The Legislative and Regulatory Reform Act 2006

– Why was it introduced (political sociological context)?

The overall stated purpose of the Legislative and Regulatory Reform Act 2006 was to reduce the regulatory burden (particularly in relation to European Community/European Union based legislation), as well as to improve the quality of legislation. The Act was promulgated in order to replace the Regulatory Reform Act 2001 and the stated aim for this action according to the government was to reform the previous legislation which it saw as being out of date and too complex. The Legislative and Regulatory Reform Act 2006 was at least partly inspired by suggestions made by the Better Regulation Task Force in its 2005 report entitled ‘Less is More: Reducing Burdens, Improving Outcomes’. This justification for the Act was however not universally accepted (far from it in fact). The Act attracted considerable criticism to the effect that it went far beyond what its alleged purpose was and that it was in fact a vehicle to allow government to circumvent parliament and to abolish or restrict individual freedoms and rights. Academic commentators even went as far as to suggest that the new Act would allow the government to usurp the powers of Parliament by effectively granting it the power to enact laws on its own and also to rewrite Acts of parliament. For this reason, some criticised the Bill preceding the Act as the “Abolition of Parliament Bill”. The final Act was, as a result of this criticism, more restrained than the originally proposed Bill. For instance, the final version came without an initially proposed right for ministers to regulate through the act on the recommendation of the Law Commission in a way which critics say would allow it to amend the common law.

– What was the aim of the Act (legal context)?

Legally speaking the aim of the Act was stated by the government to be fourfold: to reduce the burdens placed on regulators by legislation, to provide a better structure for regulation, to provide some clear regulatory principles (to which the whole of Part 2 of the Act is dedicated) and to provide for clear provisions on how EC/EEC/EU legislation is to be interpreted.

– What main changes did it make to the law?

The act has three main parts which introduced the most important changes. Part 1 deals with powers being granted to either reduce legislative burdens or to remove them altogether; part 2, as mentioned above, deals with regulatory principles and lays down provisions which are expected to ensure proportionate functioning of regulators, in addition to laying out the statutory principles relevant to the Regulators Code;  Part 3 on the other hand lays down rules on the drafting of domestic legislation which implements or refers to EC/EEC/EU legislation in a bid to make to streamline that process. One of the more controversial changes introduced by the law is the power of the government to promulgate Regulatory Reform Orders and particularly, Legislative Reform Orders. The latter grant ministers the power to amend primary legislation, with the aim being the reduction of legislative burden, however it is precisely the possible scope for abuse of Legislative Reform Orders which has attracted the criticism discussed above. The Act does, however, include legal safeguards. To be precise, amendments proposed to be made under Regulatory or Legislative Reform Orders are subject first to Consultation and more importantly, to Parliamentary scrutiny by not one but two Parliamentary Committees, specifically the Delegated Powers and Regulatory Reform Committee and the Regulatory Reform Committee. That scrutiny extends to confirming that that proposed Order adheres to a set of criteria included in the Act itself which define when such an order can be made. These criteria are found in s.3(2) of the Act and require that:

“(a)the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means;

(b)the effect of the provision is proportionate to the policy objective;

(c)the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;

(d)the provision does not remove any necessary protection;

(e)the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise;

(f)the provision is not of constitutional significance.”

Other important parts of the act relate to its provisions aimed at improving regulatory activity. Most relevant are sections 21 and 22 of the Act. Section 21 states the principles for regulators which are that

“(a)regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent;

(b)regulatory activities should be targeted only at cases in which action is needed”

On the other hand, Section 22 is important as it enables a Minister to issue a Code of Practice for regulatory functions.