that the Department has honoured any
undertakings and responded appropriately to any Committee
recommendations or representations received during the 60 day period. It
is at this stage that the Committee can also invoke their right of veto if they
wish to use it.

6.22  If a mistake is discovered or there is a sudden need to make a change,
the only recourse is to withdraw the LRO (and if necessary, the
statement), and re-lay it amended.

Committee Reports

6.23 Both Committees will produce final reports on the draft LRO. The
Commons Committee are required to produce their report within 15 sitting
days from the day of the Minister having laid the draft LRO, or if a revised
draft LRO was laid 25 sitting days; the Lords Committee will report as
soon as possible after receiving the final scrutiny documents, but in
practice will also usually report within that time.

6.24 Assuming that they are content, they will report that the LRO can proceed
to the motion to approve.

6.25  Under the RRA 2001, the Committees did not report adversely under that
Act on a proposal at final scrutiny stage. If they were to report adversely,
it would be open to you to re-lay the proposal or decide whether to
proceed regardless.
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Chapter 7: Approval Motion and making the LRO

CHAPTER 7: APPROVAL MOTION AND MAKING THE LRO

Checklist for approval motion and making the LRO

1.  Have you received formal consent from the Welsh Assembly/Welsh Ministers (if required)?
2.  Have you contacted your Parliamentary Branch for them to arrange a debate in the Lords and to
table the Motion to approve the LRO in the Commons?
3.  Have you prepared briefing and speaking notes for your Lords Minister’s part in the debate on the
Motion?
4.  Has you lawyer removed references to the draft status of the order and have you made
arrangements for the Minister to sign the LRO?
5.  Have you contacted HMSO to obtain an SI number, and to arrange publication on HMSO’s
website?
6.  Have you publicly announced the introduction of your reform via a press release or by contacting
consultees/stakeholders directly?

7.1  An LRO subject to the negative resolution procedure will be made unless
either relevant Committee makes a recommendation that the LRO should
not be made in the terms of the veto provided in s16 (4). Technically there
is also the possibility that either House could vote that the LRO not be
made under s16 (3), following an objection from the Committee which
does not engage the veto.

7.2  For affirmative and super-affirmative LROs, the Committees report to their
respective Houses what their recommendation is. The Houses will then
debate (as necessary) and vote on the report. There is no requirement to
lay the LRO again after the Committee has reported – to do so would start
the final scrutiny process again.

7.3  The procedure leading up to the final making of the LRO differs in the
two Houses.

Commons Procedure

7.4  In the House of Commons, the way in which the draft LRO is dealt with
depends on how the Committee reported. If Committee members voted
unanimously to approve the draft LRO, the motion to approve it is put to
the House forthwith (i.e. without debate).

7.5  If they voted to approve the draft LRO following a division of the
Committee (i.e. not unanimously), there is a debate on the Committee’s
report lasting a maximum of 1½ hours, after which the Motion to approve
the draft LRO is put. Briefing will need to be prepared for the Minister in
this case.

7.6  If the Committee wishes to oppose the LRO, it can either do so by using
the veto or by expressing objection to the LRO which falls short of vetoing
the LRO. If the Minister still wished to pursue the LRO after such a
recommendation, they are faced with two options:
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Chapter 7: Approval Motion and making the LRO

•  either to abandon the draft LRO and start again with an amended
draft, or
•  to table a Motion to disagree with the Committee report.

7.7  The second approach is dramatic political territory and contrary to the
undertaking given during the passage of the Bill that the Government ‘will
not force through LROs in the face of opposition from the parliamentary
Committees’ (See Appendix B). Ministers should therefore take advice
from the Whips in both Houses and LP secretariat and BRE if they wish to
pursue such a path.

Lords Approval Motion

7.8  In the House of Lords, following the publication of the Committee’s final
report, the Lords Whips Office will table a Motion in the name of the
Minister that the House should approve the draft LRO. A short debate
may follow this motion. If this is the case the Department must prepare:

•  a briefing sheet on a single A4 sheet, setting out the purpose and
effects of the proposal, its general acceptability, the extent of the
consultation undertaken and the rigours of the scrutiny it has
undergone.
•  Speaking notes for your Lords Minister, together with appropriate
background briefing, for the Lords Debate. (The same would apply in
the Commons in the event of a debate).

7.9  You should also prepare briefing covering any remaining points of
controversy on the LRO or anything else that you feel could be brought
up in the House.

Will there be a Debate on a Motion from the Minister to
Disagree?

7.10  If you do decide that you believe the Minister’s arguments are strong
enough to try to overturn either or both Committees’ recommendation
that the LRO should not be made on the floor of either or both Houses,
you are in uncharted territory. If the Minister wishes to disagree with a
Parliamentary Committee and to try to overturn a Committee veto, they
would need to obtain clearance from LP Cabinet Committee to do so. In
the highly unusual instance that both Houses supported the Minister’s
Motion to overturn the committee’s veto or objection, in the Commons a
Motion to approve the draft LRO itself would be put forthwith.

7.11  However, before advising your Ministers, you should also:

•  consult the Chief Whips Office to gauge the reaction of the business
managers; and
73

Chapter 7: Approval Motion and making the LRO

•  consult the business managers since, given the Ministerial undertaking
not to force through LROs, seeking to over-ride a Committee report
could have much wider consequences for Parliamentary business.

Consent from Welsh Ministers
7.1  Before making the LRO, you will need to check that the Welsh Ministers
have formally consented to the final version of any LRO (where
relevant).

Preparing the Final LRO

7.2  Before the debate in the Lords, it would be wise for the legal adviser to
prepare the final version of the LRO, by removing references to its draft
status and making any other technical changes needed.

7.3  Early preparation means that the Minister will be in a position to sign the
LRO immediately after the last House to affirm the LRO has done so.
Please note that it is not possible to make substantive changes at this
stage.

Making the LRO

7.4  After the LRO has been approved by both Houses, the LRO can be
made and signed by the responsible Minister. The “date made” is
therefore the date it is signed, the “commencement date” is the date it
comes into effect which should be stated on the LRO itself.

7.5  Once the LRO has been made you or your Parliamentary Branch must
liaise with HMSO to obtain an SI number and to arrange publication on
HMSO’s website. Your LRO will include a commencement date and the
reform will come into effect on that date.

Announcing the Reform Publicly

7.6 A press release should be issued to inform people of the
commencement of the LRO. This should inform them where and how
they can find more information on how it may affect them.

7.7  You may also wish to inform consultees and stakeholders directly by
letter.

And that should complete the LRO-making process!!
74

APPENDIX A: Contact Details
APPENDIX A: CONTACT DETAILS

CONTACT THE BETTER REGULATION EXECUTIVE
Your main point of contact concerning LROs in BRE should be your dedicated
BRE policy team:

•  Criminal Justice, Education, Health and Public Services Team
Transport, Safety and the Third Sector Team
Please contact:

•  Environment and Communities Team
Please contact:

•  Enterprise Team
Please contact:

•  To discuss laying dates for your LRO and general issues relating
to the LRRA

CONTACT BERR LEGAL FOR LEGAL ADVICE ON LROs
•  After discussing proposals with your departmental legal advisers, if
your legal advisers have specific questions regarding the order-making
powers in the LRRA, or you need to send your draft LRO to
Parliamentary Counsel

CONTACT THE CABINET OFFICE FOR CABINET OFFICE CLEARANCE
•  LP Secretariat


CONTACT THE MINISTRY OF JUSTICE CONSTITUTIONAL UNIT
•

CONTACT THE DEVOLVED ADMINISTRATIONS

•  WALES

Welsh Assembly Government

Wales Office

•  SCOTLAND

75

APPENDIX A: Contact Details

PARLIAMENT

RELEVANT PARLIAMENTARY COMMITTEE CLERKS

•  House of Commons Regulatory Reform Committee

•  House of Lords Delegated Powers and Regulatory Reform
Committee

•  Commons Whips

•  Lords Whips

76

APPENDIX B: Government Undertakings
APPENDIX B: GOVERNMENT UNDERTAKINGS

Jim Murphy, Cabinet Office Parliamentary Secretary (Commons Hansard
9 February 2006: columns 1058-1059)
I am giving a clear undertaking today that orders will not be used to implement
highly controversial reforms, that they will not be forced through in the face of
opposition from the Committees of this House and that the Committees’ views
of what is appropriate for delivery by order will be final.

Pat McFadden, Cabinet Office Parliamentary Secretary (Commons
Hansard 15 May 2006: column 795)
The Government have also given an undertaking that they will not do anything
highly controversial using an order and that an order will not be forced through
despite opposition from the relevant parliamentary Committees. (..) the
Government have placed on a statutory footing a veto for relevant
Committees of either House. That will provide further assurance for those
concerned that an order will proceed only if the informed view of the House
and another place is satisfied that its outcome is desirable.

Lord Bassam of Brighton ( Lords Hansard 13 June 2006: column 125)
I can reiterate two key Government undertakings: that the Government will not
deliver highly controversial measures by order and that we will not force
through orders in the face of opposition from the parliamentary Committees.

Lord Bassam of Brighton (Lords Hansard, 3 July 2006: column 37) ...the
explanatory document laid before Parliament must include details of the
consultation responses received, which could highlight the creation of any
unnecessary burdens. The document must (..) include an assessment of the
extent to which the provision made by the order would remove or reduce any
burden or burdens. It is government policy that, where appropriate, measures
should include full impact assessments.
Plus reference to undertaking about compatibility with HRA 1998

Lord Bassam of Brighton (Lords Hansard, 19 July 2006, column 1385) Under
Section 6 of the Human Rights Act:
“It is unlawful for a public authority to act in a way which is incompatible
with a Convention right”.
Under Section 6(3) of the Act, a Minister of the Crown is clearly a public
authority. He must therefore exercise the function of making secondary
legislation in a compatible manner, regardless of what the secondary
legislation does. Therefore, all orders, including all those under this Bill, must
be compatible with the convention rights.
77

link to page 78 APPENDIX C: Proforma

APPENDIX C: PROFORMA

PROFORMA FOR THE ANALYSIS OF POTENTIAL ORDERS TO BE MADE
UNDER THE LEGISLATIVE AND REGULATORY REFORM ACT 2006

This proforma is designed to help departments decide whether or not they can
deliver reforms using the order making powers under Part 1 of the Legislative
and Regulatory Reform Act 20061 (the Act).

