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Automatic review and expiry of new regulations
Thursday, March 24th, 2011
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On 22 March the Department for Business, Innovation and Skills (BIS) published a document entitled Sunsetting Regulations: Guidance. It provides guidance for Government departments to support the Government’s commitment to “sunset” new statutory regulation by setting a date on which it will expire automatically unless positive action is taken to renew it.
The term “regulation” refers, in this context, to statutory obligations imposed on businesses or civil society organisations that give rise to a direct burden or cost. The guidance applies to new domestic regulation and to other domestic regulation that implements new EU or international obligations, e.g. EU Directives. New regulation may be introduced in “primary” legislation, e.g. the Equality Act 2010, or in “secondary” legislation, such as the Additional Paternity Leave Regulations 2010.
Until now, new regulation continues in force indefinitely unless it becomes necessary at some later time to amend, cancel or replace it. The new guidance requires
- each new regulation to specifically include a requirement for it to be reviewed within five years of its coming into force and,
- in the case of domestic regulation enacted through secondary legislation, that the regulation expire automatically after seven years.
If the five-year review shows that the regulation is still valid and should be retained, the regulation may be renewed, but with new review and expiry dates.
The guidance includes examples of the wording that will appear in future secondary legislation and these are reproduced below.
Review plus sunset (for secondary legislation implementing domestic regulation)
Citation, Commencement, and Expiry
1.—(1) These Regulations may be cited as the [ ] Regulations 2011.
(2) They come into force on …… 2011.
(3) They cease to have effect on ….. 2018 [the date 7 years after the Regulations come into force].
Review
2.—(1) Before the end of the review period, the Secretary of State must—
(a) carry out a review of these Regulations,
(b) set out the conclusions of the review in a report, and
(c) lay the report before Parliament.
(2) The report must in particular—
(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations,
(b) assess the extent to which those objectives are achieved, and
(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
(3) “Review period” means the period of five years beginning with the day on which these Regulations come into force.
EXPLANATORY NOTE
(This note is not part of the Regulations)
Regulation 1(3) provides that these Regulations are to cease to have effect seven years after they come into force.
Regulation 2 requires the Secretary of State to review the operation and effect of these Regulations and lay a report before Parliament within five years after the Regulations come into force. Following the review it will fall to the Secretary of State to consider whether the Regulations should be allowed to expire as regulation 1(3) provides, be revoked early, or continue in force with or without amendment. A further instrument would be needed to continue the Regulations in force with or without amendments or to revoke them early.
Review only (for secondary legislation implementing EU obligations)
Citation and Commencement
1.—(1) These Regulations may be cited as the [ ] Regulations 2011.
(2) They come into force on ….. 2011.
Review
2.—(1) Before the end of each review period, the Secretary of State must—
(a) carry out a review of [regulations … to …],
(b) set out the conclusions of the review in a report, and
(c) lay the report before Parliament.
(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how [the XYZ Directive] (which is implemented by means of [regulations … to …]) is implemented in other member States.
(3) The report must in particular—
(a) set out the objectives intended to be achieved by the regulatory system established by [those regulations],
(b) assess the extent to which those objectives are achieved, and
(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
(4) “Review period” means—
(a) the period of five years beginning with the day on which [regulations … to …] come into force, and
(b) subject to paragraph (5), each successive period of five years.
(5) If a report under this regulation is laid before Parliament before the last day of the review period to which it relates, the following review period is to begin with the day on which that report is laid.
EXPLANATORY NOTE
(This note is not part of the Regulations)
Regulation 2 requires the Secretary of State to review the operation and effect of these Regulations and lay a report before Parliament within five years after they come into force and within every five years after that. Following a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke the Regulations or to amend them.
Further information:
Sunsetting regulations: guidance
