HOUSE OF LORDS
Merits of Statutory Instruments Committee
29th Report of Session 2005–06
The Management of Secondary Legislation
Volume II: Evidence
Ordered to be printed 21 March 2006 and published 27 March 2006
Published by the Authority of the House of Lords
London : The Stationery Office Limited £price
HL Paper 149–II
CONTENTS
Oral Evidence Better Regulation Task Force Oral Evidence, 1 November 2005 1 Supplementary Written Evidence 9
Better Regulation Executive Oral Evidence, 1 November 2005 12 Supplementary Written Evidence 20
Her Majesty’s Stationery Office Written Evidence 22 Oral Evidence, 8 November 2005 26 Supplementary Written Evidence 34
Department for Trade and Industry Oral Evidence, 8 November 2005 93 Supplementary Written Evidence 104
Department for Environment, Food and Rural Affairs Oral Evidence, 22 November 2005 115
Confederation of British Industry, Institute of Directors and National Council for Voluntary Organisations Written Evidence, Institute of Directors 128 Written Evidence, Confederation of British Industry 130 Oral Evidence, 29 November 2005 134 Supplementary Written Evidence, Confederation of British Industry 145
Home Office Oral Evidence, 17 January 2006 146 Supplementary Written Evidence 158
Better Regulation Commission Oral Evidence, 31 January 2006 159
Jim Murphy MP, Parliamentary Secretary, Cabinet Office Written Evidence 165 Further Written Evidence 170 Oral Evidence, 31 January 2006 171 Supplementary Written Evidence 180
Written Evidence Mr Tim Ambler and Professor Francis Chittenden 192 Mr Bryan Cassidy 196 National Housing Federation 197 The Hansard Society 198 The Law Commission 201 The Law Society 204
The National Consumer Council 210 LSE 217 Mrs Linda Weeks, Kent Police College 219
NOTE: (Q) refers to a question in oral evidence The Report of the Committee is published in Volume I (HL Paper 149–I) and the Evidence is published in Volume II (HL Paper 149–II). 3247872001 Page Type [Ex 1] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
Minutes of Evidence
TAKEN BEFORE THE MERITS OF STATUTORY INSTRUMENTS COMMITTEE TUESDAY 1 NOVEMBER 2005
Present Armstrong of Ilminster, L Maddock, B Boston of Faversham, L Methuen, L Colville of Culross, V Morgan of Prefelin, B Eccles, V Northesk, E Filkin, L (Chairman) Tunnicliffe, L Jopling, L
Examination of Witness Witness: Sir David Arculus, Chairman, Better Regulation Task Force, examined.
Q1 Chairman: Sir David, welcome. My name is report, so I am sure that all of us have read at the GeoVrey Filkin. I will not go round the room very least the summary and most likely the whole introducing all of my colleagues, hopefully you can of the report, but we would welcome your summary see their nameplates. Thank you very much for of it. coming to help us with our inquiry. As I am sure you Sir David Arculus: Thank you very much. I think know, the Committee essentially is given the task by the first thing I would like to say is that the Better the House of looking at every statutory instrument Regulation Executive and the Better Regulation that is laid before the House, with a view to Task Force (of which I am Chairman) are separate identifying any which we believe should be drawn to bodies, so the BRE sits inside government and its the particular attention of the House. This is because job is execution; and I sit outside and my job is the House felt it was important that, particularly for really like being a non-executive director. My job is negative instruments that never go before the House, to make the challenge and say, “Is this really what somewhere in the House there is a process for you wanted to do? Have you thought of the scanning the issues to see whether they require consequences? Is there a better way to achieve it?” attention by the House. That is our task. We So probably two-thirds of my work involves therefore have the joy of scanning and reading business. I am involved with various businesses, all probably 1,200 statutory instruments a year. You can of which are in highly regulated sectors. A third of see how old we have become in the process! As a the time I work with the Better Regulation Task consequence, obviously we develop a perspective and Force and my job there is to make the challenge. I views about the ways in which government makes think what I should say is that we have developed regulations and, not being too sharp about it, it does the five principles of better regulation which are now not always strike us as perfection. And therefore we widely applied, and those are the principles of are extremely interested, in terms of the focus of our proportionality, accountability, consistency, inquiry, in the way that Government manages transparency, and targeting. I think those are secondary legislation and whether it can be done appropriate to both primary and secondary better—so that we on our part can scrutinise this legislation. Much of our work is involved with more eVectively—and about how this can be scrutinising regulatory impact assessments, improved. This is related to but not identical to the Better Regulation issue by the Government and particularly those concerned with major primary therefore we are extremely interested, in a sense, to pieces of legislation. We are also very passionate get your perspective on what are the problems with about the issue of consultation and, as you know, the ways in which the Government currently the Government has developed a system of manages and makes secondary legislation and consultation periods for 12 weeks which are now therefore whether you think that solutions that you widely used across Whitehall. The other thing we have identified are the fundamental ones. That is are particularly passionate about is the use of what we would like to explore with you today. Do alternatives to regulation. The challenge I you feel you have come to the meeting you expected? continually make to government is, “Look, we Sir David Arculus: Yes indeed, thank you. understand what you want to do but is this really the best way to do it?” Of course one of the Q2 Chairman: Would you like to say a few words disadvantages about statutory regulation is that, if to start oV really in terms of your role and BRTF’s circumstances change and there is a need for role. I think the Committee has had the Less is More regulation, then it is much harder to change if it is 3247872001 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
2 management of secondary legislation: evidence
1 November 2005 Sir David Arculus a statutory piece of legislation than if it is an take away.” It does not literally have to be “one in, alternative to regulation—such as, for instance, the one out”. As a possible example, we gave the general self-regulation of the advertising industry, which duty not to trade unfairly which is being progressed works particularly well. So I think my job as a through the EU at the present time, which is a piece businessman looking from the outside is to say to of horizontal legislation aVecting business and government, “Look, if I were running a business, I retailers, and I think in that instance you can see would be looking at at least five diVerent ways of that, if you have got a horizontal piece of regulation achieving my objective; I would not just be looking which prohibits people from trading unfairly, it may at the legislative option.” So that is one of the main be that a lot of the vertical product regulation we challenges that I have to make. I think it is fair to have in the UK could be swept away. So it might say that the knowledge that the Better Regulation be a case of “one in and 20 out or 30 out” in that Task Force has of the statutory instrument process case. So those were the challenges that we were and the executive processes that surround that is making to government. I think the things that really actually quite limited. We did propose doing a study matter to us, if I may say so, are the issues that aVect on this last year but for various reasons we our labour markets. We are very keen to keep concentrated on the independent regulatory sector labour markets flexible and eYcient. We are very instead and on the Less is More Report, so we have keen to remove unnecessary regulatory burdens, the not examined SIs indepth. I am particularly glad administrative costs I have just been talking about. that the House of Lords is doing that. It may be The alternatives to regulation are very important to that, after you have done that, we might have some us as well. I am also keen that regulators should be comments to add. We did have a very good subject to the highest standards of corporate collaboration with a House of Lords Committee last governance. One of the things I said particularly to year when we worked on the governance of the the Prime Minister when I came into this job was independent regulators, and Lord Norton and his that I have heard an awful lot from the Government colleagues produced a complementary piece of work about the corporate governance of business and here in the House of Lords, so the whole thing how it is failing, but when I look at the corporate worked very neatly together. As far as Less is More governance of the regulators I am not sure that it is concerned, if I could just say a word about that. is nearly as good as we have seen in the private We made two challenges to government in Less is sector. That challenge has largely been taken up More. The first was that what gets measured gets now and most of the regulators have regulatory done, and the particular challenge there was ‘let’s boards, which I think has been a great improvement measure the administrative cost of legislation’—that and led to a better performance by them. We are is, all the inspections, the returns that have to be also concerned about small firms. They are often the produced, the bureaucracy associated with hardest hit by regulations such as statutory legislation—and let’s see what the cost of that is. instruments. I am particularly concerned about the The Dutch have measured their administrative costs European agenda at this stage of the UK Presidency of regulation in some depth and they reckon that it and we have been trying to convince the Europeans costs them 3.6 per cent of their GDP, and they think that our measure of impact assessment, mandatory about another 6 per cent of GDP is the policy eVect consultation and thinking about alternatives to of legislation—so 6 per cent is policy and 3.6 per regulation is the way to go forward. So that is a cent is the administration associated with the policy. snapshot of our work. They have managed to reduce that 3.6 per cent by about a quarter since they started on their Q3 Chairman: That is very helpful, thank you very measurement of the administrative burdens process, much. We would like in questioning to come back which equates with about 1 per cent of their gross to quite a number of those issues. Can I just ask domestic product having been saved. If we could do you one specific one before I invite members of our that in the UK, that would be a very constructive Committee to come in on questions. Has the Task move, I think, and the saving would be £16 billion a Force had any perspective at all about the quality year or thereabouts, which would finance a lot more of secondary legislation? Has it looked at secondary schools and hospitals of course. The second aspect legislation in any respect? Do you get any sense of of Less is More is the issue of “one in, one out”. I what is going on at this detailed level? Clearly in was particularly keen on that because it seemed to part you are saying diVerent mechanisms to try to me that the volume of legislation was growing all regulate links will have an impact but what is your the time and the mechanisms for removing perspective currently about how secondary legislation when it was no longer needed were not legislation is being made and proposed? particularly eVective, so my challenge to the Sir David Arculus: I think the amount of work we Government was, “Look, whenever you are have done on secondary legislation specifically is producing a piece of legislation let’s see what we can small, so I am not going to be nearly as helpful to 3247872001 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
management of secondary legislation: evidence 3
1 November 2005 Sir David Arculus you on that issue as the Better Regulation Executive eVectively to legislation within eight weeks? people will be when they come and talk to you later. Furthermore, we found that in about a third of But what I would say is that we had a lot of people cases Brussels was not even conforming to its own coming to complain to us about the issue of gold- eight-week guideline and that in many instances the plating. We have not been able to find specific eight weeks also covered the August holiday period instances of gold-plating, but what we have found or Christmas or whatever. I think the best way to is instances of what I call “regulatory creep”. I think answer your question is to say that the mechanism regulatory creep crops up in a number of situations: for European consultation needs to be greatly firstly, where there is a lack of scope, a lack of clarity improved, and I think that the impact assessment about the scope and intention of the original process, which is really just starting to bite in legislation; secondly, where there is a lack of clarity Brussels, we all need to encourage. We know it is about what those who have been regulated need to not perfect yet but we do need to encourage it and do to conform with the legislation; thirdly, where push the Europeans to do better. There is also an there is a lack of clarity about the legal guidance and issue with business and with government purpose of that guidance; and, fourthly, departments, because I think implicit in your enforcement activity itself can often lead to question was the thinking that we do not engage regulatory creep, and if there is particularly early enough and we wait until we see the outcomes. vigorous enforcement activity, people tend to over- I think that that is a major problem. One of our react to the legislation. So I think that really is as findings in our study about consultation, which was deep as we have gone into the issue to which you published just a week or so ago, was that the NGOs were specifically alluding in your question. did it rather better than business. And, of course, the NGOs are mainly concerned with the social Q4 Viscount Colville of Culross: Sir David, agenda and the environmental agenda, and they although you may not have looked a great deal at tend to move seamlessly from one issue to the next secondary legislation, an awful lot of it comes from issue. Of course, business, when it sees something European Union Directives and Regulations. At written down, then responds and says “This is what stage in the Government’s negotiations with terrible.” But broadly speaking all the businesses V Brussels do you get into the act? Are you there at the have got di erent interests, so they do not engage time when they are proposing to make submissions in a seamless process like the NGOs do. So one of about what is proposed by the Commission? or do our findings was that the NGOs were rather better you never come into it until after the Commission at engaging with Brussels than business was and has decided and the Regulation or the Directive has also for some of the UK government departments. been issued? Sir David Arculus: As I explained at the beginning, Q6 Chairman: Can I just follow up Viscount I am not part of the executive arm of government, Colville. Clearly, RIAs are meant to be part of the so my job is to make the challenge and say, “Is this process for assessing the burdens on those being really what you meant to do?” and I do not engage regulated. I think the worry is in secondary with individual departments as they engage with legislation: it is such a long way down the process Brussels. What we do try to do is to ensure two chain that it is almost inconceivable at that point things: one is that the quality of legislation coming that the RIA will lead to change. Have you ever seen out of Brussels is as good as we would wish it to be. any examples of RIAs of secondary legislation For that reason the impact assessment process is leading to a withdrawal of legislation or where it is now being picked up by Brussels. We have also an eVective instrument? I think we have some looked at the issue of consultation coming out of doubts whether at that stage it really is eVective. Brussels and I think there is a major question on Sir David Arculus: I think this is quite an important consultation because we have a mandatory 12-week issue, if I may say so. I certainly have seen instances consultation period here in the UK. In Brussels the of good impact assessments. A fairly topical consultation period is eight weeks. example at the present time would be the impact assessment that was done on smoking in pubs, Q5 Viscount Colville of Culross: Eight weeks? which I am sure will not have escaped any of you in Sir David Arculus: Eight weeks, and when you think the last week or so. The impact assessment basically that there are 27 million small businesses in Europe came up with the conclusion that, if smoking were and that the consultation should be taking into to be banned in pubs that sold food, at least 20 per account at least some of the views of those small cent of the pubs that sold food would stop selling businesses, you can see that eight weeks is a pretty food, which we pointed out was a rather undesirable inadequate period. If it takes us 12 weeks in a close- outcome. Impact assessments can pull out quite knit community like the UK, how on earth is a interesting results like that, which are then fed into community of 25 nation states going to respond the political process and cause a lot of political 3247872001 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
4 management of secondary legislation: evidence
1 November 2005 Sir David Arculus debate. I think they are very useful instruments but set in Holland, and in Denmark and in Sweden, was at the conference I was at in Brussels last week, a 25 per cent reduction and that I thought that which was about consultation, the American seemed a sensible level. But I think that is a political equivalent to the Better Regulation Executive decision as to what we set it at. I think it is a very (which is called the OIRA) was there as well and important question you ask, if I may say so, because they were basically saying, “Look, we think you do the burden of these instruments and of legislation in too many impact assessments in the UK and they general obviously falls harder on small business, and are of too low quality.” The American approach is indeed on the charity sector, than it does on larger to do impact assessments on pieces of policy which businesses, which are better able to cope with it. have a threshold level of $100 million-worth eVect on the economy. Anything below that level they do not bother with an impact assessment. Although we Q9 Lord Methuen: We have talked quite lot about are a much smaller country, we do many more the consultation process and the production of impact assessments than the US does. I think you RIAs. Do you think that the departments concerned have put your finger on one of the unfortunate side consult the correct firms and get the views right eVects of that—which is the lower down the process across the industry concerned or the activity you go, at the SI level, the less good the impact concerned? assessments may become. Sir David Arculus: Yes, I think the consultation is actually done much better than it was. We can always get better at it. The bit of consultation I Q7 Chairman: And it is almost impossible to particularly like is the bit where they have standing conceive of a statutory change to be made to get a panels of practitioners in some areas. For instance, better outcome because it is too late in the process. in the vehicle industry there is a standing panel of Sir David Arculus: Indeed. I think a danger of the practitioners which is called the Viper Group, and impact assessment process is that impact the Viper Group is a group of about 20 people. assessments can be used to justify policy as opposed When the Department of Transport is looking at to inform policy. Broadly speaking, the earlier the legislation, it will pull the Viper Group together and consultation is done and the more up-stream the it will just talk about what the Department of impact assessment process is done, the better it will Transport wants to do for half a day or a day, and be. Certainly on the major pieces of legislation now then they will draft the consultation document after we have a preliminary indicative impact assessment that. I think that leads to much better drafted that is done, then there is an interim assessment, and consultation documents than when civil servants then there is a final assessment, and that tends to draft them without that level of input being fed in. lead to better results. But I firmly believe that Also, when Charles Clarke was at the DfES, he impact assessments should be used to inform heard about this idea and developed a standing legislation. That is the whole purpose of them, not panel of headteachers and had a similar sort of to justify legislation. consultation with headteachers before legislation coming out of the DfES aVecting schools was Q8 Chairman: Exactly. One last question. Are you introduced. I think that kind of continuous process, aware of anywhere in government that anyone is where you get people in a room, is actually rather tracking, monitoring and assessing the collective better than at the other extreme—consultation impact on, say, small businesses or small local based on, let’s say, Internet responses. This is one authorities of the secondary legislation that is being of the things I talked to some of the Commissioners made across all government at any one point in in Brussels about, because they rather like the idea time. We have not seen it, but maybe we are of Internet responses. The trouble with Internet ignorant. responses is that it is not a very dynamic tool and Sir David Arculus: I think that will be caught, if I you can end up counting 30,000 responses—and may say so, in the work in terms of measuring then how do you weigh them? I had one specific administrative burdens which is going on at the piece of legislation which was quoted to me where present time. As a result of the Less is More study I think the Commission had 600 responses, and 500 the Government has engaged a number of specialists of them came from Portugal. It sounded to me in and consultants who are going to be looking at that case as if there had been some particular precisely this issue of the total burdens on business pressure group in Portugal that had got together. of administrative costs, and those will be available Broadly, the kind of consultation that is interactive, by the time of the Budget in March. I believe it is where people can develop arguments and test the intention of the Chancellor to say what he thinks arguments against each other, is much more about that burden and how much he thinks it valuable than the Internet-based consultation at the should be reduced at that time. I pointed out to him other end of the scale and then the variances when we did our study that the target that had been between those two extremes. 3247872001 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
management of secondary legislation: evidence 5
1 November 2005 Sir David Arculus
Q10 Lord Methuen: We thought if you had got the whole area of secondary legislation? Is it just left to CBI and there are a lot of smaller firms, the CBI departments, do you think, or is there anybody who perhaps has excessive influence on the results of the keeps an eye on it? consultation? Sir David Arculus: Right, there are a number of Sir David Arculus: This is the danger where you questions wrapped up there. I think the first part of have got representative bodies. We particularly your question was whether the Government take found this in Brussels and I think it was partly any notice of us. I have just been launching one of because of the eight-week consultation period. The our studies today, which is on the voluntary and European Commission would consult, for instance, community sector, and I was saying to the people with UNICE, which is the European employers’ in the room there that the publication of the study body, and they would say “well, we have consulted marks the 50 per point; the other 50 per cent is with business”. One thing for certain is that persuading the Government to do what it says it will representative bodies have a diVerent input to make do. The normal mechanism of our reports is that the to individual businesses, and in some cases diVerent Government has a number of weeks to respond to interests. If I could give you a very graphic example us and then the Government will issue a response, of that. Last year, following a suggestion that we and then it is up to us to monitor that the made, the idea of common commencement dates for Government does what it says it will do. In terms employment legislation was developed by the DTI, of things like the 12-week consultation period or the and quite interestingly the initial response to this, 21-day notice period, I think these things are particularly from the consultancy sector, was that important parts of the process, and I am very keen this was a rather bad idea. Of course, when we that we should have these hurdles that legislators looked into it in a bit more detail, we discovered have to go through, but I think they are a necessary that the consultants rather like a smooth flow of condition of better regulation. I do not think they work throughout the year and, when we got to do are a suYcient condition because to have a suYcient a survey of individual businesses, which we did in condition you have got to have a change of culture the West Midlands through the Birmingham in departments and you have got to have civil Chamber of Commerce, we found that 81 per cent servants and ministers who actually want it to of business thought a common commencement date happen. So the 21 days, the 12 weeks or whatever, for employment legislation was a very good idea. I they are necessary but not suYcient; more than that assume the consultants were in the 19 per cent who has got to happen. In terms of looking at the did not think it was quite such a good idea. So it performance of individual departments, which I is, I think, an excellent point that the interests of think was your third question, we found there had representative bodies and consultancy bodies can been great diVerences in regulatory performance diverge from those of the practitioners on the between departments. We asked last year that every ground. government department should produce in its annual report a survey of how it was dealing with Q11 Lord Jopling: Sir David, your Task Force has the issue of better regulation and regulatory impact made various recommendations over the years and assessments and so on and so forth. Of course, for you have referred, I think twice, to the 12-week the first year the response was very patchy. In fact, Y consultation period which you have recommended. I think the Home O ce, which is one of the biggest What I want to ask you is—to what extent do you legislators, covered the whole topic in under a page think Government takes notice of these and we got very cross about that. And in fact the recommendations and similar recommendations? Home OYce did very much better the second time We have been very irritated in this committee that round. All the reporting of how departments deal the recommendation of a 21-day period between with better regulation processes and targets is now laying an instrument and implementing it is done in public and the Better Regulation Executive frequently ignored. Your reports very often identify monitors those, and the Better Regulation Task best practice. But to what extent do you think Force will then challenge departments that it feels government take notice of this? In another field, the are not doing particularly well. So I do believe that recommended practice in this House is that setting these targets, be it 21 days or whatever it parliamentary questions should be answered in two might be, is important, and I think it is necessary. weeks. Last week the Home OYce had a question However, it is not enough; the departments have got unanswered for 18 weeks—a particularly idle to be monitored and they have got to be challenged department, I may say. But how much notice do you and I think their feet have got to be continually held think is taken of your recommendations and the to the fire. It is interesting, just coming back to our various outlines and targets which are set for European study, that when we looked at departments? Are you aware of anybody in consultation in Europe it was very diYcult to winkle government who is responsible overall for this out that a third of consultation periods in Europe 3247872001 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
6 management of secondary legislation: evidence
1 November 2005 Sir David Arculus did not conform to the eight-week guideline. That regulation agenda gets a lot of publicity, a lot of information was not immediately to hand and we people know it is the right thing to do, but when a had to do a lot of research to find it. It is by finding really tough decision comes along—like, if we these kinds of anomalies and challenging people and introduce this new burden on business of a billion making it public that they are not meeting the pounds, is there a billion pound burden we can take targets that I think we continually strive towards a away—we more often than not fudge the issue. better result. Chairman: That brings us neatly on to the next issue.
Q12 Lord Jopling: Do you think the BRE is Q13 Viscount Colville of Culross: Just a short point, eVective in its overall responsibility for managing Sir David. I am sure you are very well aware about secondary legislation? If I just pop in another the channels of communication with businesses and question here. Secondary legislation is drafted and particularly small businesses. Have you got any prepared by the departments, and again this views about the extent to which we have got committee becomes very irritated when we find an proper channels of communication with other instrument laid and then another one comes a week organisations? You mentioned NGOs, and then the or two afterwards because they have made a mess local authorities are very much involved in this, of the first one. Do you think it would be better if which are themselves of course departmentalised. all secondary legislation were drafted by the main Do you think that we are getting a fair picture back parliamentary draftsmen in Whitehall? from the consultees when they are asked questions Sir David Arculus: I think this problem of poor about these things? or do they just not have time to legislation is something we are concerned about get round to it? or does it not get to the right people right across Whitehall. I confess I do not know the in the first place? precise solution to it and your suggestion may be a Sir David Arculus: I do not know whether all these very good one. Going back to the question about bodies take consultation quite as seriously as they the Better Regulation Executive, I think the Better should do, but what I can say to you is that as a Regulation Executive actually does a very good job. result of the work that we have done in the Better It has been led for the last three years by a civil Regulation Task Force with the business servant called Simon Virley who in my opinion has community a number of other people are coming moved it to new heights. However, the thing to along and saying—why can we not be treated recognise is that it is not a huge body. There are in the same way? The whole measurement-of- something like 60 civil servants in the Better administrative-costs agenda, which was basically Regulation Executive, although I think that number initially applied to the business community, a lot of is being expanded slightly now. But 60 or 70 civil the public sector bodies have been coming to me and servants, and they have to deal with 15 government saying, “Look, we would like to be included in this departments, 150 independent regulators, and a process of reduction in administrative costs as well.” whole mass of primary legislation—I think we are Earlier today I was launching a study for the going to have 38 bills in the next session of voluntary and community sector and there are some Parliament—and then all the ensuing secondary quite remarkable statistics there. The voluntary and legislation that comes out of that. So it is a community sector, for instance, contributes about mammoth task, and I think for that number of £27 billion to GDP, and 16 million people in the people it is very diYcult to catch the leaves as they country work in the voluntary sector in some way fall oV the tree. What is a much better process, as or other and about half a million of them are paid. far as I am concerned, is to make sure that the tree They all want the same quality of consultation, the is well watered and well fertilised and produces the same look at their administrative costs, how the kind of results we would all wish. That is where I government accounts for their funding streams as think these hurdles come in that government business is asking for as well, so there is much more departments have to go through, but we need a work to be done, I believe. culture change in government departments as well, and ministers need to take some of these issues Q14 Viscount Colville of Culross: Everybody is seriously. As you may know, simplification plans trying to keep costs down. Can you give us any are being drawn up by all the departments of state examples of successful methods of consultation and they will be submitted to the Better Regulation which have led to the identification of ways in which Executive in January, and those simplification there could be less regulatory burden because that plans, I believe, should be scrutinised and taken very would apply very much across the board, I would seriously. And I think it may well be necessary to imagine? shove one or two of them back to departments to Sir David Arculus: I think a good example would be show the others that we really are serious, because the REACH Directive, which was a piece of what so often happens of course is that the better European legislation about the tracking of 3247872001 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
management of secondary legislation: evidence 7
1 November 2005 Sir David Arculus chemicals, and the initial cost of that legislation was huge bundles of paper coming three times or four something like £25 billion, and of course everybody times a year and are not able to give them the same then said this is impossible and reacted much too degree of attention than if we could get the flow late. But as a result of the fuss that was made, more evenly spread throughout the year. another consultation was done, more impact Sir David Arculus: I think that is sheer ineYciency assessments were done and the net cost was reduced on the part of departments, if I may say so. We to something of the order of £7 billion, which was certainly have not asked for common laying dates, about a third of the original burden. So that was a which I surmise is what is happening as opposed to very high-profile example, but I think we all felt that common commencement dates. a much better outcome was finally achieved because of the consultation that was done. Q19 Lord Armstrong of Ilminster: I think the two are getting elided. Q15 Viscount Colville of Culross: But that was Sir David Arculus: They certainly should not be in because somebody was awake? my view, and I am aware of the problem that you Sir David Arculus: Well, I think it was because raise. I think you have to take quite a firm line with somebody was asleep and they did not respond departments and say there has got to be a flow. I quickly enough in the first place. And then a big fuss sometimes think that we should just throw things was made because it was such a big piece of back if that kind of bunching happens. There are legislation and the consultation process and the lots of instances within the bureaucratic process impact assessments were re-opened, and we got to where we let things slip through at the last moment. a much better result. It did graphically demonstrate I think if one or two things got chucked back to my other point that often business reacts when it departments and we said we have not got time to sees the draft legislation as opposed to when it is look at this because it all came at the last moment, being talked about and formulated in Brussels, it would be a salutary lesson and they will have to which is quite a long process. It could be two or wait until the next year. That would be my advice. three years before the draft is produced. Q20 Chairman: In a recent press release your Task Q16 Chairman: We have commented that it is at Force stated that the Government should be “re- that stage you have to have the regulatory impact engineering the machinery to focus on outcome not assessment identified on the secondary legislation as admin.” That is what was said, and Amen to that. well because later on you have no powers to do How do you see that happening? What do you mean much about it. by that in more detail? Sir David Arculus: Exactly, it is too late then. The Sir David Arculus: I think what I am particularly NGOs, as I say, are much better at getting engaged concerned about there, Lord Filkin, is the issue of early than businesses. alternatives to regulation, really talking with business or the regulatory community about how Q17 Chairman: That is a message for ministers as the outcome can be achieved rather than laying well, of course, that it is not just about highlighting, down laws. If I can give you quite a graphic example it is about the detailed costs of implementation as of this. Most of the various data protection laws well and they have not always done so. that we have got in this country were drafted in the Sir David Arculus: That is right. days of mainframe computers and they were replete with phrases like “the information controller of the Q18 Lord Armstrong of Ilminster: You have already business shall ...” I have got quite a large business referred to common commencement dates, and of about 15,000 people working in it and about 15 indeed you recommended them. I think we have million customers, and we do not have an found that departments too often elide common information controller. We do not even have a commencement dates with common laying dates, so mainframe computer, we have distributed computer you get a kind of bunching. There will be a lot of power, data shooting about all over the world. And orders which come to us before the end of the the legislation is a nightmare as far as we are financial year, before 31 March, a lot more before concerned. If the Government came to us and said, the House rises in July, and a lot more perhaps in “We want X, Y and Z outcomes; how can that be December. I can see that common commencement best achieved?” we would be able to help. Business dates are useful and convenient for those who are does not want no regulation, it is part of the social aVected by the orders. Can you see how we might fabric of the country. It simply wants better encourage departments to spread them out so that regulation which enables it to operate eYciently. the process of scrutiny could be more even? The fact Reputable businesses do; of course some businesses is that the way it works at the moment probably want no regulation at all. I think there is a touching inhibits parliamentary scrutiny because we get these belief, if I may say so, that if you legislate you get 3247872001 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
8 management of secondary legislation: evidence
1 November 2005 Sir David Arculus
100 per cent compliance and if you have a voluntary the interests of the individual firms. So I think often agreement that you get, let’s say, 70 per cent the degree of concentration of the industry is helpful compliance. I think it is often the opposite actually. in drawing up alternatives as well. If I may just add, If you legislate you sometimes get firms that just I am very keen on the idea of the informed ignore it but if you get industry associations and consumer. Informing consumers what is the best businesses together to say how can we achieve this deal, what the pros and cons of particular products outcome, how can we all co-operate, you often get are, I think is a very good form of regulation. I have 100 per cent compliance. been complaining particularly about the issue of food labelling recently because, when a shopper goes into a supermarket, on average, they spend Q21 Chairman: I think we have a lot of interest in about two seconds deciding which product they are that because we see very many examples of regulations that are made that look very hard to going to buy. If you look on the back of most pre- understand, even with Explanatory Memoranda, packaged food products now, you will see hundreds and there is not much eVort put into dissemination. of little tiny symbols which you will probably need So those who are meant to be obeying the legislation a magnifying glass to read. Those are all the are not easily, unless they are very keen, aware of ingredients of the food, and of course it is a useless it, the rewards or sanctions for compliance are method of informing consumers, it is a regulatory pretty weak, the intelligence system which tells you mechanism. I think the kind of colour-coding whether anybody is taking any notice of it is pretty system or star system that has been developed, for flawed, and therefore, without being too glib about instance, in the hotel industry is a rather better way it, it paints a picture of a machine that generates of telling people what the standards are. I know that paper which is not connected to a lot of outcomes some of the firms—Sainsbury’s for instance—are in the real world except for those who are obedient experimenting with a colour-coding scheme at the and therefore have a competitive disadvantage as a present time. I think those issues of the informed consequence of their behaviour. You say—yes, it consumer are a very good way of pushing and requires a shift in policy processes to get better and developing alternatives to regulation as well. more creative thinking. But this is not the mind-set of organisations, is it, this level of creative Q22 Baroness Maddock: You touched, Sir David, imagination? It is still the belief that legislation leads on gold-plating earlier. I think, if I heard you to results? correctly, you said you had not found much Sir David Arculus: I think we are getting better at evidence of gold-plating. Wearing other hats and alternatives to regulation. For instance, the whole having dealt with European legislation, what we issue of carbon emissions which is being dealt with have found on the European committees here is that by the trading scheme I think has the potential to in other parts of Europe a regulation will be be a pretty eVective outcome. In the advertising interpreted with many less pages than it is industry, the Advertising Standards Authority, which started with press advertising but has now interpreted here. I do not know whether you have taken in television advertising because it was so found that? You were comparing European successful, has been a conspicuously good model. countries earlier on. The German government, by the way, has formal Sir David Arculus: We define gold-plating as regulations on advertising whereas we do it with a something like this: regulations that deliberately go voluntary system here. I think where it can be beyond the intended scope of the original law. proven that alternative models work well, one of the Could I find evidence that people were deliberately things I have been trying to do is to publicise those going beyond the scope of the law? I could not. But and encourage others to follow the example. In our could I find evidence that people were adding to the study on better regulation we presented it as 10 tips law as the process was developed? I certainly could. for better regulation. Why do you not think about For instance, a great many of the regulatory powers doing this? Why do you not think about doing that? in the UK have now been devolved by Parliament Of course, you also need to look at the structure of to the independent regulators and the independent the industry when you are talking about alternatives regulators tend to put their own particular gloss on to regulation. Just as an example, only five firms in the regulation. And then they will pass their Europe are involved in the trade of tankers carrying guidance down to the local authorities and they will chemicals, so it was very easy to persuade those five put another level on as well, and then the firms will firms that double-hulled tankers were a necessity. If get their legal department to look at it and they may you look at the oil tanker industry, which is much well put another level on as well. This whole process more of a spot market with lots of fly-by-night of what I call regulatory creep (you might call gold- global operators, it is very diYcult to persuade them plating but to me it is regulatory creep) is accidental to have double-hulled tankers because it is not in gold-plating as opposed to deliberate gold-plating. 3247872001 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
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1 November 2005 Sir David Arculus
There is plenty of evidence for that accidental gold- think it is very smart to work on a bill team and it plating process. For instance, money-laundering is not so clever to work on a better regulation regulation is a classic example of this, where because initiative. I think the whole business of the reward the wording of the original law was somewhat structure of the Civil Service, the bonuses that are obscure and enigmatic, people then interpreted it in given to good performers in the public sector, the a particularly legalistic way. And then of course the way people are promoted, that has got to come into banks, who are very highly legalistic themselves, put the process as well. Also the issue of how public another gloss on it as well. So I think the clarity of servants are trained is important. I am actually glad the original legislation, be it primary or secondary to say on the training issue I think progress is being legislation, is the key to avoiding the kind of eVect made. Certainly Andrew Turnbull was quite keen that you are talking about. on this when he was Head of the Civil Service, and Baroness Maddock: That is very helpful, thank you. various of the executive programmes and training programmes in the Civil Service were changed to Q23 Chairman: Finally, we are hopeful like you meet this particular challenge. I and other members that we will see fewer regulations and better ones of the Task Force go and talk to groups of civil coming before us because we have a self-interest in servants about this quite often. There is no doubt this. Do you think that the agenda set out by the that more work needs to be done and of course the Task Force, while many of us think it is necessary, great danger which I think lies behind your question is going to be suYcient? is of a “tick box” mentality. So this is a very diYcult Sir David Arculus: I think I have alluded to that issue and it is to some extent not an immensely already. I think it is very necessary. Is it suYcient? glamorous issue. It is about a great deal of hard It is not, no. Again, if I can give you a business work, a great deal of attention to detail, and that is analogy, I am a non-executive chairman of a what the simplification plans that are coming out of business. It is very important that there is a non- government departments early next year need to economic challenge made to that business but what attend to. They need to attend to the detail. They it needs to deliver on that challenge is a highly need to look at how regulations overlap with each committed executive, and I think that is the analogy other and how departments overlap with each other. I would give with government as well. I think we It is mind-numbingly detailed but it has got to be need a highly committed executive and I am not done. entirely sure how we bring about that culture change Chairman: Thank you very much indeed, that has because to quite a large extent civil servants still been extremely helpful.
Supplementary letter from Sir David Arculus, Better Regulation Taskforce (BRTF)
We welcome the opportunity to contribute to your inquiry. The Better Regulation Task Force (BRTF) considered launching a study about statutory instruments last year but eventually chose not to do so, partly because your committee was already covering much of the ground in need of review. Nevertheless, we remain concerned that the process of preparing, submitting scrutinising and approving statutory instruments should be subject to better regulation principles and we are therefore pleased that your Committee is undertaking this project.
It is worth highlighting that the BRTF generally considers regulation as a whole— we do not tend to distinguish between primary and secondary legislation. In our view ALL policy intervention and its enforcement should meet our five Principles of Good Regulation: Proportionality, Accountability, Consistency, Transparency and Targeting. We believe it is vital to have a robust process— or series of hurdles— in place to evaluate proposed legislation and to ensure that the costs and implications have been fully considered. We believe that scrutiny of proposals against better regulation principles should be a priority for both Houses of Parliament. Statutory instruments should not escape rigorous scrutiny, particularly where they impose costs or burdens.