Before completing the proforma, please refer to the Explanatory Notes
accompanying the Act, and in particular paragraphs 18-113 which set out the
purposes for which the order-making powers under Part 1 of the Act may be
used.

Please send the completed proforma to the Better Regulation Executive
(BRE) who will arrange a meeting to discuss your proposals. The BRE and
BERR legal will provide advice and guidance regarding the provisions of the
Act, but it is for departments to reach the view that their proposals fall within
the scope of the order-making power.

DETAILS OF YOUR PROPOSALS

1. LROs under Section 1 of the Act

i.
Have you identified a burden that you seek to remove or reduce?
– Section 1(3) defines a burden as:

  a financial cost;
  an administrative inconvenience;
  an obstacle to efficiency, productivity or profitability; or
  a sanction, criminal or otherwise, which affects the carrying
on of any lawful activity.

ii.
Who is affected by the burden?

iii.
How does the burden result from legislation? Please identify the
relevant legislation?

iv.
How do you propose to remove the identified burden? Do you
have robust empirical evidence as to whether the proposed legislative
changes will remove or reduce the identified burden?


1 As amended by the Government of Wales Act 2006 (Consequential Modifications and
Transitional Provisions) Order 2007 (SI 2007/1388)
78

APPENDIX C: Proforma

v.
Will the LRO impose any new burdens? – Please refer to
paragraphs 32 and 33 of the Explanatory Notes which set out the
limited circumstances under which an LRO can impose a new burden.

2. LROs under section 2 of the Act

i.
Which regulatory functions will be affected by the proposed LRO?

ii.
How will the proposed LRO secure that the exercise of regulatory
functions complies with the principles of good regulation? – The
principles of good regulation are that regulatory activities should be
carried out in a way which is; transparent; accountable; proportionate;
consistent; and targeted only at cases where action is needed.

iii.
Will your proposed LRO includes provisions to:
i. modify the way in which regulatory functions are
exercised by any person;
ii.  amend the constitution of a body that exercises regulatory
functions established by or under an enactment;
iii.  provide for the transfer or delegation of the regulatory
functions conferred on any person;
iv.  Create a body to which regulatory functions are to be
transferred; or
v.  Abolish a body whose regulatory functions are to be
transferred to another body.

iv.
Does the proposed LRO confer any new regulatory function or
abolish any regulatory function? – Section 2(6) prohibits an LRO
from conferring any new regulatory function, or varying or abolishing
any existing regulatory function. If your proposal does confer any new
regulatory function or abolish any regulatory function and it can be
shown that burdens resulting from legislation are removed or reduced,
it may be possible to do so by LRO under section 1.

3. LROs seeking combination with powers under the European
Communities Act 1972.

i.
Do you propose to combine the order-making power in Part 1 with
the power to make orders under s. 2(2) of the European
Communities Act 1972 (section 20 of the Act)? Please provide
details if this is the case.

79

APPENDIX C: Proforma

PRECONDITIONS AND RESTRICTIONS

4. The Minister cannot make an LRO under section 1 or section 2 of the
Act unless he considers that the preconditions in section 3 are met.
When developing your proposals you should therefore consider
whether:

i.
The policy objective could be satisfactorily achieved by non-
legislative means (section 3(2)(a)) – Please provide details of any
non-legislative alternatives and why they are less satisfactory than
legislating.

ii.
The effect of the provisions are proportionate to the policy
objective (section 3(2)(b))

iii.
The provisions of the proposed order will strike a fair balance
between the public interest and the interest of any person
adversely affected by them? (section 3(2)(c))

iv.
The provisions of the proposed order will remove any necessary
protections (section 3(2)(d))

v.
The provisions of the proposed order would prevent a person
from exercising any right or freedom which they might reasonably
expect to continue to exercise? (section 3(2)(e))

vi.
The provisions of the proposed order are constitutionally
significant (section 3(2)(f))

vii.
The proposal will restate an enactment. If so, does the proposal
make the law more accessible or more easily understood?
(section 3(4))

If your proposals do not meet the preconditions of section 3 you will not
be able to deliver them using an order under Part 1 of the Act.

5. Even where the preconditions of section 3 are met, you should be
aware that LROs under Part 1 of the Act cannot:

i.
Deliver ‘highly controversial’ proposals - The Government have
given an undertaking not to deliver highly controversial proposals by
order – these might include proposals which are party political, or are
opposed by the majority of stakeholders.

ii.
Confer or transfer any function of legislating on anyone other than
(section 4):
a. a Minister;
80

APPENDIX C: Proforma

b. persons or bodies that have statutory
functions conferred on, or transferred to
them prior to the proposed order; and
c.  a body or the holder of an office which you
are proposing to create using the order
itself.

The order cannot make provision delegating any function of legislating.

iii.   Impose, abolish or vary taxation (Please refer to section 5 in the Act
and paragraphs 64-66 of the Explanatory Notes for further guidance).

iv.  Create a new criminal offence or increase the penalty for an
existing offence so that it is punishable above certain limits
(Please refer to section 6 in the Act and paragraphs 67-73 of the
Explanatory Notes for further guidance).

v.   Authorise forcible entry, search or seizure, or compel the giving of
evidence
(Section 7) (Please see paragraphs 74-75 of the Explanatory Notes for
further guidance)

v.
Amend or repeal any provision of Part 1 of the Act (Please refer to
section 8 in the Act and paragraph 76 in the Explanatory Notes for
further guidance).

vi.
Amend or repeal any provision of the Human Rights Act 1998
(Please refer to section 8 in the Act and paragraph 76 in the
Explanatory Notes for further guidance).

6. Devolution

i.
What is the territorial extent of your LRO?

ii.
Do you need agreement of the Welsh Ministers for your
proposals? To assess this, consider whether:

•  your LRO confers, modifies or removes any function of
the Welsh Ministers, First Minister for Wales or Counsel
General to the Welsh Assembly Government;
•  your LRO restates any provision which confers a function
on any of them;
•  any provision under your LRO could be made by the
Welsh Ministers, the First Minister or the Counsel General
in the exercise of any of their functions?

iii.
Do you need the agreement of the National Assembly for Wales?
Does your LRO make provision which is within the legislative
competence of any of their functions?
81

APPENDIX C: Proforma

iv.
An LRO cannot amend or repeal any Northern Ireland legislation.

v.
An LRO cannot make provision which is within the legislative
competence of the Scottish Parliament.

(See sections 77-79 of the Explanatory Notes for further guidance).

82

APPENDIX C: Proforma

PROJECT MANAGEMENT

7. Who are the lead policy officials and lawyers for the proposals?  -
Please give the name and contact details for the main working contact(s).

8. How well developed is the proposal?

i.
Has the application of the powers in the Act to the proposals been
checked with departmental lawyers? - Please note that it is for your
lawyers to advice in the first instance whether the proposals fit with the
powers of the Act. Your legal advisers may wish to consult BRE and
BERR legal who co-ordinate legal advice on the Act.

ii.
Have there been previous consultations on the policy? Please
provide details if this is the case

iii.
Have there been any announcements that the Government intends
legislating?

iv.
Is there collective agreement to the policy?

9. What is your proposed timetable?

i.
When are you aiming to consult?

ii.  When are your lawyers aiming to have a draft LRO checked by
Parliamentary Counsel?

iii.
When are you aiming to lay the proposal for Parliamentary scrutiny?

iv.  Which Parliamentary procedure do you expect your proposals to
proceed under? Why do you expect this to be the case? – Please refer
to sections 16, 17, 18 of the Explanatory Notes for guidance on the
Parliamentary procedures available.

v.
When are you aiming to deliver the reform?

10. Is there any other information that might be relevant?

Please send your completed proforma to

Better Regulation Executive
July 2007
83

link to page 84 APPENDIX D: Procedures for working with Parliamentary Counsel

APPENDIX D: PROCEDURES FOR WORKING WITH
PARLIAMENTARY COUNSEL

Responsibilities of departments and Parliamentary Counsel in drafting Orders
under Part 1 of the Legislative and Regulatory Reform Act 2006

1.  This note concerns the role of Parliamentary Counsel in relation to Orders
under Part 1 of the Legislative and Regulatory Reform Act 2006 (“Orders”). It
has been agreed between the Parliamentary Counsel Office (“PCO”) and the
Cabinet Office and Central Advisory Division (“COCAD”)13 on behalf of all
government departments.

PRELIMINARY

2.  The chief function of PCO in relation to an Order is to approve its drafting,
so far as relating to primary legislation. A draft Order may not be laid under
section 14 of the Legislative and Regulatory Reform Act 2006 until it has been
approved by PCO.

3. This requirement arises from the overall responsibility of PCO for the
integrity of the statute book. The aim is to enable PCO to check the drafting of
an Order to ensure that (a) it is effective and (b) it is drafted clearly and
consistently with other primary legislation.

4. Beyond that, PCO give legal advice and assistance in relation to all
aspects of Orders and will comment if they consider there are questions
relating to vires.

Stages before instructing counsel

5. The Legal Division of the Department for Business, Enterprise and
Regulatory Reform (“BERR Legal”) will keep PCO informed of prospective
Orders.

