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How are orders made?

The first step is widescale consultation of all interested parties. Ministers are obliged to consult those that they know will be adversely affected by their proposal, as well as relevant organisations such as the Law Commission and, in the case of proposals extending to Wales, the National Assembly.

Next comes very thorough two-stage scrutiny by the Committees in the Commons and Lords. The Committees have consistently demonstrated highly objective and non-partisan scrutiny of Deregulation Orders, which is arguably more thorough than that accorded to some primary legislation. In the Commons, the Committee is the Regulatory Reform Committee (RRC). In the Lords, it's the Delegated Powers and Regulatory Reform Committee (DPRRC).

In every case without exception where either Committee has expressed dissatisfaction with a proposed Deregulation Order under DCOA, the relevant Minister has re-cast or withdrawn the proposal accordingly. Once the Committees have made their final reports to Parliament, the super-affirmative procedure for approving orders provides both Houses with the opportunity to debate and vote. Both Houses must pass the Order. There is no opportunity for using the Parliament Acts to overturn a rejection in the Lords. It is vital that consensus is reached. Parliament always has the final say on whether an order becomes law.

The Parliamentary procedure remains unchanged from DCOA, but Ministers bringing forward Regulatory Reform Orders will be required to present more explanatory information to Parliament than they did with Deregulation Orders, to reflect the wider powers and additional safeguards.

In addition to the role played by the Committees, there are stringent safeguards built into the Act itself:

• no order may reduce or remove any necessary protection;
• no order may prevent anyone from exercising an existing right or freedom which they might reasonably expect to continue to exercise.

Three other tests apply when an order imposes burdens:

• any burden must be proportionate to the benefits, considered in general terms, which are expected to result from its creation. This means that Ministers cannot impose heavy new burdens without being able to show clearly that they are justified by the benefits;
• the order as a whole must strike a fair balance between the public interest and the interests of those affected by the new burden;
• the order must be desirable either in terms of the burdens it reduces or the other benefits it brings.

These are intended to be tough tests, and the Minister bringing forward the order will have to explain in depth how s/he has formed his opinion that the tests are met.