The Independent Better Regulation Commission, under the chairmanship of Rick Haythornwaite, looks forward to continuing discussions in the New Year. 3247872002 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
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Quality—Drafting and Corrections
There needs to be a strong commitment to Better Regulation in all government departments to make sure the necessary steps are taken and procedures followed ie that all the potential impacts are known, the right stakeholders thoroughly consulted and alternatives to regulation are considered. If carried out properly, Regulatory Impact Assessments (RIAs) should help identify the costs, benefits and impacts of proposals in advance. The RIA process has been in place since 1998 and the overall quality of RIAs has improved since then. However, quality varies significantly between proposals and government departments. The BRTF has since 2001, been referring strong and weak RIAs to the National Audit OYce (NAO) for further examination. The 2005 NAO report registered an improvement in the sample of RIAs against those assessed previously. This year the BRTF has broadened the remit and asked the NAO to look at whole government departments, both particularly good ones (DTI) and those where improvements could be made (DfT, DCMS and HO). We have no evidence that the quality of RIAs and consultation exercises varies significantly between primary and secondary legislation. However we would be suspicious if any statutory instrument (SI) were to be proposed without an accompanying, updated RIA on the argument that nothing significant had changed since the original primary enabling legislation. It might help if Sls were made available, even if only in draft form, when primary legislation is being discussed in Parliament. This would allow the political debate to be properly informed, while leaving the detail to be dealt with later. We appreciate that it can be too late to raise objections once the primary legislation has been passed. The BRTF strongly supports post-implementation reviews—legislation (be it primary or secondary) should not be introduced and then left unexamined. In our view, where corrections are necessary corrections should be made, to avoid damaging confusion later. However, the need for corrections should be kept to a minimum, for example by ensuring good project management and thorough consultation in the initial stages. The sharing of best practice can help improve the quality of RIAs, consultation and Sls. This is strongly encouraged by the BRTF through its reports and by others such as the Better Regulation Executive and the NAO.
Consolidation
Consolidation, where appropriate, will clearly make Sls more user-friendly as stakeholders will only have to refer to one piece of regulation rather than several. We recommended this in our report “Less is More” report, where we said that deregulation, rationalisation and consolidation were good ways to achieve the more general goal of simplification. The Government accepted all the recommendations in our report and the proposed Regulatory Reform Bill should improve the process for simplifying existing legislation. Stakeholders should already have been approached by the BRE and government departments to suggest ideas for the simplification of legislation.
Timetabling and Common Commencement Dates (CCDs)
The BRTF recommended the introduction of CCDs for employment regulations in 2002. This proposal was fully supported by business. We have since recommended the extension of CCDs to other policy areas, something which has been taken forward by the government. It should be possible to avoid peaks and troughs in the laying of SI’s with proper timetabling and better project management. The bunching around certain dates is not being caused by CCDs in themselves. CCDs set dates when Sls should come into force— not when they should be submitted for scrutiny. We would support the use of a clear legislative timetable for the preparation, laying and scrutiny of Sls. As part of the CCD policy, departments and agencies are required to prepare an annual statement at the start of the year, indicating which regulations they expect to start on the next CCD date. Perhaps these annual statements could be used to aid project planning. 3247872002 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
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1 November 2005
Commencement The BRTF does not know about the level of compliance with the government’s SI “21 day rule” as this is not something we monitor. We note that guidance accompanying legislation that imposes burdens should be issued at least 12 weeks in advance of the legislation coming into force— as recommended by the BRTF and accepted by the Prime Minister. We are therefore surprised that as little as 21 days notice is considered to be enough before Sls are implemented after they have been laid— particularly for the more complex and controversial Sls. We would support clarification of this point.
Consultation The BRTF firmly believes that consultation is at the heart of better regulation. Good consultation means the right people being consulted in the right way and at the right time. Careful thought upfront about who to consult, how and when should help, with targeting and prioritisation necessary to avoid “consultation fatigue” among stakeholders. The provision of prior warning of forthcoming consultations should also improve the quality and quantity of responses received. Standing advisory panels of practitioners in certain sectors can prove useful, such as the VIPER Group in the vehicle industry. It should be made clear in RIAs who has been consulted and what evidence has been provided. This should encourage consultation to be used to inform policy decisions rather than to tick the right box. Responses should be carefully analysed with an open mind. It is important to identify the most prevalent views for each question asked in the consultation document. However weight should be aVorded to the most cogent ideas and arguments, and not necessarily to the views held by the most influential/most well known stakeholders. Overall consultation is actually done better than it was, but there is of course always room for improvement. For example, some departments need to show greater willingness to change direction on the basis of consultation responses. We believe the government’s consultation code is suYcient in itself when adhered to by all. Once again, adherence varies between individual proposals and government departments.
Users and Impact It is vitally important that the likely impacts of proposals and the concerns of stakeholders are identified and considered early on. The tracking, monitoring and assessment of the collective impact of legislation (primary or secondary) should be caught by current government eVorts to measure administrative burdens. As a result of the BRTF “Less is More” study, the Government has commissioned a number of specialists and consultants to measure the administrative costs of regulation on business and the voluntary and community sector. The results should be available by the Spring 2006 budget.
Links to Better Regulation A burden is a burden no matter how it is introduced. The BRTF “Less is More” report and recommendations do not distinguish between primary and secondary legislation. In the future Parliament should expect to see Sls cutting burdens rather than increasing them. The BRTF wants to see administrative burdens reduced within five years. It is up to the government to set the target by which the burden is reduced— Holland and Denmark have set a target of 25 per cent. We have asked the government to set a target by May 2006. We hope Parliament will support the proposals in the forthcoming Regulatory Reform Bill to facilitate the simplification of legislation through Regulatory Reform Orders. The whole point of this work is for users to be significantly less burdened by regulation. Success should be judged by whether the results are felt on the ground (ie by users directly aVected by legislation), not by whether government departments think they have done a good job or not. The government will have failed if a diVerence cannot be felt. 1 December 2005 3247872003 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
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1 November 2005
Examination of Witnesses Witnesses: Mr William Sargent, Executive Chairman, Ms Kate Jennings, Head of the Regulatory Reform Strategy Team, and Ms Marie-Anne Mackenzie, Head of the Scrutiny Team, Better Regulation Executive, examined.
Q24 Chairman: Good afternoon and thank you together to make sure it happens. A lot of it is about, very much for joining us. You have had a slight as you have seen and why we are talking, warm-up act, so I do not need to explain to you management of legislation and getting it right, so that what we do because you knew well before you even is quite important. So from the Government’s point came here. By all means, if it would be helpful, say of view the Better Regulation Executive is at the core a few words about where you see BRE currently of trying to drive this forward, together with the rest positioned. I recognise the challenge for you, one of the government departments. We obviously need month in post. But just set the scene for us to work with the departments to deliver the goods. succinctly if you would. We personally, as Sir David said, are quite a limited Mr Sargent: Thank you very much for the invitation. number of people, so we have to work together with I am very pleased to be here. It is early on in the colleagues in order to deliver the overall agenda. We agenda for me and it is good to be engaging with are perhaps the best practice catalyst or clearing yourselves, who obviously have quite an interest in house and we need to persuade a significant number this. It is an allied interest which I am pleased to be of people outside of our own world to deliver the here to talk about. I am new to the role, and a bit like goods. We are taking forward the work of the Sir David, I have come from the private sector, and Regulatory Impact Unit, which you will be familiar with from working with them over the last few years, he and I have worked together in previous guises, so and the aim is very much to reduce the business it is interesting coming from outside the Civil Service burden. Interestingly enough, however, our brief is to and working together with my colleagues in the Civil go beyond that. We are not just looking at the private Service now. It is quite an interesting new approach sector but the public sector as well. People assume that has been taken with the Better Regulation that I will be very close to the private sector having Executive. I am going to try to give you some come from that world myself, but actually I can see overview and my colleagues, Kate and Marie-Anne, very quickly in the first four weeks that the impact in will help me with the detailed questions as we go the public sector of the regulatory burden is equally through. As I outlined in the letter that we sent, the significant. The gains in the public sector are similar Prime Minister has asked John Hutton to take to the gains in the private sector and may well be forward this agenda of cross-government working, more, my instinct tells me. It is very much what we are working closely with his Cabinet colleagues. In the focusing on and I feel progress is already happening. announcements that were made this year around the In the six months since the Budget alone a lot has March Budget time, both the Prime Minister and the been done in structural, cultural and policy changes Chancellor gave an interesting indication of very that have happened already. Our Executive is not just strong support for the whole agenda of better focusing on the UK but it is focusing on Europe as regulation. It is believed that the impact on the well. My brief, as you and Sir David discussed, is economy, and therefore business, is a very important significant, particularly in certain areas— one to address. It is incredibly radical and needs to be environment law and places like that—and a given some context. In Europe and elsewhere in the significant proportion of that law is coming out of world, the UK is seen as best practice. We are at least Europe, so our brief is to engage there just as much. five years ahead of the rest of the world in trying to We still have a lot to do. It is a very long-term make all this work. We are at an interesting point exercise. If I could bring it to what we are focusing on now because the Regulatory Impact Unit, which has here today. We feel that the work that we are doing been doing the work, as Sir David said, under which is of interest to the inquiry is very much around Simon’s very eVective leadership, has got to the first improving regulatory impact assessments. We think stage now, where we are entering a very interesting that driving that forward and pushing it up the food step change; and hence the Regulatory Impact Unit chain, so it is being used further and further and has become the Better Regulation Executive as we closer to the origination of the policies where seek to implement the work of Sir David’s Task hopefully they can become more and more eVective Force report and Phil Hampton in his review. The in that. two reports combined together are an incredibly ambitious agenda. I am very pleased and honoured Q25 Chairman: Could I pursue that for a second to be part of that now, on the one hand inside the because I would welcome your take on the nature of system, and with people like Sir David obviously the problem. From our perspective secondary alongside and outside the system challenging legislation does not look perfectly formed. We are 3247872003 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
management of secondary legislation: evidence 13
1 November 2006 Mr William Sargent, Ms Kate Jennings and Ms Marie-Anne Mackenzie frequently irritated by the quality of it, by the lack of Q28 Lord Jopling: Yes, but to what extent do you joined-upness of it, by what looks like a not very think the impact of secondary legislation is properly lively consultation process. Could you give us what assessed before it ever is produced? You have your three or four takes are of the fundamental mentioned the diVerence between private sector and problems with how secondary legislation is currently public sector. Just go a little further, if you will, in being managed and made? explaining how you think there could be better Mr Sargent: It is being managed by the diVerent impact assessment so far as the public sector is departments themselves as opposed to people like us. concerned? Do you oversee these things by email, by letter, or do you have regular meetings? Is every piece Q26 Chairman: And that itself is a problem? of secondary legislation subject to a meeting? or is it Mr Sargent: It is best done by those people who are in all done rather distantly? Do you then go to the consultation with their stakeholders. If you originate departments and say, “We do not believe that you something in the farming community, obviously the have properly assessed the impact of what you are people who deal with the farming community— proposing”. We have found that departments, in telling us what the result of consultation, is just give us a very wishy-washy sort of reply. We quite often Q27 Chairman: But they are not joined up with the have to go back to departments and say—what did other departments, are they? Nobody is looking that very bland statement about consultation collectively at the impact on a particular business or actually mean, what were the numbers, and who were voluntary organisation? the people? As you know, with a referendum you can Mr Sargent: As an outsider before I took this job I felt that was improving dramatically. As Sir David said, nearly always get the answer you want according to the consultation process has certainly improved the question you ask and of course, you can probably dramatically over the last few years. I certainly was always get the result of a consultation if you carefully on the receiving end of a lot of joined-up cherry-pick the people you consult with. Do you consultations, but you guys might have a better think that goes on? Is there anyone else beside your perspective on that. team who monitors the collective impact of Ms Mackenzie: I think that one of the important regulations? changes that is coming about is the way that Mr Sargent: If I can unpick the questions in that. departments are now going to be encouraged to look Marie-Anne will deal with some of them. If I could more at the regulatory landscape in order to decide come in after Marie-Anne with some opinions, I will what oVsetting provisions they might develop let her answer the facts first. alongside the development of new legislation. That Ms Mackenzie: There were quite a few points there. In will encourage them increasingly to look at the wider terms of who actually looks at the proposals for regulatory landscape and not just at what is being secondary legislation, the requirements to complete produced within a department. It is across regulatory impact assessments are the same departments and there will be more of a role to be regardless of whether or not it is primary or actively challenging during the preparation of both secondary legislation, so departments are required to primary and secondary legislation to look more at the undertake regulatory impact assessments for all wider landscape and the opportunity there for measures that are going to have an impact on reform. I think that will help with co-ordination. business, charities, the voluntary sector or the public There is an issue about how we help departments to sector. They have to undertake the same for primary think more widely about what else is out there. as for secondary legislation. In the centre in the Miss Jennings: I think in terms of the consultation and Cabinet OYce for RIAs we perform the same policy, our role in the Cabinet OYce is issuing the challenge function for significant proposals whether guidance on consultation. The Cabinet OYce is they are primary or secondary legislation. Of course, responsible for the Code of Practice on consultation if secondary legislation does not cost enough, if it and issues guidance on consultation. We also help to does not cost as much as the criteria for significance co-ordinate a network of consultation co-ordinaters (which is £20 million), then it would not be across all departments. The role of the consultation scrutinised in the centre and of course that is where co-ordinaters and our role is partially to disseminate some of the secondary legislation misses out from good practice but also to try and make sure that those that challenge function that we perform. But that consultation co-ordinaters are joining up where they does not mean it should not be carefully scrutinised have policies in one department which might be within the department. Departments have their own relevant to stakeholders in another department. departmental Better Regulation Units that should be Again, what we are trying to do is to encourage more looking again at quality and performing internally joined-up thinking and more joined-up consultation that challenge function, so the requirement is not where issues are cross-departmental. diVerent for primary and secondary legislation. It 3247872003 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
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1 November 2006 Mr William Sargent, Ms Kate Jennings and Ms Marie-Anne Mackenzie might be being perceived to be diVerent but the basic major terrorism incidents. There have been some requirement is the same. In terms of the outcome of cases where legislation has not gone forward. consultation and how that is reflected within the Chairman: That is comforting to hear. It brings us on impact assessment (because there is a requirement for to Lord Methuen’s question on consultation. I think that to be included in the regulatory impact our worry is that too often RIAs can look just like a assessment following consultation) that is an area piece of process compliance that has gone through, where departments are being encouraged to provide but nothing much really happens at all as a more information. It is one of the conclusions from consequence. Maybe I am wrong. not last year’s but the previous year’s report from the NAO on regulatory impact assessments. They did pick up that there was an issue about how Q30 Lord Methuen: I think my Lord Chairman has departments reported the outcomes of consultation already asked some of the points about consultation, and we have been strengthening our guidance in that but we have noticed in certain cases that the 12 week area to departments and encouraging them to be period is not being kept to, which does not give the more open about the range of responses they get to respondents enough time. We also noticed another consultation. That is Kate’s area in particular. case on the recent Pensions Act, where the DWP was Mr Sargent: The thing about the Regulatory Impact excused from consultation for the first six months, Assessments, the fact that they exist, means that and this does not sound like very good practice. someone has to put down on a piece of paper the logic Miss Jennings: The 12-week period for consultation is they came up with, and that is available then for the the standard which we expect departments to meet as whole world—the lobby groups, Mothers Union and far as possible, but within that there is some non-governmental organisations—to look at it and flexibility. Then the emphasis really is on the minister challenge it. People have an obligation to create them justifying why the 12-week period has not been met, in the first place. We obviously scrutinise those above why it was not appropriate in those circumstances a £20 million impact. Therefore, it is available for and doing everything possible to make sure the people to look at and challenge, by parliamentary consultation is nevertheless as eVective as possible, so committees or outsiders, so that in itself is a good making sure they maybe hold workshops or try and discipline. The one area that would be interesting for meet stakeholders and engage their views in other people would be to subsequently look back at the ways. Sometimes I think it is the case that maybe Regulatory Impact Assessments to see how accurate there has been extensive consultation on an area of they were in the first place. As a discipline and as a policy where there has been more than one round of form of transparency it is a very powerful one and consultation, and then it is deemed appropriate, departments ignore them at their peril. perhaps, to have a shorter consultation for some final decision-making. On the Pensions Act, the example Q29 Chairman: Can you think of any examples you gave, I think that was an extremely unusual thing where an RIA on a secondary piece of legislation has to happen, but there, I think, it was felt that led to it being dropped? Government had conducted one of the widest Mr Sargent: Personally, I cannot. consultations on pensions that had ever been Ms MacKenzie: There are some cases where that has undertaken, and there was a risk that stakeholders happened, but I think the main point of the RIA had been over-consulted and, therefore, it might be appropriate at that point not to consult further for process is not necessarily for legislation to be stopped the next six months. entirely, it is for it to be developed and for the process Mr Sargent: to reflect what people’s views are and what might be Certainly there are examples where people on the receiving end asked for it to be shorter the best way forward. Quite often we see cases where than 12 weeks because they wished the result of the RIAs have made a diVerence, and you can see the legislation to come forward quicker and, therefore, result of informed decision-making both through everybody agreed that it should be shorter. consultation and internally as the policy develops. Lord Methuen: There are obviously examples, the There have been some quite high profile cases of scallop ones, where you had to do something where legislation has not continued. For example, the instantaneously, one accepts that. Treasury—unfortunately I cannot remember the exact title of the piece of secondary legislation oV the top of my head—received quite a lot of press coverage in the FT when they decided, following Q31 Baroness Maddock: I wonder whether consultation, not to continue with proposals to departments report on their progress through the introduce secondary legislation, setting out years as to how often they have not kept within the 12 emergency procedures for the City in response to weeks—in their Annual Report, for example? 3247872003 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
management of secondary legislation: evidence 15
1 November 2006 Mr William Sargent, Ms Kate Jennings and Ms Marie-Anne Mackenzie
Mr Sargent: We certainly track them. sometimes highlight good and bad practice, we Miss Jennings: We produce an Annual Report of the would try to learn the lessons from those reports. performance on the consultation. It is true though that we do not scrutinise consultation documents in Q33 Chairman: Can I check that I heard correctly, the same way as we would scrutinise the Impact you have no active role on SIs at all, is that what I Assessments. Our role in the consultation process is heard? to look at compliance with the Code of Practice Mr Sargent: Not in the management of them, but rather than looking at the individual responses. We ensuring that people understand that the Regulatory would expect the departmental consultation Impact Assessments are applied to that process, but coordinators to approach us to seek our views where we do not manage SIs. they were concerned about something like not meeting the 12 week period and thinking how they Q34 Baroness Morgan of Drefelin: Do you think it V might seek our advice on e ective stakeholder would be a good idea if you did have more of an engagement, for example. active role with SIs? Mr Sargent: What we can do is educate, inform and Q32 Baroness Morgan of Drefelin: At the start you train. I think the obligations lie best in the described your relationship with us, perhaps, as departments, and we are not in a position to allies, and I hope that is very much true. Speaking to manage that. us as allies, would you give us your opinion on how well you see best practice identified, how well that Q35 Chairman: That was not what was asked. I do best practice is disseminated and how well enforced it not mean to speak for Baroness Morgan but she was is, particularly obviously talking about the asking—should you have more of a role, she was not management of secondary legislation? saying take the job away from the department. Mr Sargent: Not being an expert obviously I will Mr Sargent: Being new to the job I do not have an defer to Kate and Marie-Anne in a second. But the opinion on that. best practice, like any area of operation, varies in Baroness Morgan of Drefelin: I am thinking about the quality and how well people have been developed and “one in, one out” idea. How many regulations do we trained in that, so we see a range of experience at the see a year. I have not been here for a full year? moment. In general, my perception of that is it is improving all the time, even before I came into this Q36 Chairman: The nub of the question is we see role. Kate, I think you can be more specific on the 1,200 regulations and we often think they are a pile of examples we are seeing at the moment. mess—putting it rather crudely—and we rather Miss Jennings: It is worth noting that we do not have hoped that BRE was going to say you were going to a formal role on SIs and spreading best practice on SI come over the hill like the cavalry and sort this out. management or production. The guidance on SI What I am hearing is, “It is nothing to do with us, practice is produced by the OYce of Public Service guv, it is up to the departments” I am slightly Information and not by BRE. Where we do surprised with that? disseminate best practice is on things like Regulatory Mr Sargent: If we take the responsibility oV the Impact Assessment, consultation policy, and the SBS departments— produces best practice guidance on common commencement dates. What we do to propagate that Q37 Chairman: I was not suggesting that you is partly through our departmental network of better should. regulation units in all the departments, we hold Mr Sargent: No, but if we take the responsibility for training events for those units and, indeed, training checking, managing and vetting it, then the other events for the policy oYcials, and we also work with people who should be taking that responsibility do the National School of Government who have an not. input to their training courses. As well as the departmental oYcial level network, there is a Q38 Chairman: That is diVerent from saying that it ministerial Better Regulation Ministers network and is not a role at the centre of Government to drive in a Board Level Champions network, and we use both the improvement of best practice, to incentivise of those to disseminate and share good practice behaviour and to make things happen. I think we are around the diVerent departments. We also obviously in a false dichotomy where it is not a positive one. look to the NAO and their reports to disseminate Mr Sargent: No, I think our role is to ensure that suggestions of good practice which they have people understand how to do Better Regulation and identified, and with David Arculus’s Better we are doing that. We do not have the resources nor Regulation Task Force where they themselves the remit to go beyond that. 3247872003 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
16 management of secondary legislation: evidence
1 November 2006 Mr William Sargent, Ms Kate Jennings and Ms Marie-Anne Mackenzie
Ms MacKenzie: Can I help on “one in, one out” as 20 clauses in it which require secondary legislation, you termed it. “One in, one out” is a phrase which some of it of very considerable complexity. Secondly, was used in the Better Regulation Task Force, Less is the Pension Protection Fund has led to a raft of More Report, but we are calling it “oVsetting secondary legislation of really colossal nature. Do simplification” because the text itself makes it quite you have the ability to say, “Secretary of State, I plain that the aim is not to literally remove one piece know you want to do this, but do you realise what the of regulation when a new one is brought in. As I said consequences are in terms of the volume of sub- earlier, I think this is an opportunity to help to ordinate legislation which is going to come and the reinforce the message to departments, that when they burdens that this is going to place on all sorts of are introducing new provisions, they need to think people?”. Do you have that duty and that power? very carefully about the wider regulatory landscape. Mr Sargent: The decisions about what to bring Indeed, just this week we have issued new guidance, forward are obviously Secretary of State decisions, an additional piece of guidance to the Regulatory ministerial decisions. All we can do is obviously Impact Assessment Guidance, which encourages analyse and ensure that the process is available in the departments to do this as part of identifying diVerent departments, analyse and come up with the oVsetting simplification. I think, as we were saying, numbers and do the Regulatory Assessments. we are trying to encourage good practice in this area, Therefore, that information would be available when whilst not necessarily feeling that it is our particular people analyse, and the tools and the systems are in role to co-ordinate every aspect of the programme place to provide that information. We do not have management of secondary legislation. I think we are that remit as such. very keen to encourage the culture change within departments that looks both at the wider regulatory Q41 Chairman: You have no power or remit, if you landscape but also encourages good project wanted to, to carry out an audit on a particular management techniques and supports them in department’s capacity either on a particular bill or doing that. whatever? Mr Sargent: No, the National Audit OYce obviously Q39 Lord Jopling: I am astonished, I had not audits various aspects of practice. realised that you do not have an overall responsibility with regard to Statutory Instruments. Let me put it Q42 Chairman: How do you know what is going on another way round, do you think it would be a good in this case? thing if there was an organisation which had a Mr Sargent: We see the flow of information and the responsibility, as Lady Morgan said, to enforce Panel for Regulatory Accountability is obviously better practice, an overall umbrella organisation there to be part of the checks and balances process. which could hit departments who were sloppy and The RIAs are very much how we see the flow of idle—and there are a good few of those—would that information. There is an obligation above £20 million be an improvement? if a particular piece of legislation is coming forward Mr Sargent: As Sir David suggested earlier, the to you. ultimate discipline is Your Lordships’ House and the House of Commons in terms of rejecting it. If it is Q43 Chairman: I think what we are struggling with inadequate, as you are suggesting, and is turning up in this Committee is, having put great hopes in the sloppy, and that then it is unacceptable, from your BRE as a salvation for some of this, we are not point of view, that the discipline is not there. What we getting a very clear picture of the places where you can do is put in place the knowledge of how to do it are going to motivate this very diYcult cultural properly and to assist people to do to it, but the change—which we were persuaded by Sir David responsibility needs to be of those who originate in Arculus is necessary—which is thinking about the legislation. The parliamentary system is part of those business in a completely diVerent way in order to checks and balances which ensures that the job is avoid having to go through pointless regulation. We done right in the end because if it is not, you should are not getting a clear picture as to how you are going reject it. to drive such a process. I do not think it will work by just having good intents, they need to be driven? Q40 Viscount Colville of Culross: I am told that one Ms MacKenzie: The Regulatory Impact Assessment of your tasks is to scrutinise new policy proposals. I process will identify—all the departments are would like to know a bit more about this, and I want encouraged to identify—where there is going to be to give you two examples. Please do not think I am secondary legislation what they estimate the impacts asking you to give any opinion about the merits of it of that are likely to be. Obviously we do ask them to or its simple machinery. Firstly, yesterday we gave a give some indication of that when the primary Second Reading to the Identity Cards Bill. There are legislation comes through, as a sort of precursor of 3247872003 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
management of secondary legislation: evidence 17
1 November 2006 Mr William Sargent, Ms Kate Jennings and Ms Marie-Anne Mackenzie the type of work they do on individual pieces of Q44 Lord TunnicliVe: You will have heard us ask Sir secondary legislation and that information should be David Arculus about the “bunching” that occurs outlined in RIAs on primary legislation. In the end, when we have these common commencement dates, the decisions about introducing legislation and the favoured by the Task Force. As far as we are information that is provided on impacts, and the concerned, they tend to be not only common future impacts and eVects of secondary legislation, commencement dates but common laying dates, are signed oV by individual Secretaries of State, a often less than the 21 days which is normally decision is taken by them about whether or not to prescribed, with the result that we get a huge bunch of take that forward on the basis of the information they these things to look at in this committee in December, are provided. They are given the information to make March and again in July. I wonder whether you have an informed decision, but in the end the decision is any view of how we can all together encourage better with the Secretaries of State and the politicians. In project planning in the departments so that, even if terms of what we do to disseminate good practice, you have a common commencement date, the flow of Kate might want to say a bit more about that in terms draft instruments—draft in the sense that they are of what we are trying to do to encourage culture not yet laid—can be more evenly spread over the change. year. That would make for better scrutiny certainly in Miss Jennings: Again, where our role lies is not in the Parliament and, I believe, for better legislation volume of Sis—I think you mentioned the figure of making. 1,300 SIs a year. The majority of those SIs will not Mr Sargent: I have two observations. The Executive have an impact on business. I think something like 48 is not a policy lead on the common commencement per cent of them are on things like road closure orders dates: the Small Business Service is the organisation or air navigations orders and, of course, those would that is leading in that, but obviously we are working have no relevance to us at all. It is only really where closely with them. Part of the policy is that the they have an impact on business, charities and others departments and agencies have to prepare an annual where we have a role. In terms of guidance and our statement each January, so it is not just that they role, we issue the Regulatory Impact Assessment suddenly turn up in March and September; they have Guidance and then we run training awareness events an obligation to sit down and work it out a year so the departments know what their responsibilities ahead. We would be disappointed if people started are in terms of developing their policies. As Marie- bunching because there is a very clear indication in Anne has said, they are encouraged to start thinking the guidance and the advice we give that what is likely in terms of their Regulatory Impact Assessments at to happen if they bunch is they will end up losing the very start of the process, and they would issue some of the legislation because they will not leave initial partial Regulatory Impact Assessments at the enough time. Before, in this role, when I was quite an time of consultation. On the final Regulatory Impact active supporter of common commencement dates, Assessment on a bill, such as the ID Cards Bill, they on the receiving end, I felt that it would force would be expected to do further Impact Assessments decisions to be made between legislation coming where relevant when the secondary legislation comes forward quite early on. People would say, “If you are through. I think this is our role in terms of driving up bringing forward 11, 12 or 15 pieces on 1 October, the quality is making sure the impacts are properly you better start thinking quite early on”. Originally considered, and I think we see that as a separate thing people used to say, “It will end up in bunching”, but from the management of the number of SIs. I believe what is happening, and what is likely to Mr Sargent: Can I come back to the point you are happen, is it will spread it out a bit more and give an driving at, which is—are we the blocker of overview. Part of the problem is that when you look legislation? Our role is to challenge. To answer one of at seven pieces of legislation, each one seems very the questions from earlier, we do have dialogue on reasonable; it is when you put the collective together and say, “All of these seven are going to come out on significant pieces of legislation where the Regulatory the same day” that suddenly people start thinking— Impact Assessment has been developed and our maybe that is all a bit too much and maybe we should advice has been sought on the methodology in the spread it out to the second half of the year. I think this discussion. We identify significant pieces of is an example of a very small idea which will have legislation early on and we enter into dialogue quite probably the biggest mindset change, which is that quickly. We are there as a challenge function, but the you have to behave in a diVerent way. decisions are always made by those departments and those ministers who originate them. All we do is ensure that the best practice and thinking has been Q45 Lord Armstrong of Ilminster: The trouble is, it is done properly in the first place so the information is human nature to leave it to the last minute, and it available for you to evaluate when you are evaluating looks very much as if that is what tends to happen. I the quality of the legislation. do not know if you have any comments on that? 3247872003 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
18 management of secondary legislation: evidence
1 November 2006 Mr William Sargent, Ms Kate Jennings and Ms Marie-Anne Mackenzie
Mr Sargent: I thought Sir David’s advice was voluntary as opposed to an actual regulation. What I excellent, which was in the end it is in your hands to believe will happen, and what I feel I am seeing, is take a view on that. that people are thinking more about the impact of Lord Armstrong of Ilminster: I do not know if this what they are doing and then trying to work out—are Committee has the power to throw a thing back, but there other ways of doing it? and should we do it the House of Lords certainly wish we had. lighter. Here in the UK the debate has been much more vigorous and it is only just starting. I was with Q46 Viscount Colville of Culross: A very simple Sir David in Brussels last week when we were question and a very simple answer—would you see discussing consultation with European oYcials, and yourself more in the “hearts and minds” business they are starting a mindset of going down that way of than the discipline business? “we should be worried about the impact”, and I think Mr Sargent: That is quite a philosophical approach. we have achieved that in the UK now. We are It is a combination of the two because the hearts and worrying about the impact and now we are trying to minds is what we are doing in terms of getting people work out. “Now that we have worried about the to do their discipline in a diVerent way, so in some impact, what do we do about it?. I think the Less is ways you cannot separate the two, you have to put More Report and the Hampton Review are very the two together. The Regulatory Impact much about, here is a relevant plan, so to speak, as to Assessments are about a discipline, but if they are not what to do about it. done with the right hearts and minds, they do not achieve their purpose. I think we are eVectively in the Q49 Viscount Eccles: We as a committee should business of persuading people to do both, and do think about it in terms of continuous improvement them well. rather than there being any opportunity for a change in direction? Q47 Viscount Colville of Culross: I thought it was Mr Sargent: It is all about the continuous very straightforward. It seems to me that you create improvement all the time because of the manner in atmospheres, train people and all that sort of stuV, which legislation has originated in the UK. and I think that is correct. But you have relatively little power to discipline people who fail to work to Q50 Viscount Eccles: I understand that. I am asking the standards you promulgate, as far as one for your opinion as to whether we would be correct understands? to conclude that what we are doing, and what you Mr Sargent: We have the ability to highlight the fact and all the other people involved are doing, is a that they are not doing what they could do and they process of continuous improvement rather than any could do it better, but we do not have specific powers major change in direction which might lead to much to discipline people. less regulation in total? Mr Sargent: I feel I am part of something where there Q48 Viscount Eccles: We have had the Less is More has been a dramatic change in speed, but the solution Report and the Government has accepted its is evolutionary. It is constantly improving; what we recommendations, and now we have your good selves have to end up with is where the burden is as light as as the Executive. There are a lot of people who have it can be given the outcomes which Parliament wishes given evidence, stakeholders—and you concentrated to have. on the departments as obviously being very important stakeholders. Do you or does anybody Q51 Viscount Eccles: The burden could be lighter, believe that at the end of all the processes going on but will it in total be lighter? Each individual piece of there will be less regulation? or is it simply a matter secondary legislation could be looked at in such a that there will still be inevitably more but it will be way as to minimise the burden, but at the end of the better implemented? process you could still have, in total, a greater Mr Sargent: I think I can give you a fairly personal burden. It is a judgment I was seeking.—whether perspective coming into this role. Society, as such, is your Executive has come to any judgment on that? not looking—and this includes the business Maybe you have not come to that judgment. community—for less regulation because we all wish Mr Sargent: No, we have not. I have not either. to live in a regulated environment where the restaurants we eat in or the roads that we cross or Q52 Viscount Eccles: We can ask you the question whatever are properly regulated, where there is a set again in six months’ time. of rules which we all abide by and follow. The Mr Sargent: Absolutely. problem generally tends to be the amount of implementation of those regulations and how heavy Q53 Viscount Eccles: Maybe you will be closer to the they are or how light the touch is or how much is judgment? 3247872003 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
management of secondary legislation: evidence 19
1 November 2006 Mr William Sargent, Ms Kate Jennings and Ms Marie-Anne Mackenzie
Mr Sargent: I am an optimist that the burden will be Q57 Chairman: Has your unit, not you personally, as light as it can possibly be given the ambitions of the done any proper assessments as to what has been the society we live in. I would not be sitting here if I did impact, in the real world, of an SI? not feel I could help lighten the burden as much as Mr Sargent: Retrospectively? possible. I would be doing something else. Miss Jennings: Can I add something to that in terms Q58 Chairman: A post-legislative assessment of its of cumulative burdens because Recommendation 8 impact. In other words, there is the belief in of the Better Regulation Task Force Report was Whitehall that, when you legislate, something aimed at encouraging the Government to look at a happens in the real world. We know that life is not methodology of identifying cumulative burdens. that simple and, therefore, when it works and when it They accepted the recommendation to look at a does not and what you need to do to make methodology and then come to a decision if further regulations happen is a fundamental question, it action was needed in two years’ time; they gave us seems to us. For us as a committee and for you as an two years to develop a methodology. The arm of government, what do we know about it? Department for Trade and Industry are leading a Mr Sargent: Our remit is not to look backwards at group of economists who are looking to develop a where the work was done previously, we are very methodology to look at cumulative burden. much focused on the flow of regulations coming through at the moment. Q54 Chairman: Can you tell us what the function of Chairman: If we do not know what works we will not the Prime Minister’s Panel for Regulatory have a chance of ever getting it better for the future. Accountability is? Let me leave the thought with you. Mr Sargent: I have not got the answer oV the top of my head. Q59 Lord Methuen: Can I make the point that you have had an RIA at the beginning of a piece of Q55 Chairman: Can I leave that with you? legislation. Does anyone look back six months or a Mr Sargent: Yes. year later to see how accurate that impact assessment was? Ms MacKenzie: We do encourage departments to Q56 Chairman: The Arculus Report recommended state what they are planning to do in terms of post- that the Department should undertake post- implementation review. implementation reviews of all major pieces of legislation, and the Government’s response was silent on that, which was interesting. Can you give me any Q60 Chairman: Can you write to us with examples of specific examples whereby your unit or other where that has happened, so we can look at the departments have seriously looked at what has caseload? Ms MacKenzie: happened in practice as a result of a Statutory I accept that is a problem that it does Instrument, because we are suspicious at times that not happen as often as it should have done. Again, we the delivery model is flawed—by which we mean that have just issued strengthened guidance to the world does not hear, the world is not supportive departments on how to set out accurate timetables in doing anything about it, nobody knows they do when undertaking this work. not do anything about it and nothing happens when they do not do anything about it? I am being crude Q61 Chairman: Can we have a note on what but, in other words, do you not really know in guidance you give and a note on what evidence there government, as a result of a few snapshots, what has been that this has been well done. We do not happens out in the real world? It is a relevant expect to see a great forest of flowers, but two or three question, is it not, because unless we know what leads would cheer us up. I am left with the last question, to better compliance or not we do not make better which is one of Sir David Arculus’s, which was policies or better processes. Do we know anything essentially to make for what we want, which is that to about what leads to better compliance? see fewer and better regulations coming before us— Mr Sargent: The answer is that the consultation we are with you on that—is going to require a process and the search for best practice, which significant shift in culture. What he really means by certainly is the Executive’s role, has already identified that, if I have got it right, is you need in some way to some, and Sir David referred to examples in his make departments think much more creatively and testimony. Sorry, I have lost my train of thought imaginatively about alternative ways of getting the there, that was the answer to the previous question. policy objective without making a law That is a very, If you can ask the question again, I will get my train very diYcult cultural change to bring about. How are of thought back. you going to promote it? 3247872003 Page Type [E] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
20 management of secondary legislation: evidence
1 November 2006 Mr William Sargent, Ms Kate Jennings and Ms Marie-Anne Mackenzie
Mr Sargent: First of all, if I go back to the Regulatory Q62 Chairman: It may to a point, but then you Impact Assessment approach, one of the good require a leap of imagination to think that something disciplines that does is that it forces people early on like the ASA could do the job as well and you could to try to think of the impact and particularly the live in government with the risks of having it done by economic costs, and that very quickly forces people adiVerent mechanism. to work out whether what they are doing is Mr Sargent: Absolutely, and I thought Sir David’s worthwhile and if there is a benefit in that. If we drive example, which is one that aVects me in business, was through the discipline fully, then it becomes second excellent. nature that people think about the consequences of Chairman: Let me leave it with you because it is not what they are doing and they try to measure the an easy question and it is not necessarily what you benefits. The cost side is done well, the benefit side is recruit people for. Unless there is anything else the done well and then there can be a proper debate Committee would like to ask at this late hour, we will about it. For me that is the mindset aim that we are leave you in peace. We have asked for one or two looking to achieve because, if we achieve that, then in further notes and by all means let us have them. theory that will lead to good quality decisions and Thank you very much for your help and assistance. It debates about the policy, the outcome and the has been very good of you to come here today. achievability outcome to the other aspect of it.