6.  The department will consult PCO on their proposals to make an Order,
once they have BERR approval in principle to their proposals as set out in
their pro forma and following any initial meeting with BERR and BERR Legal.
They should include an outline of their proposals (this can be based on the
pro forma, having taken on board comments from BERR and BERR Legal)
and their proposed timetable, including whether it is proposed to attach a draft
of the Order to the consultation document.

7.  PCO will allocate the proposed Order to a particular Counsel.


13 Responsibility for providing advice on Part 1 of the Legislative and Regulatory Reform Act
2006 has now transferred from COCAD to the Legal Division of the Department for Business,
Enterprise and Regulatory Reform.
84

APPENDIX D: Procedures for working with Parliamentary Counsel

•  In accordance with long-standing government policy, Counsel must give
work on current Bills priority over other matters, including vetting
subordinate legislation. But PCO recognises the importance of Orders in
the government’s overall legislative programme and will ensure that
Orders are assigned to the Counsel most likely to be able to deal with
them expeditiously.

•  Normally PCO will assign all Orders to a single Counsel whose
responsibility for Bills is correspondingly limited.

8.  The responsible Counsel, if he or she has any preliminary concerns about
vires or other legal or drafting difficulties, will say so.

9.  The department and Counsel together will form a view as to the optimal
time for sending instructions within the overall timetable. The department will
inform CO of the timing that is agreed.

•  The best time for sending instructions will depend on a range of factors
including: how settled the policy is; the size and complexity of the Order;
any  vires or other difficulties; any political or other external deadlines;
whether it is proposed to attach the draft Order to the consultation
document. It may be before consultation, after consultation, or
simultaneously with consultation. The advantage of sending instructions
before or at the same time as consultation is that this minimises delays in
progressing the Order.

•  The instructions should not normally be sent until the policy is completely
settled. If for reasons of urgency the instructions have to be sent out
before the policy is settled, they should say so and indicate when final
decisions will be made.

•  The instructions should not normally be sent until BERR Legal have seen
the draft Order and have advised that they do not have legal concerns
regarding vires. BERR Legal will inform Counsel when they have cleared
an Order.

•  The timetable should normally allow 12 weeks for vetting (that is, for the
complete process from sending instructions to final approval by Counsel).

10. The consultation document itself is a matter for departments, though
Counsel should be consulted if any degree of finality about the drafting of the
Order is being asserted.

11. If it is proposed to send out a draft Order for consultation, the department
will consult Counsel; and will not circulate a draft for consultation except with
his or her approval. If a draft is to be circulated for consultation, Counsel will,
in consultation with the department, decide whether it needs to be vetted in
advance; the extent of this vetting and likely time it will take; and the detail of
85

APPENDIX D: Procedures for working with Parliamentary Counsel

instructions that Counsel will need.  The department will inform BERR of the
outcome of this decision.

12. The department will keep Counsel and BERR informed about progress as
against the timetable (and in particular of any likely delay in sending
instructions). Changes to the timetable will be discussed between the
department, BERR and counsel.

13. Counsel will stand ready to advise at any time, if wanted, about issues
relating to the draft Order – in particular matters relating to vires or drafting.
Vires issues should be discussed in the first instance with BERR Legal, who
should be copied into requests for advice on vires.

Instructions

14. The department will send a draft Order including instructions which include
an account of the policy as it stands and an explanation of how the draft Order
gives effect to the policy, drawing attention to any particular drafting issues or
vires issues.

•  The exact form of the instructions, and how much detail is needed, will
depend on the circumstances of the case. Counsel will be happy to give a
view in advance as to what would be helpful.

•  Enclosing a copy of the consultation document, while always useful, is
unlikely to be enough by way of instructions.

•  As noted above, any likely changes of policy should be flagged up.

15. The expectation of PCO is that no policy changes will be made after
delivery of instructions, save (in the unusual cases where the policy is not
completely settled) as highlighted in the instructions, or in consequence of the
responses to the consultation.

16. The instructions may be sent by e-mail only.

17. It is useful if the instructions include lists of contacts and details of any
times when the main contact or contacts will be unavailable.

Vetting an Order

18. The primary responsibility of Counsel, as noted above, is to approve the
drafting of the Order, so far as textually amending primary legislation or
making non-textual amendments of general application.

19. Counsel will therefore have the last word on matters of drafting in relation
to textual amendments of primary legislation or non-textual amendments of
86

APPENDIX D: Procedures for working with Parliamentary Counsel

general application. Matters of drafting include in particular which enactments
are to be amended and the form or wording of any amendment.

20. Counsel will in particular consider-

•  whether the amendments work technically;

•  whether amendments are made to the right enactments and are in the
right place;

•  whether amendments consisting of new text are adequately expressed,
including whether they are correct, clear, concise and consistent with the
existing text and with good drafting practice.

21. Counsel will of course be happy to accept drafting suggestions which are
backed by reasons. Counsel will have no desire to substitute his or her
individual preferences for those of departmental lawyers for no good reason,
and will give reasons for drafting changes proposed.

22. Counsel may also offer comments about the overall arrangement of the
Order (so that the provisions of the Order are easy to follow and to relate to
the particular policy proposals). In the end, though, this is a matter for
departments.

23. Counsel may suggest alternative legal mechanisms for achieving the
required result, recognising again that this is in the end a matter for
departments.

24. It is the responsibility of departments, not PCO, to ensure that the
provisions of the Order give effect to the particular policy. But Counsel will
comment or raise questions on such matters if he or she has concerns about
them in a particular case.

25. Equally, it is not the responsibility of PCO to approve provisions of the
Order which do not amend or modify primary legislation. But Counsel will be
willing to advise about other aspects of the Order (for example, on matters
relating to commencement, transitional provision or extent) and will offer any
comments he or she thinks helpful. Of course, often the free-standing
provisions will affect the operation of the textual amendments, so the two may
need to be considered together.

26. Normally Counsel will not offer comment on amendments to subordinate
legislation (but will, if requested, offer what assistance he or she can).

27. Counsel will take a particular interest in vires and if counsel have concerns
about  vires,  they will say so. If after discussion the department and
responsible Counsel are unable to agree, it is for the department to decide
how to proceed. They should discuss the possible options with CO and
COCAD. In such a case it is likely to be appropriate for the Attorney General
to be invited to give his view.
87

link to page 88 APPENDIX D: Procedures for working with Parliamentary Counsel

28. As to timing, Counsel will respond to instructions, and subsequent letters,
as expeditiously as possible. It is recognised that Orders are an important part
of the government’s programme. As noted above, for Counsel, work on
current Bills takes priority over vetting. It may then happen that in a given case
Counsel will not be able to reply as quickly as everyone would wish. If there is
likely to be a significant delay, the relevant counsel will inform the department
within 10 days.

29. Departments should be aware that requests for approval or advice which
are sent at the last minute may not be dealt with in time; and they should not
rely on counsel being able to drop everything to meet hitherto unforeseen
deadlines. Orders cannot be laid until they have been fully approved by
Counsel.

AFTER APPROVAL HAS BEEN GIVEN

30. Counsel remain willing to advise on Parliamentary procedure in relation to
an Order or on any issues that arise after laying (COCAD should be copied
into any such requests for advice).

31. Any changes to the Order after approval has been given need to be
approved by Counsel, for example if the policy changes after approval has
been given.

32. Similarly, when an Order has been approved and laid before Parliament,
departments should inform Counsel of amendments suggested by a
Parliamentary scrutiny committee – so far as relating to amendments of
primary legislation – and should not agree to any such without the approval of
Counsel. Following such suggestions, the drafting of changes to the Order
must also be approved by Counsel.

33. Compliance with the SI template is the responsibility of departments.

34. PCO find it useful to know when an Order has been made – or if after
scrutiny it is decided not to proceed.

35. When an Order has been made the Department will send Counsel an
electronic copy.

General

36. The Counsel given responsibility for Orders generally stands ready to
advise COCAD on general matters relating to Orders (including vires).
5 December 200614

14 Updated 5 November 2007 to reflect transfer of responsibility for providing advice on Part 1
of the Legislative and Regulatory Reform Act 2006 from COCAD to the Legal Division of the
Department for Business, Enterprise and Regulatory Reform
88

APPENDIX E: CONSULTATION TEMPLATE

[Title page]

A consultation document on
changes to XXXX

Amending the XXXX Act XXXX

To
[List proposals - a sentence for each]

A Consultation Paper issued by
[Insert Department Name] on behalf of The Minister of State for
XXXX

[Insert Date]
89

TABLE OF CONTENTS

Summary of Proposals

Introduction

Background to the Policy and Legislation at Issue

The Proposals

Analysis

Annex A
List of consultees
Annex B
Response Form
Annex C
Legislative Reform Orders - Parliamentary consideration
Annex D
Code of Practice on Written Consultation
Annex E
Partial Impact Assessment
90

SUMMARY OF PROPOSALS

What is being consulted  The proposals relate to:
Relevant
on?

paragraphs
…..

How will these proposals  We intend that the proposed changes to legislation are made through a
be taken forward, and when  Legislative Reform Order under the Legislative and Regulatory Reform
will they be implemented?
Act 2006. Subject to the outcome of consultation, we propose that the
changes are implemented from xxx 20XX.

Consultation
This consultation is being made in accordance with the requirements of  Annex
the Legislative Regulatory Reform Act 2006 and the terms of the
Government’s Code of Practice on Written Consultations.

All responses should be received by xxx.

91

CHAPTER 1: INTRODUCTION

This consultation paper sets out in detail the Government’s proposals for
reforming the legislation governing xxxxx

[Brief description of why changes are needed.]

[Brief description of who the proposals will affect and how.]

We propose to introduce the reform by means of a Legislative Reform Order
(LRO) under section x of the Legislative and Regulatory Reform Act 2006
(LRRA). This consultation is being conducted in accordance with the
provisions of section 13 of the LRRA. Views are invited on all aspects of the
consultation paper, and a number of specific questions are set out at the end
of the document.

