Regulatory Reform Act 2001
2001 CHAPTER 6
ANNEX E: ADVICE TO DEPARTMENTS
Note: paragraph 22 of the Explanatory Notes refers.
CONSULTATION : REGULATORY REFORM ORDERS
PURPOSE
Proposals for orders have to undergo extensive public consultation, in order to elicit evidence without which the proposal cannot legally go ahead. Each consultation document should:
set out the proposal against the tests and safeguards in the order-making process (see the handout on “What Regulatory Reform Orders can do…”), in such a way that the intended audience can readily supply the information that the Minister needs in order to satisfy himself and the scrutiny Committees that the proposal meets those tests and safeguards. This would be best achieved by following the structure set out in section 6(2) of the Act;
explain clearly and comprehensibly the policy on which views are being sought, including the implications for the devolved administrations (see the handout on “Regulatory Reform Orders and devolution”).
These aims may result in a longer consultation document than would otherwise be the case with a straightforward consultation document. A sensible approach would be to break the document up in to manageable sections, given the need for comprehensibility and so that only those interested need to go into the detail.
Each consultation document should also:
where the proposals are fairly fully developed, include draft legislation or at least reflect what the legislation will say; and
seek additional information where needed to develop the policy and to flesh out the Regulatory Impact Assessment (RIA) as required under by Good Policy Making: A Guide to Regulatory Impact Assessment.
Each consultation exercise should be carried out in accordance with the Code of Practice on Written Consultation issued by the Cabinet Office. There is advice on best practice at www.consultation.gov.uk.
THOROUGHNESS OF CONSULTATION
The scrutiny Committee in each House will assess whether or not the consultation process was properly conducted and therefore whether the draft order should proceed. You should therefore consider your proposition against the following questions:
DID THE CONSULTATION EXERCISE ADDRESS THE RELEVANT ISSUES?
Each consultation on a prospective RRO needs to elicit all the information needed to complete the Explanatory Document that the Minister must lay alongside the proposed order. The consultation responses will need to provide evidence to support any assertions. And you are strongly advised to structure your consultation document to follow the list of matters at section 6(2) of the Act;
You need to address at an early stage the implications of the three devolution settlements for your policy proposals. These should be reflected in the consultation document. You should discuss the issues at an early stage with the devolved administrations (see the handout on “Regulatory Reform Orders and devolution”).
One outcome from the consultation process should be clarity as to the extent of the proposal’s controversiality – you should note that issues that are highly charged or politically very controversial are better suited to the floor of the House.
WAS THE CONSULTATION PERIOD SUFFICIENT?
The Code of Practice lays down a standard minimum period of twelve weeks for a consultation. It also recognises that there will be circumstances that unavoidably require a shorter period and/or where urgency is in the public interest.
While urgency is unlikely in the case of RROs, the consultation document should state the reasons for departing from the Code and what special measures (eg advance notice of at least the broad issues to be covered) have been taken to ensure that consultation is nevertheless as effective as possible.
WHO WAS CONSULTED?
The scrutiny Committees will pay special attention to the inclusiveness of the consultation process, such as the extent to which it captured the views of those who might be adversely affected, whether directly or indirectly, by the proposal.
The emphasis should therefore be on a wide distribution, covering representative bodies, consumer bodies, trades unions, employers’ representatives (including representatives of small business, and the SBS) and other likely interest groups.
The document should be expressed in a way that all these different interests can understand. It must include sufficient background material in order for a newcomer to understand the proposal. It should not assume any prior knowledge.
The Act contains specific other consultation requirements in relation to Wales and the Law Commissions.
HOW WERE PEOPLE CONSULTED?
The consultation exercise will normally involve the production of a written consultation document, which must be published simultaneously on the Department’s website, on the RIU website at www.cabinet-office.gov.uk/regulation and on the UKOnline site at www.ukonline.gov.uk.
Where a written consultation document is unlikely to reach those affected by the proposal or with an interest in it, the scrutiny committees will look carefully at what steps were taken to elicit their views, such as research, surveys and focus groups.
PROCEDURAL MATTERS
The draft consultation document must be cleared with Regulatory Impact Unit (RIU) in Cabinet Office and RIU lawyers.
You must get collective agreement from Cabinet Committees before issuing your consultation document (usually HS or EA and LP).
55 copies of the consultation document should be sent to RIU prior to issue for onward transmission to the scrutiny Committees in both Houses of Parliament.