Supplementary letter from William Sargent, Better Regulation Executive, Cabinet Office
I am writing with additional information on the following issues which we did not have time to explore in suYcient detail: — alternatives to legislation as informed by Regulatory Impact Assessments (RlAs); — consultation outcomes in RIAs; — plans for post-implementation reviews in RlAs; and — the function of the Panel for Regulatory Accountability.
Encouraging Alternatives to Legislation Through RIAs The BRE promotes the use of RlAs for all policy changes to help oYcials analyse the best way to achieve their objectives and secure implementation—incuding “do nothing” and non-legislative options. In the 2003 edition of “Better Policy Making: A Guide to Regulatory Impact Assessment’ the Prime Minister said “Where regulations or alternative measures are introduced, this should be done in a light touch way, with decisions informed by a full regulatory impact assessment, which includes details of not only the obvious costs and benefits of the proposal but also the wider economic, social and environmental impacts. New regulations should only be introduced when other alternatives have first been considered and rejected, and where the benefits justify the costs”. DfT’s work around financial protection for air travellers is an example where an RIA has informed non- legislative options. The Government has decided not to accept the Civil Aviation Authority’s recommendation for a £1 levy on all air passengers departing the UK. The levy was intended to finance the homeward journeys of passengers whose airline went bankrupt while they were abroad, and refunds of the money they had lost. After considering all the arguments DfT decided that these benefits were outweighed by the disadvantages. The department is now working with the airline industry to help passengers learn more about air travel insurance.
Reflecting Consultation Outcomes in RIAs OYcials’ must comply with the Cabinet OYce Code on Consultation and follow the guidance on consultation. This forms an integral part of the policy development process for both primary and secondary legilsation. Informal and formal responses provide valuable information about options available, potential costs and benefits and the likely consequences and risks involved. A main criteria of the Code is that departments give feedback regarding the responses received and how the consultation process influenced the policy. Moreover, 3247872004 Page Type [O] 22-03-06 00:12:16 Pag Table: LOENEW PPSysB Unit: PAG1
management of secondary legislation: evidence 21
1 November 2005 the RIA guidance states that any changes to policy options made as a result of consultation must be recorded in the full RIA. For example DTI carried out a consultation on the supply of extended warranties on domestic electrical goods. A large number of retailers expressed concern about proposals on the supply of extended warranties on domestic electrical goods, and the practicality of implementing the recommendations in time for 2004 Christmas trading period. The Government responded to these concerns and agreed to delay implementation. Furthermore, several Articles of the proposal were redrafted to reflect both the implementation concerns and the suggestions of retailers. The Home OYce carried out a consultation on compensation and support for victims of crime. One area of the consultation focussed on how to ensure that employers do all they can to mitigate the risk of criminal injury to staV. The Government accepted the arguments raised by respondents around this issue and decided against legislating. Going forward, the Government will build on existing eVective practice and continue to work with employers’ organisations and trade unions.
Examples of RIAs Detailing Post-Implementation Reviews Cabinet OYce RIA guidance has been strengthened to ensure that departments record how and when new regulations will be monitored and reviewed to determine how well it is meeting the policy objectives and whether government action is still needed. When developing the full RIA, oYcials are advised to outline plans to conduct reviews of the chosen option to ensure it has the intended eVect. If a legislative option is being proposed, oYcials should consider whether sunset clauses would be appropriate. A Post Implementation Review (PIR) establishes whether implemented regulations are having the intended eVect and whether they are implementing policy objectives eYciently. The PIR is not intended to review the eVects of the policy itself or to determine whether the intended policy is still desirable. The scope for simplification, including revisiting EU Directives as part of the European programme of simplification, should also be reviewed where relevant. For example, DTI are planning a review of retirement age legislation in 2011 to decide whether to abolish the default retirement age of 65. The RIA provides details of the work to be done to enable an eVective review, including possible impacts and behavioural impacts of the legislation. Independent information sources and informal discussions with stakeholders are also to be used to monitor developments between now and 2011. DTI are also planning a review of employers’ duty to consider requests to work flexibly. The RIA gave an explicit commitment for a full review in 2006. It detailed the methodology for the monitoring exercise, including a time scale and success criteria.
Function of the Panel for Regulatory Accountability All regulatory proposals likely to impose a major new burden on business require clearance from the Panel for Regulatory Accountability, chaired by the Prime Minister. The two main exemptions from this are emergency legislation and tax matters considered by the Chancellor in the course of normal budgetary processes. The Panel’s consideration is based on a thorough RIA for the proposal being agreed by the Cabinet OYce BRE, before the proposal can be put to wider ministerial approval. The Panel considers all such proposals in the context of the department’s previous regulatory performance and the burden of regulation across key business sectors. I hope this information is useful to the Committee. The BRE is also contributing to the Government’s written memorandum that will be submitted shortly. 2 December 2005 324787PAG2 Page Type [SE] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
22 management of secondary legislation: evidence
TUESDAY 8 NOVEMBER 2005
Present Armstrong of Ilminster, L Maddock, B Boston of Faversham, L Methuen, L Colville of Culross, V Morgan of Drefelin, B Eccles, V Northesk, E Filkin, L (Chairman) Tunnicliffe, L Jopling, L
Memorandum by Her Majesty’s Stationery Office (HMSO) Purpose 1. This Memorandum is submitted in response to the Committee’s call for evidence in relation to its inquiry into the management of secondary legislation. 2. The Memorandum responds to a number of the questions asked by the Committee in so far as they relate to the role and responsibilities of Her Majesty’s Stationery OYce (HMSO).
The Role and Responsibilities of HMSO in Relation to Statutory Instruments 3. Since the privatisation of its trading functions in 1996, HMSO has operated from within the Cabinet OYce as a management unit attached to the department. Earlier this year following a broadening of the unit’s remit to advise on and regulate the operation of the re-use of all public sector information a new OYce of Public Sector Information (OPSI) was created within the Cabinet OYce. HMSO, as a separate legal entity continues to exist and fulfil its core activities including responsibility for the publication of legislation and the management of Crown copyright operating from within OPSI. 4. HMSO and the Queen’s Printer (the Controller of HMSO) have a number of statutory duties in relation to Statutory Instruments which are set out in the Statutory Instruments Act 1946, the Statutory Instruments Regulations 1947 and the Statutory Instruments (Production and Sale) Act 1996. These include: (a) responsibility for the registration and numbering of all Statutory Instruments; (b) responsibility for the printing and sale of all Statutory Instruments; (c) publication of a Statutory Instruments Issue List; (d) on behalf of the Minister for the Civil Service, responsibility for the production of an Annual Edition of Statutory Instruments. 5. In 1996 HMSO took over responsibility for Statutory Instrument Practice, editorial responsibility for which had previously been shared between the Cabinet OYce and the Statutory Publications OYce (then part of the Lord Chancellor’s Department), the functions of which in relation to Statutory Instruments had previously transferred to HMSO. 6. HMSO oversees the arrangements for production of all Statutory Instruments and has been responsible for the development of the templates which are used for the drafting of all Statutory Instruments and the Explanatory Memorandum to Statutory Instruments. 7. Day to day responsibility for all of HMSO’s responsibilities in relation to Statutory Instruments, including editorial control of Statutory Instrument Practice rests with the Publishing Services Division within HMSO.
Statutory Instrument Practice 8. Statutory Instrument Practice (SIP) is currently in its 3rd edition which was published in June 2003. A 4th edition, incorporating the substance of the SIP Circulars issued by HMSO since publication of the 3rd edition, is scheduled to publish on 11 November 2005. 9. The SIP manual is intended primarily for the use of civil servants and others concerned with the preparation and making of statutory instruments and the parliamentary procedures relating to them. It covers Statutory Instruments which are made and published as part of the United Kingdom series of Statutory Instruments. SIP is a guide to practice and not a textbook of the law. 3247872005 Page Type [O] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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10. The SIP manual is split into a number of parts covering: 10.1 An introduction providing background information for those who are new to statutory instrument practice; 10.2 the form in which statutory instruments should be made, and the content of them so far as that is within the scope of the manual; 10.3 the classification, registration, printing and sale of instruments; 10.4 the control of statutory instruments by Parliament or the House of Commons; 10.5 the role and functions of the parliamentary committees (eg the Joint Committee on Statutory Instruments and the Merits Committee) which are particularly concerned with statutory instruments; 10.6 Forms and Precedents; 10.7 Tables of Procedure; 10.8 Appendices; and 10.9 the texts of relevant legislation. 11. Although the manual refers to all Statutory Instruments published within the United Kingdom series, those made by the National Assembly for Wales under powers devolved by the Government of Wales Act 1998 are subject to diVerent procedures and parliamentary control.
Registration of Statutory Instruments 12. It is a requirement of the Statutory Instruments Act that immediately after the making of a statutory instrument it should be sent to HMSO for numbering and that, subject to a number of exceptions of which local instruments (approximately 48 per cent of all SIs) form the major exception, it shall then be printed and published. In practice “immediately after making” has been defined as within 24 hours for departments in London and 48 hours for departments located elsewhere. Where an Explanatory Memorandum is also required for the Parliamentary Scrutiny Committees this will also be sent to HMSO alongside the instrument. 13. HMSO will on receipt of an instrument check that the instrument is valid, that it is certified as a true copy, has been signed by the relevant authority, has a valid subject heading, that the title and dates of making and coming into force agree with those cited elsewhere in the instrument and that the enabling powers are correctly stated and footnoted. HMSO will also check that an Explanatory Memorandum has been submitted and that this follows the agreed template and style. In the past instruments would have been numbered and details entered against its number in a Register. The Register is now held in the form of a computerised database from which a number of reports can be generated including a weekly report which is provided to the Merits Committee listing all instruments which are due to be laid before Parliament and hence subject to scrutiny by the Committee. 14. Statistics are reproduced at Annex A showing the number of instruments which have been registered between 1999 and the end of September 2005 while the graph at Annex B illustrates the spread of instruments across each year.
Printing and Sale of Statutory Instruments 15. Once registered individual instruments are forwarded to The Stationery OYce Limited (TSO), HMSO’s third party contractor, for printing and publication. An instrument will be published on a date requested by the sponsor department, with the instrument published simultaneously in print and on the OPSI oYcial legislation website. The Explanatory Memorandum will also be published on the OPSI website at the same time. 16. TSO also produce, under contract on behalf of HMSO, a Statutory Instrument Issue List which appears as part of its Daily List of Publications. Separate Monthly and Annual Lists are also produced. 17. HMSO also undertakes on behalf of the Minister for the Civil Service, the production of an Annual Edition of UK Statutory Instruments (excepting those made by the National Assembly for Wales which are published separately). The Annual Edition includes all printed General SIs, selected Local SIs which aVect primary or secondary legislation) and selected instruments not registered as SIs (eg prerogative Orders). The Annual Edition which is published in three Parts will also include a Classified List of Local SIs, Tables of EVect on previous legislation and a Numerical and Issue List. 3247872005 Page Type [E] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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18. With the growth in Internet usage, sales of printed copies of Statutory Instruments continue to decline as the online versions are preferred. This can be illustrated by the average sales figure for a Statutory Instrument in 2000 of 450 copies compared to approximately 310 copies in 2005. Over the same period the average number of users of Statutory Instruments on the HMSO/OPSI website has grown from 123,000 per month to 571,000 per month.
Conclusion 19. Alan Pawsey, the Head of Publishing Services at HMSO looks forward to supplementing this information and answering questions from the Committee about the role of HMSO in relation to subordinate legislation on 8 November 2005. 7 November 2005 3247872006 Page Type [O] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Annex A 5 (Wales) 36 (Wales) 5 (Scotland) 65 (Scotland) series Instruments STATUTORY INSTRUMENTS 1995–2005 (TO 30 SEPTEMBER) SIs numbered in UK Statutory UK National Assembly Scottish SIs in Total number Scottish Statutory Total Foot and Government for Wales SIs UK series of UK Instruments SIs and SSIs Mouth Orders 200320042005 (to30 September) with 2004 comparisons in brackets 2523 (2335) 3033 3155 192 (230) 321 297 2715 (2565) 478 (427) 3354 3452 3193 (2992) 622 565 3976 4017 2002 2959 315 3274 575 3849 8 (UK) 1995199619971998199920002001 3098 3035 2760 3110 3330 3202 3806 58 231 342 247 256 197 213 113 3345 3291 3114 3323 3501 3433 4148 204 454 494 3345 3291 3705 3114 3323 3887 4642 597 (UK) 3247872006 Page Type [E] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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ANNEX B
SIs registered 1999 - 2005
700
600
500
1999 400 2000 2001 2002 2003 300 2004 2005
200
100
0 Jan Feb Mar Apr May June July Aug Sep Oct Nov Dec
Examination of Witness Witness: Mr Alan Pawsey, Head of Publishing Services, Her Majesty’s Stationery Office, examined.
Q63 Chairman: Thank you very much for coming Printer of Scotland under the Scotland Act and in before us. We have a Bill at the Report Stage, so there that capacity looks after the equivalent delegated are likely to be divisions. So, if we all suddenly legislation and the Acts of the Scottish Parliament. disappear, you will understand. I wonder if I could HMSO, the Queen’s Printer, has a number of start oV by asking you if you could really explain statutory duties in relation to Statutory Instruments. what HMSO’s position is, first, within the They are set out in the Statutory Instruments Act and government machine and, second, in regard to the the Statutory Instruments Regulations and indeed in process of preparing and laying SIs? Just paint us a the Statutory Instruments (Production and Sale) Act picture about what your role is in regard to SIs? 1996. These include responsibility for the registration Mr Pawsey: HMSO has, since privatisation of its and numbering of all Statutory Instruments; trading functions back in 1996, operated as part of responsibility for the printing and sale of all the Cabinet OYce. Whilst it remains part of the Statutory Instruments; the publication of a Statutory Cabinet OYce now, it operates from within the new Instruments Issue List, which people use as a means OYce of Public Sector Information which was of checking when a Statutory Instrument was created earlier this year following the available (and they can use that as a defence in court implementation of the re-use of public sector if an Instrument has not been issued on a particular date); and also, on behalf of the Minister for the Civil information regulations, which reflected the Service, responsibility for the production of an broadening of HMSO’s then remit to advise on and Annual Edition of Statutory Instruments. In 1996, regulate the operation of the re-use of public sector following our joining with the Cabinet OYce, HMSO information generally across the public sector as a gained responsibility for Statutory Instrument whole rather than solely within government. HMSO, Practice, editorial responsibility for which had been though, remains quite simply a separate legal entity. shared up until then between the Cabinet OYce and It has a number of statutory duties which it carries the Statutory Publications OYce which was then part out under various Acts and regulations and of the Lord Chancellor’s Department, and whose specifically in relation to Statutory Instruments and functions in relation to Statutory Instruments had in relation to the publication and dissemination of previously transferred to HMSO. oYcial information and legislation generally. HMSO is headed by the Controller, who is appointed by Her Q64 Chairman: Sorry to interrupt. Thank you for Majesty as the Queen’s Printer of Acts of Parliament. the paper, the memorandum you sent. I think you are The Controller also holds the position of the Queen’s really taking care in case we have not received it. We 3247872007 Page Type [O] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Alan Pawsey have received it and most of us, if not all, have read departments are responsible for the content and the most of it, so feel free to focus on the fundamentals. impact. I am not entirely clear what that in practice We have that memorandum before us. leaves you with, except you describe it as Practice and Mr Pawsey: HMSO specifically has no role in whether they are produced correctly. Are you preparing the laying of SIs. These are matters for responsible for the vires of it? Are you responsible in departments, in whom powers are vested by any way to see there has been proper consultation? Parliament itself in the legislation which gives those Are you responsible for a whole raft of matters which powers. HMSO, though, has certain responsibilities, go round? Are you consulted at all on the as I have said, in terms of Statutory Instrument formulation of Statutory Instruments as distinct Practice and ensuring Statutory Instruments which from simply maintaining the rules? What I think are produced are produced correctly and published would be helpful to the Committee is if you could go correctly. In relation to draft aYrmative Legislation into a good deal more detail on precisely what your Orders, which are laid before both Houses, HMSO role is rather than what it is not. You might just tell does not see those generally before they are laid, us as well why it is that you seem to have nothing to although they are sent to us with the Explanatory do with aYrmatives and only concern yourself, as I Memoranda and we publish those on our website. In understand it by implication, with the negatives? relation to the main Instruments, the negative Mr Pawsey: Our responsibilities start once the resolution Instruments, numbers of which have come Instrument has been made. The Practice sets out the across the Table of the Merits Committee, then procedures which the departments must follow in departments do have a legal obligation as soon as terms of preparing the Instrument and the they have made an Instrument to get it through to parliamentary procedures for gaining approval of HMSO, and HMSO then carries out a variety of that Instrument if they require parliamentary checks on that Instrument to make sure it has been approval, in terms of aYrmative resolution made correctly and to make sure things like the procedures. Practice and various other guidance Explanatory Memorandum which come to the which they have, which the Government Legal Merits Committee is in a fit and proper state for the Service produces, in terms of how certain things Merits Committee to consider. ought to be phrased within Statutory Instruments, are clearly within the ambit of the government Q65 Chairman: Does that mean you are checking departments’ responsibility. They are responsible for after they have been published or before? what the Statutory Instrument is all about, they make Mr Pawsey: Before they have been published. the decisions up-front as to whether they need a Statutory Instrument to take forward a particular Q66 Chairman: Except in the case of aYrmatives, piece of policy. They may of course have to go when you do not see them until after they have been through other procedures to gain Cabinet approval laid before the House? for particular lines of policy development but it is Mr Pawsey: Correct. their responsibility for drafting that Statutory Instrument and taking it forward. Sometimes they will consult us in advance about various things like Q67 Chairman: What happens if they are wrong? subject headings and what we believe is correct or Mr Pawsey: That is the departments’ responsibility. whether in fact something ought to go in a particular The departments are responsible for the content. We way. If you think about implementing a European set standards and rules for how Statutory Directive, there is an option as to whether the Instruments are prepared and that is set out in department should go down the aYrmative Statutory Instrument Practice; it is the departments’ resolution route or the negative resolution route, and responsibility to ensure that the content—what the in those circumstances they will sometimes consult Instrument is all about, what it actually says—and its with us as to what way we believe they should go. But impact are correct. They are fully responsible for that the final decision is ultimately with the department and for undertaking the parliamentary procedures in and the minister concerned. terms of aYrmative resolution Orders in gaining the approval of both Houses. Q69 Chairman: I think we would be interested in Q68 Lord Jopling: Thank you very much for that what terms your advice is on that. Could you explanation. We understand that according to illustrate that? When you recommend aYrmative and Statutory Instrument Practice you are responsible for why so and why not? the rule book. As I understand it, you say—and I Mr Pawsey: If it is a very controversial piece of tried to write down the things you said—you are European legislation which is coming forward, where responsible for the Practice, that they are produced perhaps the consultation which the department has correctly and that you check SIs, but you say the undertaken in terms of that Instrument has produced departments are responsible if they are wrong and a variety of responses, then it is clear that in those 3247872007 Page Type [E] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Alan Pawsey circumstances there are two options as to how you Mr Pawsey: Yes. might implement it. Q73 Lord Jopling: Do you think it would make your Q70 Lord Methuen: You say you do a certain job easier if Statutory Instruments were drafted amount of checking. Can you detail what sort of by parliamentary draftsmen rather than the checking you do? Does that, for instance, check that departments themselves? the references in the Statutory Instrument to the Mr Pawsey: Given that departments are responsible various sections in the parent Act are correct? for their policy and the lawyers within those Mr Pawsey: We will certainly check that things like departments tend to specialise in that area of policy, the enabling powers are correctly stated and that they I would have thought they were the best people to do are correctly footnoted. It is quite often the case that the drafting. Certainly Parliamentary Counsel are someone will give details of the Act, but actually the involved for some Statutory Instruments, especially Act reference which is in the footnote is something those which seek to amend Acts of Parliament, but completely diVerent, so we will put that right. There generally speaking it is down to departmental are occasions when it is a regular series of lawyers. Instruments which departments are making, and quite often the enabling power may get changed as a Q74 Viscount Colville of Culross: This is to try to result of Parliament amending legislation; and there elucidate something I have not understood. You said is always the case where someone has forgotten to a moment ago that you do not get the Statutory change the enabling power, so we that and we will Instrument until it has been laid. check to make sure that the enabling power they have Mr Pawsey: Until it has been made. quoted is still in force. We would check and go back to them. Q75 Viscount Colville of Culross: Made? Mr Pawsey: It must come to us for us to carry out our Q71 Lord Jopling: How many people are there task. If it is a Negative Instrument it must come to us engaged in doing this work? Could you give us some and we carry out our responsibilities, checking and idea of the length of time it takes between an registering it, before it is laid before Parliament. Instrument being sent to you and you clearing it ready for publication? Q76 Viscount Colville of Culross: We have been told Mr Pawsey: I have a small team these days which is you check for correctness? totally dedicated to Statutory Instruments. There are Mr Pawsey: Yes. three people in London who handle that work. It used to be five but, with electronic developments and Q77 Viscount Colville of Culross: Do you check this new data–bases which we have in place, our task is is consistent with other Statutory Instruments? I simplified somewhat. A Statutory Instrument will understand the vires point. But do you check whether arrive with us and be delivered by hand by the there is a battery of Statutory Instruments on this department or in most cases these days it will be subject, all of which are coherent? transmitted to us electronically, so we will receive it Mr Pawsey: No. Departments are responsible for the V by e-mail. We will open it and print o the electronic content and whether they need that Instrument in the Y copy—just because it is di cult to look at something first place. totally on the screen—to see it looks right; you need to see the thing looks right when on paper. We will carry out our various checks. It could take, for a Q78 Viscount Colville of Culross: Which ones do you small, simple SI, 20, or 30 minutes to carry out the send back? Can you give us an example? Mr Pawsey: various checks. There is quite a number of SIs— We will send back Instruments which Road TraYc Orders, for example—which we deal have come to us which appear to be incomplete. with on a regular basis and we get to know the Occasionally a minister’s name will not appear, so we enabling powers oV by heart and know perfectly well are not sure whether the Minister has actually made whether they have stated that correctly or not. But it, which may be just an oversight by whoever has there are others where we need to go and research sent it forward to us. It may not be certified as being those powers correctly. So anything from probably a true record of what the minister has signed, so again half an hour of activity on our part to perhaps over until we have that certificate we will not process it. If an hour, depending upon the complexity and size of we find the enabling powers to be incorrect, then the Instrument concerned. again it will be returned to the department. Now with our template procedures, again if it does not pass various validation checks to make sure the thing Q72 Lord Jopling: Do they normally go back to the looks correct on the page, it is laid out correctly, department within the day? those will go back to the department as well. 3247872007 Page Type [O] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Alan Pawsey
Q79 Viscount Colville of Culross: The template test? Q86 Viscount Colville of Culross: So it is a process Mr Pawsey: Yes. Departments now have an rather than looking at the merits? electronic template which is based on Microsoft Mr Pawsey: Yes, we certainly do not look at the Word, which provides the draftsman with the means merits of an Instrument. No. actually to produce a facsimile of a Statutory Instrument. It puts everything in the correct font size, whether it is in bold, capitals or whatever. Q87 Earl of Northesk: So you are not involved at all in checking for drafting errors? Q80 Chairman: I understand that eVectively, whilst Mr Pawsey: No. Drafting errors will sometimes be you produce a rule book which goes beyond the spotted by us and we will point them out to the procedural element, it is only the procedural elements department but it is certainly not our role to read a you actually police? You do not actually police Statutory Instrument and correct it. whether they are complying with the guidance on consultation or whatever? Mr Pawsey: We will check to make sure departments are complying with their requirements in terms of Q88 Baroness Morgan of Drefelin: It seems to me what they have to deliver to Parliament, yes. But in you are describing a process that is perhaps not terms of the content of the Instrument itself, then dissimilar to the concept of approving a house style certainly we do not check. for Statutory Instruments. Is that in any way true? Mr Pawsey: We certainly set out a house style and Q81 Chairman: You would check out whether they there are certain, if you like, boxes which have to be had had an adequate consultation process? completed—the heading, to see if the title is correct, Mr Pawsey: No, we would not check they had carried various information—and we check to make sure out an adequate consultation process. No. that information is there and is correct and is appropriate. Quite often, someone will dream up a Q82 Viscount Colville of Culross: We have now been sub-heading which is totally inappropriate for the looking at these Statutory Instruments for about 18 subject matter of an Instrument and we will advise months and many and various are the points which and put that right. have been made. Have you already told us in fact what is your role in trying to make sure mistakes and errors do not get included? If you are not doing it, Q89 Chairman: Can I turn now to the question of the and I quite see there is no reason why you should, do flow of SIs? One of the issues which has concerned the we solely rely on the departments? Committee, and I think concerned the wider world, Mr Pawsey: Certainly the departments are very much has been the bunching sometimes of the making and in control of their legislation. laying of Statutory Instruments. Is there anywhere within the central part of government responsibility Q83 Chairman: We wish they were sometimes! for trying to ensure departments do not have an Mr Pawsey: Certainly the senior minister in the excessive amount of bunching of Statutory department, the Secretary of State, is ultimately Instruments? We have sometimes seen that, responsible for the legislation which that department we believe, departments confuse common produces. commencement dates and almost think they have to lay them all at the same time, which of course is not Q84 Viscount Colville of Culross: But you are not? the case. Do you have any role in this respect? Does Mr Pawsey: No. anybody at the centre have a role in this respect? Mr Pawsey: Again, I would say the responsibility in Q85 Viscount Colville of Culross: Where does the terms of the timetabling of an Instrument, when it is end of your responsibility come in terms of brought forward, is one for departments. They are correctness and what is the extent to which you can advised, though, quite clearly, and certainly the say, “I do not accept this”? guidance which is in the common commencement Mr Pawsey: Our role is to check to make sure the date guidance which they have got does highlight the thing has been done correctly, that the Statutory need for good project management and to ensure and Instrument has been made, that it has gone through plan to develop the bringing forward of Statutory the correct processes and that it looks right, that the Instruments in good time. That does not mean just information which is within the Instrument which is laying them 21 days before; that is the minimum. Ok, required to be there is correct. But what that some departments will always have reasons why Instrument actually says and does in its impact and some Statutory Instruments get very close to the wire, its content is very much for the department but in many cases Instruments can be laid earlier and concerned. there is no reason why they should not. 3247872007 Page Type [E] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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Q90 Chairman: We would agree with you. Q95 Viscount Colville of Culross: Do you say to Mr Pawsey: We are going to make it clear in the new departments, “For goodness sake, don’t send us 25 edition of Statutory Instrument Practice that that is Instruments a month before the common the case, that if there is a belief on some people’s part commencement date, try and spread them out”? It that the requirement is to lay 21 days before, we want must help them too. Have you got any method of to disabuse them of that fact and make it clear when communication with the departments in order to the Instrument is ready they should progress it and avoid this sort of thing? lay it then. Mr Pawsey: We certainly communicate with departments, certainly back in March when clearly we all suVered. It was the busiest March period, I Q91 Chairman: We would say amen to that, but think it has only been exceeded once, as far as I can what you appear to be describing is that the see, which was back in 2001, when the same set of Government has a view about what good practice is, circumstances occurred—the Budget, the start of the which is encapsulated in the guidance you have a new financial year, a forthcoming general election— custodial function for, but then has no process but in 2001 we also had foot and mouth disease as whereby it actually stimulates the departments to well, which increased numbers. Certainly we do try to comply with it. What we see is plenty of examples of encourage departments to get Instruments to us departments, not necessarily through malice, not spread out because there is absolutely no way we can complying with it eVectively in a whole variety of process them if they all hit us at the same time. So we ways, and it paints a picture, both from the evidence are very much trying to encourage departments to we have had from the BRE and you, of an extremely spread that workload out. weak centre. Taking a parallel, it is as if you are making regulations without any process of statutory Q96 Chairman: Do they take any notice? enforcement and all the consequences. That cannot Mr Pawsey: Some departments do and the people we be satisfactory, can it? deal with try to be as helpful as they possibly can. Mr Pawsey: As I say, the responsibility for bringing forward legislation rests with departments. They are Q97 Chairman: Which ones do not? responsible for their areas of policy. Mr Pawsey: I do not think I would want to specify. Chairman: Why not? Lord TunnicliVe: Because he has to work with them Q92 Chairman: I understood that and I was not tomorrow, my Lord Chairman. seeking to say that was necessarily wrong. What I was Chairman: You are on the Committee’s side, Lord saying was, if the game stops there and there is no TunnicliVe, not on the witness’s side! process in the centre of knowing whether Lord Boston of Faversham: There are no sides, my departments are doing it well or badly according to Lord Chairman. We are all in it together. your guidance and doing nothing about it if they do not, we have not got a very good system of Q98 Viscount Eccles: Would it be right to say that government. departments see you as providing them with a Mr Pawsey: Again, I am not sure it is practical for service? anybody in the centre to actually co-ordinate the Mr Pawsey: Yes. preparation of secondary legislation. I think secretaries of state within departments are best Q99 Viscount Eccles: As the provider of a service, placed to take forward what is the departments’ you are entitled to have an opinion about who makes policy. your life more diYcult and who makes your life easier. Q93 Chairman: You mean close down the Cabinet Mr Pawsey: The departments who make our life OYce? diYcult know they make our life diYcult and we Mr Pawsey: Again, secretaries of state have got a make sure they know that is the case. clear remit in terms of their responsibilities. Viscount Eccles: It is very fashionable to produce Chairman: Let me not torture you further. Viscount league tables. I wonder if you would let us know Y Colville? which departments make your life most di cult and which seem to you to make your life easier?