[BRE
NOTE:
The following paragraphs should be inserted into the
consultation document. It explains the safeguards set out in the LRRA
and will give consultees the information they require to assess whether
the proposals meet these criteria.]

LEGISLATIVE REFORM ORDER-MAKING POWERS

What can be delivered by Legislative Reform Order?
Section 1
Under section 1 of the LRRA a Minister can make an LRO for the purpose of
‘removing or reducing any burden, or overall burdens, resulting directly or
indirectly for any person from any legislation’.

Section 1(3) of the LRRA defines a ‘burden’ as:
•  a financial cost;
•  an administrative inconvenience;
•  an obstacle to efficiency, productivity or profitability; or
•  a sanction, criminal or otherwise, which affects the carrying on of
any lawful activity

Section 2
Under section 2 of the LRRA a Minister can make an LRO for the purpose of
securing that regulatory activities are exercised in a way that is transparent,
accountable, proportionate, consistent, and targeted only at cases in which
action is needed.

‘Regulatory functions’ is defined in section 32 as:
•  a function under any enactment of imposing requirements,
restrictions or conditions, or setting standards or giving guidance, in
relation to any activity; or
•  a function which relates to the securing of compliance with, or the
enforcement of, requirements, restrictions, conditions, standards or
guidance which under or by virtue of any enactment relate to any
92

activity.

Section 20 Orders
Section 20 of the LRRA enables a Minister to exercise the order-making
powers under sections 1 and 2 together with the power to make an order
under section 2(2) of the European Communities Act 1972 in a single
instrument. This enables a single order to implement Community law under
section 2(2) of the 1972 Act and, for example, to remove or reduce burdens
resulting from pre-existing statutory provisions.

Preconditions
Each proposal for a LRO must satisfy the preconditions set out in section 3 of
the LRRA. The questions in the rest of this document are designed to elicit
the information that the Minister will need in order to satisfy the Parliamentary
Scrutiny Committees that, among other things, the proposal satisfies these
preconditions.

For this reason, we would particularly welcome your views on whether and
how each aspect of the proposed changes in this consultation document
meets the following preconditions:

•  Non-Legislative Solutions – An LRO may not be made if there
are non-legislative solutions which will satisfactorily remedy the
difficulty which the LRO is intended to address. An example of a
non-legislative solution might be issuing guidance about a
particular legislative regime.
•  Proportionality – The effect of a provision made by an LRO
must be proportionate to its policy objective. A policy objective
might be achieved in a number of different ways, one of which may
be more onerous than others and may be considered to be a
disproportionate means of securing the desired outcome. Before
making an LRO the Minister must consider that this is not the case
and that there is an appropriate relationship between the policy aim
and the means chosen to achieve it.
•  Fair Balance – Before making a LRO, the Minister must be of
the opinion that a fair balance is being struck between the public
interest and the interests of any person adversely affected by the
LRO. It is possible to make an LRO which will have an adverse
effect on the interests of one or more persons only if the Minister is
satisfied that there will be beneficial effects which are in the public
interest.
•  Necessary protection - A Minister may not make an LRO if he
considers that the proposals would remove any necessary
protection. The notion of necessary protection can extend to
economic protection, health and safety protection, and the
protection of civil liberties, the environment and national heritage.
•  Rights and freedoms - An LRO cannot be made unless the
Minister is satisfied that it will not prevent any person from
continuing to exercise any right or freedom which they might
reasonably expect to continue to exercise. This condition
93

•  Constitutional Significance– A Minister may not make an
LRO if he considers that the provision made by the LRO is of
constitutional significance.

It should be noted that even where the preconditions of section 3 of the LRRA
are met, an LRO cannot:
•  Deliver ‘highly controversial proposals;
•  Remove burdens which fall solely on Ministers or Government
departments, except where the burden affects the Minister or
Government department in the exercise of regulatory functions;
•  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; a body or office which has
been created by the LRO itself;
•  Impose , abolish or vary taxation;
•  Create a new criminal offence or increase the penalty for an
existing offence so that it is punishable above certain limits;
•  Provide authorisation for forcible entry, search or seizure, or compel
the giving of evidence;
•  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.

Devolution
The LRRA imposes certain restriction regarding LROs and the devolution
agreements:
•  Scotland – A Minister cannot make an LRO under Part 1 of the
LRRA which would be within the legislative competence of the Scottish
Parliament. This does not affect the powers to make consequential,
supplementary, incidental or transitional provisions.
•  Northern Ireland – A Minister cannot make an LRO under Part 1 of
the LRRA that amends or repeals any Northern Ireland legislation,
unless it is to make consequential, supplementary, incidental or
transitional provisions.
•  Wales – The agreement of the Welsh Ministers is required for any
provision in an LRO which confers a function upon the Welsh Ministers,
modifies or removes a function of the Welsh Minsiters, or restates a
provision conferring a function upon the Welsh Ministers. The
agreement of the National Assembly for Wales is required for any
provision in an LRO which is within the legislative competence of the
Assembly.

CONSULTATION

The LRRA requires Departments to consult widely on all LRO proposals The
list of consultees, including the devolved administrations, to which this
document has been sent is at Annex A. It is also available on the Internet at:
94

•  [you should use the specific link that will take the reader straight to
the condoc on your website];
•  insert a new link once an LRO page has been set up on the BRE
site].; and
•  http://bre.berr.gov.uk/regulation/reform/bill/

Comments are invited from all interested parties, and not just from those to
whom the document has been sent. A response form is at Annex B

A note explaining the Parliamentary process for LROs to be made under the
LRRA can be found at  Annex C. This will help consultees understand when
and to whom they are able to put their views should they wish to do so.

This consultation document follows the format recommended by the BRE for
such proposals. The criteria applicable to all UK public consultations under
the BRE Code of Practice on Consultation are set out in Annex D.

DISCLOSURE
Normal practice will be for details of representations received in response to
this consultation document to be disclosed, and for respondents to be
identified. While the LRRA provides for non-disclosure of representations, the
Minister will include the names of all respondents in the list submitted to
Parliament alongside the draft LRO. The Minister is also obliged to disclose
any representations that are requested by, or made to, the relevant
Parliamentary Scrutiny Committees. This is a safeguard against attempts to
bring improper influence to bear on the Minister. We envisage that, in the
normal course of events, this provision will be used rarely and only in
exceptional circumstances.

You should note that:

•  If you request that your representation is not disclosed, the
Minister will not be able to disclose the contents of your
representation without your express consent and, if the representation
concerns a third party, their consent too. Alternatively, the Minister
may disclose the content of your representation but only in such a
way as to anonymise it.

•  In all cases where your representation concerns information on a
third party, the Minister is not obliged to pass it on to Parliament if he
considers that disclosure could adversely affect the interests of that
third party and he is unable to obtain the consent of the third party.

Please identify any information which you or any other person involved do not
wish to be disclosed. You should note that many facsimile and e-mail
messages carry, as a matter of course, a statement that the contents are for
the eyes only of the intended recipient. In the context of this consultation such
appended statements will not be construed as being requests for non-
inclusion in the post consultation review unless accompanied by an additional
95

specific request for confidentiality, such as an indication in the tick-box
provided for that purpose in the response form of Annex B.

CONFIDENTIALITY AND FREEDOM OF INFORMATION
It is possible that requests for information contained in consultation responses
may be made in accordance with access to information regimes (these are
primarily the Freedom of Information Act 2000, the Data Protection Act 1998
and the Environmental Information Regulations 2004). If you do not want your
response to be disclosed in response to such requests for information, you
should identify the information you wish to be withheld and explain why
confidentiality is necessary. Your request will only be acceded to if it is
appropriate in all the circumstances. An automatic confidentiality disclaimer
generated by your IT system will not of itself be regarded as binding on the
Department.

RESPONDING TO THE CONSULTATION DOCUMENT
Any comments on the proposals in this consultation document should be sent
by [insert date] at the latest to:

[insert contact details]

,from whom further copies of this document may also be obtained.
96

CHAPTER 2: BACKGROUND TO THE POLICY AND LEGISLATION AT
ISSUE

[BRE NOTE:
1. You must explain how the current arrangements work before you
discuss how you propose to change them. You should provide detailed
and comprehensive background information in LRO to explain to the lay
reader the context/history of the reforms so that they will be able to
comment from an informed and reasoned perspective. You should
assume no prior knowledge of the subject.

2.  Explain why the legislation in question exists in the first place, what its
purpose is, who is affected by the current arrangements and what the
geographical extent is (do they apply to the whole of the United Kingdom
or just to England and Wales for example). Give an overview of how it
works in practice, including any information that may aid the reader for
example defining terms, describing the structure and organisation of the
e.g. licensing/enforcement/reporting systems etc…

3.  Discuss the policy history e.g. any previous reforms/attempted reforms,
any previous consultation. Explain why these proposals are being put
forward now in the form they are and place them within the wider
policy/historical context.

4.  Explain why the legislation in question needs reforming and how either
burdens will be removed or reduced (section 1) and/or regulatory functions
will be made more consistent with the five Better Regulation principles
(section 2) or the proposal falls under section 20 of the LRRA. You should
put forward a robust justification of the reasons why you believe there is a
need for an LRO. You may wish to include some of the detailed
justification presented in the proforma for the analysis of the proposed
LRO as well as the results of the prepared Partial Impact Assessment (IA).
You may also wish to ask consultation respondents to supplement the
information in the partial IA with concrete costing and evidence which,
where applicable, support the need for reform. Such evidence may be
useful for the Parliamentary scrutiny process.]
97

CHAPTER 3: THE PROPOSALS

[BRE Note
Having informed the reader of the broad reasons for your proposed reforms,
you should set out what you expect them to consider and, having provided a
general overview of the current situation, you should discuss each of your
proposals in detail and show how they will remove or reduce burdens (section
1) and/or make regulatory functions more consistent with the five better
regulation principles (section 2). You will need to explain how they fit into the
broader purpose of reform you have outlined, how they differ in effect from the
current provisions and what they are intended to achieve.

