Background Aspects of the Regulatory Reform Order-making power
18.The deregulation order-making power was limited in its scope. It applied only to legislation enacted up to and including the 1993/94 Session, and was mostly used for small items. The Regulatory Reform Act extends the power so that it can be used more widely. The Government published illustrative lists of the measures that it wishes to achieve by way of regulatory reform order, as set out at Annex D. The power is sufficiently wide, but no wider than necessary, to achieve such regulatory reforms.
19.Orders under the Act, which are called regulatory reform orders, are capable of:
	making and re-enacting statutory provision – the order can amend or repeal statutory provisions, it can replace provisions with a restatement of the law, or it can modify or replace them with new provision;
	imposing additional burdens where necessary, provided that they are proportionate, that the order strikes a fair balance between the public interest and the interests of persons affected by any such burdens, that the order also removes or reduces other burdens and that the extent to which other burdens are removed or reduced or there are other beneficial effects makes it desirable to make the order;
	removing inconsistencies and anomalies in legislation, provided the order also removes or reduces other burdens;
	dealing with burdensome situations caused by a lack of statutory provision to do something;
	applying to legislation passed after the Act if it is at least two years old when the order is made and has not been amended in substance during the last two years;
	relieving burdens from anyone, including Ministers and government departments but not where only they would benefit; and
	allowing administrative and minor detail to be further amended by subordinate provisions orders, subject to either negative or affirmative resolution procedure.
20.The test of maintaining necessary protection is carried over from the 1994 Act and supplemented by an additional test that no order should prevent anyone from exercising an existing right or freedom which they might reasonably expect to continue to exercise (the “reasonable expectations” test). The Act also requires that any burdens imposed by an order must be proportionate to the benefits expected from them. In addition to this objective of proportionality in section 1, two further stringent tests (fair balance and desirability) apply if an order would increase or impose a burden. The requirements for extensive public consultation and thorough scrutiny by two Parliamentary Committees remain, but Ministers bringing forward regulatory reform orders are required to present more explanatory information to Parliament than they did with deregulation orders, to reflect the wider powers and additional safeguards.
21.More generally, from January 2001, the Government has applied a Code of Practice to all its written consultation exercises under which, as a general rule, a minimum of 12 weeks should be allowed for consultation (the consultation period should only be for less than 12 weeks in exceptional circumstances and, where the period is less than twelve weeks, the document should state Ministers’ reasons for the restriction, and what special measures have been taken to ensure that consultation is nevertheless as effective as possible). The Code has been issued by the Cabinet Office and is available on line(10), and further advice on best practice is also available on line(11). In addition to publication on the policy Department’s own website:
	all consultation documents on proposals for regulatory reform orders will be published on the Cabinet Office website(12); and
	all consultation documents, including those on proposals for regulatory reform, will be published on the Internet Register at UKOnLine(13).
22.The importance of full and thorough consultation was stressed during debate in both Houses. The Government has issued advice for Departments on the particular requirements of consultation on proposals for regulatory reform orders, as set out at Annex E.
23.These cumulative procedural and legal safeguards are illustrated at Annex F.