Q94 Viscount Colville of Culross: You must know in Q100 Chairman: If not now, then subsequently. It is advance about common commencement dates, that an issue of relevance to parliamentary scrutiny there are two periods in the year when these things because it has an eVect on our work and an eVect on come forward. the general public, and we are also concerned about Mr Pawsey: Yes. your welfare. 3247872007 Page Type [O] 21-03-06 23:44:55 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Alan Pawsey
Mr Pawsey: Thank you. Certainly I will take that Mr Pawsey: Certainly the group I chair has no doubts away and look at it. about embarrassing departments who come and sit Chairman: If you could be clear, it would be round the table. If they are not doing things right, we appreciated. would clearly embarrass them amongst their colleagues, and no one wants to come along to that meeting and find themselves embarrassed, so we do Q101 Lord Boston of Faversham: You have been try to get people into line and work in an appropriate very clear about where responsibility lies in particular way together. within departments for specific proposals for SIs, and I am sure we all appreciate the diYculties you faced in Q103 Lord Jopling: I am thinking of July when there March. That would suggest that there is in fact some is a second big peak of SIs, do you try to dissuade scope for the management of the construction of SIs departments from the practice of thinking throughout government. If you are going to have “Parliament is going into recess for two or three timetable problems, logjam problems, particular Y months in a few days’ time, let us pop our SIs down di culties following from the March problem, that just before, coming into eVect during the recess, and suggests there is some scope for some form of of course then they will never have to debate them or management. What do you feel about that, in the first deal with them”? Do you try to dissuade departments place? Is there any consultation or any attempt at co- from doing that? It seems as though they do do that. operation or co-ordination between departments at Mr Pawsey: I would not say I try to dissuade them, I all? try to persuade departments to have a more even flow Mr Pawsey: There are a number of interdepartmental of Instruments and avoid the peaks as much as groups. I actually chair one group myself which possible. involves a mixture of departmental lawyers and parliamentary clerks, where we primarily look at the process of producing an SI and looking at the future Q104 Chairman: Do you think you have succeeded? Mr Pawsey: development of templates which are used for drafting No, I will be honest. the SI itself and indeed the template which is now used for drafting explanatory memoranda. That Q105 Lord Jopling: I am not talking about that, group meets every two or three months and we will Chairman, I am talking about trying to avoid consider various issues. Some changes in Statutory parliamentary debate on them. Instrument Practice are also discussed around that Mr Pawsey: Statutory Instruments follow the table. There are also groups, lawyers’ groups, who legislative process and they fit in with Parliament’s meet on a regular basis and they talk about various timetables and programmes, so of course SIs will be issues and about means of drafting. We remitted brought forward at particular times. If you think of suggestions to that group about the form of words particular pieces of legislation which come forward— which are used in the preamble to SIs and they have the Civil Partnership legislation is a particular now developed a more modern form of words which example—they lay down the basis of the law but not takes out the “herebys” and “wherefores” and the detail, and there is a lot of detail which has to be actually starts to use a modern understanding of eVected. The Act is the bare bones, the Regulations language. Those changes are being implemented now and Orders actually put the flesh on those bones, and in new Instruments which are coming forward and that Act was to be brought into force again at the end every new Instrument from January next year should of this year and there are lots of Regulations and bear that. Orders which have had to be developed. Some of them have had to come forward for AYrmative Resolution and some are Negative Resolutions; Q102 Chairman: That is a helpful question by Lord and again, working towards that December Boston. That is the first time we have heard that, that implementation date, then departments have to bring there is a group of oYcials which is looking at certain forward those SIs in time spans so they know they elements of the process on a pan-government basis. If can get them through the parliamentary process. I have heard you right it is essentially looking at the format and technicalities but it has not seized Q106 Chairman: Understood, but I do not think responsibility for managing the process in a more co- that was the thrust of Lord Jopling’s question, which ordinated way to try to ensure that either the was essentially that the consequence of departments guidance is adhered to and people who do not are laying a lot of Instruments late in the parliamentary vigorously encouraged or to manage the flows more session can in practice mean that the risk of eVectively. Why not? Why is the centre so weak? Why parliamentary scrutiny is reduced. I think he was is it cautious about seizing this role because there focusing on whether there was a risk at times that would be benefits, would there not? oYcials might be slightly malign in this respect and 3247872007 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
32 management of secondary legislation: evidence
8 November 2005 Mr Alan Pawsey see the benefits of leaving things until the last about presenting the instructions to lawyers to take moment. forward the drafting, and the timescales which the Mr Pawsey: I would not say that was the case. Again, lawyers actually require within departments to do they have timetables for bringing in legislation and that. bringing things into force, and quite often they will be dictated by the passage of legislation through both Q111 Lord Methuen: The introduction of electronic Houses. They will not know quite often until the Act publishing must have made the departments’ lives has been finalised how that is to be taken forward in much easier, I suspect, with all these templates you terms of developing Regulations and Orders under have got. Have you seen an improvement in the that legislation. quality of what is coming out of them? Mr Pawsey: I think generally, yes, there has been an Q107 Chairman: I do not think we are persuaded by improvement. that because we have seen some departments laying their draft regulations at the same time as the Bill is Q112 Lord Methuen: Do you get any feed-back from in the House. So we leave with you the question that the public on that? the consequence, if not the intent, of Lord Jopling’s Mr Pawsey: The public certainly welcome electronic question is that Parliament can be deprived of publishing. If you look at the way in which people use adequate opportunity to scrutinise SIs if it is left late. the internet these days, certainly there are hits which Mr Pawsey: Departments are reminded of the fact are made on our website in terms of looking at that they should ensure Parliament has adequate time Statutory Instruments and Acts of Parliaments. The to consider the Instruments which they are laying. public very much welcome that speedier access which they have to legislation and the hit rates continue to Q108 Chairman: When they do not do so, the grow month by month. consequence is that Parliament does not, and I think you agree with us on this. Should you not therefore be doing more about it? Q113 Viscount Colville of Culross: The number of Mr Pawsey: We seek to do that but again Statutory Instruments in a typical year is something departments have their timetables for bringing like 3,300? forward legislation and it is down to the secretaries of Mr Pawsey: Yes. state in those departments to carry that forward. Q114 Viscount Colville of Culross: They are not all Q109 Lord Armstrong of Ilminster: Do you think printed? Parliament in those circumstances should be able to Mr Pawsey: No. say, “Parliament has not been given suYcient opportunity to scrutinise this Statutory Instrument, Q115 Viscount Colville of Culross: We only get the it will have to wait”? ones which are printed. What are the other ones? Mr Pawsey: I am not sure that is a question I would They do exist, do they, the other ones? like to answer. It might be one you had best address Mr Pawsey: Yes. to my Minister when you see him in January. Chairman: We will hold it in storage. Q116 Viscount Colville of Culross: They are local? Mr Pawsey: They are local. Q110 Viscount Eccles: Chairman, we might be being a little hard, it seems to me. If I can just pursue the providing-the-service point again and then the Q117 Viscount Colville of Culross: And they are not groups of professionals which get together, lawyers subject to parliamentary procedure? or whatever. They are talking about, am I right, Mr Pawsey: No. The vast bulk of those are in relation Y professional issues, but the management of the to roads, road tra c, temporary speed limits, the process is going on somewhere else and it is not introduction of road closures, things like that. Also something that departments would welcome your the restriction of flying this morning for the State getting involved in? Visit by the President of China was subject to a Mr Pawsey: I think all departments organise Statutory Instrument. themselves in diVerent ways, so it is very diYcult for anyone in the centre to tell a department, “You will Q118 Viscount Colville of Culross: So Parliament organise your own internal process in this particular gets about 1,200? way”. Each department has its, shall we say, Mr Pawsey: 1,200 or 1,300 Parliament gets. But, yes, interpretation of Statutory Instrument Practice and there are considerably more, and we are about 3,000 they work their own processes and procedures, their already this year. At the end of October I think it was instructions and timetables, how people ought to go 3,025 SIs had been produced in total. 3247872007 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Alan Pawsey
Q119 Earl of Northesk: As I understand it, you also Mr Pawsey: Yes. have responsibility for the oversight of the Lord Methuen: Why therefore can you not maintain Explanatory Memoranda? an up-dated version of that Act which is available Mr Pawsey: Yes. from your website with all the Statutory Instrument modifications applied?
Q120 Earl of Northesk: We in this Committee are Q122 Chairman: In a consolidated way eVectively delighted by the introduction of EMs and we pat on-line? ourselves slightly on the back because we think we Mr Pawsey: There is a project being worked on within deserve the credit for them. I presume the the Department for Constitutional AVairs called the introduction of electronic publishing applies to Statute Law Database project, which will deliver a them—and you have made the same point about SIs consolidated version of Acts of Parliament from 1235 more generally—but there is a concern that maybe to the current date, and that is currently being publishing them electronically does not guarantee developed and tested at the moment. I think their they reach all the interested parties they should. What hope is that there will be a public service launch are your views on whether or not they should be sometime next year. published in hard copy? Mr Pawsey: Our views on publication in hard copy Q123 Chairman: That would include Statutory are clear. We just do not believe there is a need, with Instruments as well, would it? the reduction in demand for SIs. If you think back to Mr Pawsey: It would include Statutory Instruments 2000, the average demand for a Statutory Instrument which are made under powers contained within the was about 450 printed copies; that is down to just legislation. The full text of those Statutory under 300 now. If you compare, say, Explanatory Instruments will be part of the database but currently Notes to an Act of Parliament which are printed and there is no plan to revise Statutory Instruments. They have been printed, they are far more sizeable will revise and up-date Acts of Parliament but not documents and far more explanatory, if you like, Statutory Instruments. about what the Act does than a Memorandum. The numbers of copies of those is quite small; the Q124 Chairman: So you would still not be able, from numbers sold in print is quite small in comparison to the Government website, to see on sight the eVective the Act of Parliament itself. If you took that consolidation of a string of Statutory Instruments, percentage and applied it as well to Explanatory each of which had amended a piece of the story Memoranda to SIs in comparison with the SIs, we are which, as a consequence, makes it almost looking at a very small number of copies being incomprehensible to the public? Do you think that is printed. Certainly our contracted publisher, satisfactory? Stationery OYce Ltd, will not consider taking any of Mr Pawsey: We publish in our bound volume Tables the risk of taking those on a publication basis and of EVect, so people can check in a particular they would expect the Government to pay for those. Statutory Instrument what changes have been made Our estimate of that cost is £200,000 a year. At the by legislation during the course of that year. So they end of last year we consulted quite widely with public can identify for a Statutory Instrument back in, say, libraries about the way in which legislation is made 1976— available in print and on the web. Most public libraries do not take individual copies of legislation Q125 Chairman: That just gives you the audit trail to these days. They still take the bound volumes—the try to piece the jigsaw together, it does not give you major reference libraries will still take the annual the consolidated document? bound volumes—but they do not take the individual Mr Pawsey: Yes. Certainly with the templates we copies of Acts and SIs, they rely on the internet for have now got developed it should be far easier for those. They would like to see any money that we have departments to produce consolidation, and I know in our budget available to enhance and improve the some departments are doing that. One recent delivery of legislation on our website, and indeed we example is the Veterinary Medicines Regulations are doing much to do that. In the next few weeks which came forward from DEFRA which I think has there will be a new search engine on our website revoked something in the region of 60 or 70 previous which will greatly enhance the ability of people to Statutory Instruments and various other amended find legislation they want. sections of Acts as well. I think that is the way in which a lot of departments are going.
Q121 Lord Methuen: You say you are doing that, Q126 Chairman: We are extremely interested in the presumably you are also responsible for the issue of consolidation and it being accessible publication of Acts of Parliament? electronically. Could you put in a further note to us 3247872007 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
34 management of secondary legislation: evidence
8 November 2005 Mr Alan Pawsey to explain why you think it is easier for departments Again, it will bring in the new arrangements, the new now, through technology, to produce consolidated wording, the modern language which is to be used in Statutory Instruments making them more accessible preambles to Instruments and to Orders in Council, to the public? and that will work very closely with the legal advisers Mr Pawsey: Yes. to the Joint Committee as well. I think the Committee Chairman: The Committee would welcome that. is probably aware, because we do copy in the advisers and circulars do go out, so the Committee should be Q127 Baroness Maddock: We have already aware of the things which have occurred in the last established this afternoon that you are the custodian few years. of the rule book for Statutory Instrument management. But I understand there will be a new Q129 Chairman: Could you tell us a little about the edition of Statutory Instrument Practice and that is nature of discussions between HMSO and BRE about to appear? about promoting better regulation, about improving Mr Pawsey: Yes. the quality of secondary legislation? Mr Pawsey: Certainly we work closely with BRE. The work they are doing on the simplification project, we Q128 Baroness Maddock: Will it have any have been able to assist departments in identifying, significant changes in it which you think we ought to because we can analyse using the registration be aware of as part of our inquiry? database, and we can produce analyses of SIs by Mr Pawsey: The last edition was produced back in subject matter, so we can bring that information to June 2003. In between new editions, we publish a departments and help them carry out their work. number of Practice circulars, so if changes are BRE have got certain clear responsibilities taking made—like the creation of the Merits Committee, the forward the Government’s agenda for simplifying, introduction of Explanatory Memoranda—there are modernising, reducing the volume of legislation and Practice circulars issued to departments telling them improving the way in which departments consult, about those changes. Indeed, in terms of those on the making sure there is better take-up, making sure Merits Committee, we have been very grateful for the consultation is taken forward correctly and the views help from the clerk and the advisers to the are taken on board in producing the legislation which Committee. The new edition will consolidate all of comes forward. That is clearly BRE’s remit and we those circulars and we are consolidating our will support them as much as possible by providing guidance. There will certainly be some new changes the information. in procedure. Under the current Practice there is actually no requirement on a department to publish a Q130 Lord TunnicliVe: Is the SIP publicly available? draft aYrmative resolution Order, and indeed really Mr Pawsey: Yes, it is available on our website. until the introduction of the Merits Committee and Explanatory Memoranda some departments did not Q131 Chairman: Thank you very much for your do that, and there are still one or two departments time and we look forward to receiving the further which are very reluctant to do so. But it would information which you promised which we said we become mandatory with the new edition that every would welcome. aYrmative resolution Order shall be published. Mr Pawsey: Thank you.
Supplementary letter from Alan Pawsey, Her Majesty’s Stationery Office (HMSO) 1. When I gave evidence on 8 November, in my capacity as Editor of Statutory Instrument Practice and the oYcial responsible within HMSO for overseeing our statutory role in relation to the production of Statutory Instruments, I was asked to provide some further information for the Committee. This letter and the attachments respond to the Committee’s request and in addition provide further information regarding the Statutory Instruments which were made during 2005.
Performance of Departments 2. The Committee invited information about the performance of departments and was particularly concerned about the number of occasions on which departments fail to lay instruments at least 21 days in advance of them coming into force. In response I am attaching an analysis of the instruments made during 2005 which were laid before Parliament (or the House of Commons) showing by department those where 21 days was not allowed between the date of laying and the instrument coming into force. This analysis is compiled from the HMSO Statutory Instruments Database. 3247872008 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 35
8 November 2005
Consolidation of Statutory Instruments
3. The Committee invited information as to how the new drafting technology might help in producing consolidations of statutory instruments. 4. As I said during my evidence and in the earlier HMSO memorandum to the Committee, most statutory instruments are now being produced using an electronic template based on Microsoft Word. Before the introduction of the template the final version of any instrument would have been held as part of the printing contractors’ typesetting systems and would not have been available to departments. With the introduction of the template, departments now hold the final version of the instrument within their own systems maintaining their control of the instruments that they draft. 5. In the past departments have avoided producing consolidated sets of Regulations because of concerns about the costs to the end-user required to purchase additional documents. With the increasing use of the internet to access legislation fewer users rely on the printed versions so this is no longer seen as an argument against more regular consolidation. 6. If departments control the original set of Regulations and any amending instruments within their systems they should be able to cut and paste any amendments made by subsequent instruments into an original set of Regulations. An “updated” version of the set of Regulations could therefore be produced at periodic intervals which simply applies any amendments to the original set of Regulations. This would be a straightforward mechanical task but would produce a consolidated version which would be easier for the end-user to work with. 7. Producing consolidated versions of statutory instruments is, however, generally a more complex task and will involve not only the mechanical task of applying amendments but also involves a review of the policy objectives, a complete review of the drafting and ensuring that cross-references to other legislation remain correct. Even if straightforward consolidated Regulations were produced at periodic intervals such detailed work would still be necessary to ensure the continuing quality of any Regulations which remain in force. One task which the consolidator ought to undertake (and which is not open to the drafter of amendments under most circumstances because of resource constraints) is to consider whether the structure of the instrument as a whole should be revised. For example, if a lettered list of exemptions within a paragraph has expanded significantly since the original instrument was made, it will be an improved service for users if the exemptions are re-structured as a Schedule.
2005 Statutory Instruments—Updated Statistical Information
8. I am attaching for the Committee tables showing: (a) the number of statutory instruments made during 2005 with comparisons with earlier years; (b) the number of statutory instruments made during 2005 by department with comparisons with earlier years; and (c) the number of statutory instruments made during 2005 by subject heading with comparisons with earlier years. 31 January 2006
LAYING DATES ELAPSED DAYS BY AUTHORITY 2005
UK (England/Wales) Source: Her Majesty’s Stationery OYce Note: This report shows the elapsed days between the date of laying of an instrument and the date it came into force. Under the 21 day rule an instrument should come into force on the 22nd day so for any SI where 21 days or lower is shown the department will have failed to comply with the rule. Where no coming into force date is given this is because the Coming into force date is reliant on other legislative provisions to bring it into force or where notices are to be published in the London, Edinburgh or Belfast Gazettes (or in one instance the Montserrat Gazette). 3247872009 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
36 management of secondary legislation: evidence
8 November 2005
Cabinet Office
Elapsed Days Laying Date Date in Force SI No SI Title 111 27/07/2005 14/11/2005 2042 Civil Contingencies Act 2004 (Contingency Planning) 25 21/11/2005 15/12/2005 3171 Superannuation (Admission to Schedule 1 to the Superannuation Act 1972) Order 22 10/06/2005 01/07/2005 1515 Re-use of Public Sector Information Regulations Total SIs for Cabinet OYce % 3
Dept for Education and Skills
Elapsed Days Laying Date Date in Force SI No SI Title 304 02/03/2005 30/12/2005 389 Adoption Agencies Regulations 304 02/03/2005 30/12/2005 392 Adoptions with a Foreign Element Regulations 284 22/03/2005 30/12/2005 691 Adoption Support Services Regulations 269 06/04/2005 30/12/2005 1109 Special Guardianship Regulations 268 07/04/2005 30/12/2005 888 Disclosure of Adoption Information (Post- Commencement Adoptions) Regulations 2005 268 07/04/2005 30/12/2005 890 Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005 186 03/10/2005 06/04/2006 2690 Education (Student Loans) (Repayment) (Amendment) 117 07/04/2005 01/08/2005 1113 Crawley College and Haywards Heath College (Dissolution) 65 01/02/2005 06/04/2005 93 Tax Credits (Approval of Child Care Providers) Scheme 53 11/07/2005 01/09/2005 1739 Coventry City Council and the North West Federation of Schools (International General Certificate of Secondary 53 11/07/2005 01/09/2005 1740 Education (Induction Arrangements for School Teachers) (Consolidation) (England) (Amendment) Regulations 52 11/11/2005 01/01/2006 3097 North Area College (Dissolution) Order 46 14/01/2005 28/02/2005 2 Education (Co-ordination of Admission Arrangements) (Primary Schools) (England) (Amendment) Regulations 44 17/01/2005 01/03/2005 5 Education (Student Support) (No 2) Regulations 2002 (Amendment) Regulation 41 22/12/2005 31/01/2006 3436 Education (Grants etc.) (Dance and Drama) (England) (Amendment) (No 2) Regulations 40 25/08/2005 03/10/2005 2296 Day Care and Child Minding (Disqualification) (England) Regulations 40 25/08/2005 03/10/2005 2297 Day Care and Child Minding (Suitability) (England) 39 26/08/2005 03/10/2005 2303 Day Care and Child Minding (National Standards) (Amendment) (England) Regulations 39 26/08/2005 03/10/2005 2299 Nursery Education (Inspection) (England) Regulations 39 26/08/2005 03/10/2005 2300 Day Care and Child Minding (Inspection) (England) 39 26/08/2005 03/10/2005 2301 Day Care and Child Minding (Registration Fees) (England) Regulations 39 26/08/2005 03/10/2005 2302 Day Care and Child Minding (Functions of Local Authorities: Information, Advice and Training) (England) (Amendment) Regulations 35 26/01/2005 01/03/2005 52 Education (Student Support) Regulations 3247872010 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 35 29/07/2005 01/09/2005 2037 Education (Assisted Places) (Incidental Expenses) (Amendment) (England) Regulations 35 29/07/2005 01/09/2005 2029 Education (Penalty Notices) (England) (Amendment) 35 29/07/2005 01/09/2005 2030 Education (Assisted Places) (Amendment) (England) 33 28/02/2005 01/04/2005 346 Education (Information as to Provision of Education) (England) (Amendment) Regulations 33 29/11/2005 31/12/2005 3221 Disability Discrimination (Prescribed Times and Periods for Accessibility Strategies and Plans for Schools) (England) Regulations 32 05/04/2005 06/05/2005 1101 Education (School Teachers’ Pay and Conditions) (No 2) 32 01/08/2005 01/09/2005 2038 Education (School Inspection) (England) Regulations 32 29/11/2005 30/12/2005 3222 Electronic Commerce Directive (Adoption and Children Act 2002) Regulations 31 19/10/2005 18/11/2005 2836 Southwark London Borough Council (Prescribed Alteration) 31 02/08/2005 01/09/2005 1973 Children Act 2004 (Joint Area Reviews) Regulations 31 02/08/2005 01/09/2005 1972 Children Act 2004 (Children’s Services) Regulations 31 01/04/2005 01/05/2005 845 Education (Amendments to Regulations Requiring the Publication of Pupil Performance Information) (England) 31 08/06/2005 08/07/2005 1437 Education (Pupil Information) (England) Regulations 31 02/08/2005 01/09/2005 2039 Education (Pupil Referral Units) (Application of Enactments) (England) Regulations 30 03/08/2005 01/09/2005 2058 Wanstead High School (Change to School Session Times) 30 03/08/2005 01/09/2005 2084 Education (Student Support) (Amendment) (No 2) 30 03/08/2005 01/09/2005 2083 Education (Mandatory Awards) (Amendment) Regulations 29 15/03/2005 12/04/2005 677 Education (Grants etc) (Dance and Drama) (England) (Amendment) Regulations 29 04/07/2005 01/08/2005 1708 Kent Institute of Art and Design Higher Education Corporation (Dissolution) Order 29 03/06/2005 01/07/2005 1386 Education (Outturn Statements) (England) Regulations 29 14/11/2005 12/12/2005 3101 Education (Information About Individual Pupils) (England) (Amendment) Regulations 29 08/04/2005 06/05/2005 1032 Education (Review of StaYng Structure) (England) 29 01/02/2005 01/03/2005 94 Tynemouth College and North Tyneside College (Dissolution) Order 28 04/04/2005 01/05/2005 873 Education (Variation of Admission Arrangements) (England) (Amendment) Regulations 28 04/03/2005 31/03/2005 345 Education (Budget Statements) (England) Regulations 27 06/04/2005 02/05/2005 892 Teacher Training Agency (Additional Functions) (England) Order 2005 27 04/04/2005 30/04/2005 875 Education (Head Teachers’ Qualifications) (Amendment) (England) Regulations 26 07/07/2005 01/08/2005 1718 Education (Student Loans) (Amendment) (England and Wales) Regulations 26 14/11/2005 09/12/2005 3102 Haringey London Borough Council (Temporary Governing Body) Order 3247872010 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 26 06/09/2005 01/10/2005 2411 Children Act 2004 (Designation of NHS Direct) Order 25 09/09/2005 03/10/2005 2450 Education (Local Education Authority Performance Targets) (England) Regulations 25 08/03/2005 01/04/2005 397 Central Sussex College (Government) Regulations 25 09/09/2005 03/10/2005 2449 Education (School Performance Targets) (England) (Amendment) Regulations 25 08/03/2005 01/04/2005 396 Central Sussex College (Incorporation) Order 25 06/04/2005 30/04/2005 885 Education (Free School Lunches) (State Pension Credit) Order 2005 25 08/07/2005 01/08/2005 1731 Education (Change of Category of Maintained Schools) (Amendment) (England) Regulations 25 09/09/2005 03/10/2005 2448 Child Minding and Day Care (Applications for Registration) (England) (Amendment) Regulations 25 08/07/2005 01/08/2005 1730 School Governance (Constitution, Federations and New Schools) (England) (Amendment) Regulations 24 23/05/2005 15/06/2005 1341 Education (Student Support) (Amendment) Regulations 24 06/04/2005 29/04/2005 882 European Communities (Recognition of Professional Qualifications) (Second General System) (Amendment) Regulations 24 09/12/2005 01/01/2006 3342 Education (School Organisation Proposals) (Amendment) (No 2) (England) Regulations 24 08/04/2005 01/05/2005 1070 Disability Discrimination (Educational Institutions) (Alteration of Leasehold Premises) Regulations 24 08/08/2005 31/08/2005 2119 Education (Student Loans) (Amendment) (No 2) (England and Wales) Regulations 23 18/01/2005 09/02/2005 18 European Communities (Recognition of Professional Qualifications) (First General System) Regulations 23 10/08/2005 01/09/2005 2152 Education (School Information) (England) (Amendment) Regulations 23 23/06/2005 15/07/2005 1542 Education (London Residuary Body) (Property Transfer) (Amendment) Order 23 10/03/2005 01/04/2005 640 National Care Standards Commission (Commission for Social Care Inspection) (Fees and Frequency of Inspections) (Adoption Agencies) (Amendment) Regulations 23 10/03/2005 01/04/2005 539 Education (School Teachers’ Pay and Conditions) Order 23 08/04/2005 30/04/2005 1014 Education (Residential Trips) (Prescribed Tax Credits) (England) (Amendment) Regulations 23 10/03/2005 01/04/2005 482 Day Care and Child Minding (Inspections) (Prescribed Matters) (England) (Amendment) Regulations 23 10/08/2005 01/09/2005 2149 Children and Young People’s Plan (England) Regulations 23 10/08/2005 01/09/2005 2212 Education (School Teachers’ Pay and Conditions) (No 3) 23 10/08/2005 01/09/2005 2198 Teachers’ Pensions (Amendment) Regulations 23 08/12/2005 30/12/2005 3299 Schools Forums (England) (Amendment) Regulations 23 10/03/2005 01/04/2005 433 Children and Family Court Advisory and Support Service (Membership, Committee and Procedure) Regulations 3247872011 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 39
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 23 09/12/2005 31/12/2005 3322 Education (Head Teachers’ Qualifications) (England) (Amendment) (No 2) Regulations 22 09/12/2005 30/12/2005 3339 Local Authorities Adoption Service (England) (Amendment) Regulations 22 11/07/2005 01/08/2005 1792 Education (Leeds College of Music) (Transfer to the Higher Education Sector) Order 22 09/12/2005 30/12/2005 3341 Voluntary Adoption Agencies (Amendment) Regulations 22 09/12/2005 30/12/2005 3332 Independent Review of Determinations (Adoption) 22 10/06/2005 01/07/2005 1533 Children (Private Arrangements for Fostering) Regulations 22 24/01/2005 14/02/2005 58 Education (School Attendance Targets) (England) Regulations 22 09/12/2005 30/12/2005 3390 Local Authority (Adoption) (Miscellaneous Provisions) Regulations 22 07/10/2005 28/10/2005 2720 Adoption Support Agencies (England) and adoption Agencies (Miscellaneous Amendments) Regulations 22 09/06/2005 30/06/2005 1508 School Governance (Contracts) (England) Regulations 22 09/12/2005 30/12/2005 3309 Education (Teacher Student Loans) (Repayment etc.) (Amendment) Regulations 22 26/08/2005 16/09/2005 2338 Education (School Performance Information) (England) (Amendment) (No 2) Regulations 22 11/07/2005 01/08/2005 1801 Education (School Organisation Proposals) (England) (Amendment) Regulations 22 10/03/2005 31/03/2005 526 LEA Budget, Schools Budget and Individual Schools Budget (Amendment) (England) Regulations 21 21/01/2005 10/02/2005 51 Education (School Performance Information) (England (Amendment) Regulations 9 22/12/2005 30/12/2005 3482 Adoption and Children (Miscellaneous Amendments) 9 22/12/2005 30/12/2005 3504 Adoption and Children Act 2002 (Consequential Amendments) Order "1 03/01/2006 01/01/2006 3479 Education (School Teachers’ Pay and Conditions) (No 4) 08/08/2005 2121 Local Authorities (Elected Mayors) (England) Regulations Total SIs for Dept for Education and Skills % 97
Department for Constitutional Affairs
Elapsed Days Laying Date Date in Force SI No SI Title 139 20/07/2005 05/12/2005 1982 Land Registration (Amendment) (No 2) Rules 130 29/07/2005 05/12/2005 2056 Enrolment of Deeds (Change of Name) (Amendment) 110 07/07/2005 24/10/2005 1766 Land Registration (Amendment) Rules 110 07/07/2005 24/10/2005 1765 Land Registration (Proper OYce) (Amendment) Order 107 21/12/2005 06/04/2006 3515 Civil Procedure (Amendment No 4) Rules 105 19/07/2005 31/10/2005 1976 Family Proceedings (Amendment No 4) Rules 105 19/07/2005 31/10/2005 1977 Family Proceedings Courts (Miscellaneous Amendments) 3247872012 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