You will need to discuss in detail what the effects of your proposals will be
and any issues that they may raise. The Committees when considering
whether your consultation was adequate will consider how well you explained
the likely effects of your proposed reforms. You should therefore discuss
whom they will affect, how they will affect them and the likely consequences
of this upon them.

You should also discuss in detail the expected benefits of the reforms,
providing figures, and summarising the partial Impact Assessment where
appropriate. ]

Extent
[BRE Note:  You will need to address the geographical extent of the reforms
and the implications for the devolved administrations].

Related Controversial Issue
[BRE Note:  LROs cannot be used to deliver highly controversial reforms. If
there are any controversial issues related to your proposal these should be
mentioned here, with an explanation as to why these should not have a
bearing on your proposal]

Binding the Crown
[BRE Note: You should state whether or not your proposals will bind the
Crown]

Possible Parliamentary Procedure
[BRE Note: You should inform consultees of the Parliamentary procedures
available for scrutiny of the proposed LRO (please use the lines below), which
procedure you think will be appropriate and why you think this is appropriate].

The Minister can recommend one of three alternative procedures for
Parliamentary scrutiny dependent on the size and importance of the LRO. The
negative resolution procedure is the least onerous and therefore may be
suitable for LROs delivering small regulatory reform. The super-affirmative
procedure is the most onerous involving the most in-depth Parliamentary
scrutiny. Although the Minister can make the recommendation, Parliamentary
Scrutiny Committees have the final say about which procedure will apply.

98

Negative Resolution Procedure – This allows Parliament 40 days to
scrutinise a draft LRO after which the Minister can make the LRO if
neither House of Parliament has resolved during that period that the
LRO should not be made.

Affirmative Resolution Procedure – This allows Parliament 40 days
to scrutinise a draft LRO after which the Minister can make the LRO if it
is approved by a resolution of each House of Parliament.

Super-Affirmative Resolution Procedure – This is a two-stage
procedure during which there is opportunity for the draft LRO to be
revised by the Minister.

This allows Parliament 60 days of initial scrutiny, when the
Parliamentary Committees may report on the draft LRO, or either
House may make a resolution with regard to the draft LRO.

If, after the expiry of the 60 day period, the Minister wishes to make the
LRO with no changes, he must lay a statement. After 15 days, the
Minister may then make an LRO in the terms of the draft, but only if it is
approved by a resolution of each House of Parliament.

If the Minister wishes to make material changes to the draft LRO he
must lay the revised draft LRO and a statement giving details of any
representations made during the scrutiny period and of the revised
proposal before Parliament. After 25 days, the Minister may only make
the LRO if it is approved by a resolution of each House of Parliament.

Under each procedure, the Parliamentary Scrutiny Committees have the
power to recommend that the Minister not make the LRO. If one of the
Parliamentary Committees makes such a recommendation, a Minister may
only proceed with it if the recommendation is overturned by a resolution of the
relevant House.

The Department for xxx believes that xxx resolution procedure should apply to
this LRO. [Explain why you think this is the case]
99

CHAPTER 4: LEGAL ANALYSIS AGAINST REQUIREMENTS OF THE
LEGISLATIVE AND REGULATORY REFORM ACT 2006

[BRE NOTE: Having set out your proposal, explained where it comes from
and what it would do you should go on to discuss the proposal in terms of the
preconditions in the LRRA, it is suggested you include each precondition as a
heading] [See Chapter 2 of the guidance].

PROPOSAL A

1. Non-Legislative
Solutions

2. Proportionality

3. Fair
Balance

4.
Necessary protection

The protections provided by the current legislation are XXXX

Our proposals maintain necessary protection by XXXX

5.
Rights and Freedoms
[Suggested text should any rights and freedoms remain unaffected:- As the
changes we propose are purely beneficial we do not believe that they would
prevent anyone from exercising an existing right or freedom. We would
welcome your views as to whether we are correct in thinking that our
proposals do not remove any rights or freedoms that anyone could reasonably
expect to continue to enjoy.]

6. Constitutional Significance

PROPOSAL B

[BRE Note: You will need to repeat this format for each of the main elements
or aspects of your proposals.
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APPENDIX E: Consultation Document proforma

ANNEX A: LIST OF CONSULTEES

[BRE Note: You should set out here the full and comprehensive list of
those to whom the document will be sent]
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APPENDIX E: Consultation Document proforma

ANNEX B: RESPONSE FORM

RESPONSE FORM FOR THE CONSULTATION PAPER ON: XXXX

Respondent Details

Please return by XXXX to:

Name:

Organisation:

Address:

Town/City:

County/Postcode:

Telephone:

Fax:
E-mail:

Tick this box if you are requesting non-disclosure of your response.

  a) [For section 1 orders] Do you think the proposals will remove or reduce burdens as explained
  in paragraph x above?
      [For section 2 orders] Do you think the proposals will secure that regulatory activities will be
  exercised so that they are transparent, accountable, proportionate, consistent and targeted
  only at cases in which action is needed as explained in paragraph x above?

  Comments

  b) Do you have views regarding the expected benefits of the proposals as identified in

Chapter x of this consultation document and addressed in the partial Impact Assessment

attached an Annex D?

  Comments

  c) If there is any empirical evidence that you are aware of that supports the need for these
  reforms, please provide details here?

  Comments

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APPENDIX E: Consultation Document proforma

Pleas
d) Are there any non-legislative means that would satisfactorily remedy the difficulty which the
  proposals intend to address?
  Comments:


  e)Are the proposals put forward in this consultation document proportionate to the policy
  objective?

Comments
f) Do the proposals put forward in this consultation document taken as a whole strike a fair
balance between the public interest and any person adversely affected by it?
Comments
g) Do the proposals put forward in this consultation document remove any necessary
protection?
Comments

h) Do the proposals put forward in this consultation prevent any person from continuing
to exercise any right or freedom which he might reasonably expect to continue to
exercise, as explained in paragraph XX above? If so, please provide details.

Comments

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APPENDIX E: Consultation Document proforma

i) Do you consider the provisions of the proposal to be constitutionally significant?

Comments

[Applies only where the proposal will restate an enactment]
j) Do the proposals put forward in the consultation document make the law more
accessible and easily understood?
Comments
j) Do you agree that the proposed Parliamentary resolution procedure (as outlined in
paragraphs xxx above) should apply to the scrutiny of this proposal?

Comments

104

APPENDIX E: Consultation Document proforma

ANNEX C: LEGISLATIVE REFORM ORDERS-PARLIAMENTARY
CONSIDERATION

Introduction
1. These reform proposals in relation to [xxxx] will require changes to primary
legislation in order to give effect to them. The Minister could achieve these
changes by making a Legislative Reform Order (LRO) under the Legislative
and Regulatory Reform Act 2006 (LRRA). LROs are subject to preliminary
consultation and to rigorous Parliamentary scrutiny by Committees in each
House of Parliament. On that basis, the Minister invites comments on these
reform proposals in relation to [xxx] as measures that might be carried forward
by a LRO.
Legislative Reform Proposals
2. This consultation document on [xxx] has been produced because the
starting point for LRO proposals is thorough and effective consultation with
interested parties. In undertaking this preliminary consultation, the Minister is
expected to seek out actively the views of those concerned, including those
who may be adversely affected, and then to demonstrate to the Scrutiny
Committees that he or she has addressed those concerns.
3. Following the consultation exercise, when the Minister lays proposals
before Parliament under the section 14 Legislative and Regulatory Reform Act
2006, he or she must lay before Parliament an Explanatory Document which
must:

i) Explain under which power or powers in the LRRA the provisions
contained in the order are being made;

ii) Introduce and give reasons for the provisions in the Order;

iii) Explain why the Minister considers that:
•  There is no non-legislative solutions which will
satisfactorily remedy the difficulty which the provisions of
the LRO are intended to address;
•  The effect of the provisions are proportionate to the
policy objective;
•  The provisions made in the order strikes a fair
balance between the public interest and the interests of
any person adversely affected by it;
• The provisions do not remove any necessary
protection;
•  The provisions do not prevent anyone from continuing
to exercise any right or freedom which they might
reasonably expect to continue to exercise;
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APPENDIX E: Consultation Document proforma

•  The provisions in the proposal are not constitutionally
significant; and
•  Where the proposals will restate an enactment, it
makes the law more accessible or more easily
understood.
iv) Include, so far as appropriate, an assessment of the extent to which
the provision made by the order would remove or reduce any burden or
burdens;
v) Identify and give reasons for any functions of legislating conferred by
the order and the procedural requirements attaching to the exercise of
those functions; and
vi) Give details of any consultation undertaken, any representations
received as a result of the consultation and the changes (if any) made
as a result of those representations.
4.  On the day the Minister lays the proposals and explanatory document, the
period for Parliamentary consideration begins. This lasts 40 days under
negative and affirmative resolution procedure and 60 days under super-
affirmative resolution procedure. If you want a copy of the proposals and
the Minister’s explanatory document laid before Parliament, you will be
able to get them either from the Government department concerned or by
visiting the BRE’s website at:
http://bre.berr.gov.uk/regulation/reform/bill/
Parliamentary Scrutiny
5. Both Houses of Parliament scrutinise legislative reform proposals and draft
LROs. This is done by the Regulatory Reform Committee in the House of
Commons and the Delegated Powers and Regulatory Reform Committee in
the House of Lords.
6. Standing Orders for the Regulatory Reform Committee in the Commons
stipulate that the Committee considers whether proposals:
(a) appear to make an inappropriate use of delegated legislation;
(b)  serve the purpose of removing or reducing a burden, or the overall
burdens, resulting directly or indirectly for any person from any
legislation (in respect of a draft Order under section 1 of the Act);
(c)
serve the purpose of securing  that regulatory functions are
exercised so as to comply with the regulatory principles, as set out in
section 2(3) of the Act (in respect of a draft Order under section 2 of the
Act);
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APPENDIX E: Consultation Document proforma

