Section 3: Preconditions
51.Section 3 imposes conditions which the Minister must consider to be satisfied before he can make an order containing provision under section 1(1) or 2(1).
52.The conditions set out in subsection (2) apply (where relevant) to provision made under sections 1(1) or 2(2) which is not merely restating an enactment (as defined in subsection (5)).
53.There are six conditions set out in subsection (2).
The first condition is that there are no non-legislative solutions which will satisfactorily remedy the difficulty which the order is intended to address. An example of a non-legislative solution might be the issuing of guidance about a particular legislative regime.
The second condition is that the effect of the provision made by the order is proportionate to its policy objective. A policy objective might be able to be achieved in a number of different ways, some of which may be far more onerous than others and may be considered to be a disproportionate means of securing the desired outcome. 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.
The third condition is that the provision made by the order, taken as a whole, strikes a fair balance between the public interest and the interests of the persons adversely affected by the order. So it will be possible to make an order which will have an adverse effect on the interests of one or more persons only if the Minister is satisfied that it will also have beneficial effects which are in the public interest. Whenever an order imposes or increases a burden for a person, it adversely affects their interests, so the Minister must take into account any new or increased burdens when considering whether or not this condition is met.
The fourth condition is that the provision made by the order does not 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. Protections which would have been thought to be necessary in the past may no longer be considered necessary.
The fifth condition is that the provision made by the order will not prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise. This condition recognises that there are certain rights that it would not be appropriate to take away from people using an order, and has certain parallels with the concept of 'legitimate expectation'. Any right conferred or protected by the European Convention on Human Rights is a right which a person might reasonably expect to keep.
The sixth condition is that the provision made by the order is not constitutionally significant. This condition would allow orders to amend enactments which are considered to be constitutionally significant, but only if the amendments are not themselves constitutionally significant.
54.The Minister is also required to set out in the explanatory document which he must lay before Parliament (section 14) why he considers that these conditions are met.
55.Where provision made under section 1(1) or 2(1) is merely restating an enactment, the six conditions listed in subsection (2) do not apply. However subsections (3) and (4) have the effect that a Minister may only make provision of this type in an order if he is satisfied that the provision would make the law more accessible or more easily understood (for example, by consolidating disparate pieces of legislation or restating existing provisions in accordance with modern drafting practices).
56.The meaning of the term “to restate” is given in subsection (5). This also applies in relation to sections 4 to 7.