40 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 84 10/10/2005 01/01/2006 2749 Solicitors (Compensation for Inadequate Professional Services) Order 80 12/10/2005 30/12/2005 2795 Family Procedure (Adoption) Rules 80 12/10/2005 30/12/2005 2808 Parental Responsibility Agreement (Amendment) Regulations 80 12/10/2005 30/12/2005 2804 Courts Act 2003 (Revocations, Savings and Transitional Provisions) Order 75 19/08/2005 01/11/2005 2305 Conditional Fee Agreements (Revocation) Regulations 75 19/08/2005 01/11/2005 2306 Access to Justice (Member Organisation) Regulations 56 08/02/2005 04/04/2005 230 Asylum and Immigration Tribunal (Procedure) Rules 56 08/02/2005 04/04/2005 227 Asylum and Immigration Tribunal (Judicial Titles) Order 55 12/10/2005 05/12/2005 2796 Justices’ Clerks (Amendment) Rules 55 12/10/2005 05/12/2005 2797 Children (Allocation of Proceedings) (Amendment No 2) Order 44 19/08/2005 01/10/2005 2292 Civil Procedure (Amendment No 3) Rules 43 21/12/2005 01/02/2006 3489 Derbyshire (Coroners’ Districts) (Amendment) Order 42 25/10/2005 05/12/2005 2920 Dissolution Etc (Pensions) Regulations 42 25/10/2005 05/12/2005 2921 Family Proceedings (Civil Partnership: Staying of Proceedings) Rules 42 25/10/2005 05/12/2005 2930 Magistrates’ Courts (Miscellaneous Amendments) Rules 42 25/10/2005 05/12/2005 2924 Family Law Act 1996 (Part IV) (Allocation of Proceedings) (Amendment) Order 42 25/10/2005 05/12/2005 2922 Family Proceedings (Amendment No 5) Rules 36 28/02/2005 04/04/2005 352 Civil Procedure (Amendment) Rules 32 04/03/2005 04/04/2005 384 Criminal Procedure Rules 32 04/11/2005 05/12/2005 3042 Civil Partnership (Treatment of Overseas Relationships) Order 29 04/03/2005 01/04/2005 446 Courts-Martial Appeal (Amendment) Rules 29 18/03/2005 15/04/2005 781 Pensions Regulator Tribunal (Legal Assistance Scheme) Regulations 29 18/03/2005 15/04/2005 782 Pensions Regulator Tribunal (Legal Assistance Scheme—Costs) Regulations 29 09/03/2005 06/04/2005 473 Civil Proceedings Fees (Amendment) Order 29 09/03/2005 06/04/2005 472 Family Proceedings Fees (Amendment) Order 27 31/08/2005 26/09/2005 2410 Collection of Fines (Pilot Schemes) (Amendment No 3) Order 27 02/02/2005 28/02/2005 184 Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment) Order 26 17/02/2005 14/03/2005 340 General Commissioners (Jurisdiction and Procedure) (Amendment) Regulations 26 17/02/2005 14/03/2005 341 Special Commissioners (Jurisdiction and Procedure) (Amendment) Regulations 26 10/03/2005 04/04/2005 569 Asylum and Immigration Tribunal (Procedure) (Amendment) 26 10/11/2005 05/12/2005 3126 Court of Protection (Enduring Powers of Attorney) (Amendment No 2) Rules 26 10/03/2005 04/04/2005 571 Community Legal Service (Funding) (Amendment) Order 26 17/11/2005 12/12/2005 3166 Collection of Fines (Pilot Schemes) (Amendment No 4) Order 3247872013 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 41
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 26 10/11/2005 05/12/2005 3125 Enduring Powers of Attorney (Welsh Language Prescribed Form) Regulations 26 10/11/2005 05/12/2005 3116 Enduring Powers of Attorney (Prescribed Form) (Amendment) Regulations 26 10/03/2005 04/04/2005 635 Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 26 10/03/2005 04/04/2005 561 Asylum and Immigration Tribunal (Fast Track Time Limits) 26 10/03/2005 04/04/2005 560 Asylum and Immigration Tribunal (Fast Track Procedure) Rules 26 10/11/2005 05/12/2005 3104 Civil Partnership (Supplementary Provisions relating to the Recognition of Overseas Dissolutions, Annulments or Legal Separations) (England and Wales and Northern Ireland) Regulations 26 10/03/2005 04/04/2005 638 Gender Recognition (Application Fees) Order 25 04/02/2005 28/02/2005 207 Social Security and Child Support Commissioners (Procedure) (Amendment) Regulations 25 08/12/2005 01/01/2006 3382 Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 25 08/03/2005 01/04/2005 489 Legal Services Ombudsman (Jurisdiction) (Amendment) Order 25 08/03/2005 01/04/2005 520 Children (Allocation of Proceedings) (Amendment) Order 24 10/03/2005 02/04/2005 642 Collection of Fines (Pilot Schemes) (Amendment No 2) Order 24 09/03/2005 01/04/2005 553 Justices of the Peace (Size and Chairmanship of Bench) Rules 24 08/09/2005 01/10/2005 2506 Constitutional Reform Act 2005 (Transitional and Consequential Provisions) Order 24 09/03/2005 01/04/2005 554 Local Justice Areas Order 24 09/03/2005 01/04/2005 545 Justices’ Clerks Rules 24 09/03/2005 01/04/2005 564 Justices of the Peace (Training and Appraisal) Rules 24 09/03/2005 01/04/2005 474 Damages (Government and Health Service Bodies) Order 24 09/03/2005 01/04/2005 562 Courts Act 2003 (Continuing Provision of Court- houses) Regulations 23 10/02/2005 04/03/2005 269 Representation of the People (Variation of Limits of Candidates’ Election Expenses) Order 23 16/01/2006 07/02/2006 3593 Freedom of Information (Additional Public Authorities) Order 23 10/02/2005 04/03/2005 266 Non-Contentious Probate Fees (Indian Ocean Tsunami) Order 23 10/03/2005 01/04/2005 617 Courts Act 2003 (Consequential Provisions) (No 2) Order 23 28/01/2005 19/02/2005 147 Registration of Political Parties (Prohibited Words and Expressions) (Amendment) Order 23 22/09/2005 14/10/2005 2625 Criminal Procedure Rule Committee (Amendment of Constitution) Order 23 08/03/2005 30/03/2005 484 Fines Collection (Amendment) Regulations 23 08/03/2005 30/03/2005 485 Register of Fines (Amendment) Regulations 23 16/01/2006 07/02/2006 3594 Freedom of Information (Removal of References to Public Authorities) Order 23 08/03/2005 30/03/2005 487 Collection of Fines (Pilot Schemes) (Amendment) Order 23 15/03/2005 06/04/2005 690 Pensions Regulator Tribunal Rules 3247872013 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
42 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 23 10/01/2005 01/02/2005 14 Information Tribunal (Enforcement Appeals) Rules 23 10/01/2005 01/02/2005 13 Information Tribunal (National Security Appeals) Rules 23 10/03/2005 01/04/2005 587 High Court and County Courts Jurisdiction (Amendment) 23 10/03/2005 01/04/2005 591 Civil Legal Aid (General) (Amendment) Regulations 23 10/03/2005 01/04/2005 589 Community Legal Service (Financial) (Amendment) 23 10/03/2005 01/04/2005 585 Family Proceedings Courts (Children Act 1989) (Amendment No 3) Rules 23 10/03/2005 01/04/2005 668 Court of Protection (Enduring Powers of Attorney) (Amendment) Rules 23 10/03/2005 01/04/2005 559 Family Proceedings (Amendment No 3) Rules 23 10/03/2005 01/04/2005 605 Children and Family Court Advisory and Support Service (Reviewed Case Referral) (Amendment) Regulations 23 10/03/2005 01/04/2005 588 Court Security OYcers (Designation) Regulations 23 10/03/2005 01/04/2005 607 National Assembly for Wales (Conduct of Litigation and Exercise of Rights of Audience) Regulations 23 10/03/2005 01/04/2005 667 Court of Protection (Amendment) Rules 22 10/10/2005 31/10/2005 2783 Criminal Defence Service (Recovery of Defence Costs Orders) (Amendment) Regulations 22 04/07/2005 25/07/2005 1793 Community Legal Service (Financial) (Amendment No 3) Regulations 22 08/02/2005 01/03/2005 229 Family Proceedings Courts (Children Act 1989) (Amendment) Rules 22 20/12/2005 10/01/2006 3443 Family Proceedings Fees (Amendment No 2) Order 22 20/12/2005 10/01/2006 3444 Magistrates’ Courts Fees Order 22 20/12/2005 10/01/2006 3445 Civil Proceedings Fees (Amendment) Order 22 10/10/2005 31/10/2005 2784 Criminal Defence Service (General) (No 2) (Amendment) Regulations 22 16/03/2005 06/04/2005 709 Pensions Appeal Tribunals (England and Wales) (Amendment) Rules 21 09/02/2005 01/03/2005 265 European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) 21 09/02/2005 01/03/2005 264 Family Proceedings (Amendment) Rules 21 05/07/2005 25/07/2005 1802 Civil Legal Aid (General) (Amendment No 2) Regulations 20 30/03/2005 18/04/2005 965 Pensions Appeal Commissioners (Procedure) (Northern Ireland) Regulations 13 21/09/2005 03/10/2005 2621 Criminal Defence Service (Funding) (Amendment) Order 13 21/09/2005 03/10/2005 2622 Costs in Criminal Cases (General) (Amendment) Regulations 12 24/03/2005 04/04/2005 916 Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No 2) Order 9 24/03/2005 01/04/2005 911 Courts Act 2003 (Transitional Provisions, Savings and Consequential Provisions) Order 8 04/03/2005 11/03/2005 450 Information Tribunal (Enforcement Appeals) (Amendment) 8 22/12/2005 29/12/2005 3359 Non-Contentious Probate Fees (London Terrorist Bombings) 3247872014 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 43
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 6 30/11/2005 05/12/2005 3284 Civil Partnership (Treatment of Overseas Relationships No 2) Order 5 04/04/2005 08/04/2005 1071 Human Rights Act 1998 (Amendment) Order 4 16/12/2005 19/12/2005 3470 Parliamentary Elections (Welsh Forms) (Amendment) Order 2 02/03/2005 03/03/2005 412 Family Proceedings (Amendment No 2) Rules 2 02/03/2005 03/03/2005 413 Family Proceedings Courts (Children Act 1989) (Amendment No 2) Rules 2 31/03/2005 01/04/2005 1012 Courts Act 2003 (Consequential and Transitional Provisions) Order 2 06/04/2005 07/04/2005 1105 Parliamentary Elections (Welsh Forms) Order 2 24/10/2005 25/10/2005 2949 Local Justice Areas (No 2) Order 1 05/04/2005 05/04/2005 1097 Community Legal Service (Financial) (Amendment No 2) Regulations "2 14/03/2005 11/03/2005 656 Civil Procedure (Amendment No 2) Rules 16/01/2006 3595 Register of Judgments, Orders and Fines Regulations Total SIs for Dept for Constitutional AVairs % 111
Department for the Environment,Food and Rural Affairs
Elapsed Days Laying Date Date in Force SI No SI Title 150 03/11/2005 01/04/2006 3047 North-West, Severn-Trent and Welsh Regional Flood Defence Committees (Boundaries Alteration) Order 115 24/03/2005 16/07/2005 895 List of Wastes (England) Regulations 101 23/03/2005 01/07/2005 883 Waste Management Licensing (England and Wales) (Amendment and Related Provisions) Regulations 81 13/07/2005 01/10/2005 1905 Drought Plan Regulations 59 04/04/2005 01/06/2005 1067 Norfolk and SuVolk Broads Act 1988 (Alteration of Constitution of the Broads Authority) Order 51 13/12/2005 01/02/2006 3433 Cattle Compensation (England) Order 51 10/02/2005 01/04/2005 268 Water and Sewerage Undertakers (Inset Appointments) Regulations 48 23/03/2005 09/05/2005 880 Landfill Allowances and Trading Scheme (England) (Amendment) Regulations 44 19/08/2005 01/10/2005 2304 Smoke Control Areas (Exempted Fireplaces) (England) Order 39 24/05/2005 01/07/2005 1380 Home-Grown Cereals Authority (Rate of Levy) Order 37 24/02/2005 01/04/2005 379 Diseases of Animals (Fees for the Testing of Disinfectants) (England) Order 36 27/05/2005 01/07/2005 1435 Plant Protection Products Regulations 2005 36 24/08/2005 28/09/2005 2347 Animal By-Products Regulations 35 18/10/2005 21/11/2005 2900 Waste (Household Waste Duty of Care) (England and Wales) Regulations 34 05/10/2005 07/11/2005 2726 Plant Breeders’ Rights (Discontinuation of Prior Use Exemption) Order 33 19/12/2005 20/01/2006 3467 Radioactive Contaminated Land (Enabling Powers) (England) Regulations 32 30/03/2005 30/04/2005 918 Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (England) (Amendment) 32 21/03/2005 21/04/2005 829 Crime Prevention (Designated Areas) Order 3247872015 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
44 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 32 23/12/2005 23/01/2006 3522 Older Cattle (Disposal) (England) Regulations 31 02/03/2005 01/04/2005 415 Environmental Protection (Waste Recycling Payments) (England) (Amendment) Regulations 31 01/06/2005 01/07/2005 1441 Reporting of Prices of Milk Products (England) Regulations 31 26/05/2005 25/06/2005 1430 Environmental Impact Assessment (Uncultivated Land and Semi-natural Areas) (England) (Amendment) Regulations 30 22/09/2005 21/10/2005 2624 Sea Fishing (Enforcement of Community Control Measures) (Amendment) Order 29 28/09/2005 26/10/2005 2671 Beet Seed (England) (Amendment) Regulations 29 28/09/2005 26/10/2005 2672 Cereal Seed (England) (Amendment) Regulations 29 28/09/2005 26/10/2005 2673 Fodder Plant Seed (England) (Amendment) Regulations 29 01/02/2005 01/03/2005 154 Hill Farm Allowance Regulations 29 03/10/2005 31/10/2005 2715 Charges for Inspections and Controls (Amendment) (No 2) Regulations 29 28/09/2005 26/10/2005 2674 Oil and Fibre Plant Seed (England) (Amendment) Regulations 29 28/09/2005 26/10/2005 2675 Vegetable Seed (England) (Amendment) Regulations 29 28/09/2005 26/10/2005 2676 Seed (Registration, Licensing and Enforcement) (England) (Amendment) Regulations 29 01/02/2005 01/03/2005 219 Common Agricultural Policy Single Payment and Support Schemes Regulations 29 25/07/2005 22/08/2005 2027 Access to the Countryside (Correction of Provisional and Conclusive Maps) (England) (Amendment) Regulations 28 04/03/2005 31/03/2005 465 Dairy Produce Quota Regulations 28 04/03/2005 31/03/2005 466 Dairy Produce Quotas (General Provisions) (Amendment) Regulations 28 19/12/2005 15/01/2006 3460 Common Agricultural Policy Single Payment Scheme (Set-aside) (England) (Amendment) Regulations 28 24/03/2005 20/04/2005 914 Crime Prevention (Designated Areas) (No 2) Order 28 18/10/2005 14/11/2005 2895 Smoke Control Areas (Authorised Fuels) (England) (Amendment) Regulations 28 24/03/2005 20/04/2005 906 Plant Health (Import Inspection Fees) (England) Regulations 28 21/10/2005 17/11/2005 2927 Salmonella in Broiler Flocks (Survey Powers) (England) Regulations 27 03/02/2005 01/03/2005 187 Transfrontier Shipment of Waste (Amendment) Regulations 26 21/07/2005 15/08/2005 2002 Animals and Animal Products (Import and Export) (England) Regulations 26 21/07/2005 15/08/2005 2003 Environmental Stewardship (England) and Organic Products (Amendment) Regulations 26 05/04/2005 30/04/2005 1087 Common Agricultural Policy Single Payment and Support Schemes (Amendment) Regulations 26 19/10/2005 13/11/2005 2903 Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 26 11/01/2005 05/02/2005 12 Charges for Inspections and Controls (Amendment) 3247872016 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 45
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 26 01/03/2005 26/03/2005 404 Production of Bovine Collagen Intended for Human Consumption in the United Kingdom (England) Regulations 26 31/10/2005 25/11/2005 2992 Common Agricultural Policy (Wine) (England and Northern Ireland) (Amendment) Regulations 26 17/11/2005 12/12/2005 3197 Plant Protection Products (Amendment) Regulations 26 07/03/2005 01/04/2005 477 Water Industry (Determination of Turnover for Penalties) Order 26 20/12/2005 14/01/2006 3480 Plant Health (Export Certification) (England) (Amendment) 25 19/12/2005 12/01/2006 3459 Common Agricultural Policy Single Payment and Support Schemes (Cross-compliance) (England) Regulations 25 17/06/2005 11/07/2005 1638 Water Supply Licence (Application) Regulations 25 13/06/2005 07/07/2005 1605 Registration of Fish Buyers and Sellers and Designation of Fish Auction Sites Regulations 25 07/11/2005 01/12/2005 3075 Water Supply (Exceptions from Supply System Prohibitions) Regulations 25 11/02/2005 07/03/2005 278 Potatoes Originating in the Netherlands (Revocation) (England) Regulations 25 07/11/2005 01/12/2005 3076 Water Supply Licence (New Customer Exception) 25 23/02/2005 19/03/2005 359 Salmonella in Laying Flocks (Survey Powers) (England) Regulations 25 07/09/2005 01/10/2005 2468 Enterprise Act 2002 (Bodies Designated to make Super-complaints) (Amendment) Order 25 14/10/2005 07/11/2005 2867 Agricultural Holdings (Units of Production) (England) Order 25 01/06/2005 25/06/2005 1399 Environmental Impact Assessment (Land Drainage Improvement Works) (Amendment) Regulations 25 07/11/2005 01/12/2005 3077 Water Supply Licence (Prescribed Water Fittings Requirements) Regulations 25 27/06/2005 21/07/2005 1674 Control of Trade in Endangered Species (Enforcement) (Amendment) Regulations 25 11/02/2005 07/03/2005 279 Dutch Potatoes (Notification) (England) Order 25 21/06/2005 15/07/2005 1640 Landfill (England and Wales) (Amendment) Regulations 24 26/09/2005 19/10/2005 2633 TSE (England) (Amendment) (No 2) Regulations 24 10/03/2005 02/04/2005 621 Environmental Stewardship (England) Regulations 24 07/10/2005 30/10/2005 2745 Veterinary Medicines Regulations 24 06/07/2005 29/07/2005 1805 Financial Assistance for Environmental Purposes Order 24 24/03/2005 16/04/2005 894 Hazardous Waste (England and Wales) Regulations 24 23/11/2005 16/12/2005 3223 Litter (Fixed Penalty Notices) Order 1991 and the Dog Fouling (Fixed Penalties) Order 1996 (Revocation) (England) 24 08/09/2005 01/10/2005 2517 Plant Health (Forestry) Order 23 16/03/2005 07/04/2005 717 Producer Responsibility Obligations (Packaging Waste) (Amendment) (England and Wales) Regulations 23 28/09/2005 20/10/2005 2686 High—activity Sealed Radioactive Sources and Orphan Sources Regulations 23 09/06/2005 01/07/2005 1530 Home Energy EYciency Scheme (England) Regulations 3247872017 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
46 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 23 30/06/2005 22/07/2005 1725 Pesticides (Maximum Residue in Crops, Food and Feeding StuVs) (England and Wales) (Amendment) (No 2) Regulations 23 26/05/2005 17/06/2005 1402 Stanswood Bay Oyster Fishery Order 23 09/06/2005 01/07/2005 1531 Energy Information (Household Air Conditioners) Regulations 23 11/01/2005 02/02/2005 17 Incidental Catches of Cetaceans in Fisheries (England) Order 23 26/05/2005 17/06/2005 1400 Calshot Oyster Fishery Order 23 03/06/2005 25/06/2005 1448 Pollution Prevention and Control (Public Participation) (England and Wales) Regulations 23 07/02/2005 01/03/2005 218 Common Agricultural Policy Single Payment and Support Schemes (integrated Administration and Control System) Regulations 23 30/03/2005 21/04/2005 925 Greenhouse Gas Emissions Trading Scheme Regulations 23 19/01/2005 10/02/2005 59 Water Industry (Charges) (Vulnerable Groups) (Amendment) Regulations 22 11/10/2005 01/11/2005 2773 Volatile Organic Compounds in Paints, Varnishes and Vehicle Refinishing Products Regulations 22 24/06/2005 15/07/2005 1673 List of Wastes (England) (Amendment) Regulations 22 12/09/2005 03/10/2005 2530 Plant Health (England) Order 22 01/12/2005 22/12/2005 3286 Pesticides (Maximum Residue Levels in Crops, Food and Feeding StuVs) (England and Wales) Regulations 22 01/11/2005 22/11/2005 3026 Environmental Protection Act 1990 (Amendment of Section 57) (England and Wales) Regulations 22 07/07/2005 28/07/2005 1811 Fees for Assessment of Active Substances (Fourth Stage Review) Regulations 22 24/05/2005 14/06/2005 1387 Greenhouse Gas Emissions Trading Scheme (Approved National Allocation Plan) Regulations 22 27/01/2005 17/02/2005 117 Fees for Assessment of Active Substances (Third Stage Review) Regulations 22 03/03/2005 24/03/2005 421 New Forest National Park Authority (Establishment) Order 22 01/04/2005 22/04/2005 1033 FeedingstuVs (Zootechnical Products) and Medicated FeedingstuVs (Amendment) (England, Scotland and Wales) Regulations 22 25/07/2005 15/08/2005 2015 Veterinary Surgery (Testing for Tuberculosis in Bovines) 22 09/06/2005 30/06/2005 1528 Waste Management Licensing (England and Wales) (Amendment and Related Provisions) (No 2) Regulations 22 06/09/2005 27/09/2005 2463 Crime Prevention (Designated Areas) (No 3) Order 22 06/09/2005 27/09/2005 2461 Public Rights of Way (Register of Applications under section 53(5) of the Wildlife and Countryside Act 1981) (England) Regulations 4 25/02/2005 28/02/2005 393 Sea Fishing (Restriction on Days at Sea) Order 2 29/06/2005 30/06/2005 1728 Waste Management Licensing (England and Wales) (Amendment and Related Provisions) (No 3) Regulations 2 07/09/2005 08/09/2005 2469 Detergents Regulations 2 29/06/2005 30/06/2005 1726 Energy Information (Household Air Conditioners) (No 2) Regulations 2 09/12/2005 10/12/2005 3386 Products of Animal Origin (Third Country Imports) (England) (No 4) (Amendment) Regulations 3247872018 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 47
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 2 14/01/2005 15/01/2005 49 South-west Territorial Waters (Prohibition of Pair Trawling) (Amendment) Order 1 09/12/2005 09/12/2005 3394 Avian Influenza (Preventive Measures) (No 2) Regulations 1 28/10/2005 28/10/2005 2989 Avian Influenza (Preventive Measures) Regulations 1 28/10/2005 28/10/2005 2990 Avian Influenza (Preventive Measures in Zoos) Regulations Total SIs for Dept for the Environment, Food and Rural AVairs % 107
Department for Transport
Elapsed Days Laying Date Date in Force SI No SI Title 124 28/02/2005 01/07/2005 390 Tractor etc (EC Type-Approval) Regulations 90 20/07/2005 17/10/2005 1992 Railways (Accident Investigation and Reporting) 86 08/03/2005 01/06/2005 452 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Hertfordshire) (Borough of Stevenage) Order 73 21/03/2005 01/06/2005 779 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Hertfordshire) (District of Welwyn Hatfield) 67 04/03/2005 09/05/2005 405 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Hertfordshire) (Borough of Broxbourne) 64 31/01/2005 04/04/2005 81 Road TraYc (Permitted Parking Area and Special Parking Area) (Metropolitan Borough of Stockport) Order 57 07/02/2005 04/04/2005 194 Road TraYc (Permitted Parking Area and Special Parking Area) (City of SheYeld) Order 55 09/12/2005 01/02/2006 3355 Biofuel (Labelling) (Amendment) Regulations 2005 54 10/02/2005 04/04/2005 233 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Hampshire) (Borough of Havant) Order 44 06/09/2005 19/10/2005 2454 Motor Vehicles (EC Type Approval) (Amendment) Regulations 44 29/11/2005 11/01/2006 3261 Railways (Accident Investigation and Reporting) (Amendment) Regulations 43 08/02/2005 22/03/2005 927 Midland Metro (Wednesbury to Brierley Hill and Miscellaneous Amendments) Order 41 02/11/2005 12/12/2005 2987 Road Vehicles (Construction and Use) (Amendment) (No 3) Regulations 41 02/11/2005 12/12/2005 2988 Public Service Vehicles Accessibility (Amendment) 41 22/08/2005 01/10/2005 2295 Tonnage Tax (Training Requirement) (Amendment) Regulations 41 02/11/2005 12/12/2005 2986 Public Vehicles (Conditions of Fitness, Equipment, Use and Certification) (Amendment) (No 3) Regulations 40 23/06/2005 01/08/2005 1641 Road Vehicles (Construction and Use) (Amendment) 40 26/05/2005 04/07/2005 1385 Road TraYc (Permitted Parking Area and Special Parking Area) (Metropolitan Borough of Barnsley) Order 3247872018 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
48 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 40 26/05/2005 04/07/2005 1384 Road TraYc (Permitted Parking Area and Special Parking Area) (Metropolitan Borough of Rotherham) Order 40 26/05/2005 04/07/2005 1383 Road TraYc (Permitted Parking Area and Special Parking Area) (Metropolitan Borough of Doncaster) Order 39 28/11/2005 05/01/2006 3231 Transport for London (Woodside Park Substation) Order 39 28/11/2005 05/01/2006 3232 Transport for London (High Barnet Substation) Order 37 08/09/2005 14/10/2005 2460 Road Vehicles (Payment of Duty by Credit Card) (Prescribed Fee) Regulations 36 28/02/2005 04/04/2005 378 Road TraYc (Permitted Parking Area and Special Parking Area) (City of Coventry) Order 36 27/05/2005 01/07/2005 1403 Public Service Vehicles (Conditions of Fitness, Equipment, Use and Certification) (Amendment) Regulations 36 25/02/2005 01/04/2005 370 Road TraYc (Permitted Parking Area and Special Parking Area) (Borough of Thurrock) Order 36 28/02/2005 04/04/2005 387 Road TraYc (Permitted Parking Area and Special Parking Area) (Borough of Torbay) Order 36 28/02/2005 04/04/2005 388 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Surrey) (Borough of Epsom and Ewell) Order 34 27/01/2005 01/03/2005 74 Merchant Shipping (Prevention of Pollution) (Drilling Rigs and Other Platforms) Order 33 02/06/2005 04/07/2005 1438 Road TraYc (Permitted Parking Area and Special Parking Area) (Borough of Hartlepool) Order 33 22/12/2005 23/01/2006 3494 Road TraYc (Permitted Parking Area and Special Parking Area) (County of West Sussex) (District of Mid Sussex) Order 33 28/11/2005 30/12/2005 3224 Travel Concessions (Extension of Entitlement) (England) 33 11/11/2005 13/12/2005 3128 Public Service Vehicles (Conditions of Fitness, Equipment, Use and Certification) (Amendment) (No 4) Regulations 33 23/06/2005 25/07/2005 1645 Road TraYc (Permitted Parking Area and Special Parking Area (County of Surrey) (Borough of Woking) Order 33 22/12/2005 23/01/2006 3492 Road TraYc (Permitted Parking Area and Special Parking Area) (County of West Sussex) (District of Horsham) Order 32 30/08/2005 30/09/2005 2342 Public Service Vehicles (Conditions of Fitness, Equipment, Use and Certification) (Amendment) (No 2) Regulations 32 30/08/2005 30/09/2005 2341 Motor Vehicles (Tests) (Amendment) (No 2) Regulations 32 30/08/2005 30/09/2005 2354 Minibus and Other Section 19 Permit Buses (Amendment) Regulations 32 30/08/2005 30/09/2005 2355 Public Service Vehicles (Registration of Local Services) (Amendment) (England and Wales) Regulations 32 30/08/2005 30/09/2005 2343 Goods Vehicles (Plating and Testing) (Amendment) 32 04/03/2005 04/04/2005 403 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Surrey) (Borough of Spelthorne) Order 3247872019 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 49
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 32 30/08/2005 30/09/2005 2353 Community Bus (Amendment) Regulations 32 30/08/2005 30/09/2005 2344 Road Vehicles (Registration and Licensing) (Amendment) Regulations 32 21/10/2005 21/11/2005 2905 Railway Heritage Scheme Order 32 20/09/2005 21/10/2005 2559 Road Vehicles Lighting (Amendment) Regulations 32 30/08/2005 30/09/2005 2346 Public Service Vehicles (Operators’ Licences) (Fees) (Amendment) Regulations 32 20/09/2005 21/10/2005 2560 Road Vehicles (Construction and Use) (Amendment) (No 2) Regulations 32 30/08/2005 30/09/2005 2345 Goods Vehicles (Licensing of Operators) (Fees) (Amendment) Regulations 31 27/06/2005 27/07/2005 1670 TraYc Signs (Amendment) Regulations and General 31 01/11/2005 01/12/2005 2981 Vehicle Crime (Registration of Registration Plate Suppliers) (England and Wales) (Amendment) Regulations 31 27/06/2005 27/07/2005 1671 M42 (Junctions 3A to 7) (Actively Managed Hard Shoulder and Variable Speed Limits) Regulations 31 01/09/2005 01/10/2005 2362 Road TraYc (Permitted Parking Area and Special Parking Area) (County of SuVolk) (Borough of Ipswich) Order 30 02/03/2005 31/03/2005 395 Rail Vehicle Accessibility (Croydon Tramlink Class CR4000 Vehicles) Exemption (Amendment) Order 30 31/01/2005 01/03/2005 75 Transport Act 2000 (Commencement of Quality Contracts Schemes) (England) Order 30 02/06/2005 01/07/2005 1434 Ship and Port Facility (Security) (Amendment) Regulations 29 10/03/2005 07/04/2005 476 TraYc Management (Strategic Roads in Greater London) Designation Order 29 01/02/2005 01/03/2005 86 Rail Vehicle Accessibility (Heathrow Express Class 360/2) Exemption Order 29 05/04/2005 03/05/2005 1095 Railways (Penalty Fares) (Amendment) Regulations 29 08/08/2005 05/09/2005 2155 Road TraYc (Permitted Parking Area and Special Parking Area) (Borough of Stockton-on-Tees) Order 29 21/11/2005 19/12/2005 3207 Channel Tunnel (International Arrangements) Order 28 04/10/2005 31/10/2005 2713 Road Vehicles (Registration and Licensing) (Amendment) (No 2) Regulations 28 02/02/2005 01/03/2005 95 Road TraYc (Permitted Parking Area and Special Parking Area) (Metropolitan District of Leeds) Order 28 14/07/2005 10/08/2005 1902 Motor Cars (Driving Instruction) Regulations 28 05/08/2005 01/09/2005 2151 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Buckinghamshire) (District of Chiltern) Order 28 05/12/2005 01/01/2006 3295 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Hampshire) (District of New Forest) Order 27 06/10/2005 01/11/2005 2717 Motor Vehicles (Driving Licences) (Amendment) (No 2) Regulations 27 19/01/2005 14/02/2005 56 Transport for London (Consequential Provisions) Order 27 14/12/2005 09/01/2006 3407 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Surrey) (Borough of Elmbridge) Order 3247872020 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
50 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 27 14/12/2005 09/01/2006 3406 Bus Lane Contraventions (Approved Local Authorities) (England) (Amendment) Order 27 04/01/2006 30/01/2006 3543 Road TraYc (Permitted Parking Area and Special Parking Area) (County of Hertfordshire) (Borough of Hertsmere) Order 27 01/06/2005 27/06/2005 1404 Rail Vehicle Accessibility (Heathrow Express Class 360/2) Exemption (Amendment) Order 27 02/03/2005 28/03/2005 329 Rail Vehicle Accessibility (Virgin West Coast Class 390) Exemption Order 27 06/10/2005 01/11/2005 2716 Motor Cars (Driving Instruction) (Amendment) Regulations 26 17/11/2005 12/12/2005 3169 Road Vehicles Lighting (Amendment) (No 2) Regulations 26 18/08/2005 12/09/2005 2290 Transport (Guided Systems) (England) (Amendment) Order 26 05/04/2005 30/04/2005 1089 Civil Aviation (Insurance) Regulations 26 24/03/2005 18/04/2005 881 Merchant Shipping (Accident Reporting and Investigation) Regulations 26 17/03/2005 11/04/2005 763 Transport for London (Reserved Services) (Croydon Tramlink and Docklands Light Railway) Exception Order 26 17/11/2005 12/12/2005 3170 Road Vehicles (Construction and Use) (Amendment) (No 5) Regulations 26 17/11/2005 12/12/2005 3165 Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 25 30/06/2005 24/07/2005 1738 Railways Act 2005 (Transitional Provisions and Savings) 25 24/06/2005 18/07/2005 1672 Driver and Vehicle Licensing Agency Trading Fund (Variation) Order 25 08/07/2005 01/08/2005 1832 Motor Vehicles (Tests) (Amendment) Regulations 25 04/11/2005 28/11/2005 3049 Railways Infrastructure (Access and Management) 25 04/11/2005 28/11/2005 3050 Railway (Licensing of Railway Undertakings) Regulations 24 13/07/2005 05/08/2005 1904 Passenger and Goods Vehicles (Recording Equipment) 24 30/06/2005 23/07/2005 1737 Railways (Rail Passengers’ Council and Rail Passengers’ Committees) (Exemptions) (Amendment) Order 23 01/04/2005 23/04/2005 975 Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 23 12/05/2005 03/06/2005 1308 Health and Safety at Work etc Act 1974 (Application to Environmentally Hazardous Substances) (Amendment) 23 13/10/2005 04/11/2005 2833 Disclosure of Vehicle Insurance Information Regulations 23 12/07/2005 03/08/2005 1866 Transport for London (Waterloo Station) Order 23 08/09/2005 30/09/2005 2458 Passenger and Goods Vehicles (Recording Equipment) (Approval of Fitters and Workshops) (Fees) (Amendment) 23 05/04/2005 27/04/2005 1092 Merchant Shipping (Amendments to Reporting Requirements) Regulations 23 08/09/2005 30/09/2005 2457 International Transport of Goods under Cover of TIR Carnets (Fees) (Amendment) Regulations 23 23/09/2005 15/10/2005 2628 Railways (Provision etc of Railway Facilities) (Exemptions) 3247872021 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 51
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 23 10/03/2005 01/04/2005 580 Merchant Shipping (Fees) (Amendment) Regulations 23 08/09/2005 30/09/2005 2456 International Carriage of Dangerous Goods by Road (Fees) (Amendment) Regulations 23 19/07/2005 10/08/2005 1975 Motor Vehicles (Driving Licences) (Amendment) Regulations 23 18/07/2005 09/08/2005 1919 Merchant Shipping (Medical Examination) (Amendment) Regulations 23 21/07/2005 12/08/2005 1999 M275 and M27 Motorway (Speed Limit) Regulations 22 11/10/2005 01/11/2005 2758 Tribunals and Inquiries (Bus Lane Adjudicators) (England) 22 11/10/2005 01/11/2005 2757 Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 22 23/02/2005 16/03/2005 354 Airport Byelaws (Designation) Order 22 16/08/2005 06/09/2005 2286 Merchant Shipping (Bridge Visibility) (Small Passenger Ships) Regulations 22 01/07/2005 22/07/2005 1732 Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) Regulations 22 11/10/2005 01/11/2005 2756 Bus Lanes (Approved Devices) (England) Order 22 11/10/2005 01/11/2005 2755 Bus Lane Contraventions (Approved Local Authorities) (England) Order 22 14/07/2005 04/08/2005 1916 Merchant Shipping (Prevention of Oil Pollution) (Amendment) Regulations 22 14/03/2005 04/04/2005 639 Road Transport (Working Time) Regulations 17 18/11/2005 04/12/2005 3190 Disability Discrimination (Transport Vehicles) Regulations Total SIs for Dept for Transport % 110
Department for Work and Pensions
Elapsed Days Laying Date Date in Force SI No SI Title 287 24/06/2005 06/04/2006 1643 Control of Noise at Work Regulations 186 03/10/2005 06/04/2006 2677 Social Security (Deferral of Retirement Pensions, Shared Additional Pension and Graduated Retirement Benefit) (Miscellaneous Provisions) Regulations 169 24/10/2005 10/04/2006 2904 Housing Benefit and Council Tax Benefit (General) Amendment Regulations 141 17/11/2005 06/04/2006 3117 OVshore Installations (Safety Case) Regulations 2005 120 12/12/2005 10/04/2006 3360 Social Security (Hospital In-Patients) Regulations 106 17/01/2005 02/05/2005 34 Social Security (Claims and Payments and Payments on account, Overpayments and Recovery) Amendment Regulations 91 07/04/2005 06/07/2005 1093 Control of Vibration at Work Regulations 85 07/04/2005 30/06/2005 1088 Control of Major Accident Hazards (Amendment) Regulations 63 04/10/2005 05/12/2005 2703 Disability Discrimination (Questions and Replies) Order 56 10/02/2005 06/04/2005 217 Social Security Pensions (Low Earnings Threshold) Order 3247872021 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
52 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 56 10/02/2005 06/04/2005 216 Social Security Revaluation of Earnings Factors Order 54 08/12/2005 30/01/2006 3321 Social Security (Electronic Communications) (Miscellaneous Benefits) Order 52 14/02/2005 06/04/2005 228 Anthrax Prevention Order 1971 etc (Revocation) Regulations 47 20/10/2005 05/12/2005 2877 Civil Partnership (Pensions, Social Security and Child Support) (Consequential, etc Provisions) Order 47 20/10/2005 05/12/2005 2878 Social Security (Civil Partnership) (Consequential Amendments) Regulations 46 17/11/2005 01/01/2006 3156 Occupational Pensions (Revaluation) Order 46 15/02/2005 01/04/2005 273 Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) Regulations 43 24/10/2005 05/12/2005 2901 Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations 42 25/10/2005 05/12/2005 2966 Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 40 22/09/2005 31/10/2005 2571 Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations 36 26/09/2005 31/10/2005 2604 Social Security (Incapacity Benefit Work-focused Interviews) Amendment (No 2) Regulations 35 25/10/2005 28/11/2005 2906 Protected Rights (Transfer Payment) (Amendment) 35 29/07/2005 01/09/2005 2052 Discretionary Housing Payments (Grants) Amendment Order 32 01/07/2005 01/08/2005 1719 Housing Benefit (General) (Amendment) Regulations 29 18/02/2005 18/03/2005 337 Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations 29 09/03/2005 06/04/2005 449 Pension Protection Fund (Hybrid Schemes) (Modification) Regulations 29 22/12/2005 19/01/2006 3476 Social Security (Payments on account, Overpayments and Recovery) Amendment Regulations 28 10/03/2005 06/04/2005 455 Social Security (Claims and Payments) Amendment 28 10/03/2005 06/04/2005 454 Social Security (Graduated Retirement Benefit) Regulations 28 10/03/2005 06/04/2005 469 Social Security (Retirement Pensions etc) (Transitional Provisions) Regulations 28 10/03/2005 06/04/2005 650 Pension Protection Fund (Maladministration) Regulations 28 10/03/2005 06/04/2005 453 Social Security (Deferral of Retirement Pensions etc) 28 14/02/2005 13/03/2005 236 Rent OYcers (Housing Benefit Functions) (Local Housing Allowance) Amendment Order 28 08/11/2005 05/12/2005 3070 Vaccine Damage Payments (Amendment) Regulations 28 08/11/2005 05/12/2005 3061 Social Fund Maternity and Funeral Expenses (General) Regulations 28 14/02/2005 13/03/2005 238 Housing Benefit (General) (Local Housing Allowance) Amendment Regulations 27 12/01/2005 07/02/2005 3 Social Security (Incapacity Benefit Work-focused Interviews) Amendment Regulations 27 22/11/2005 18/12/2005 3205 State Pension Credit (Amendment) Regulations 3247872022 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 53