(d)  secure a policy objective which could not be satisfactorily secured
by non-legislative means;
(e) have an effect which is proportionate to the policy objective;
(f) strike a fair balance between the public interest and the interests of
any person adversely affected by it;
(g) do not remove any necessary protection;
(h) do not prevent any person from continuing to exercise any right or
freedom which that person might reasonably expect to continue to
exercise;
(i) are not of constitutional significance;
(j) make the law more accessible or more easily understood (in the
case of provisions restating enactments);
(k) have been the subject of, and takes appropriate account of,
adequate consultation;
(l) give rise to an issue under such criteria for consideration of statutory
instruments laid down in paragraph (1) of Standing Order No 151
(Statutory Instruments (Joint Committee)) as are relevant, such as
defective drafting or failure of the department to provide information
where it was required fro elucidation;
(m) appear to be incompatible with any obligation resulting from
membership of the European Union;
7. The Committee in the House of Lords will consider each proposal in terms
of similar criteria, although these are not laid down in Standing Orders.
8. Each Committee might take oral or written evidence to help it decide these
matters, and each Committee would then be expected to report.
9. Copies of Committee Reports, as Parliamentary papers, can be obtained
through HMSO. They are also made available on the Parliament website at
•  Regulatory Reform Committee in the Commons; and
•  Delegated Powers and Regulatory Reform Committee in the
Lords.
10. Under negative resolution procedure, each of the Scrutiny Committees is
given 40 days to scrutinise an LRO, after which the Minister can make the
order if neither House of Parliament has resolved during that period that the
order should not be made or to veto the LRO.
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APPENDIX E: Consultation Document proforma

11. Under affirmative resolution procedure, each of the Scrutiny Committees
is given 40 days to scrutinise an LRO, after which the Minister can make the
order if it is not vetoed by either or both of the Committees and it is approved
by a resolution of each House of Parliament.
12. Under super-affirmative procedure each of the Scrutiny Committees is
given 60 days to scrutinise the LRO. If, after the 60 day period, the Minister
wishes to make the order with no changes, he may do so only after he has
laid a statement in Parliament giving details of any representations made and
the LRO is approved by a resolution of each House of Parliament. If the
Minister wishes to make changes to the draft LRO he must lay the revised
LRO and as well as a statement giving details of any representations made
during the scrutiny period and of the proposed revisions to the order, before
Parliament. The Minister may only make the order if it is approved by a
resolution of each House of Parliament and has not been vetoed by either or
both relevant Committees.
How to Make Your Views Known
13. Responding to this consultation document is your first and main
opportunity to make your views known to the relevant department as part of
the consultation process. You should send your views to the person named in
the consultation document [in this case XXX]. When the Minister lays
proposals before Parliament you are welcome to put your views before either
or both of the Scrutiny Committees.
14. In the first instance, this should be in writing. The Committees will normally
decide on the basis of written submissions whether to take oral evidence.
15. Your submission should be as concise as possible, and should focus on
one or more of the criteria listed in paragraph 6 above.
16. The Scrutiny Committees are appointed to scrutinise Legislative Reform
Orders.
Non-disclosure of responses
17. Section 14(3) of the LRRA provides what should happen when someone
responding to the consultation exercise on a proposed LRO requests that their
response should not be disclosed.
18. The name of the person who has made representations will always be
disclosed to Parliament. If you ask for your representation not to be disclosed,
the Minister should not disclose the content of that representation without your
express consent and, if the representation relates to a third party, their
consent too. Alternatively, the Minister may disclose the content of the
representation in such a way as to preserve your anonymity and that of any
third party involved.
Information about Third Parties
19. If you give information about a third party which the Minister believes may
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APPENDIX E: Consultation Document proforma

be damaging to the interests of that third party, the Minister does not have to
pass on such information to Parliament if he does not believe it is true or he is
unable to obtain the consent of the third party to disclosure. This applies
whether or not you ask for your representation not to be disclosed.
20. The Scrutiny Committees may, however, be given access on request to all
representations as originally submitted, as a safeguard against improper
influence being brought to bear on Ministers in their formulation of legislative
reform orders.

Better Regulation Executive
Department for Business, Enterprise and Regulatory Reform

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APPENDIX E: Consultation Document proforma

ANNEX D: CONSULTATION CRITERIA

The criteria in the "Code of Practice on Written Consultation" published by the
BRE apply to all UK national public consultations on the basis of a document
in electronic or printed form. They will often be relevant to other sorts of
consultation.

Though they have no legal force, and cannot prevail over statutory or other
mandatory or external requirements (e.g. under European Community law)
they should otherwise generally be regarded as binding on UK Departments
and their agencies unless Ministers conclude that exceptional circumstances
require a departure.

The criteria should be reproduced in consultation documents with an
explanation of any departure, and confirmation that they have otherwise been
followed.

1.  Timing of consultation should be built into the planning process for a policy
(including legislation) or service from the start, so that it has the best prospect
of improving the proposals concerned, and so that sufficient time is left for it at
each stage.

2.  It should be clear who is being consulted, about what questions, in what
timescale and for what purpose.

3.  A consultation document should be as simple and concise as possible. It
should include a summary, in two pages at most, of the main questions it
seeks views on. It should make it as easy as possible for readers to respond,
make contact or complain.

4. Documents should be made widely available, with the fullest use of
electronic means (though not to the exclusion of others), and effectively drawn
to the attention of all interested groups and individuals.

5.  Sufficient time should be allowed for considered responses from all groups
with an interest. Twelve weeks should be the standard minimum period for a
consultation.

6.  Responses should be carefully and open-mindedly analysed, and reasons
for decisions finally taken.

Designating a consultation co-ordinator who will ensure the lessons are
disseminated.

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APPENDIX F: Explanatory Document introductory recital

APPENDIX F
EXPLANATORY DOCUMENT INTRODUCTORY RECITAL

THE LEGISLATIVE REFORM (insert title of Order) ORDER (insert year)

EXPLANATORY DOCUMENT BY THE (insert name of Department)

INTRODUCTION

This explanatory document is laid before Parliament in accordance with
section 14 of the Legislative and Regulatory Reform Act 2006 (“the 2006 Act”)
together with the draft of the Legislative Reform (insert title of Order being
made) Order (insert year) (“the draft Order”) which we propose to make under
section [1] (or) [2] (or) [ sections 1 and 2] [and section 20 of that Act. The
purpose of the draft Order is to [amend/repeal/restate] the (insert title of
legislation affected).
111

APPENDIX G: No of documents necessary for laying draft LRO

APPENDIX G: HOW MANY DOCUMENTS NEED TO BE GIVEN TO PARLIAMENT

RRC
DPRRC
Commons
Lord
BRE
Total
Vote
Printed
Electroni-
Office
Paper
cally
Office
only
When going out to
Consultation
10 3
0
0
1
14
consultation
Document

Names and
1 1  0
0
1
3

Addresses
When Laying the
Draft LRO
30 20  100
10
1
161
proposed LRO
Explanatory
30 20  100
10
1
161

Document

Consolidated Text
2 1  20
5
1
29

Names and
1 1  0
0
0
2

Addresses of

Respondents

Full Set of
1 1  0
0
0
2

Responses
If super-affirmative
Draft LRO
30 20  100
75
1
226
resolution procedure,
when starting second
Accompanying
30 20  100
75
1
226
stage scrutiny
Document
Consolidated Text
2 (if changed from  1 (if changed from
20 10 1 34
First Stage
First Stage Scutiny)
Scrutiny)
Pre-Consolidated
2 (if changed from  1 (if changed from
0 0 1
4
Text
First Stage
First Stage Scutiny)
Scrutiny)
112

APPENDIX H: RRC Standing Orders

APPENDIX H: HOUSE OF COMMONS REGULATORY REFORM
COMMITTEE STANDING ORDERS
(A)
Standing Order No. 18 (Consideration of draft regulatory reform orders) shall
be repealed and the following Standing Order made:
Consideration of draft legislative reform orders
18.—(1) If the Regulatory Reform Committee has recommended under paragraphs (4)
or (6) of Standing Order No. 141 (Regulatory Reform Committee) that a draft Order
subject to the affirmative or super-affirmative procedure, laid before the House under
Part 1 of the Legislative and Regulatory Reform Act 2006, should be approved, and a
motion is made by a Minister of the Crown to that effect, the question thereon shall:
(a) if  the  committee’s  recommendation  was agreed without a division, be put
forthwith; and
(b)  if the committee’s recommendation was agreed after a division, be put not later
than one and a half hours after the commencement of proceedings on the motion.
(2)  If the committee has recommended under paragraphs (4) or (6) of Standing Order
No. 141 that a draft Order subject to the affirmative or super-affirmative procedure be
not approved, no motion to approve the draft Order shall be made unless the House
has previously resolved to disagree with the committee’s report; the questions
necessary to dispose of proceedings on the motion for such a resolution shall be put
not later than three hours after their commencement; and the question on any motion
thereafter made by a Minister of the Crown that the draft Order be approved shall be
put forthwith.
(3)   If the committee has recommended under paragraph (4) of Standing Order
No.141 that a draft Order subject to the negative resolution procedure should not be
made (and that the recommendation is not intended to operate section 16(4) of the
Act), that recommendation shall be deemed to constitute notice of a motion under
paragraph (4)(a) of Standing Order No. 118 (Delegated Legislation Committees).
(4) Motions under paragraphs (1) or (2) of this order may be proceeded with, though
opposed, until any hour.
(B)
Standing Order No. 141 (Regulatory Reform Committee) shall be repealed and
the following Standing Order made:
Regulatory Reform Committee
141.—(1) There shall be a select committee, called the Regulatory Reform
Committee, to examine and report on—
(i) every draft Order laid before the House under sections 14 or 18 of the Legislative
and Regulatory Reform Act 2006 (‘the Act’);
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APPENDIX H: RRC Standing Orders

