Deregulation

A series of statutes in England in the mid-1990s sought to hasten deregulation and remove the so-called red tape. Provision was made to allow statutes to be amended by order to remove unnecessary or inefficient licensing provisions, which seemed to burden businesses.

The Deregulation and Contracting Out (Northern Ireland) Order 1996 removed a number of licensing requirements. Licences for processing horticultural produce were abolished. Provisions related to auctions, weights, and measures were eliminated. The Sunday Observance Act (Ireland) 1695 was declared inapplicable to sport, recreation, and similar activities.

Legislation allowed a Department or Minister to make orders where they believed that the effect of any existing legislation was to impose, authorise, or require the imposition of a restriction, requirement, or condition affecting any person in trade, business, or a profession. By doing so, they could exercise one of the below-mentioned powers without jeopardising any necessary protection. This would improve, as far as fairness, transparency, and consistency were concerned, the procedures for enforcing the restriction, requirement, or condition.

An order may not be made where the sole or main effect of the restriction or requirement relates to a person in their personal capacity rather than in their business capacity. When legislation empowers a Minister or Department to make regulations or orders and provides that it is to be exercisable to give effect to proposals submitted by another person, the Department must consult with that other person before making a deregulation order.

An order may make provisions for the consequences of failure to comply with the order. It may contain provisions, including those modifying existing legislation, in relation to periods during which proceedings may be brought, which are supplemental or incidental to the provisions made by the order. It may make different provisions in different areas. Orders may be annulled by the Houses of Parliament.

Nothing in an order is to preclude an enforcement officer from taking immediate enforcement action or requiring remedial action when this is necessary in the officer’s opinion, or requiring such an officer to disclose information that would be contrary to the public interest.

The Department of Economic Development must prescribe model provisions for appeals against enforcement action. This applies to legislation that imposes, authorises, or requires the imposition of a restriction, requirement, or condition affecting any person in the carrying out of a trade, business, profession, or otherwise. The Department is to perform its functions in a manner that it considers best calculated to ensure that appeals are determined in accordance with the model provisions without unnecessary delay and that the costs are kept to a minimum.

Model provisions may provide for the appointment of persons to hear and determine appeals and confer powers on persons appointed to appoint their own experts and own counsel or solicitor, require the disclosure of documents, summon witnesses, make interim orders, including staying orders, and have the power to enforce costs.

They may also confer rights on interested parties to make representations before enforcement action is taken, require reasons for decisions, require grounds of appeal by appellant and respondent, enable the amendment of grounds, require appeals to be determined on the merits rather than by way of review, or provide for further appeals on points of law to court.

The legislation also facilitated contracting out, particularly for functions on behalf of the registrar of companies and the official receiver. The legislation allowed persons to whom the functions are contracted out to act as if they were the relevant functionary.

There are provisions for more general contracting out functions of a department. Anything done or admitted to be done by the authorised person or their employee in connection with the purported exercise of the function shall be treated for all purposes as done or omitted to be done in the case of a function by the department or another person by that person.

An authorisation given may authorise the exercise of a function either wholly or to such extent as may be specified, generally or in certain areas specified, conditionally or subject to conditions. Authorisations are for 10 years or such a period not exceeding 10 years as is specified. It may be revoked by the department and does not prevent the department from exercising its own function.

There were powers to improve enforcement procedures. Where an enforcement officer expresses the opinion to any person that remedial action should be taken, and if that person so requests, the officer shall as soon as practicable give him a written notice that satisfies the below requirements. He shall not take enforcement action until after the end of such period beginning with the notice as may be specified in the order.

A notice must state the nature of the remedial action required, explain why and within what period, explain what constitutes the failure to observe the restriction or comply with the requirement and condition and state the nature of the enforcement action that could be taken and state whether there were has a right to make representations before or a right of appeal against the taking of such actions.

Where an enforcement officer takes immediate enforcement action against any person or requires any person to take immediate remedial action, the officer shall as soon as practicable give that person a written notice explaining why it appears to him to be necessary to take such action or impose such a requirement. The power conferred is not exercisable unless the restriction requirement or condition is such that observance of or compliance with it would be likely to involve significant expenditure.

Before an enforcement officer takes enforcement action against a person, the officer shall give the person a written notice stating that he is considering taking the actions and the reasons why. It should provide that the person may, within a specified period, make written representations or, if the person so requests, make oral representations to him and in the presence of a person determined by the order. The enforcement officer is to consider any representations made, which are not withdrawn.

Where an enforcement officer has taken enforcement action and the legislation contains provisions for an appeal, the officer shall as soon as practicable give that person written notice explaining how, where, and within what period and on what grounds, an appeal may be brought and whether the enforcement action would be stayed while the appeal is pending.

Where a third party will or may be required to meet a significant contribution towards the cost of observing the restriction or complying with the requirement or condition or the enforcement action which may be or has been taken specifically relates to goods or services that are to be or have been supplied by the third party, any relevant provision shall, with modifications specified in the order, apply to that person.

Insert above, certain key functions of the official receiver may not be contracted out. They are listed in the legislation.

A person who is authorised to exercise a function of a Minister, department, officeholder, or district council is subject to an obligation of confidentiality applicable by any enactment or by obligation of confidentiality. Disclosures between contractors and their employees and authorities and authorised officers and between certain employees are exempted insofar as necessary or expedient in connection with the function. There are detailed provisions in relation to permitted disclosures.

The 1997 legislation provided for the amendment of certain provisions in relation to credit unions, industrial and provident societies, and companies. It appeals on antiquated legislation.