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 27 09/11/2005 05/12/2005 3078 Social Security (Retirement Pensions and Graduated Retirement Benefit) (Widowers and Civil Partnership) 27 18/03/2005 13/04/2005 633 Social Security (Industrial Injuries) (Dependency) (Permitted Earnings Limits) Order 26 05/07/2005 30/07/2005 1744 Employment Zones (Amendment) Regulations 26 07/10/2005 01/11/2005 2724 Social Fund Cold Weather Payments (General) Amendment Regulations 25 30/09/2005 24/10/2005 2687 Social Security (Care Homes and Independent Hospitals) Regulations 25 09/09/2005 03/10/2005 2465 Social Security (Miscellaneous Amendment) (No 2) 25 18/02/2005 14/03/2005 324 Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 25 06/12/2005 30/12/2005 3294 Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No 5) Regulations 25 07/04/2005 01/05/2005 1121 Disability Discrimination (Providers of Services) (Adjustment of Premises) (Amendment) Regulations 25 10/03/2005 03/04/2005 573 Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No 2) Regulations 25 27/05/2005 20/06/2005 1440 Pension Protection Fund (Pension Protection Levies Consultation) Regulations 25 08/07/2005 01/08/2005 1807 Social Security (Students and Income-related Benefits) Amendment Regulations 25 18/03/2005 11/04/2005 632 Social Security Benefits Up-rating Regulations 24 25/02/2005 20/03/2005 369 Income-related Benefits (Subsidy to Authorities) Amendment Order 24 14/03/2005 06/04/2005 577 Stakeholder Pension Schemes (Amendment) Regulations 24 08/09/2005 01/10/2005 2446 Social Security (Incapacity) (Miscellaneous Amendments) Regulations 24 14/03/2005 06/04/2005 555 Contracting-out, Protected Rights and Safeguarded Rights (Transfer Payment) Amendment Regulations 24 09/08/2005 01/09/2005 2154 Social Security (Claims and Payments) Amendment (No 3) Regulations 24 08/09/2005 01/10/2005 2451 Biocidal Products (Amendment) Regulations 23 10/03/2005 01/04/2005 590 Pension Protection Fund (Entry Rules) Regulations 23 10/03/2005 01/04/2005 535 Income-related Benefits (Subsidy to Authorities) Amendment (No 2) Order 23 10/03/2005 01/04/2005 597 Register of Occupational and Personal Pension Schemes Regulations 23 09/09/2005 01/10/2005 2466 Genetically Modified Organisms (Contained Use) (Amendment) Regulations 23 15/03/2005 06/04/2005 616 Pension Protection Fund (Appointment of Ordinary Members) Regulations 23 10/08/2005 01/09/2005 2184 Occupational Pension Schemes (Fraud Compensation Payments and Miscellaneous Amendments) Regulations 23 22/03/2005 13/04/2005 832 Workmen’s Compensation (Supplementation) (Amendment) Scheme 23 15/03/2005 06/04/2005 686 Pensions Regulator (Freezing Orders and Consequential Amendments) Regulations 23 10/03/2005 01/04/2005 626 Occupational and Personal Pension Schemes (General Levy) Regulations 22 16/03/2005 06/04/2005 735 Work at Height Regulations 3247872023 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
54 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 16/03/2005 06/04/2005 704 Personal and Occupational Pension Schemes (Indexation and Disclosure of Information) (Miscellaneous Amendments) Regulations 22 16/06/2005 07/07/2005 1610 Pension Protection Fund (Payments to meet Investment Costs) Regulations 22 20/07/2005 10/08/2005 1923 Occupational Pension Schemes (Equal Treatment) (Amendment) Regulations 22 21/03/2005 11/04/2005 703 Occupational Pension Schemes (Independent Trustee) 22 01/04/2005 22/04/2005 928 Export and Import of Dangerous Chemicals Regulations 22 10/10/2005 31/10/2005 2727 Social Security (Work-focused Interviews) Amendment Regulations 22 14/11/2005 05/12/2005 3164 Occupational and Personal Pension Schemes (Civil Partnership) (Miscellaneous Amendments) Regulations 22 16/03/2005 06/04/2005 676 Health and Safety (Fees) Regulations 22 20/10/2005 10/11/2005 2893 Pension Protection Fund (Insolvent Partnerships) (Amendment of Insolvency Events) Order 22 16/03/2005 06/04/2005 674 Pension Protection Fund (Provision of Information) 22 16/03/2005 06/04/2005 729 Statutory Maternity Pay (General) (Amendment) Regulations 22 01/09/2005 22/09/2005 2426 Occupational Pension Schemes (Administration and Audited Accounts) (Amendment) Regulations 22 16/03/2005 06/04/2005 675 Pension Protection Fund (Statement of Investment Principles) Regulations 22 21/03/2005 11/04/2005 777 Social Security (Claims and Payments) Amendment (No 2) Regulations 22 16/03/2005 06/04/2005 678 Occupational Pension Schemes (Employer Debt) Regulations 22 12/09/2005 03/10/2005 2502 Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No 3) Regulations 22 06/04/2005 27/04/2005 992 Occupational and Personal Pension Schemes (Pension Liberation) Regulations 22 09/12/2005 30/12/2005 3378 Occupational Pension Schemes (Investment) Regulations 22 11/10/2005 01/11/2005 2743 Pensions Ombudsman (Disclosure of Information) (Amendment of Specified Persons) Order 22 09/12/2005 30/12/2005 3377 Occupational Pension Schemes (Scheme Funding) 22 16/03/2005 06/04/2005 672 Pension Protection Fund (Valuation) Regulations 22 16/02/2005 09/03/2005 339 Pension Protection Fund (Limit on Borrowing) Order 22 09/12/2005 30/12/2005 3381 Occupational Pension Schemes (Cross-border Activities) Regulations 22 09/12/2005 30/12/2005 3380 Occupational Pension Schemes (Regulatory Own Funds) Regulations 22 01/09/2005 22/09/2005 2401 Pension Schemes (Categories) Regulations 22 18/08/2005 08/09/2005 2294 Social Security (Tax Credits) Amendment Regulations 22 01/09/2005 22/09/2005 2360 Occupational Pension Schemes (Trust and Retirement Benefits Exemption) Regulations 22 03/08/2005 24/08/2005 2153 Pension Protection Fund (Entry Rules) Amendment 22 10/08/2005 31/08/2005 2159 Occupational Pension Schemes (Winding Up) (Modification for Multi-employer Schemes and Miscellaneous Amendments) Regulations 3247872024 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 55
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 11/08/2005 01/09/2005 2188 Pensions Regulator (Financial Support Directions etc) 22 11/08/2005 01/09/2005 2189 Financial Assistance Scheme (Provision of Information and Administration of Payments) Regulations 22 16/03/2005 06/04/2005 600 Pension Protection Fund (Reviewable Matters) Regulations 22 14/03/2005 04/04/2005 574 Social Security (Miscellaneous Amendments) Regulations 22 12/08/2005 02/09/2005 2224 Occupational Pension Schemes (Employer Debt etc) (Amendment) Regulations 22 09/12/2005 30/12/2005 3379 Occupational Pension Schemes (Internal Controls) 22 19/01/2005 09/02/2005 48 Social Security Pensions (Home Responsibilities) (Amendment) Regulations 22 25/01/2005 15/02/2005 72 Occupational Pension Schemes (Winding Up, Deficiency on Winding Up and Transfer Values) (Amendment) Regulations 22 15/06/2005 06/07/2005 1551 Social Security (Shared Additional Pension) (Miscellaneous Amendments) Regulations 22 16/03/2005 06/04/2005 670 Pension Protection Fund (Compensation) Regulations 22 05/04/2005 26/04/2005 1082 Manufacture and Storage of Explosives Regulations 22 16/03/2005 06/04/2005 669 Pension Protection Fund (Review and Reconsideration of Reviewable Matters) Regulations 22 20/10/2005 10/11/2005 2894 Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No 4) Regulations 22 16/03/2005 06/04/2005 652 Pension Protection Fund (Reviewable Ill Health Pensions) Regulations 22 15/02/2005 08/03/2005 277 Pension Protection Fund (Partially Guaranteed Schemes) (Modification) Regulations 22 16/03/2005 06/04/2005 649 Transfer of Employment (Pension Protection) Regulations 22 31/03/2005 21/04/2005 891 Occupational Pension Schemes (Contracting-out) (Amount Required for Restoring State Scheme Rights) Amendment Regulations 15 23/03/2005 06/04/2005 706 Occupational Pension Schemes (Winding Up etc) Regulations 13 24/03/2005 05/04/2005 846 Social Security (Graduated Retirement Benefit) (Amendment) Regulations 8 30/03/2005 06/04/2005 931 Pensions Regulator (Contribution Notices and Restoration Orders) Regulations 8 02/03/2005 09/03/2005 441 Pension Protection Fund (Multi-employer Schemes) (Modification) Regulations 7 31/03/2005 06/04/2005 900 Pensions Regulator (Notifiable Events) Regulations 2005 7 31/03/2005 06/04/2005 989 Statutory Maternity Pay (General) and Statutory Sick Pay (General) (Amendment) Regulations 4 29/07/2005 01/08/2005 2113 Occupational Pension Schemes (Miscellaneous Amendments) Regulations 4 09/12/2005 12/12/2005 3391 Income-related Benefits (Amendment) (No 2) Regulations 2 31/03/2005 01/04/2005 993 Occupational Pension Schemes and Pension Protection Fund (Amendment) Regulations 3247872025 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
56 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 2 04/08/2005 05/08/2005 2183 Income-related Benefits (Amendment) Regulations Total SIs for Dept for Work and Pensions % 123
Department of Culture,Media and Sport
Elapsed Days Laying Date Date in Force SI No SI Title 119 29/07/2005 24/11/2005 2091 Licensing Act 2003 (Second appointed day) Order 38 23/02/2005 01/04/2005 374 Awards for All (England) Joint Scheme (Authorisation) Order 34 29/11/2005 01/01/2006 3274 Parks for People (England) Joint Scheme (Authorisation) 33 30/06/2005 01/08/2005 1751 Football Spectators (Seating) Order 29 13/10/2005 10/11/2005 2868 Royal Parks (Establishment of Eligibility for Transfer and Termination of Employment) Regulations 28 04/04/2005 01/05/2005 1085 Planning (Listed Buildings and Conservation Areas) (Amendment) (England) Regulations 26 13/01/2005 07/02/2005 43 Licensing Act (Licensing authority’s register) (other information) Regulations 26 13/01/2005 07/02/2005 42 Licensing Act 2003 (Premises licences and club premises certificates) Regulations 26 13/01/2005 07/02/2005 41 Licensing Act 2003 (Personal licences) Regulations 26 13/01/2005 07/02/2005 40 Licensing Act 2003 (Transitional provisions) Order 26 13/01/2005 07/02/2005 44 Licensing Act 2003 (Hearings) Regulations 25 07/09/2005 01/10/2005 2470 Millennium Commission (Reduction in Membership) Order 24 09/03/2005 01/04/2005 566 Gaming Act 1968 (Variation of Fees) (England and Wales) 24 01/11/2005 24/11/2005 3027 Licensing Act 2003 (Amendment of the Gaming Act 1968) (Transfer of Gaming Machine Permits) Order 24 08/06/2005 01/07/2005 1519 Public Lending Right Scheme 1982 (Commencement of Variations) Order 24 09/03/2005 01/04/2005 567 Gaming Act 1968 (Variation of Fees) Order 24 09/03/2005 01/04/2005 568 Lotteries (Gaming Board Fees) Order 24 06/12/2005 29/12/2005 3351 Public Lending Right Scheme 1982 (Commencement of Variation) (No 2) Order 24 30/06/2005 23/07/2005 1748 Safety of Sports Grounds (Designation) Order 24 09/03/2005 01/04/2005 570 Gaming (Bingo) Act 1985 (Fees) Order 24 08/06/2005 01/07/2005 1522 Royal Parks (Regulation of Specified Parks) Order 24 01/11/2005 24/11/2005 3028 Licensing Act 2003 (Amendment of the Lotteries and Amusements Act 1976) (Transfer of Amusements With Prizes 23 02/11/2005 24/11/2005 3048 Licensing Act 2003 (Consequential Amendments) Order 23 10/03/2005 01/04/2005 608 Transformational Grants, Joint Scheme (Authorisation) Order 23 10/03/2005 01/04/2005 606 Communications (Television Licensing) (Amendment) 22 26/08/2005 16/09/2005 2366 Licensing Act 2003 (Personal licence: relevant oVences) (Amendment) Order 22 20/10/2005 10/11/2005 2918 Licensing Act 2003 (Permitted Temporary Activities) (Notices) Regulations 22 10/10/2005 31/10/2005 2776 Gaming Act 1968 (Variation of Monetary Limits) Order 3247872026 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 57
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 10/10/2005 31/10/2005 2775 Gaming Machines (Maximum Prizes) Regulations 19 20/01/2005 07/02/2005 80 Licensing Act 2003 (Transitional conversions fees) Order 19 20/01/2005 07/02/2005 79 Licensing Act 2003 (Fees) Regulations 19 20/01/2005 07/02/2005 78 Licensing Act 2003 (Hearings) (Amendment) Regulations 15 07/02/2005 21/02/2005 220 Foreign Satellite Service Proscription Order 2 22/02/2005 23/02/2005 357 Licensing Act 2003 (Fees) (Amendment) Regulations 2 19/07/2005 20/07/2005 1974 Protection of Wrecks (Designation) (England) Order 1 07/07/2005 07/07/2005 1830 Olympic Lotteries (Declaration that London is to host the 2012 Olympic Games) Order Total SIs for Dept of Culture, Media and Sport % 36
Department of Health
Elapsed Days Laying Date Date in Force SI No SI Title 150 05/08/2005 01/01/2006 2059 Food Hygiene (England) Regulations 116 02/08/2005 25/11/2005 2057 Food Labelling (Amendment) (England) (No 2) Regulations 96 28/09/2005 01/01/2006 2626 OYcial Feed and Food Controls (England) Regulations 93 30/12/2005 01/04/2006 3491 National Health Service (Performers Lists) Amendment Regulations 78 15/07/2005 30/09/2005 1872 Postgraduate Medical Education and Training Board (Fees) Rules Order 59 04/11/2005 01/01/2006 2991 Fishery Products (OYcial Controls Charges) (England) Regulations 59 04/11/2005 01/01/2006 2983 Meat (OYcial Controls Charges) (England) Regulations 58 24/03/2005 20/05/2005 899 Food Labelling (Amendment) (England) Regulations 2005 55 07/04/2005 31/05/2005 1094 Medicines (Advisory Bodies) Regulations 54 09/11/2005 01/01/2006 3068 Bovine Products (Restriction on Placing on the Market) (England) (No 2) Regulations 54 08/08/2005 30/09/2005 2120 General and Specialist Medical Practice (Education, Training and Qualifications) Amendment Order 51 18/08/2005 07/10/2005 2279 Health and Social Care (Community Health and Standards) Act 2003 (Savings) Order 45 28/09/2005 11/11/2005 2630 Tryptophan in Food (England) Regulations 42 21/07/2005 31/08/2005 1920 Honey (Amendment) (England) Regulations 37 27/07/2005 01/09/2005 2028 National Health Service Appointments Commission (Establishment and Constitution) (Amendment) Order 33 30/11/2005 01/01/2006 3251 Contaminants in Food (England) Regulations 32 01/12/2005 01/01/2006 3259 Medicines (Pharmacies) (Applications for Registration and Fees) Amendment Regulations 32 16/12/2005 16/01/2006 3393 East Sussex County Healthcare National Health Service Trust (Transfer of Trust Property) Order 32 01/07/2005 01/08/2005 1710 Medicines (Provision of False or Misleading Information and Miscellaneous Amendments) Regulations 30 26/08/2005 24/09/2005 2359 Food Safety (General Food Hygiene) (Amendment) (England) Regulations 3247872026 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
58 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 30 02/09/2005 01/10/2005 2414 NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) (Establishment and Constitution) Order 30 02/09/2005 01/10/2005 2427 Chelsea and Westminster Healthcare National Health Service Trust (Transfer of Trust Property) Order 30 02/09/2005 01/10/2005 2415 NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) Regulations 29 09/12/2005 06/01/2006 3324 Medicines for Human Use (Prescribing) (Miscellaneous Amendments) (No 2) Order 29 07/06/2005 05/07/2005 1501 National Health Service (Pharmaceutical Services) (Amendment No 2) Regulations 29 17/06/2005 15/07/2005 1622 Health and Social Care (Community Health and Standards) Act 2003 (Public Health Laboratory Service Board) (Consequential Provisions) Order 29 23/11/2005 21/12/2005 3206 West SuVolk Hospitals National Health Service Trust (Transfer of Trust Property) Order 29 10/10/2005 07/11/2005 2719 Bovine Products (Restriction on Placing on the Market) (England) Regulations 29 09/12/2005 06/01/2006 3315 National Health Service (Primary Medical Services) (Miscellaneous Amendments) (No 2) Regulations 29 02/09/2005 30/09/2005 2361 General and Specialist Medical Practice (Education, Training and Qualifications) Transitional Provisions Order 29 04/07/2005 01/08/2005 1781 NHSU Abolition Order 29 03/06/2005 01/07/2005 1447 NHS Institute for Innovation and Improvement Regulations 29 03/06/2005 01/07/2005 1446 NHS Institute for Innovation and Improvement (Establishment and Constitution) Order 29 03/06/2005 01/07/2005 1445 National Health Service Litigation Authority (Establishment and Constitution) Amendment (No 2) Order 29 25/10/2005 22/11/2005 2909 Medical Devices (Amendment) Regulations 28 05/12/2005 01/01/2006 3280 Feed (Hygiene and Enforcement) (England) Regulations 28 05/12/2005 01/01/2006 3281 Feeding StuVs (England) Regulations 28 28/10/2005 24/11/2005 2969 Food Labelling (Amendment) (England) (No 2) (Amendment) Regulations 28 08/11/2005 05/12/2005 3074 National Health Service (Pension Scheme, Injury Benefits, Additional Voluntary Contributions and Compensation for Premature Retirement) (Civil Partnership) Amendment 26 10/03/2005 04/04/2005 556 TSE (England) (Amendment) Regulations 26 10/03/2005 04/04/2005 557 Feeding StuVs (Establishments and Intermediaries) (Amendment) (England) Regulations 26 07/04/2005 02/05/2005 1100 National Health Service (Standing Advisory Committees) Amendment Order 26 24/03/2005 18/04/2005 896 General Medical Council (Legal Assessors) (Amendment) 25 18/03/2005 11/04/2005 708 National Assistance (Sums for Personal Requirements and Assessment of Resources) (Amendment) (England) Regulations 2005 25 07/03/2005 31/03/2005 398 Cambridge University Hospitals National Health Service Foundation Trust (Transfer of Trust Property) Order 3247872027 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 59
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 25 07/04/2005 01/05/2005 1124 Medicines for Human Use (Fees Amendments) Regulations 25 07/03/2005 31/03/2005 451 West Hertfordshire Hospitals National Health Service Trust (Transfer of Trust Property) Order 24 07/10/2005 30/10/2005 2750 Medicines (Traditional Herbal Medicinal Products for Human Use) Regulations 24 07/06/2005 30/06/2005 1481 Contact Lens (Specification) and Miscellaneous Amendments Regulations 24 09/03/2005 01/04/2005 456 Sunderland Teaching Primary Care Trust (Transfer of Trust Property) Order 24 09/03/2005 01/04/2005 464 Smoke Flavourings (England) Regulations 24 09/12/2005 01/01/2006 3361 National Health Service (General Dental Services Contracts) Regulations 24 07/10/2005 30/10/2005 2759 Medicines (Marketing Authorisations Etc) Amendment Regulations 24 07/10/2005 30/10/2005 2753 Medicines (Homoeopathic Medicinal Products for Human Use) Amendment Regulations 24 09/12/2005 01/01/2006 3373 National Health Service (Personal Dental Services Agreements) Regulations 24 07/10/2005 30/10/2005 2754 Medicines (Advisory Bodies) (No 2) Regulations 24 09/03/2005 01/04/2005 480 National Health Service (General Ophthalmic Services Supplementary List) and (General Ophthalmic Services Amendment and Consequential Amendment) Regulations 24 09/03/2005 01/04/2005 444 Surrey Hampshire Borders National Health Service Trust (Transfer of Trust Property) order 23 17/10/2005 08/11/2005 2898 Blood Safety and Quality (Amendment) (No 2) Regulations 23 12/12/2005 03/01/2006 3362 Feeding StuVs (Application to Zootechnical Additives etc.) (Scotland) Regulations 23 10/03/2005 01/04/2005 578 National Health Service (Charges for Drugs and Appliances) and (Travel Expenses and Remission of Charges) Amendment Regulations 23 10/03/2005 01/04/2005 436 University Hospital of North StaVordshire National Health Service Trust (Transfer of Trust Property) Order 23 10/03/2005 01/04/2005 525 Health Protection Agency Act 2004 (National Radiological Protection Board and Health Protection Agency Special Health Authority (Yr Asiantaeth Diogelu Iechyd)) (Consequential Provisions) Order 23 09/09/2005 01/10/2005 2532 National Blood Authority and United Kingdom Transplant (Abolition) Order 23 09/09/2005 01/10/2005 2531 NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) Regulations 23 10/03/2005 01/04/2005 500 Health and Social Care Information Centre Regulations 23 10/03/2005 01/04/2005 502 Special Health Authorities Abolition Order 23 10/03/2005 01/04/2005 503 National Health Service Litigation Authority (Establishment and Constitution) Amendment Order 23 10/03/2005 01/04/2005 504 National Patient Safety Agency (Establishment and Constitution) Amendment Order 23 10/03/2005 01/04/2005 499 Health and Social Care Information Centre (Establishment and Constitution) Order 3247872028 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
60 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 23 10/03/2005 01/04/2005 519 Colours in Food (Amendment) (England) Regulations 23 09/09/2005 01/10/2005 2529 NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) (Establishment and Constitution) Order 23 10/03/2005 01/04/2005 647 Commission for Healthcare Audit and Inspection (Fees and Frequency of Inspections) (Amendment) Regulations 23 10/03/2005 01/04/2005 641 National Health Service (Pharmaceutical Services) Regulations 23 10/03/2005 01/04/2005 604 National Health Service Liabilities Schemes Amendment Regulations 23 10/01/2005 01/02/2005 6 Retained Organs Commission (Abolition) Order 23 10/03/2005 01/04/2005 575 Commission for Social Care Inspection (Fees and Frequency of Inspections) (Amendment) Regulations 23 10/03/2005 01/04/2005 576 National Health Service (Dental Charges) Amendment 23 10/03/2005 01/04/2005 518 General Medical Services and Personal Medical Services Transitional and Consequential Provisions (Amendment) 23 08/06/2005 30/06/2005 1520 Medicines (Sale or Supply) (Miscellaneous Amendments) Regulations 23 10/03/2005 01/04/2005 497 National Institute for Clinical Excellence (Establishment and Constitution) Amendment Order 23 08/06/2005 30/06/2005 1507 Medicines for Human Use (Prescribing) (Miscellaneous Amendments) Order 23 10/03/2005 01/04/2005 483 National Health Service (Optical Charges and Payments) and (General Ophthalmic Services) Amendment Regulations 23 10/03/2005 01/04/2005 491 Care Standards Act 2000 (Relevant Registers of Social Workers) Regulations 23 10/03/2005 01/04/2005 475 Road TraYc (NHS Charges) Amendment Regulations 23 10/03/2005 01/04/2005 498 National Institute for Clinical Excellence (Amendment) Regulations 22 13/12/2005 03/01/2006 3435 General Dental Services and Personal Dental Services Transitional Provisions Order 22 17/03/2005 07/04/2005 764 Medicines (Sale or Supply) (Miscellaneous Provisions) Amendment Regulations 2005 22 15/03/2005 05/04/2005 661 National Health Service (Pension Scheme and Injury Benefits) Amendment Regulations 22 24/03/2005 14/04/2005 893 National Health Service (Primary Medical Services) (Miscellaneous Amendments) Regulations 22 07/04/2005 28/04/2005 1099 Miscellaneous Food Additives (Amendment) (England) Regulations 22 10/03/2005 31/03/2005 631 Health and Social Care (Community Health and Standards) Act 2003 (Commission for Healthcare Audit and Inspection) (Transitional Provisions) Order 22 07/04/2005 28/04/2005 1096 Carers (Equal Opportunities) Act 2004 (Isles of Scilly) Order 22 11/01/2005 01/02/2005 26 National Health Service (Travel Expenses and Remission of Charges) Amendment Regulations 22 18/01/2005 08/02/2005 50 Blood Safety and Quality Regulations 3247872029 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 61
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 21/03/2005 11/04/2005 775 Contaminants in Food (England) (Amendment) Regulations 22 04/03/2005 25/03/2005 408 Health Protection Agency Regulations 22 17/03/2005 07/04/2005 766 Medicines (Pharmacy and General Sale— Exemption) Amendment Order 2005 22 17/03/2005 07/04/2005 768 Medicines for Human Use (Marketing Authorisations Etc) Amendment Regulations 2005 22 26/10/2005 16/11/2005 2979 Medicines for Human Use (Fees Amendments) (No 2) 22 17/03/2005 07/04/2005 765 Medicines for Human Use (Prescribing) Order 22 23/09/2005 14/10/2005 2603 National Health Service Estate Management and Health Building Agency Trading Fund (Revocation) Order 22 04/02/2005 25/02/2005 209 Poultry Meat, Farmed Game Bird Meat and Rabbit Meat (Hygiene and Inspection) (Amendment) (England) Regulations 22 16/03/2005 06/04/2005 688 Welfare Food (Amendment) Regulations 21 10/10/2005 30/10/2005 2787 Medicines (Advertising Amendments) Regulations 21 10/10/2005 30/10/2005 2788 Medicines (Advisory Bodies) (Terms of OYce of Members) Regulations 21 10/10/2005 30/10/2005 2789 Medicines for Human Use (Manufacturing, Wholesale Dealing and Miscellaneous Amendments) Regulations 11 01/03/2005 11/03/2005 325 Plastic Materials and Articles in Contact with Food (Amendment) (England) Regulations 6 24/03/2005 29/03/2005 898 Materials and Articles in Contact with Food (England) Regulations 2005 4 02/12/2005 05/12/2005 3277 National Assistance (Assessment of Resources) (Amendment) (England) Regulations 4 04/02/2005 07/02/2005 208 Food (Pistachios from Iran) (Emergency Control) (England) (Amendment) Regulations 2 12/01/2005 13/01/2005 28 National Health Service (General Medical Services Contracts) (Personal Medical Services Agreements) and (Pharmaceutical Services) (Amendment) Regulations 2 01/06/2005 02/06/2005 1442 Food (Chilli, Chilli Products, Curcuma and Palm Oil) (Emergency Control) (England) Regulations 2 31/03/2005 01/04/2005 1015 National Health Service (Pharmaceutical Services) Amendment Regulations 2 07/04/2005 08/04/2005 1098 Blood Safety and Quality (Amendment) Regulations Total SIs for Dept of Health Transport % 115
Department of Trade and Industry
Elapsed Days Laying Date Date in Force SI No SI Title 268 07/10/2005 01/07/2006 2748 Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 130 25/05/2005 01/10/2005 1401 Textile Products (Indications of Fibre Content) (Amendment) Regulations 126 02/08/2005 05/12/2005 2114 Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 3247872030 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
62 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 92 05/01/2006 06/04/2006 3558 Enterprise Act 2002 (Merger Fees) (Amendment) Order 88 06/07/2005 01/10/2005 1803 General Product Safety Regulations 85 12/01/2005 06/04/2005 37 Supply of Extended Warranties on Domestic Electrical Goods Order 83 11/07/2005 01/10/2005 1871 Employment Appeal Tribunal (Amendment) Rules 83 11/07/2005 01/10/2005 1865 Employment Tribunals (Constitution and Rules of Procedure) (Amendment) (No 2) Regulations 80 11/02/2005 01/05/2005 280 Gas Act 1986 (Exemption) (No 2) Order 75 23/06/2005 05/09/2005 1654 Nuclear Industries Security (Fees) Regulations 74 20/07/2005 01/10/2005 1989 Limited Liability Partnerships (Amendment) Regulations 74 20/07/2005 01/10/2005 1984 Bank Accounts Directive (Miscellaneous Banks) (Amendment) Regulations 74 20/07/2005 01/10/2005 1985 Insurance Accounts Directive (Miscellaneous Insurance Undertakings) (Amendment) Regulations 74 20/07/2005 01/10/2005 1987 Partnerships and Unlimited Companies (Accounts) (Amendment) Regulations 66 31/01/2005 06/04/2005 148 Unsolicited Goods and Services Act 1971 (Electronic Commerce) (Amendment) Regulations 62 03/02/2005 05/04/2005 435 Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 57 07/12/2005 01/02/2006 3352 The Employment Rights (Increase of Limits) Order 53 08/02/2005 01/04/2005 223 Copyright (Educational Establishments) Order 48 15/08/2005 01/10/2005 2281 Companies (Summary Financial Statement) (Amendment) Regulations 48 07/12/2005 23/01/2006 3347 Competition Act 1998 (Public Transport Ticketing Schemes Block Exemption) (Amendment) Order 48 15/08/2005 01/10/2005 2282 Companies (Revision of Defective Accounts and Report) (Amendment) Regulations 43 21/07/2005 01/09/2005 2001 Dangerous Substances and Preparations (Nickel) (Safety) Regulations 43 23/02/2005 06/04/2005 358 Statutory Maternity Pay (General) and Statutory Paternity Pay and Statutory Adoption Pay (General) (Amendment) 40 23/08/2005 01/10/2005 2340 Enterprise Act 2002 (Bodies Designated to make Super-complaints) (Amendment) Order 40 23/08/2005 01/10/2005 2339 Community Design Regulations 39 24/03/2005 01/05/2005 831 Supply of Machinery (Safety) (Amendment) Regulations 39 24/03/2005 01/05/2005 830 Equipment and Protective Systems Intended for Use in Potentially Explosive Atmospheres (Amendment) 37 26/08/2005 01/10/2005 2365 Specified Body (Consumer Claims) Order 37 09/11/2005 15/12/2005 3103 Monopolies and Restrictive Practices (Dental Goods), (Imported Hardwood and Softwood Timber) and (Estate Agents) (Revocation) Order 37 26/08/2005 01/10/2005 2364 Compromise Agreements (Description of Person) Order 35 28/09/2005 01/11/2005 2670 Restriction On Conduct (Specialist Advertising Services) (Revocation) Order 32 30/12/2005 30/01/2006 3524 Insolvency Practitioners and Insolvency Services Account (Fees) (Amendment) (No 2) Order 32 31/08/2005 01/10/2005 2417 Companies (Disclosure of Auditor Remuneration) Regulations 3247872031 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 63
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 31 31/08/2005 30/09/2005 2418 Enterprise Act 2002 (Part 8 Community Infringements Specified UK Laws) (Amendment) Order 31 01/09/2005 01/10/2005 2420 Employment Code of Practice (Industrial Action Ballots and Notice to Employers) Order 31 01/09/2005 01/10/2005 2421 Employment Code of Practice (Access and Unfair Practices during Recognition and Derecognition Ballots) Order 29 04/03/2005 01/04/2005 440 Community Trade Mark (Designation of Community Trade Mark Courts) Regulations 29 15/12/2005 12/01/2006 3442 Companies Act 1985 (Operating and Financial Review) (Repeal) Regulations 29 02/11/2005 30/11/2005 3041 Electricity (Exemption from the Requirements for a Generation Licence) (Scotland) Order 27 23/02/2005 21/03/2005 355 Restriction on Agreements (Manufacturers and Importers of Motor Cars) (Revocation) Order 26 14/11/2005 09/12/2005 3153 Renewable Energy (Designation of Area) (Scottish Ministers) Order 26 11/08/2005 05/09/2005 2243 Company Auditors (Recognition Orders) (Application Fees) and the Companies Act 1989 (Recognised Supervisory Bodies) (Periodical Fees) (Revocation) Regulations 25 08/03/2005 01/04/2005 488 Electricity (Class Exemption from the Requirement for a Licence) (Amendment) Order 25 07/11/2005 01/12/2005 3098 Films (Exclusivity Agreements) (Revocation) Order 25 08/03/2005 01/04/2005 490 Electricity Act 1989 (Uniform Prices in the North of Scotland) Order 25 11/11/2005 05/12/2005 3135 Civil Partnership Act 2004 (Overseas Relationships) Order 25 07/09/2005 01/10/2005 2467 Employment Equality (Sex Discrimination) Regulations 25 07/09/2005 01/10/2005 2464 Public Interest Disclosure (Prescribed Persons) (Amendment) Order 25 08/03/2005 01/04/2005 523 Insolvency Practitioners and Insolvency Services Account (Fees) (Amendment) Order 25 07/09/2005 01/10/2005 2483 Energy Administration Rules 25 07/12/2005 31/12/2005 3346 Cosmetic Products (Safety) (Amendment) (No 2) Regulations 25 08/03/2005 01/04/2005 524 Insolvency Practitioners Regulations 25 11/11/2005 05/12/2005 3137 Civil Partnership Act 2004 (Relationships Arising Through Civil Partnership) Order 25 08/03/2005 01/04/2005 528 Energy Act 2004 (Assistance for Areas with High Distribution Costs) Order 25 04/03/2005 28/03/2005 443 Trade in Goods (Control) (Amendment) Order 25 04/03/2005 28/03/2005 445 Trade in Controlled Goods (Embargoed Destinations) (Amendment) Order 25 07/10/2005 31/10/2005 2751 Supply of Relevant Veterinary Medicinal Products Order 25 11/02/2005 07/03/2005 281 Electromagnetic Compatibility Regulations 25 08/03/2005 01/04/2005 527 Insolvency (Amendment) Rules 25 08/03/2005 01/04/2005 544 Insolvency Proceedings (Fees) (Amendment) Order 25 08/03/2005 01/04/2005 512 Insolvency (Amendment) Regulations 25 04/03/2005 28/03/2005 468 Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) (Amendment) Order 3247872031 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
64 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 24 30/03/2005 22/04/2005 917 Enterprise Act 2002 (Part 8) (Designation of the Consumers’ Association) Order 24 03/10/2005 26/10/2005 2718 OYce of Communications (Membership) Order 24 08/09/2005 01/10/2005 2496 Patents (Amendment) Rules 24 08/06/2005 01/07/2005 1516 Insolvent Partnerships Amendment Order 23 09/02/2005 03/03/2005 263 End-of-Life Vehicles (Producer Responsibility) Regulations 23 18/01/2005 09/02/2005 53 Enterprise Act 2002 (Judicial Pensions and Retirement Act 1993) (Consequential Amendment) Order 23 22/06/2005 14/07/2005 1646 Electricity and Gas Appeals (Designation and Exclusion) 23 06/07/2005 28/07/2005 1815 Cosmetic Products (Safety) (Amendment) Regulations 23 29/09/2005 21/10/2005 2705 Consumer Protection (Code of Practice for Traders on Price Indications) Approval Order 22 16/03/2005 06/04/2005 699 Companies (Defective Accounts) (Authorised Person) Order 22 16/03/2005 06/04/2005 692 Reporting Standards (Specified Body) Order 22 16/03/2005 06/04/2005 684 Companies Act 1985 (Power to Enter and Remain on Premises: Procedural) Regulations 22 16/03/2005 06/04/2005 696 Community Designs (Designation of Community Design Courts) Regulations 22 16/03/2005 06/04/2005 713 Certification OYcer (Amendment of Fees) Regulations 2005 22 16/03/2005 06/04/2005 689 Consumer Protection (Distance Selling) (Amendment) 22 16/03/2005 06/04/2005 715 Supervision of Accounts and Reports (Prescribed Body) Order 2005 22 11/08/2005 01/09/2005 2242 Electricity (Exemption from the Requirement for a Generation Licence) (England and Wales) Order 22 11/01/2005 01/02/2005 16 Gas Act 1986 (Exemption) Order 22 15/08/2005 05/09/2005 2280 Companies Act 1985 (Investment Companies and Accounting and Audit Amendments) Regulations 22 16/03/2005 06/04/2005 687 Patents (Translations) Rules 22 23/03/2005 13/04/2005 879 Insolvency Act 1986 (Amendment) Regulations 22 25/02/2005 18/03/2005 391 Electricity (Fuel Mix Disclosure) Regulations 5 30/12/2005 03/01/2006 3525 Noise Emission in the Environment by Equipment for Use Outdoors (Amendment) Regulations 2 25/11/2005 26/11/2005 3257 Export Control (Uzbekistan) Order 1 09/02/2005 09/02/2005 232 Export Control (Iraq and Ivory Coast) Order 1 27/06/2005 27/06/2005 1677 Export Control (Democratic Republic of Congo) Order Total SIs for Dept of Trade and Industry % 88