(ii) any Subordinate Provisions Order or draft of such an Order made or proposed to
be made under sections 1 and 4 of the Regulatory Reform Act 2001 (except those not
made by a Minister of the Crown);
(iii) any matter arising from its consideration of such Orders or draft Orders; and
(iv) matters relating to regulatory reform.
(2) In the case of every draft Order referred to in paragraph (1) (i) above the
committee shall consider the Minister's recommendation under section 15(1) of the
Act as to the procedure which should apply to it and shall report to the House any
recommendation under the Act that a different procedure should apply.
(3)  In its consideration of draft Orders under Part 1 of the Act the committee shall
include in its consideration in each case whether provision in the draft Order—
(a) appears to make an inappropriate use of delegated legislation;
(b)  serves the purpose of removing or reducing a burden, or the overall burdens,
resulting directly or indirectly for any person from any legislation (in respect of a
draft Order under section 1 of the Act);
(c) serves the purpose of securing  that regulatory functions are exercised so as to
comply with the regulatory principles, as set out in section 2(3) of the Act (in respect
of a draft Order under section 2 of the Act);
(d)  secures a policy objective which could not be satisfactorily secured by non-
legislative means;
(e) has an effect which is proportionate to the policy objective;
(f) strikes a fair balance between the public interest and the interests of any person
adversely affected by it;
(g) does not remove any necessary protection;
(h) does not prevent any person from continuing to exercise any right or freedom
which that person might reasonably expect to continue to exercise;
(i) is not of constitutional significance;
(j) makes the law more accessible or more easily understood (in the case of provisions
restating enactments);
(k) has been the subject of, and takes appropriate account of, adequate consultation;
(1) gives rise to an issue under such criteria for consideration of statutory instruments
laid down in paragraph (1) of Standing Order No 151 (Statutory Instruments (Joint
Committee)) as are relevant;
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APPENDIX H: RRC Standing Orders

(m) appears to be incompatible with any obligation resulting from membership of the
European Union;
Provided that in the case of draft Orders under section 20 of the Act, those criteria
which are not relevant to provisions made pursuant to section 2(2) of the European
Communities Act 1972 need not be taken into consideration in relation to those
provisions.
(4) In relation to every draft Order laid under section 14 of the Act subject to the
negative or affirmative procedure under sections 16 or 17 of the Act, the committee
shall report its recommendation whether the draft Order should be made (in the case
of the negative procedure) or approved (in the case of the affirmative procedure),
indicating in the case of the latter whether the recommendation was agreed without a
division.
(5) In relation to every draft Order laid under section 14 of the Act subject to the
super-affirmative procedure under section 18 of the Act, the committee shall report its
recommendation as to whether—
(a) the draft Order should be proceeded with unamended under section 18(3) of the
Act; or
(b) a revised draft Order should be laid under section 18(7) of the Act; or
(c) no statement under section 18(3) or revised draft Order under section 18(7) should
be laid.
(6) In relation to every draft Order or revised draft Order subject to the super-
affirmative procedure being proceeded with under section 18(3) or 18(7) of the Act,
the committee shall report its recommendation whether the draft Order or revised
draft Order should be approved, indicating in the case of draft Orders which it
recommends should be approved whether its recommendation was agreed without a
division; and in respect of such draft Orders or revised draft Orders the committee
shall consider in each case all such matters set out in paragraph (3) of this Order as are
relevant and the extent to which the Minister concerned has had regard to any
resolution or report of the committee or to any other representations made during the
period for parliamentary consideration.
(7) It shall be an instruction to the committee considering draft Orders being
proceeded with under section 18(3) or section 18(7) that it report not more than fifteen
sitting days (in the case of an order under section 18(3)) or twenty-five sitting days (in
the case of an order under section 18(7)) after the relevant statement is laid.
(8) In relation to every draft Order or revised draft Order, the committee shall report
any recommendation under section 16(4) of the Act that the draft Order be not made,
or under sections 17(3), 18(5) or 18(9) of the Act that no further proceedings be taken
in relation to the draft Order.
(9) In its consideration of any Subordinate Provisions Order under paragraph (1)(ii) of
this order, the committee shall in each case consider whether the special attention of
115

APPENDIX H: RRC Standing Orders

the House should be drawn to it on any of the grounds laid down in paragraph (1) of
Standing Order No. 151 (Statutory Instruments (Joint Committee)); and if the
committee is of the opinion that any such Order or draft Order should be annulled, or,
as the case may be, should not be approved, they shall report that opinion to the
House.
(10) The committee shall consist of fourteen members; and, unless the House
otherwise orders, each Member nominated to the committee shall continue to be a
member of it for the remainder of the Parliament.
(11) The committee shall have power—
(a) to send for persons, papers and records, to sit notwithstanding any adjournment of
the House, to adjourn from place to place, and to report from time to time;
(b) to appoint specialist advisers either to supply information which is not readily
available or to elucidate matters of complexity within the committee's order of
reference; and
(c) to appoint a sub-committee, of which the quorum shall be two, which shall have
power to send for persons, papers and records, to sit notwithstanding any adjournment
of the House, and to adjourn from place to place.
(12) The committee and the sub-committee shall have the assistance of the Counsel to
the Speaker.
(13) The committee and the sub-committee shall have power to invite Members of the
House who are not members of the committee to attend meetings at which witnesses
are being examined in relation to matters within paragraphs (1) (i) to (iii) and such
Members may, at the discretion of the chairman, ask questions of those witnesses; but
no Member not being a member of the committee shall otherwise take part in the
proceedings of the committee or sub-committee, or be counted in the quorum.
(14) It shall be an instruction to the committee that before reporting on a draft Order it
shall afford to any government department concerned an opportunity of furnishing
orally or in writing to it or to the sub-committee appointed by it such explanations as
the department think fit, except to the extent that the committee considers that it is not
reasonably practicable to do so without risking the opportunity for effective exercise
of a function conferred on it under section 15, 16, 17 or 18 of the Act.
(C)
Standing Orders No. 98 (Scottish Grand Committee(delegated legislation)),
No. 115 (Northern Ireland Grand Committee (delegated legislation)), and No. 118
(Delegated Legislation Committees) shall be amended by leaving out the words
‘regulatory reform order’ and inserting the words ‘legislative reform order’; and
Standing Order No. 151 (Statutory Instruments (Joint Committee)) shall be amended
by leaving out the words from ‘under’ in line 21 to ‘and’ in line 24 and inserting the
words ‘Part 1 of the Legislative and Regulatory Reform Act 2006, or any subordinate
provisions order made or proposed to be made under the Regulatory Reform Act
2001,’.

116

APPENDIX H: RRC Standing Orders

(D)
Any draft regulatory reform orders laid under the Regulatory Reform Act 2001
which are currently before the House shall be considered by the Regulatory Reform
Committee appointed under this Order and by the House as if they were super-
affirmative orders laid under the Legislative and Regulatory Reform Act 2006.

(E)
Notwithstanding the provisions of Standing Order No. 121 (Nomination of
select committees), those members of this House who were members of the
Regulatory Reform Committee before the passing of this Order shall be the members
of the Regulatory Reform Committee appointed under paragraph (B) above; and for
the purposes of Standing Order No. 122A (Term limits for chairmen of select
committees), the Regulatory Reform Committee established under paragraph (B) shall
be the same committee as that established before the passing of this Order.
117

APPENDIX I: Human Rights and LROs

APPENDIX I: HUMAN RIGHTS AND LROs

Overview
The requirements of the Human Rights Act 1998 should permeate all aspects of
your work on a Legislative Reform Order, as it should any policy making.

In the context of Legislative Reform Orders, you should be particularly aware of
the fact that the 1998 Act puts Ministers under an overarching duty to act in a
way which is compatible with a Convention right by virtue of s.6 of the 1998 Act.
The Minister will have to state explicitly that he or she has done so by placing a
statement on compatibility before Parliament in relation to each draft order (see
example below) - this is normally included in the Explanatory Document.

You should be aware that the 1998 Act will have different effect on LROs
depending on the type of order you are preparing (see Human Rights Act
1998):

  in the case of a “repeal and replacement” LRO, the order would
be treated under the Human Rights Act as secondary legislation.
This means that an LRO could be quashed by the Courts. The
scope for challenge under the 1998 Act is exactly the same as for
any other secondary legislation. Any class of statutory instrument,
whether affirmative, negative, or super-affirmative, can be attacked
in the courts and struck down if incompatible. So the fact that the
LRRA powers are wide is irrelevant. There are numerous
legislative powers that, on the face of it, are capable of being
exercised in ways that would be incompatible but are legally
constrained by the overarching principle outlined above;

  in the case of an “amendment-only” LRO, the order could not be
struck down to the extent that it amends primary legislation. It
could, however, still be the subject of a declaration of incompatibility
by the Courts under section 4 of the 1998 Act, and the Government
would have to consider the need for remedial action. After the order
was made the court could do anything else which it had power to do
under section 8, including awarding damages where relevant. So
the power of challenge goes wider than simple judicial review. See
definition of “primary legislation” under section 21 of the 1998 Act.

But, as a vehicle for reform, it is also worth noting that an LRO could address
a piece of legislation’s non-compliance with the ECHR, provided the reform
proposal met the criteria and safeguards in the Act.