General Synod Office
Elapsed Days Laying Date Date in Force SI No SI Title 160 26/07/2005 01/01/2006 2016 Parochial Fees Order 160 26/07/2005 01/01/2006 2018 Legal OYcers (Annual Fees) (No 2) Order 160 26/07/2005 01/01/2006 2020 Ecclesiastical Judges, Legal OYcers and Others (Fees) Order 137 16/11/2005 01/04/2006 3202 Payments to the Churches Conservation Trust Order 3247872032 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 65
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title -47 18/02/2005 01/01/2005 336 Legal OYcers (Annual Fees) Order 26/07/2005 2022 Clergy Discipline Rules 21/11/2005 3201 Clergy Discipline Appeal Rules Total SIs for General Synod OYce % 7
HM Customs and Excise
Elapsed Days Laying Date Date in Force SI No SI Title 17 16/03/2005 01/04/2005 762 Value Added Tax (Amendment) Regulations 2005 17 16/03/2005 01/04/2005 759 Landfill Tax (Amendment) Regulations 2005 Total SIs for HM Customs and Excise % 2
HM Revenue &Customs
Elapsed Days Laying Date Date in Force SI No SI Title 186 03/10/2005 06/04/2006 2691 Income Tax (Pay as You Earn) (Amendment) Regulations 113 15/12/2005 06/04/2006 3448 Registered Pension Schemes (Relief at Source) Regulations 113 15/12/2005 06/04/2006 3449 Registered Pension Schemes (Prescribed Interest Rates for Authorised Employer Loans) Regulations 113 15/12/2005 06/04/2006 3458 Registered Pension Schemes (Restriction of Employers’ Relief) Regulations 113 15/12/2005 06/04/2006 3450 Registered Pension Schemes (Minimum Contributions) Regulations 113 15/12/2005 06/04/2006 3453 Employer-Financed Retirement Benefits Schemes (Provision of Information) Regulations 113 15/12/2005 06/04/2006 3451 Registered Pension Schemes (Prescribed Schemes and Occupations) Regulations 113 15/12/2005 06/04/2006 3454 Registered Pension Schemes (Accounting and Assessment) Regulations 113 15/12/2005 06/04/2006 3455 Registered Pension Schemes and Employer- Financed Retirement Benefits Schemes (Information) (Prescribed Descriptions of Persons) Regulations 113 15/12/2005 06/04/2006 3452 Registered Pension Schemes (Discharge of Liabilities under Sections 267 and 268 of the Finance Act 2004) Regulations 113 15/12/2005 06/04/2006 3456 Registered Pension Schemes (Audited Accounts) (Specified Persons) Regulations 113 15/12/2005 06/04/2006 3457 Taxes Management Act 1970 (Modifications to Schedule 3 for Pension Scheme Appeals) Order 94 30/06/2005 01/10/2005 1727 Gaming Duty (Amendment) Regulations 44 20/07/2005 01/09/2005 1979 Excise Duties (Road Fuel Gas) (Reliefs) Regulations 33 30/11/2005 01/01/2006 3290 Value Added Tax (Input Tax) (Reimbursement by Employers of Employees’ Business Use of Road Fuel) Regulations 28 05/12/2005 01/01/2006 3320 Hydrocarbon Oil Duties (Reliefs for Electricity Generation) Regulations 26 06/06/2005 01/07/2005 1449 Tonnage Tax (Further Opportunity for Election) Order 26 07/12/2005 01/01/2006 3371 Statistics of Trade (Customs and Excise) (Amendment) Regulations 3247872033 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
66 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 26 16/12/2005 10/01/2006 3472 Hydrocarbon Oil (Registered Remote Markers) Regulations 24 08/06/2005 01/07/2005 1524 Denatured Alcohol Regulations 23 10/08/2005 01/09/2005 2231 Value Added Tax (Amendment) (No 2) Regulations 22 19/12/2005 09/01/2006 3474 Income Tax (Building Societies) (Dividends and Interest) (Amendment) Regulations 22 06/12/2005 27/12/2005 3338 Lloyd’s Underwriters (Tax) Regulations 22 13/07/2005 03/08/2005 1907 Pension Protection Fund (Tax) (2005–06) Regulations 22 05/09/2005 26/09/2005 2462 Taxes (Interest Rate) (Amendment) Regulations 22 11/07/2005 01/08/2005 1869 Tax Avoidance Schemes (Information) (Amendment) 22 14/12/2005 04/01/2006 3441 Inheritance Tax (Double Charges Relief) Regulations 22 11/10/2005 01/11/2005 2790 Donations to charity by individuals (Appropriate Declarations) (Amendment) Regulations 22 08/08/2005 29/08/2005 2200 Tax Credit (Payment by Employers, etc) (Amendment) Regulations 22 01/07/2005 22/07/2005 1716 Climate Change Levy (Miscellaneous Amendments) 22 11/07/2005 01/08/2005 1868 Stamp Duty Land Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 11 22/07/2005 01/08/2005 2009 Value Added Tax (Disclosure of Avoidance Schemes) (Amendment) Regulations 25/07/2005 2045 Income Tax (Construction Industry Scheme) Regulations Total SIs for HM Revenue & Customs % 33
HM Treasury
Elapsed Days Laying Date Date in Force SI No SI Title 242 08/08/2005 06/04/2006 2209 Income Tax (Car Benefits) (Reduction of Value of Appropriate Percentage) (Amendment) Regulations 139 20/07/2005 05/12/2005 1997 Registration of Births, Deaths and Marriages (Fees) (Amendment) Order 139 20/07/2005 05/12/2005 1996 Registration of Civil Partnerships (Fees) Order 128 24/02/2005 01/07/2005 382 Investment Recommendation (Media) Regulations 116 08/06/2005 01/10/2005 1518 Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 105 17/11/2005 01/03/2006 3203 Cash Ratio Deposits (Eligible Liabilities) (Amendment) 103 21/06/2005 01/10/2005 1644 Financial Services and Markets Act 2000 (Administration Orders Relating to Insurers) (Northern Ireland) Order 65 01/02/2005 06/04/2005 166 Social Security (Contributions) (Amendment) Regulations 56 10/02/2005 06/04/2005 272 Financial Services and Markets Act 2000 (Disclosure of Information by Prescribed Persons) (Amendment) Regulations 56 10/02/2005 06/04/2005 274 Financial Services and Markets Act 2000 (Service of Notices) (Amendment) Regulations 55 08/08/2005 01/10/2005 2211 Friendly Societies Act 1992 (International Accounting Standards and Other Accounting Amendments) Order 3247872034 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 67
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 55 08/08/2005 01/10/2005 2210 Friendly Societies (Accounts and Related Provisions) (Amendment) Regulations 47 20/10/2005 05/12/2005 2919 Civil Partnership Act 2004 (Tax Credits, etc.) (Consequential Amendments) Order 47 16/03/2005 01/05/2005 722 Value Added Tax (Consideration for Fuel Provided for Private Use) Order 44 20/07/2005 01/09/2005 1978 Excise Duties (Surcharges or Rebates) (Hydrocarbon Oils etc.) Order 36 27/05/2005 01/07/2005 1433 Prospectus Regulations 33 30/11/2005 01/01/2006 3291 Value Added Tax (Input Tax) (Person Supplied) Order 33 01/09/2005 03/10/2005 2422 Social Security (Contributions) (Amendment No 5) 28 05/12/2005 01/01/2006 3329 Value Added Tax (Reduced Rate) (No 2) Order 28 10/03/2005 06/04/2005 594 Financial Services and Markets Act 2000 (Stakeholder Products) (Amendment) Regulations 28 10/03/2005 06/04/2005 609 Individual Savings Account (Amendment) Regulations 28 10/03/2005 06/04/2005 593 Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 27 02/12/2005 28/12/2005 3311 Revenue and Customs (Complaints and Misconduct) 25 11/11/2005 05/12/2005 3130 Social Security (Contributions) (Amendment No 6) 25 15/03/2005 08/04/2005 698 Pensions Increase (Civil Service Injury Benefits Scheme) Regulations 25 11/11/2005 05/12/2005 3132 Social Security Contributions (Intermediaries) (Northern Ireland) (Amendment) Regulations 25 11/11/2005 05/12/2005 3133 Social Security (Categorisation of Earners) (Amendment) Regulations 25 11/11/2005 05/12/2005 3134 Social Security (Categorisation of Earners) (Amendment) (Northern Ireland) Regulations 25 11/11/2005 05/12/2005 3131 Social Security Contributions (Intermediaries) (Amendment) Regulations 24 08/12/2005 31/12/2005 3376 Research and Development Tax Relief (Definition of “Small or Medium-Sized Enterprise” ) Order 24 08/12/2005 31/12/2005 3375 Overseas Life Insurance Companies (Amendment) Regulations 24 14/03/2005 06/04/2005 680 Financial Services and Markets Act 2000 (Variation of Threshold Conditions) (Amendment) Order 23 10/03/2005 01/04/2005 645 Finance Act 2003, Section 66 (Prescribed Transactions) Order 23 10/03/2005 01/04/2005 592 Financial Services and Markets Act 2000 (Exemption) (Amendment) Order 23 21/07/2005 12/08/2005 2014 Friendly Societies (Modification of the Corporation Tax Acts) Regulations 23 09/06/2005 01/07/2005 1529 Financial Services and Markets Act 2000 (Financial Promotion) Order 23 10/03/2005 01/04/2005 644 Energy Act 2004 (Nuclear Decommissioning) (Exempt Activities and Further Conditions) Regulations 23 16/03/2005 07/04/2005 726 Value Added Tax (Reduced Rate) Order 23 25/10/2005 16/11/2005 2967 Financial Services and Markets Act 2000 (Consequential Amendments) Order 23 09/06/2005 01/07/2005 1532 Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) (Amendment) 3247872035 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
68 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 06/12/2005 27/12/2005 3350 Individual Savings Account (Amendment No 3) Regulations 22 18/01/2005 08/02/2005 57 Financial Services and Markets Act 2000 (Collective Investment Schemes) (Amendment) Order 22 02/03/2005 23/03/2005 425 Crime (International Co-operation) Act 2003 (Exercise of Functions) Order 22 12/12/2005 02/01/2006 3422 Loan Relationship and Derivative Contracts (Exchange Gains and Losses using Fair Value Accounting) Regulations 22 30/11/2005 21/12/2005 3289 General Insurance Reserves (Tax) (Amendment) Regulations 22 08/12/2005 29/12/2005 3383 Loan Relationships and Derivative Contracts (Change of Accounting Practice) (Amendment) Regulations 22 06/12/2005 27/12/2005 3348 Personal Equity Plan (Amendment No 2) Regulations 22 21/01/2005 11/02/2005 83 Finance Act 2003, Section 66 (Prescribed Persons) Order 22 24/02/2005 17/03/2005 381 Financial Services and Markets Act 2000 (Market Abuse) Regulations 22 04/02/2005 25/02/2005 191 Child Trust Funds (Non-tax Appeals) Regulations 22 08/12/2005 29/12/2005 3374 Loan Relationships and Derivative Contracts (Disregard and Bringing into Account of Profits and Losses) (Amendment No 2) Regulations 22 01/03/2005 22/03/2005 409 Finance Act 1993, Section 86(2), (Single Payment Scheme) 22 16/12/2005 06/01/2006 3465 Insurance Companies (Corporation Tax Acts) (Amendment) 22 07/03/2005 28/03/2005 486 Whole of Government Accounts (Designation of Bodies) Order 22 21/01/2005 11/02/2005 82 Stamp Duty Land Tax (Consequential Amendment of Enactments) Regulations 22 10/02/2005 03/03/2005 270 Financial Services and Markets Act 2000 (Financial Promotion and Promotion of Collective Investment Schemes) (Miscellaneous Amendments) Order 22 06/12/2005 27/12/2005 3349 Child Trust Funds (Amendment No 3) Regulations 22 16/03/2005 06/04/2005 725 Landfill Tax (Site Restoration, Quarries and Pet Cemeteries) 22 01/09/2005 22/09/2005 2424 Capital Allowances (Energy-saving Plant and Machinery) (Amendment) Order 22 08/04/2005 29/04/2005 1133 Revenue and Customs (Inspections) Regulations 22 28/06/2005 19/07/2005 1709 Recovery of Duties and Taxes Etc Due in Other Member States (Corresponding UK Claims, Procedure and Supplementary) (Amendment) Regulations 22 14/11/2005 05/12/2005 3168 Marriages and Civil Partnerships (Approved Premises) 22 06/06/2005 27/06/2005 1479 Recovery of Taxes etc Due in Other Member States (Amendment of Section 134 of the Finance Act 2002) 22 08/06/2005 29/06/2005 1525 Terrorism (United Nations Measures) Order 2001 (Amendment) Regulations 22 14/11/2005 05/12/2005 3167 Registration of Civil Partnerships (Fees) (No 2) Order 22 08/06/2005 29/06/2005 1526 Burma (Financial Sanctions) Regulations 3247872035 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 69
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 16/06/2005 07/07/2005 1634 Stamp Duty (Consequential Amendment of Enactments) (Northern Ireland) Regulations 22 01/09/2005 22/09/2005 2423 Capital Allowances (Environmentally Beneficial Plant and Machinery) (Amendment) Order 22 16/03/2005 06/04/2005 724 Charge to Income Tax by Reference to Enjoyment of Property Previously Owned Regulations 2005 22 15/09/2005 06/10/2005 2561 Individual Savings Account (Amendment No 2) Regulations 22 16/03/2005 06/04/2005 728 Social Security (Contributions) (Amendment No 2) 22 08/06/2005 29/06/2005 1527 International Criminal Tribunal for the Former Yugoslavia (Financial Sanctions Against Indictees) Regulations 22 15/09/2005 06/10/2005 2562 Personal Equity Plan (Amendment) Regulations 22 18/10/2005 08/11/2005 2899 Exemption From Income Tax For Certain Interest and Royalty Payments (Amendment to Section 97(1) of the Finance Act 2004 and Section 757(2) of the Income Tax (Trading and Other Income) Act 2005) Order 22 18/03/2005 08/04/2005 828 Tax Credits Notification of Changes of Circumstances (Civil Partnership) (Transitional Provisions) Order 22 21/03/2005 11/04/2005 858 Pensions Increase (Review) Order 22 04/11/2005 25/11/2005 3071 Financial Services and Markets Act 2000 (Disclosure of Confidential Information) (Amendment) Regulations 22 23/03/2005 13/04/2005 889 Corporation Tax (Instalment Payments) (Amendment) 22 10/06/2005 01/07/2005 1538 Lloyd’s Sourcebook (Amendment of the Finance Act 1993 and the Finance Act 1994) Order 22 21/07/2005 11/08/2005 2013 Exchange Gains and Losses (Bringing into Account Gains or Losses) (Amendment) Regulations 22 16/03/2005 06/04/2005 723 Retirement Benefits Schemes (Increase in Permitted Maximum in Transitional Cases) Order 22 20/07/2005 10/08/2005 1993 Value Added Tax (Refund of Tax to Museums and Galleries) (Amendment) Order 22 20/07/2005 10/08/2005 1998 Insurers (Reorganisation and Winding Up) (Lloyd’s) 22 21/07/2005 11/08/2005 1990 Stamp Duty and Stamp Duty Reserve Tax (Extension of Exceptions relating to Recognised Exchanges) Regulations 22 21/07/2005 11/08/2005 2005 Friendly Societies (Modification of the Corporation Tax Acts) (Amendment) Regulations 22 21/07/2005 11/08/2005 2012 Loan Relationships and Derivative Contracts (Disregard and Bringing into Account of Profits and Losses) (Amendment) Regulations 21 17/03/2005 06/04/2005 770 Section 318C Income Tax (Earnings and Pensions) Act 2003 (Amendment) Regulations 21 17/03/2005 06/04/2005 769 Working Tax Credit (Entitlement and Maximum Rate) (Amendment) Regulations 21 17/03/2005 06/04/2005 778 Social Security (Contributions) (Amendment No 3) 18 14/12/2005 31/12/2005 3440 Finance Act 2002, Schedule 26 (Parts 2 and 9) (Amendment No 3) Order 17 16/03/2005 01/04/2005 727 Value Added Tax (Increase of Registration Limits) Order 2005 14 24/03/2005 06/04/2005 915 Social Security (Contributions) (Re-rating) Consequential Amendment Regulations 3247872036 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
70 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 14 08/12/2005 21/12/2005 3392 Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 14 24/03/2005 06/04/2005 909 Child Trust Funds (Amendment No 2) Regulations 9 06/01/2005 14/01/2005 1 Financial Services and Markets Act 2000 (Gibraltar) (Amendment) Order 2 06/04/2005 07/04/2005 1114 Energy-Saving Items Regulations 2 27/07/2005 28/07/2005 2082 Finance Act 2002, Schedule 26, Parts 2 and 9 (Amendment No 2) Order 2 05/12/2005 06/12/2005 3328 Value Added Tax (Betting, Gaming and Lotteries) Order 2 05/12/2005 06/12/2005 3330 Excise Duties (Surcharges or Rebates) (Hydrocarbon Oils etc) (Amendment) Order 1 16/03/2005 16/03/2005 646 Finance Act 2002, Schedule 26, Parts 2 and 9 (Amendment) Order 2005 10/06/2005 1539 Reporting of Savings Income Information (Amendment) Regulations Total SIs for HM Treasury % 101
Home Office
Elapsed Days Laying Date Date in Force SI No SI Title 62 09/02/2005 11/04/2005 248 Private Security Industry Act 2001 (Repeal and Revocation) 33 01/09/2005 03/10/2005 2412 Immigration (Eligibility for Assistance) (Scotland and Northern Ireland) (Revocation) Regulations 32 14/01/2005 14/02/2005 46 Extradition Act 2003 (Parties to International Conventions) 32 11/02/2005 14/03/2005 271 Misuse of Drugs (Amendment) Regulations 31 01/09/2005 01/10/2005 2400 Accession (Immigration and Worker Registration) (Amendment) Regulations 30 24/02/2005 25/03/2005 347 Police Act 1997 (Criminal Records) (Amendment) 29 04/03/2005 01/04/2005 386 Proceeds of Crime Act 2002 (References to Financial Investigators) (Amendment) Order 28 16/08/2005 12/09/2005 2251 Private Security Industry Act 2001 (Designated Activities) (No 3) Order 27 07/04/2005 03/05/2005 1107 Private Security Industry Act 2001 (Designated Activities) (No 2) Order 27 06/10/2005 01/11/2005 2702 Police (Retention and Disposal of Motor Vehicles) (Amendment) Regulations 27 23/03/2005 18/04/2005 869 Prison (Amendment) Rules 27 16/03/2005 11/04/2005 738 Asylum Support (Amendment) (No 2) Regulations 2005 27 19/10/2005 14/11/2005 2864 Misuse of Drugs and the Misuse of Drugs (Supply to Addicts) (amendment) Regulations 26 07/12/2005 01/01/2006 3343 Crime and Disorder Act 1998 (Responsible Authorities) (No 2) Order 26 23/06/2005 18/07/2005 1652 Misuse of Drugs (Designation) (Amendment) Order 26 07/12/2005 01/01/2006 3308 Royal Patriotic Fund Corporation (Transfer of Property, Rights and Liabilities) Order 26 07/07/2005 01/08/2005 1789 Crime and Disorder Act 1998 (Responsible Authorities) 26 24/03/2005 18/04/2005 897 Young OVender Institution (Amendment) Rules 26 23/06/2005 18/07/2005 1653 Misuse of Drugs (Amendment) (No 2) Regulations 25 08/12/2005 01/01/2006 3372 Misuse of Drugs (Amendment) (No 3) Regulations 3247872037 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 71
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 25 11/02/2005 07/03/2005 267 Disqualification from Working with Children (Scotland) Order 25 08/03/2005 01/04/2005 470 Police Authorities (Best Value) Performance Indicators Order 25 11/11/2005 05/12/2005 3138 Forensic Science Service Trading Fund (Revocation) Order 25 10/03/2005 03/04/2005 595 Asylum Support (Interim Provisions) (Amendment) 25 08/12/2005 01/01/2006 3389 Serious Organised Crime and Police Act 2005 (Powers of Arrest) (Consequential Amendments) Order 24 09/12/2005 01/01/2006 3396 Victims of Violent Intentional Crime (Arrangements for Compensation) (European Communities) Regulations 23 10/03/2005 01/04/2005 654 Immigration (Leave to Remain) (Fees) (Amendment) 23 14/01/2005 05/02/2005 7 Asylum Seekers (Reception Conditions) Regulations 23 10/03/2005 01/04/2005 651 British Nationality (Fees) (Amendment) Regulations 23 12/10/2005 03/11/2005 2798 Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 23 07/02/2005 01/03/2005 178 Police (Promotion) (Amendment) Regulations 23 22/11/2005 14/12/2005 3204 Sports Grounds and Sporting Events (Designation) Order 23 24/05/2005 15/06/2005 1379 Displaced Persons (Temporary Protection) Regulations 23 10/03/2005 01/04/2005 584 Police Authorities (Lay Justices Selection Panel) Regulations 23 10/10/2005 01/11/2005 2785 British Nationality (General) (Amendment) Regulations 23 09/11/2005 01/12/2005 3106 National Police Records (Recordable OVences) (Amendment) Regulations 23 14/01/2005 05/02/2005 11 Asylum Support (Amendment) Regulations 23 10/03/2005 01/04/2005 627 Immigration Employment Document (Fees) (Amendment) Regulations 23 10/03/2005 01/04/2005 602 Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code C) Order 23 23/06/2005 15/07/2005 2692 Criminal Procedure and Investigations Act 1996 (Code of Practice) (Northern Ireland) Order 23 10/03/2005 01/04/2005 653 Travel Documents (Fees) (Amendment) Regulations 22 01/06/2005 22/06/2005 1439 Police Pensions (Part-time Service) Regulations 22 11/01/2005 01/02/2005 15 Immigration (Procedure for Marriage) Regulations 22 25/08/2005 15/09/2005 2358 Immigration (Leave to Remain) (Prescribed Forms and Procedures) (No 2) Regulations 22 23/02/2005 16/03/2005 348 Immigration Services Commissioner (Designated Professional Body) (Fees) Order 22 01/04/2005 22/04/2005 1016 Asylum (Designated States) (Amendment) Order 22 24/10/2005 14/11/2005 2917 Immigration (Procedure for Formation of Civil Partnerships) Regulations 22 14/03/2005 04/04/2005 673 Detention Centre (Amendment) Rules 22 14/03/2005 04/04/2005 581 Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 22 17/01/2005 07/02/2005 47 Immigration (European Economic Area) (Amendment) 22 10/03/2005 31/03/2005 572 Charities (Accounts and Reports) Regulations 3247872038 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
72 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 14/03/2005 04/04/2005 643 Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 22 14/03/2005 04/04/2005 648 Criminal Justice (Sentencing) (Licence Conditions) Order 22 11/08/2005 01/09/2005 2241 Working Time Regulations 1998 (Amendment) Order 22 11/08/2005 01/09/2005 2240 Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Order 22 17/10/2005 07/11/2005 2834 Police (Amendment) Regulations 22 14/03/2005 04/04/2005 671 Immigration (European Economic Area) (Amendment) (No 2) Regulations 22 14/03/2005 04/04/2005 679 Criminal Justice Act (Retrial for Serious OVences) Order 22 10/06/2005 01/07/2005 1537 Serious Organised Crime and Police Act 2005 (Designated Area) Order 22 07/02/2005 28/02/2005 210 Sexual OVences Act 2003 (Prescribed Police Stations) 22 15/06/2005 06/07/2005 1606 Road TraYc Act 1988 (Retention and Disposal of Seized Motor Vehicles) Regulations 21 14/12/2005 03/01/2006 3438 Young OVender Institution (Amendment) (No 2) Rules 21 10/03/2005 30/03/2005 563 Discharge of Fines by Unpaid Work (Pilot Schemes) (Amendment) Order 21 14/12/2005 03/01/2006 3437 Prison (Amendment) (No 2) Rules 20 09/02/2005 28/02/2005 235 Private Security Industry Act 2001 (Duration of Licence) 20 09/02/2005 28/02/2005 234 Private Security Industry Act 2001 (Designated Activities) 20 09/02/2005 28/02/2005 237 Private Security Industry (Licences) (Amendment) Regulations 19 01/08/2005 19/08/2005 2118 Private Security Industry (Licences) (Amendment) (No 2) Regulations 16 17/03/2005 01/04/2005 771 Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 15 10/03/2005 24/03/2005 630 Penalties for Disorderly Behaviour (Form of Penalty Notice) (Amendment) Regulations 11 08/04/2005 18/04/2005 1129 Bail (Amendment) Act 1993 (Prescription of Prosecuting Authorities) (Amendment) Order 11 08/04/2005 18/04/2005 1130 Crime (International Co-operation) Act 2003 (Designation of Prosecuting Authorities) (Amendment) Order 6 30/03/2005 04/04/2005 902 Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 5 23/02/2005 27/02/2005 361 Private Security Industry Act 2001 (Designated Activities) (Revocation) Order 2 05/12/2005 06/12/2005 3310 Immigration (Designation of Travel Bans) (Amendment) Order 2 08/03/2005 09/03/2005 492 Immigration (Passenger Transit Visa) (Amendment) Order Total SIs for Home OYce % 76 3247872039 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 73
8 November 2005
Inland Revenue
Elapsed Days Laying Date Date in Force SI No SI Title 58 02/02/2005 31/03/2005 186 Controlled Foreign Companies (Excluded Countries) (Amendment No 2) Regulations 58 02/02/2005 31/03/2005 185 Controlled Foreign Companies (Excluded Countries) (Amendment) Regulations 29 18/02/2005 18/03/2005 343 Child Benefit and Guardian’s Allowance (Miscellaneous Amendments) Regulations 27 16/03/2005 11/04/2005 719 Guardian’s Allowance Up-rating Regulations 2005 22 21/03/2005 11/04/2005 844 Stamp Duty Land Tax (Electronic Communications) 22 18/01/2005 08/02/2005 66 Tax Credits (Provision of Information) (Function Relating to Employment and Training) Regulations 11 08/04/2005 18/04/2005 1131 Delivery of Documents (Procedure) (Amendment) Regulations 11 08/04/2005 18/04/2005 1132 Stamp Duty Land Tax (Administration) (Amendment) 2 04/04/2005 05/04/2005 1086 Social Security (Contributions) (Amendment No 4) 2 18/03/2005 19/03/2005 826 Income Tax (Incentive Payments for Voluntary Electronic Communication of PAYE Returns) (Amendment) Regulations Total SIs for Inland Revenue % 10
Ministry of Defence
Elapsed Days Laying Date Date in Force SI No SI Title 104 19/12/2005 01/04/2006 3447 Serious Organised Crime and Police Act 2005 (Designated Sites) Order 42 22/12/2005 01/02/2006 3478 Armed Forces Proceedings (Costs) Regulations 36 29/12/2005 02/02/2006 3487 Summary Appeal Court (Navy) (Amendment) Rules 36 29/12/2005 02/02/2006 3485 Courts Martial (Royal Air Force) (Amendment) Rules 36 29/12/2005 02/02/2006 3484 Courts Martial (Royal Navy) (Amendment) Rules 36 29/12/2005 02/02/2006 3488 Summary Appeal Court (Air Force) (Amendment) Rules 36 29/12/2005 02/02/2006 3486 Summary Appeal Court (Army) (Amendment) Rules 36 29/12/2005 02/02/2006 3483 Courts-Martial (Army) (Amendment) Rules 32 31/05/2005 01/07/2005 1388 Unfitness to Stand Trial and Insanity (Royal Air Force) Regulations 32 04/11/2005 05/12/2005 3032 War Pensions Committees (Amendment) Regulations 32 04/11/2005 05/12/2005 3031 Personal Injuries (Civilians) (Amendment) (No 3) Scheme 32 31/05/2005 01/07/2005 1389 Unfitness to Stand Trial and Insanity (Royal Navy) 32 31/05/2005 01/07/2005 1390 Unfitness to Stand Trial and Insanity (Army) Regulations 25 11/11/2005 05/12/2005 3118 Reserve Forces (Provision of Information by Persons Liable to be Recalled) (Amendment) Regulations 24 14/03/2005 06/04/2005 439 Armed Forces and Reserve Forces (Compensation Scheme) 24 14/03/2005 06/04/2005 438 Armed Forces Pension Scheme Order 24 14/03/2005 06/04/2005 660 Armed Forces (Pensions and Compensation) Act 2004 (Transitional Provision) Order 3247872040 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
74 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 24 14/03/2005 06/04/2005 655 Personal Injuries (Civilians) (Amendment) Scheme 24 14/03/2005 06/04/2005 437 Armed Forces Early Departure Payments Scheme Order 23 23/03/2005 14/04/2005 859 Reserve Forces (Call-out and Recall) (Financial Assistance) Regulations 23 23/06/2005 15/07/2005 1639 Personal Injuries (Civilians) (Amendment) (No 2) Scheme 22 10/06/2005 01/07/2005 1536 Summary Appeal Courts (Amendment) Rules 22 10/06/2005 01/07/2005 1535 Courts-Martial (Amendment) Rules 22 10/06/2005 01/07/2005 1534 Standing Civilian Courts (Amendment) Order Total SIs for Ministry of Defence % 24
Northern Ireland Office
Elapsed Days Laying Date Date in Force SI No SI Title 23 24/03/2005 15/04/2005 901 Public Processions (Northern Ireland) Act 1998 (Code of Conduct) Order 23 24/03/2005 15/04/2005 905 Public Processions (Northern Ireland) Act 1998 (Guidelines) 23 24/03/2005 15/04/2005 904 Public Order (Prescribed Forms) Regulations (Northern Ireland) 2005 23 24/03/2005 15/04/2005 903 Public Processions (Northern Ireland) Act 1998 (Procedural Rules) Order 1 14/09/2005 14/09/2005 2558 Northern Ireland (Sentences) Act 1998 (Specified Organisations) Order Total SIs for Northern Ireland OYce % 5
Office of Communications
Elapsed Days Laying Date Date in Force SI No SI Title 43 20/12/2005 31/01/2006 3481 Wireless Telegraphy (Inspection and Restrictions on Use of Exempt Stations and Apparatus) Regulations Total SIs for OYce of Communications % 1
Office of National Statistics
Elapsed Days Laying Date Date in Force SI No SI Title 277 29/03/2005 30/12/2005 924 Adopted Children and Adoption Contact Registers Total SIs for OYce of National Statistics % 1
Office of the Deputy Prime Minister
Elapsed Days Laying Date Date in Force SI No SI Title 130 28/11/2005 06/04/2006 3208 Housing Health and Safety Rating System (England) 81 31/01/2005 21/04/2005 85 Town and Country Planning (General Permitted Development) (Amendment) (England) Order 72 22/03/2005 01/06/2005 714 Local Authorities (Functions and Responsibilities) (Amendment) (England) Regulations 72 22/03/2005 01/06/2005 711 High Hedges (Appeals) (England) Regulations 3247872040 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 75
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 71 23/06/2005 01/09/2005 1635 Home Loss Payments (Prescribed Amounts) (England) 52 20/10/2005 10/12/2005 2866 Council Tax (Civil Partners) (England) Regulations 52 20/10/2005 10/12/2005 2865 Council Tax (Exempt Dwellings) (Amendment) (England) 51 10/02/2005 01/04/2005 205 Town and Country Planning (Timetable for Decisions) (England) Order 30 27/10/2005 25/11/2005 2935 Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 27 07/12/2005 02/01/2006 3307 Approval of Code of Management Practice (Private Retirement Housing) (England) Order 27 10/02/2005 08/03/2005 206 Town and Country Planning (Temporary Stop Notice) (England) Regulations 26 10/11/2005 05/12/2005 3069 Local Government Pension Scheme (Civil Partnership) (Amendment) (England and Wales) Regulations 25 08/03/2005 01/04/2005 416 Council Tax (Prescribed Classes of Dwellings) (Amendment) (England) Regulations 25 07/03/2005 31/03/2005 411 Castle Vale Housing Action Trust (Dissolution) Order 24 08/12/2005 31/12/2005 3323 Housing Renewal Grants (Amendment) (England) 24 08/12/2005 31/12/2005 3326 Housing Renewal Grants (Prescribed Form and Particulars) (Amendment) (England) Regulations 24 08/09/2005 01/10/2005 2518 Liverpool Housing Action Trust (Dissolution) Order 24 09/03/2005 01/04/2005 406 Town and Country Planning (Blight Provisions) (England) 23 15/06/2005 07/07/2005 1552 North Northamptonshire Joint Committee Order 23 14/10/2005 05/11/2005 2863 Social Landlords (Additional Purposes or Objects) (Amendment) (England) Order 23 10/03/2005 01/04/2005 549 Non-Domestic Rating (Communications and Light Railways) (England) Regulations 23 09/12/2005 31/12/2005 3333 Non-Domestic Rating Contributions (Amendment) (England) Regulations 23 10/03/2005 01/04/2005 659 Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 23 10/03/2005 01/04/2005 658 Non-Domestic Rating (Material Day for List Alterations) (Amendment) (England) Regulations 23 10/03/2005 01/04/2005 598 Local Government (Best Value) Performance Indicators and Performance Standards (England) Order 23 25/10/2005 16/11/2005 2908 Housing (Right to Buy) (Designated Rural Areas and Designated Regions) (England) (No 2) Order 22 31/10/2005 21/11/2005 2980 Firefighters’ Pension Scheme (Amendment) (England) Order 22 13/06/2005 04/07/2005 1509 Residential Property Tribunal (Right to Buy Determinations) Procedure (England) Regulations 22 10/10/2005 31/10/2005 2721 London Thames Gateway Development Corporation (Planning Functions) Order 22 21/03/2005 11/04/2005 694 Local Authorities (Categorisation) (England) Order 22 25/07/2005 15/08/2005 1995 Housing (Right to Buy) (Designated Rural Areas and Designated Regions) (England) Order 22 23/11/2005 14/12/2005 3199 Local Government Pension Scheme (Amendment) (No 2) Regulations 3247872041 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
76 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 07/02/2005 28/02/2005 177 Leasehold Houses (Notice of Insurance Cover) (England) (Amendment) Regulations 22 05/07/2005 26/07/2005 1735 Housing (Right to Buy) (Information to Secure Tenants) (England) Order 22 03/08/2005 24/08/2005 2087 Town and Country Planning (General Development Procedure) (Amendment) (England) Order 22 21/09/2005 12/10/2005 2572 Thurrock Development Corporation (Planning Functions) 22 08/03/2005 29/03/2005 419 Local Authorities (Discretionary Expenditure Limits) (England) Order 22 03/08/2005 24/08/2005 2115 Town and Country Planning (Major Infrastructure Project Inquiries Procedure) (England) Rules 22 10/03/2005 31/03/2005 551 Central Rating List (England) Regulations 22 07/09/2005 28/09/2005 2416 Local Authorities (Categorisation) (England) (No 2) Order 22 27/07/2005 17/08/2005 2004 Local Government Pension Scheme and Management and Investment of Funds (Amendment) Regulations 22 13/07/2005 03/08/2005 1903 Local Government Pension Scheme (Amendment) Regulations 22 01/04/2005 22/04/2005 929 Local Authorities (Functions and Responsibilities) (Amendment) (No 2) (England) Regulations 22 20/07/2005 10/08/2005 1917 Housing (Right of First Refusal) (England) Regulations 22 22/03/2005 12/04/2005 867 Recreation Grounds (Revocation of Parish Council Byelaws) 7 29/11/2005 05/12/2005 3228 Firefighters’ Pension Scheme (Civil Partnership Amendments) (England and Scotland) Order 2 08/02/2005 09/02/2005 221 Greater London Authority (Allocation of Grants for Precept Calculations) Regulations 2 04/02/2005 05/02/2005 190 Local Authorities (Alteration of Requisite Calculations) (England) Regulations Total SIs for OYce of the Deputy Prime Minister % 48
Office of the Leader of the House of Commons
Elapsed Days Laying Date Date in Force SI No SI Title 24 26/07/2005 18/08/2005 1924 European Parliament (United Kingdom Representatives) Pensions (Amendment) Order Total SIs for OYce of the Leader of the House of Commons % 1
Privy Council Office
Elapsed Days Laying Date Date in Force SI No SI Title 157 29/07/2005 01/01/2006 1958 National Assembly for Wales (Transfer of Functions) Order 43 24/10/2005 05/12/2005 2761 Civil Partnership (Registration Abroad and Certificates) 40 21/02/2005 01/04/2005 246 Commonwealth Countries and Ireland (Immunities and Privileges) (Amendment) Order 40 21/02/2005 01/04/2005 252 Transfer of Functions (Children, Young People and Families) Order 3247872042 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 77
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 38 25/11/2005 01/01/2006 3181 Proceeds of Crime Act 2002 (External Requests and Orders) 37 25/11/2005 31/12/2005 3179 Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Northern Ireland) Order 37 25/11/2005 31/12/2005 3180 Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 32 01/03/2005 01/04/2005 402 General Medical Council (Constitution of Panels and Investigation Committee) (Amendment) Rules Order of Council 32 01/03/2005 01/04/2005 400 General Medical Council (Registration Appeals Panels Procedure) Rules Order of Council 32 21/02/2005 24/03/2005 244 Child Abduction and Custody (Falkland Islands) (Amendment) Order 32 01/03/2005 01/04/2005 401 General Medical Council (Fraud or Error in relation to Registration) Rules Order of Council 30 22/12/2005 20/01/2006 3430 Parliamentary Commissioner (No 2) Order 30 22/12/2005 20/01/2006 3428 Health Service Commissioner for England (Special Health Authorities) (No 2) Order 29 15/08/2005 12/09/2005 2250 Nursing and Midwifery Council (Election Scheme) Rules Order of Council 28 04/04/2005 01/05/2005 852 Copyright and Performances (Application to Other Countries) Order 26 07/12/2005 01/01/2006 3354 Nursing and Midwifery Council (Education, Registration and Registration Appeals) (Amendment) Rules Order of Council 26 07/12/2005 01/01/2006 3353 Nursing and Midwifery Council (Fees) (Amendment) Rules Order of Council 26 20/06/2005 15/07/2005 1471 Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions (Amendment) (No 2) Order 24 08/06/2005 01/07/2005 1473 General Optical Council (Continuing Education and Training Rules) Order of Council 23 29/07/2005 20/08/2005 1970 Air Navigation Order 23 08/06/2005 30/06/2005 1478 General Optical Council (Registration Rules) Order of Council 23 16/06/2005 08/07/2005 1625 Health Professions Council (Practice Committees and Registration) (Amendment) Rules Order of Council 23 08/06/2005 30/06/2005 1475 General Optical Council (Fitness to Practise Rules) Order of Council 23 08/06/2005 30/06/2005 1472 Opticians Act 1989 (Transitional Provisions) Order 23 08/06/2005 30/06/2005 1477 General Optical Council (Registration Appeals Rules) Order of Council 23 08/06/2005 30/06/2005 1476 General Optical Council (Injury or Disease of the Eye and Contact Lens (Qualifications) (Amendment) Rules Order of 23 08/06/2005 30/06/2005 1474 General Optical Council (Committee Constitution Rules) Order of Council 22 24/10/2005 14/11/2005 2763 Air Navigation (Overseas Territories) (Amendment) Order 22 24/10/2005 14/11/2005 2766 European Communities (Designation) (No 3) Order 22 21/02/2005 14/03/2005 251 Health Service Commissioner for England (Special Health Authorities) Order 22 21/02/2005 14/03/2005 249 Parliamentary Commissioner Order 3247872043 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