Handling
As a matter of good practice, you should aim to include in the Explanatory
Document information on the human rights aspects of the proposal. The
purpose is to assist the Scrutiny Committees in examining your proposal.
118

APPENDIX I: Human Rights and LROs

The Explanatory Document should therefore not only record the fact that your
Minister has signed a declaration of compatibility with the European
Convention on Human Rights, but also draw attention to particular
considerations taken into account by the Minister in doing so.

You are not expected to list every human rights point which could be taken on
the order, to cite extensive case-law supporting the Minister’s conclusion on
compatibility, or to disclose what legal advice has been received. Instead, the
Document should describe the most significant Convention issues thought to
arise, the broad lines of the argument on compatibility, and the reasons for
believing that the provisions in question are compatible. Where a Convention
right is thought to be an issue, these reasons will largely be derived from the
policy justification for the measure, which will be essential to any assessment
of its proportionality or its necessity in a democratic society.

What is needed is a clearly identified section in the Explanatory Document
that discusses Human Rights issues, even if it is a simple sentence stating
that the Minister does not believe there are any. This is because Lord
Bassam of Brighton gave an undertaking that Ministers will always inform the
House that they are satisfied that secondary legislation, including LROs, is
compatible with Human Rights legislation.

The Ministry of Justice guide on human rights Human Rights: human lives: A
handbook for public authorities is also of relevance.
119

link to page 120 link to page 120 link to page 120 APPENDIX J: Proforma preamble to LRO

APPENDIX J: PROFORMA PREAMBLE TO LRO

This form of preamble has been drafted by BERR legal and has been settled
after consultation with Parliamentary Counsel and the legal advisers to the
Parliamentary Committees

[Draft/Revised draft Order laid before Parliament under section [14(1)/18(7)] of
the Legislative and Regulatory Reform Act 2006 [for approval by resolution of
each House of Parliament]]

D R A F T   S T A T U T O R Y   I N S T R U M E N T S
200[7] No.
REGULATORY REFORM
Legislative Reform ([insert title]) Order [year]
Made  - - - -
***
Coming into force  -
-
***

The Secretary of State for [name] makes the following Order, in exercise of
the powers conferred by section[s] [1/ 2/1 and 2] of the Legislative and
Regulatory Reform Act 2006(15).

[He/She makes it also in exercise of the powers conferred by section 2(2) of
the European Communities Act 1972(16), for the purposes of which [s]he has
been designated(17).]

For the purposes of section [3(1)/3(3)/3(1) and (3)] of the Legislative and
Regulatory Reform Act 2006, [s]he considers, where relevant, that the
conditions under section 3(2) [and 3(4)] are satisfied.

[In accordance with section 11 of that Act, the [National Assembly for
Wales/Welsh Ministers] [has/have] agreed to the making of the Order.]

[She/He] has consulted in accordance with section 13(1) [and (2)] of that Act
[(save to the extent covered by section 13(3) and (4) of that Act)].


(15)
2006 c.51; see section 32 for the definition[s] of “Minister of the Crown” [and
“regulatory function”].
(16)
1972 c.68; section 2 and Schedule 2 were amended by the Legislative and
Regulatory Reform Act 2006 (c.51), sections 27 to 29; see also section 20 of that Act in
relation to combination of powers to make a single order.
(17)
S.I. [   ].
120

APPENDIX J: Proforma preamble to LRO

She/He laid a draft Order and an explanatory document before Parliament in
accordance with section 14(1) of that Act.

Pursuant to section 15 of that Act, the [super-affirmative/affirmative/negative]
resolution procedure (within the meaning of Part 1 of that Act) applies in
relation to the making of the Order.

Super-Affirmative resolution procedure [do not include these words in the preamble]

The period of 60 days referred to in section 18(2) of that Act has expired.

In accordance with section 18(2) of that Act, [s]he has had regard to any
representations, resolution and recommendations made during that period
and in particular to [name any Parliamentary Report].

[In accordance with section 18(3) of that Act, [s]he has laid a statement before
Parliament] OR
[In accordance with section 18(7) of that Act, [s]he has laid a revised draft
Order before Parliament together with a statement.]

In accordance with section 18[(4)/(8)] of that Act, the [revised] draft Order has
been approved by resolution of each House of Parliament.

Affirmative resolution procedure [do not include these words in the preamble]

In accordance with section 17(2) of that Act, the draft has been approved by
resolution of each House of Parliament after the expiry of the 40-day period
referred to in that provision.

Negative resolution procedure [do not include these words in the preamble]

Neither House of Parliament resolved, within the 40-day period referred to in
section 16(3) of that Act, that [s]he should not make the Order.

[Note: In relation to a negative resolution Order, if a Parliamentary Committee
recommends that the draft Order not be made, but that recommendation is overturned by a
resolution of the relevant House, you will require additional wording in the Preamble. If
this occurs, please contact COCAD for further advice.]
121

APPENDIX K: Judicial Review and LROs

APPENDIX K: JUDICIAL REVIEW AND LROs

Judicial review
Judicial review is the name given to the High Court procedure for challenging
administrative action. Its use over the past decades has increased
dramatically

Any decision a Minister makes is subject to judicial review. Therefore, any
LRO, as an instrument of Ministerial power, can also be tested by the courts.
Judicial review is a complex issue and you should consult the available
guidance (Judge over your Shoulder, Treasury Solicitor, available at
http://www.tsol.gov.uk/Publications/judge.pdf and, where necessary, seek
your own legal advice.

Put simply, however, Ministerial decisions can be challenged on the following
basis (this list is not and cannot be exhaustive; if in doubt, obtain legal
advice):

1
Does the Minister have the power to act? Any Minister found to be
acting without a relevant power (usually found in primary or secondary
legislation) will be said to be ultra vires. This guidance will help you
establish whether the Minister is acting within his or her powers in
preparing an LRO

2
Is the power being used for a lawful purpose? The LRO power
cannot be used to contravene other pieces of legislation. So an LRO
cannot be used to contravene the UK’s European obligations or the
European Convention of Human Rights.

3
Have the proper procedures been observed? The Act sets down
strict procedures for implementing an LRO. Clearly, any failure to
observe these would lead to legal problems.

4
Has the consultation been carried out correctly? The Act lays down
the procedure for consultation in section 13. If you follow the
procedure correctly, you will minimise risk of judicial review. In
particular, you must ensure that:

  consultation is undertaken when policy proposals are still at a
formative stage, ie, there should still at least be the potential that
the consultation could change the policy

  sufficient explanation is given for each policy option or proposal, so
that those consulted can intelligently consider and respond to them

  adequate time is given for the consultation process

122

APPENDIX K: Judicial Review and LROs

consultees’ responses are conscientiously taken into account when
the ultimate decision is taken

See Chapter 3 on consultation for more details.

5
Other key considerations. ‘Legitimate expectation’ and
‘proportionality’ are also key terms in judicial review. These are
addressed directly by the Act .

Assessing the chances of judicial review
All LROs are potentially open to challenge by judicial review. The fact that
LROs have been approved by Parliament is no bar to a court striking them
down. The likelihood of challenge will depend in part on whether anyone has
an interest in challenging the particular LRO. For example an LRO which
creates a criminal offence will be the basis for prosecutions, and defendants
advised by counsel may seek to strike down the legislation which has created
the offence.
The likelihood of a challenge being successful once brought will depend on
whether it has been lawfully made, as described above. If the minister has
erred in some material respect the court may strike the LRO down.

The procedure outlined in the Act provides many safeguards. The relevant
Parliamentary Committees can veto a proposed LRO at any time during the
scrutiny process and on any grounds. This veto can only be overturned by the
relevant House. The Committees also have the final say about what
Parliamentary resolution procedure an LRO should be subject to. If they
believe an LRO should be subject to the most onerous super-affirmative
resolution procedure, they can require it.

If the Committees, and then Parliament itself, were to declare themselves
happy with the consultation process and the Government’s response to it, it is
unlikely, although possible, that a court would consider that the procedure had
been unfair, or that the order is so unreasonable as to justify striking it down. It
is more likely that an order would be struck down because it attempted to
reform legislation when the conditions for reform were not present, or because
some of the limitations on the order making power had not been observed.

Conclusion
Any LRO that has been implemented properly under the terms of the Act will
not run any risk of a successful judicial review challenge. The scrutiny
procedures are such that any breach would be picked up very early in the
process. However, you cannot afford to be complacent. An LRO is a
powerful tool and needs to be treated as such. It would be damaging to your
Minister and to your Department if your policy was not seen to be legally
watertight. Nevertheless, by being aware of the issues of judicial review and
by ensuring that you are following the correct procedures at all times, the
passage of your LRO should be smooth and successful.
123

APPENDIX L: Queen’s Consent
APPENDIX L: QUEEN’S CONSENT

Consent is needed if the proposal would affect the prerogative, hereditary
revenues, personal property or interests of the Crown or the interests of the
Duchies of Lancaster or of Cornwall.

Your first step to obtaining HM The Queen’s Consent should be made at an
early stage of policy development. Your legal advisers should consult
representatives of the Crown Estates Commissioners, the Duchies and Her
Majesty’ solicitors, Messrs Farrers. All letters should be copied to the Crown
Estates, both Duchies and Farrers.

When your draft order is ready to be placed before Parliament, you should seek
The Queen’s formal Consent. You should draft letters for your Secretary of
State’s Private Secretary to send to the Private Secretary to The Queen and to
the Private Secretary to the Prince of Wales explaining the purpose of the
provision and the way in which it affects the Crown, and The Queen’s and
Prince of Wales’ private estate, and asking for consent.

The Private Secretary to The Queen will not reply until he has received any
comments from the copyees.

Remember that you must consult the Crown again if any amendments are made
to your LRO before its final laying. This can easily be overlooked, but it is
crucial.
124

Document Outline

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