78 management of secondary legislation: evidence
8 November 2005
Elapsed Days Laying Date Date in Force SI No SI Title 22 29/07/2005 19/08/2005 1971 European Communities (Designation) (No 2) Order 22 22/12/2005 12/01/2006 3429 Transfer of Functions (Lord Chancellor and Secretary of State) Order 22 16/11/2005 07/12/2005 3188 Civil Partnership (Armed Forces) Order 22 10/06/2005 01/07/2005 1456 G8 Gleneagles (Immunities and Privileges) Order 20 04/04/2005 23/04/2005 850 European Communities (Designation) Order 15 23/03/2005 06/04/2005 851 Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions (Amendment) Order 11 25/11/2005 05/12/2005 3187 Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions (Amendment) (No 3) Order 11 25/11/2005 05/12/2005 3189 Ulster Defence Regiment (Amendment) Order 11 25/11/2005 05/12/2005 3184 Navy and Marines (Property of Deceased) (Amendment) Order 2 08/06/2005 09/06/2005 1468 Democratic Republic of the Congo (United Nations Sanctions) (Channel Islands) Order 2 10/02/2005 11/02/2005 242 Ivory Coast (Restrictive Measures) (Overseas Territories) 2 16/11/2005 17/11/2005 3183 Overseas Territories (Zimbabwe) (Restrictive Measures) (Amendment) Order 2 10/02/2005 11/02/2005 253 Ivory Coast (United Nations Sanctions) Order 2 15/12/2005 16/12/2005 3432 Lebanon and Syria (United Nations Measures) Order 2 08/06/2005 09/06/2005 1517 Democratic Republic of the Congo (United Nations Measures) Order 2 09/06/2005 10/06/2005 1470 Dockyard Port of Portsmouth Order 2 08/06/2005 09/06/2005 1469 Democratic Republic of the Congo (United Nations Sanctions) (Isle of Man) Order 2 20/07/2005 21/07/2005 1988 Democratic Republic of the Congo (Restrictive Measures) (Overseas Territories) (Amendment) Order 2 11/05/2005 12/05/2005 1258 Sudan (United Nations Measures) (Overseas Territories) 2 08/06/2005 09/06/2005 1462 Sudan (United Nations Measures) (Channel Islands) Order 2 08/06/2005 09/06/2005 1463 Sudan (United Nations Measures) (Isle of Man) Order 2 08/06/2005 09/06/2005 1461 Democratic Republic of the Congo (United Nations Sanctions) (Overseas Territories) Order 2 11/05/2005 12/05/2005 1259 Sudan (United Nations Measures) Order 1 21/02/2005 21/02/2005 255 Pensions (Northern Ireland) Order 10/06/2005 1467 Scottish Administration (OYces) Order 21/02/2005 245 Pensions Appeal Tribunals (Posthumous Appeals) (Amendment) Order 20/06/2005 1466 Montserrat Reporting of Savings Income Information Order Total SIs for Privy Council OYce % 58 3247872043 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 79
8 November 2005
Department for Work and Pensions
Elapsed Days Laying Date Date in Force SI No SI Title 23 10/03/2005 01/04/2005 548 Welsh Local Flood Defence Scheme 1996 (Revocation) Order 23 10/03/2005 01/04/2005 550 Public Audit (Wales) Act 2004 (Transfer of Property, Rights and Liabilities of the Audit Commission for Local Authorities and the National Health Service in England and Wales) Order 23 10/03/2005 01/04/2005 552 Public Audit (Wales) Act 2004 (Transfer of Property, Rights and Liabilities of the Comptroller and Auditor General) Order Total SIs for Wales OYce % 3 3247872044 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
80 management of secondary legislation: evidence
8 November 2005 36 (Wales) 65 (Scotland) 5 (Wales) 5 (Scotland) 1995–2005 nstruments I UK GovernmentSIs National Assembly for Wales Scottish SIs in UK Total number of UK Scottish Statutory SIs numbered in UK series Total SIs and SSIs series Foot and Statutory Instruments Instruments Mouth Orders tatutory 2002 2,95920032004 3,0332005 3,155 3,326 315 321 297 273 3,274 3,354 3,452 3,599* 575 622 565 667 3,849 3,976 4,017 4,266 8 (UK) S 19951996 3,0981997 3,0351998 2,7601999 3,1102000 3,3302001 3,202 3,806 58 231 342*Note. This is not the last number in the Register as three SI numbers have been cancelled. 247 256 197 213 113 3,345 3,291 3,114 3,323 3,501 3,433 4,148 204 454 494 3,345 3,291 3,705 3,114 3,323 3,887 4,642 597 (UK) 3247872045 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 81
8 November 2005 General Local General Local General Local General Local General Local General Local General Local epartment D by ceof––––––––––3000 Y ceof00000000003030 1999–05 Y airs, ce 00000000000010 ce 40704050304040 V ade Y Y M ce of the – – – – – – 38 16 83 29 112 21 71 7 Y ef30100000000020 ceof ef––––––––––2050 ceof ce 0 0 0 0 20 0 7 0 15 0 10 0 5 0 Y Y Y ce 60604030403070 airs, Department for – – – – – – – – 42 6 105 9 143 0 ce 140 1 134 0 117 1 121 0 126 0 147 0 125 2 Y V Y nstruments I ce 161905010040407060 ce 20301020102060 Y ce 108 9 136 3 121 1 117 2 144 1 144 1 135 0 ce 84 64 1 0 4 0 3 0 2 0 3 0 4 0 Y Y Y c Director for London 1 56 0 22 – – – – – – – – – – Y tatutory Privy Council O Registry of Friendly SocietiesRevenue and CustomsScotland O Social Security, Department ofTrade and Industry, Department ofTra 5 169 89 – 0 0 0 – 1 134 106 – 0 0 0 124 – – 71 0 – – 0 127 – – – 0 – – – 139 – – – 3 – – 126 – – – 1 – 115 – – – 0 – – – 35 – – 0 Transport, Department forTransport, Local Government and theDepartment Regions, forTreasury, HMWales O – – – 95 – – 1 – – 112 – – 0 – 113 187 72 819 3 623 84 91 127 644 1438 0 134 – 130 1556 – 0 135 1667 – 141 – 0 136 – 0 – Work and Pensions, Department for – – – – 36 0 96 0 93 0 73 0 162 1 Education and Employment, Department forEducation and Skills, Department forElectoral CommissionEnvironment, Food and Rural A 206 25 – 150 – 14 – – 85 – – 6 – 95 – – 5 – 160 – – 8 – – 130 0 – 12 66 100 – 0 24 – 30 110 – 0 40 43 0 16 Department forEnvironment, Transport and the Regions, Department of theFinance and Personnel Northern Ireland, Department ofForeign and Commonwealth O Forestry CommissionGas & Electricity Markets Authority, O – 243 1404 – 1 0 294 – 0 1472 0 132 – 0 0 716 78 0 0 – 141 0 0 124 – 0 0 2 – 0 109 0 – 0 2 0 – 131 0 0 – 5 0 0 – 130 1 0 15 – 0 0 0 3 0 0 General Synod O Health, Department ofHome O 166 0 216 0 403 0 393 1 194 0 158 0 143 0 House of Commons—Journal O Inland RevenueInternational Development, Department forLeader of the House of Commons, O 0 0 0 29 0 0 0 39 0 0 1 27 0 0 4 21 0 0 38 1 0 0 25 0 0 0 11 0 Lord Chancellor’s DepartmentNational Assembly for WalesNational Statistics, O 104 16 12 27 110 114 13 103 137 241 14 91 59 197 3 117 65 210 111 1 188 – 109 – 189 84 – – Northern Ireland O Constitutional A Culture, Media and Sport, DepartmentCustoms for and Excise, HMDefence, Ministry ofDeputy Prime Minister, O 22 0 16 14 3 1 0 16 0 9 17 0 0 29 0 20 10 0 0 26 0 25 10 0 0 29 0 23 0 9 0 47 0 20 0 11 0 0 – 32 – 0 Communications, O S Department/Public AuthorityAgriculture, Fisheries and Food, MinistryAttorney of General’s DepartmentCabinet O 110 1999 5 1 87 2000 0 38 65 1 232 2001 0 – 1 2002 – 0 – 0 2003 – 0 – 0 2004 –Total 0Total for UK SIs – 2005 0 – 0 0 0 3476 1782 1694 1699 3365 1666 2122 4151 2029 1789 1482 3271 1721 1633 1683 3354 1769 1767 1832 3452 3599 3247872046 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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Statutory Instruments by Subject Heading
General Instruments
Heading 1999 2000 2001 2002 2003 2004 2005
Acquisition of Land 0000011 Acquisition of Land, E 0000111 Acquisition of Land, E & W 0000030 Adults with Incapacity 0000002 Aggregates Levy 0 0 24320 Agriculture 43 8 15 6 8 11 7 Agriculture, E 0 15 20 16 11 19 16 Agriculture, E & W 2 2 42233 Agriculture, NI 0 0 10111 Agriculture, S 0000001 Agriculture, W 1010000 Ancient Monuments, W 0001000 Animal Health 0 0 00010 Animals 7 15 14 2 0 0 0 Animals, E 1 0 49 33 28 12 19 Animals, E & W 2410201 Animals, W 0101000 Animals, NI 0050000 Anti-Social Behaviour 0 0 00002 Antarctica 0 1 01110 Arbitration 1 0 00000 Architects 0 001010 Arms and Ammunition 0201101 Atomic Energy and Radioactive Substances 0001545 Bankruptcy 1 0 00000 Bankruptcy, S 0000100 Banks and Banking 2211112 Betting, Gaming and Lotteries 5 9 9 12 3 3 11 Betting, Gaming and Lotteries, E & W 0001100 British Nationality 0 011622 British Overseas Territories 0001000 Broadcasting 622013164 Building and Buildings 1 0 00000 Building and Buildings, E & W 0 323340 Building Societies 6 120130 Business Names 0020000 Canals and Inland Waterways, E 0 0 00001 Canals and Inland Waterways, E & W 0101000 Capital Gains Tax 0000005 Caribbean and North Atlantic Territories 0411221 Census, E & W 4 000000 Channel Islands 1110000 Channel Tunnel 0331220 Charities 2522124 Chemical Weapons 0 1 00011 Child Trust Funds 0000018 Child Trust Funds, NI 0000001 Children and Young Persons 4331354 Children and Young Persons, E 0 3 16 10 12 7 28 Children and Young Persons, E & W 0 10 10 4 10 5 14 Children and Young Persons, NI 0 0 00100 Chiropractors 6813020 3247872047 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 83
8 November 2005
Heading 1999 2000 2001 2002 2003 2004 2005 Christmas Day Trading 0000010 Chronically Sick and Disabled Persons 0 0 01000 Cinemas and Films 4323232 Civil Aviation 23 18 21 8 8 13 6 Civil Aviation, E 0100002 Civil Contingencies 0000014 Civil Partnership 00000025 Civil Partnership, E & S 0000001 Civil Partnership, E & W 0000008 Civil Partnership, NI 0000004 Clean Air 1100000 Clean Air, E 0 0 21102 Clerk of the Crown in Chancery 1101100 Climate Change Levy 0 1 10 1704 Coal Industry 0 0 0 0020 Coast Protection, E 0 0 01000 Coinage 1 0 0 0001 Common Investment Funds 1000000 Commonhold, E & W 0000130 Commons, E 0000100 Community Charges, E 0 1 1 0000 Community Charges, E & W 1000000 Companies 8 8 7 13 9 7 18 Companies, E & W 0 0 10110 Competition 8 12 5 2 18 15 12 Constitutional Law 71 20 18 13 14 18 13 Constitutional Law, W 0000100 Consumer Credit 3310170 Consumer Protection 6818291512 Continental Shelf 1110000 Contracting Out 2 2 34311 Contracting Out, E & W 0000001 Contracts 1300010 Contracts, E & W 0 0 0 3000 Contracts, NI 0 0 0 1000 Control of Fuel and Electricity 0 8 0 0000 Copyright 3001704 Coroners 3034251 Coroners, E& W 2000001 Corporation Tax 00001024 Council Tax, E 16211154 Council Tax, E & W 7 0 00000 Council Tax, S 2100000 Countryside 1110000 Countryside, E 0000006 Countryside Agency 1101000 Countryside, E 0632463 Countryside, S 0 0 0 0100 County Courts 17 16 00100 County Courts, E & W 0 16 15 4 17 17 22 County Courts, NI 0000100 Court of Sessions, S 8000000 Courts-Martial (Appeals) 0100003 Cremation, E & W 0 1 0 0000 Criminal Law 004681113 Criminal Law, E 1 0 0 0010 3247872049 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
84 management of secondary legislation: evidence
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Heading 1999 2000 2001 2002 2003 2004 2005 Criminal Law, E & W 24 21 26 21 8 42 29 Criminal Law, NI 18650116 Criminal Law, S 9 5 31111 Criminal Procedure 0100000 Criminal Procedure, E & W 0 0 21000 Crown Proceedings 0000001 Cultural Objects 0 0 10000 Currency and Banknotes 1000000 Customs 0000001 Customs and Excise 21 17 19 22 21 28 8 Customs and Excise, E & W 0 0 00001 Customs and Excise, NI 0 0 00001 Damages 0001000 Damages, E & W 0011004 Damages, NI 0010004 Dangerous Drugs 3350619 Data Protection 0 17 22014 Deep Sea Mining 0100000 Defamation 1 1 00000 Defence 5 4678719 Dentists 1 016221 Dentists, E 0010000 Deregulation 4 0 03000 Deregulation, E & W 0111000 Derelict Land 0100000 Designs 4250112 Development Board for Rural Wales 1000000 Development Commission 1000000 Development Commission, E & W 0100000 Devolution 0010100 Devolution, E 0000010 Devolution, NI 0010010 Devolution, S 49 14 10 9 6 11 10 Devolution, W 15 4 41121 Diplomatic Service 2112203 Disabled Persons 16 22 14 23 12 15 15 Disabled Persons, E 0 0 00001 Disabled Persons, E & W 0200020 Disabled Persons, S 0100000 Disclosure of Information 0000210 Distress 3 0 00000 Distress, E & W 0200200 Doctors 00006109 Ecclesiastical Law 0000001 Ecclesiastical Law, E 6 743536 Education 0213026 Education, E 95 91 126 119 103 72 52 Education, E & W 128 41 35 32 16 16 15 Education, NI 0102002 Education, S 12 111020 Education, W 10 044100 Electoral Commission 0031000 Electricity 1 8 18 8 4 9 10 Electricity, E 0020010 Electricity, E & W 0 223212 Electricity, S 0000101 3247872050 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 85
8 November 2005
Heading 1999 2000 2001 2002 2003 2004 2005 Electromagnetic Compatibility 0000001 Electronic Communications 0 1 0 10 22 20 12 Emergency Powers 0400000 Employment 0 0 00012 Employment Agencies, etc 0000100 Employment and Training 0022662 Employment and Training, E 0 3 00000 Employment and Training, E & W 0 2 1 0000 Employment Tribunals 0 2 2 0033 Employment Tribunals, E & W 0 0 20000 Employment Tribunals, S 0021000 Energy 0 0 0 0010 Energy, E & W 0 0 00100 Energy Conservation 3 2 20212 Energy Conservation, E 0001211 Environmental Protection 12 8 6 10 8 16 11 Environmental Protection, E 1 3 5 7576 Environmental Protection, E & W 04464613 Environmental Protection, NI 0000011 Environmental Protection, W 0 0 10000 Equal Opportunities 0100110 European Communities 12 7878174 European Communities, E 0 0 10000 European Communities, W 0010000 European Parliament 1000000 Evidence 0 0 1 0010 Exchequer 2 0 0 0000 Excise 0000007 Export and Investment Guarantees 0100100 Extradition 1 1 3 8 18 2 4 Family Law 9 15 8 4 10 2 4 Family Law, E & W 0162007 Family Law, NI 0020003 Family Law, S 0 0 10000 Family Proceedings 3100207 Family Proceedings, E & W 0 3 3 0 3 3 10 Fees 2100002 Fees and Charges 6 3 37795 Financial Services 9170201 Financial Services and Markets 0 1 88 15 19 14 21 Fire Precautions 1 0 00100 Fire and Rescue Services 0000011 Fire and Rescue Services, E 0 0 0 0031 Fire and Rescue Services, E & S 0 0 00001 Fire and Rescue Services, S 0000020 Fire Services, E & W 0010020 Fireworks 0000230 Fish Farming 2000000 Fish Farming, E 0 0 10000 Food 24 5 3 3 3 9 8 Food, E 0 0 13 22 29 7 21 Food, E and S 0000100 Food, E & W 3 4 0 1000 Forestry, E & W 1001000 Freedom of Information 00143106 Friendly Societies 1230002 3247872052 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
86 management of secondary legislation: evidence
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Heading 1999 2000 2001 2002 2003 2004 2005 Gas 4975357 Geneva Conventions 3001000 Gender Recognition 0000003 Gender Recognition, E & W 0000002 Gender Recognition, NI 0000002 Government Resources and Accounts 0 2 01542 Government Trading Funds 3 1 33324 Hallmark 0 0 01000 Harbours, Docks, Piers and Ferries 2001000 Health and Personal Social Services, NI 0410000 Health and Safety 22 8 9 15 9 8 20 Health and Safety, NI 0100000 Health Care and Associated Professions 0 1 2 10 22 28 20 Health Care and Associated Professions, S 0000010 Health Professions 0001200 High Court of Judiciary, S 5000000 Highways, E 0646575 Highways, E & W 5000000 Hong Kong 1002000 Horticulture 0000010 Horticulture, E & W 0000100 Housing 0010316 Housing, E 8 10 13 12 8 9 16 Housing, E & W 0131001 Housing, NI 0100000 Housing, S 5222000 Human Fertilisation and Embryology 0 0 10110 Human Rights and Equal Opportunities 5 0 00000 Human Rights 0140011 Human Tissue 0000003 Immigration 3 31 15 24 42 29 30 Immigration, E 2000000 Immigration and Asylum 0 3 53153 Immigration and Asylum, NI 0 000001 Immigration and Asylum, S 0000001 Immigration, E & W 0000001 Income Tax 43 52 36 27 40 40 59 Industrial Development 0201100 Industrial Organisation and Development 2102110 Industrial and Provident Societies 2 2 30210 Inheritance Tax 6 7 25235 Injuries in War Compensation 1110000 Inquiries 0 0 00001 Insider Dealing 0101000 Insolvency 413611105 Insolvency, E & W 0097235 Insolvency, S 0023300 Insurance 3510031 Insurance Premium Tax 0 110222 Intellectual Property 0 0 00010 International Criminal Court 0040020 International Criminal Court, E & W 0011000 International Criminal Court, NI 0011000 International Development 0003410 International Immunities and Privileges 6 384236 International Organisation and Development 0 100000 3247872054 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 87
8 November 2005
Heading 1999 2000 2001 2002 2003 2004 2005 Investigatory Powers 7 14 4 5 6 2 3 Isle of Man 1 0 0 0000 Judgments 0120100 Judgments, E & W 0 0 1 0002 Judgments, NI 0 0 1 0001 Judicial Appointments and Discipline 0000001 Judicial Appointments and Removals, NI 0000002 Judicial Committee 2300201 Justices of the Peace, E & W 5 8 62215 Justices of The Peace, NI 0010000 Land Authority for Wales 1000000 Land Charges, E & W 0000101 Land Drainage 1000010 Land Drainage, E 0000030 Land Drainage, E & W 0000001 Land Registration, E & W 3 7 3 1 14 2 4 Landfill Tax 2 1 1 1312 Landlord and Tenant, E 22161273 Landlord and Tenant, E & W 3 0 0 0220 Landlord and Tenant, W 0000100 Lands Tribunal, E & W 0101100 Landmines 1210000 Legal Aid and Advice 0010000 Legal Aid and Advice, E & W 23 13 12 3 1 0 2 Legal Aid and Advice, S 5000000 Legal Profession 1100000 Legal Profession, E & W 1 2 3 0021 Legal Profession, NI 0 1 1 0020 Legal Services Commission, E & W 0 8 19 7 10 10 11 Legal Services 2200000 Legal Services, E & W 3 0 5 2344 Libraries 3211232 Licenses and Licensing 0 0 0 0 1 4 17 Licensing (Alcohol) 0000200 Licensing (Liquor) 0040001 Local Authorities, E 0000010 Local Government 0000234 Local Government, E 6 29 42 17 23 21 11 Local Government, E & W 28 2674112 Local Government, S 4010010 Local Government, W 2 2 11010 London Government 3 76 9 5 7 4 3 Magistrates’ Courts 17 823143 Magistrates’ Courts, E & W 5 5 22 5 12 20 24 Maintenance of Dependants 1034110 Marine Pollution 2220001 Marriage, E & W 0000100 Medical Profession 3 12 2 2 1 0 0 Medical Profession, E 0 0 01000 Medical Profession, E & W 0 2 0 0000 Medical Profession, E, W & S 0000001 Medical Profession, NI 0 1 0 0000 Medicines 6 15 12 10 11 17 21 Mental Health 0 0 00101 Mental Health, E & W 0103115 Merchant Shipping 25 11 10 9 17 22 7 3247872056 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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Heading 1999 2000 2001 2002 2003 2004 2005 Metropolitan and City Police Districts 0 200320 Ministers of the Crown 7144302 Monopolies and Mergers 2 000000 Multilateral Investment Guarantee Agency 0 100000 Museums and Galleries 0 1 00011 National Assistance Services 1000000 National Assistance Services, E 0 3 82322 National Assistance, E 0030000 National Debt 5621160 National Election Expenditure 0 030010 National Health Service 0 0 2 12 0 3 2 National Health Service, E 40 137 330 293 88 70 44 National Health Service, E & W 114 17 10 17 13 14 21 National Health Service, NI 2 000010 National Health Service, S 30 400010 National Health Service, W 3001000 National Lottery 7 322426 New Forests 0 0 00100 Notaries Public 1 0 00000 Northern Ireland 38 14 19 18 35 30 30 Nuclear Safeguards 0000050 Nurses and Midwives 0004192 Nurses and Midwives, S 0 0 00010 Nurses, Midwives and Health Visitors 1113000 Nurses, Midwives and Health Visitors, E 0 0 01020 Oaths 1 0 00000 OVshore Installations 3342344 Open Spaces 1200020 Open Spaces, E & W 0000002 Opticians 4021139 Opticians, E 0 0 00001 Osteopaths 5 8 12000 Overseas Development and Co-Operation 1310000 Overseas Territories 00031123 Parliament 3132022 Parliamentary Commissioner 2200112 Partnership 1376112 Patents 7 3 32353 Pensions 20 49 26 24 15 12 98 Pensions, E 0000111 Pensions, E & W 0197679 Pensions, NI 0000003 Pensions, S 0110010 Pensions, W 0 000100 Pensions and Social Security 1000000 Pesticides 2 1 41132 Pesticides, E & W 0045445 Petroleum 3110031 Petroleum Revenue Tax 0000003 Pilotage 0000001 Pipe-Lines 1 3 00000 Pitcairn Islands 0202010 Plant Breeders’ Rights 1 0 12000 Plant Breeders’ Rights, E 0000001 Plant Breeders’ Rights, NI 0 000001 Plant Health 0034041 3247872057 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 89
8 November 2005
Heading 1999 2000 2001 2002 2003 2004 2005 Plant Health, E 1 2 14145 Plant Health, E & W 0 0 0 1000 Plant Health, W 4000000 Police 18 5 10 18 4 8 4 Police, E 0 0 0 0010 Police, E & W 0 0 5 16 32 25 19 Political Parties 0030011 Post OYce 2001000 Postal Services 1 2 10 3200 Powers of Attorney 1 3 1 0000 Powers of Attorney, E & W 0 0 02003 Prevention and Suppression of Terrorism 3 4 15 6632 Prices 1 0 00110 Prisons 4332313 Probation 0 1 30000 Proceeds of Crime 00061633 Proceeds of Crime, E & W 0 0 0 0001 Proceeds of Crime, NI 0 0 0 0001 Professional Qualifications 1 1 1 4102 Professions Supplementary to Medicine 4 1 10000 Protection of Vulnerable Adults, E & W 0000010 Protection of Wrecks 2 0 10000 Protection of Wrecks, E 0001031 Public Audit, E & W 0 0 0 0003 Public Health 1 0 21145 Public Health, E 0158751 Public Health, E & W 6102240 Public Health, NI 7200020 Public Health, S 7100000 Public Health, W 0 1 0 0000 Public Order 1000000 Public Order, NI 0210211 Public Passenger Transport 3 3 1 6356 Public Passenger Transport, E 0013112 Public Passenger Transport, E & W 0002031 Public Procurement 0110100 Public Records 3120111 Public Records, E & W 0010100 Public Sector Information 0000001 Race Relations 1032420 Radioactive Substances, E & W 0 0 1 0000 Railways 0000001 Rating and Valuation 5 0 00120 Rating and Valuation, E 3 18 11 3 8 11 5 Rating and Valuation, W 0 0 0 0001 Recovery of Taxes 0000032 Referendums 0020030 Regional Development 0 1 00000 Regional Development Agencies 1000000 Registers and Records 1 0 00000 Registration of Births, Deaths, Marriages 0 2 0 2301 Registration of Births, Deaths, Marriages, 3200007 etc, E Registration of Political Parties 1151001 Regulatory Reform 0016635 Regulatory Reform, E 0 0 0 1000 3247872059 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
90 management of secondary legislation: evidence
8 November 2005
Heading 1999 2000 2001 2002 2003 2004 2005 Regulatory Reform, E & W 0000102 Regulatory Reform, W 0 0 00010 Rehabilitation of OVenders 0010000 Rehabilitation of OVenders, E & W 0011100 Representation of the People 23 6 18 6 13 22 6 Representation of the People, E 0 0 00001 Representation of the People, E & W 0000040 Representation of the People, NI 0000020 Representation of the People, W 0000020 Restrictive Trade Practices 1000000 Revenue and Customs 0000004 Revenue and Customs, E & W 0 0 00001 Rights in Databases 0 0 00100 Rights in Performances 1000201 Rights of Way, E 0 0 01110 River, E 0000100 River, E & W 1101000 River, S 2010000 Road TraYc 57766759665762 Road TraYc,E 0202000 Road TraYc,E&W 0006103 Roads and Bridges, S 1000000 Savings Banks 4110100 Scottish Parliamentary Standards 0 000100 Commissioner Scottish Public Services Ombudsman 0 0 00010 Sea Fisheries 11 2 1 2 0 1 0 Sea Fisheries, E 0 083563 Sea Fisheries, E & W 0 2 00211 Sea Fisheries, NI 0 10 42001 Secure Training Centres, E & W 0 000100 Securities 2000000 Security Industry 0001110 Security Industry, E & W 00000012 Seeds 11 0 03010 Seeds, E 0716176 Serious Organised Crime Agency 0 000001 Sex Discrimination 3010411 SheriV Court, S 10 0 0 0 0 0 0 Social Care 0022130 Social Care, E 0 0 10 13 12 13 14 Social Care, E & W 0 0 00345 Social Care, W 0100000 Social Security 98 110 107 88 92 71 77 Social Security, E & W 0000101 Social Security, NI 4 19 12 8 5 2 5 Social Services, E 01401001 Special Roads 0000110 Sports Grounds and Sporting Events 5823423 Sports Grounds and Sporting Events, E & W 0 013030 Stamp Duty 0000003 Stamp Duty, NI 0000001 Stamp Duty Land Tax 0000004 Stamp Duty Reserve Tax 0 000001 Statistics of Trade 1111111 Succession 1000000 3247872060 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 91
8 November 2005
Heading 1999 2000 2001 2002 2003 2004 2005 Sugar 1000000 Summary Jurisdiction, S 3100000 Summer Time 0 0 0 1000 Supreme Court of England and Wales 23 21 19 10 29 33 30 Supreme Court of Northern Ireland 0030122 Tax Credits 0 0 0 13 21 8 9 Tax Credits, E 0000001 Tax Credits, NI 0000010 Tax Credits, S 0000010 Taxes 25 19 28 21 20 23 13 Taxes, NI 4 1 12 7100 Telecommunications 70 26 20 13 2 0 0 Telegraphs 67441200 Terms and Conditions of Employment 29 20 14 22 17 22 12 TermsandConditionsofEmployment,E&W0030100 Terms and Conditions of Employment, S 0100010 Territorial Sea 0001000 Territorial Waters 0001000 Terrorism 0 0 12000 Town and Country Planning 0010012 Town and Country Planning, E 063671411 Town and Country Planning, E & W 10 201010 Town and Country Planning, S 1 0 0 0000 Town and Country Planning, W 0000011 Tractors 0 1 11000 Trade Descriptions 0000001 Trade Marks 4413061 Trade Unions 0001002 Transport 16 23 22 14 12 20 25 Transport, E 0 0 6 10 4 2 9 Transport, E & W 0100310 Transport, NI 0000100 Transport, S 0010000 Transport and Works 1101100 Transport and Works, E 02562210 Transport and Works, E & W 0202000 Treasure 0001000 Tribunals and Inquiries 1414101 Tribunals and Inquiries, E 0200321 Tribunals and Inquiries, E & W 0000020 Tribunals and Inquiries, W 0 0 00610 Trustees 1110000 Trustees, E & W 0 0 1 1111 Trusts, E & W 0 0 0 0010 United Nations 10 21 22 10 12 13 10 Unsolicited Goods and Services 0 0 10001 Urban Development 0 0 1 0002 Urban Development, E 0000010 Urban Regeneration Agency 1 0 00000 Value Added Tax 24 15 17 16 18 25 15 Veterinary Surgeons 2222353 Water 0 0 0 0012 Water, E 0002000 Water, E & W 1 2 00113 Water, S 0001000 Water Industry 0000001 3247872062 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
92 management of secondary legislation: evidence
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Heading 1999 2000 2001 2002 2003 2004 2005 Water Industry, E 0000002 Water Industry, E & W 4410128 Water Resources, E 0010310 Water Resources, E & W 4000300 Water Resources, S 0000010 Water Supply 0000011 Water Supply, S 0000001 Weights and Measures 1460401 Welsh Language 2 2 00000 Wildlife 1000011 Wildlife, E 0 0 00010 Wireless Telegraphy 0100000 Young OVenders Institutions, E & W 2 4 01002 Young OVenders Institutions, S 1000000 Youth Courts and OVenders 0100000 Zoos, E & W 0001000
Local Instruments
Subject 1999 2000 2001 2002 2003 2004 2005
Administration of Justice 12 7 14 5790 Agriculture, Fisheries and Forestry 3 11 366 1020 Air Navigation (Restriction of Flying) 5 8 252 83 101 86 124 Charities 2110110 Customs and Excise (Free Zones) 1 030000 Derelict Land 0001000 Disabled Persons 0000001 Education 4 2 11 8 12 24 40 Electricity 0 0 00310 Housing 0000001 Land Drainage 0 000003 Local Government 53 67 110 99 58 64 25 OVshore Installations 0000310 Public Passenger Vehicles 1100000 Railways, Tramways and Trolley Vehicles 0173120 Rivers and Inland Waterways 7250127 Roads, Bridges, Road TraYc and Rights 238 168 1,160 1,154 1,333 1,461 1,538 of Way Sea Fisheries 0000001 Shipping, Harbours, Docks and Ports, etc 5 4 8 10 4 7 5 Town and Country Planning, Open Spaces, 0 011000 Access to Countryside Water Supply 1300112 3247872064 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
management of secondary legislation: evidence 93
8 November 2005
Examination of Witnesses Witnesses: Mr Anthony Inglese, Director-General of Legal Services, Mr Mitchell Leimon, Director, Better Regulation and Mr Bryan Welch, Legal Director (Consumer Protection), Department for Trade and Industry, examined.
Q132 Chairman: Would you introduce yourselves on it, the Joint Committee reports on it. The by name and role? legislation for which we are responsible covers a Mr Inglese: Thank you, my Lord Chairman. I am broad front— Anthony Inglese, and I am the Solicitor and Chairman: I should have explained that we have Director-General of Legal Services in the divisions taking place in the House, and I am afraid Department for Trade and Industry. Perhaps I could one has just been called. We will ask you to pause at say a little more about what I do after the team have that point. We will go oV and vote and the world will introduced themselves. be a better place when we come back. Mr Leimon: Mitchell Leimon, Director of Better Regulation in the DTI for the last two months. The Committee suspended from 5.17 pm to 5.26 pm for Mr Welch: Bryan Welch, I am head of one of the two a division in the House legal branches which deal with consumer protection.
Q133 Chairman: You wanted to amplify a little on Q135 Chairman: Do carry on, if you can remember your role, Mr Inglese? where you were. Mr Inglese: I have been the solicitor and Director- Mr Inglese: I was beginning to aim to give the General of Legal Services in the Department for Committee a flavour of the subjects we cover in the nearly four years. I have worked in other government DTI. We cover a broad range of subjects compared departments as well. I am a member of the DTI to lots of other departments—company law, Board and I am the Board member with insolvency, competition law, consumer law, responsibility for what I call the Statutory consumer protection, communications, weights and Instrument process—the quality of drafting; the measures and other standards, trade union law, quality of lawyers doing the work; the management employment law, equality and discrimination, of those lawyers; coaching; the recruiting of lawyers intellectual property, electricity, oil, gas, coal, to work in the team—where we look for people with nuclear. And a significant amount of our work good analytical powers, creative powers, practical involves implementing EU Directives. That gives a powers; the training of lawyers and training across flavour of the sorts of things our lawyers and policy Y the Department in work on Statutory Instruments o cials are doing. and then handling issues as well. So, for example, if there are points on bunching of Statutory Q136 Chairman: Could you develop the process a Instruments, those points would be my responsibility little more? Is there a process of active management to do something about. I am also chair of a board in the Department across the making of SIs, both to within the Department called the Legislative Board ensure they are well done when they come before and that board helps the Secretary of State to Parliament, that they are as sound as you can make prioritise all bids across the Department for primary them, that they are properly timetabled, that there is legislation. We monitor progress on all the proper consultation, et cetera? Department’s Bills through the draft stage and we Mr Inglese: A lot of what I am going to say relates to aim to educate the Department through that process that system, so we may take it in chunks as we go in legislation and in supporting that legislation, in through the session, but can I start with some particular subordinate legislation which is needed to strategic comments about how we monitor SIs under implement our primary legislation. When we are that system? We take SI work very seriously. We look doing that we look for project management at the progress of the larger Statutory Instruments on approaches and an approach to risk management our risk registers, and my current risk register, for and, above all, quality of work. May I say a little example, looks at progress of the Age Regulations more about the approach of the DTI to give you a and any problems with Working Time. Anything flavour— that is that serious gets on to the register, which I look at every week with my top team. I ask for monthly Q134 Chairman: Yes, that would help. It will reports from the senior lawyers who are responsible probably spare you from lots of questions. for the drafters, and those monthly reports tell me Mr Inglese: I would say the DTI is no diVerent from about the progress of every significant Statutory any other government department in the sense we see Instrument which we run as a project. So once a subordinate legislation as important for our month I can sit down and look at a group of smiley reputation. A lot of what we do is public, you report faces or frowny faces as to whether something is on 3247872064 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch track. We have a balanced scorecard which we use as administrator will come together, it is a team eVort, a tool to enable us to keep on top of this area of work and words will appear from the lawyer and the eVort and the scorecard looks at, amongst other things, is often called an iterative eVort as the lawyer legal quality; is the quality of the work really good. challenges the policy and the policy oYcial challenges What helps us to feed information back into that the legal drafting and they both ask questions like, balanced scorecard is the feedback we get from the “Do we really need to do this? Are there better ways Merits Committee, the Joint Committee, if any of our of doing this? Is there a non-legislative way of doing cases are ever in court and they feature one of our this?” This is all considered at the beginning. Statutory Instruments, how did the case go, what did the judge say. The last time we were in court we had Q137 Chairman: Can you give us an example where a judicial review on one of our Statutory Instruments this has actually led to an SI being stopped because and the S.I was upheld. I see it as very important to you found an alternative way of achieving the policy keep the quality traYc light on that scorecard green. objective? It really is important for us to be doing that work Mr Inglese: I have noticed that previous witnesses well. We have a lot of internal guidance that we use have not been able to answer this question in quite for the preparation of Statutory Instruments, so the detail you would like them to either. The best I people do this work under guidance, and the can do with this one is say how that sort of work has guidance comes from lawyers, policymakers, moderated or modified things which were going to be parliamentary clerks. It is on our intranet. We also done. For example, in negotiating the Electricity look at the Cabinet OYce’s intranet, and the Security of Supply Directive, the DTI persuaded the Government Legal Service has an intranet called European Commission to drop a regulatory Lion, which again has a lot of guidance on Statutory provision requiring Member States to have Instrument procedures. That is the background interconnector capacity amounting to 10 per cent of against which we do the work. When it comes to the installed electricity generation capacity. We looked work itself, the starting point is when a policy idea at alternative ways of doing this and we successfully comes forward that needs to be taken up into a promoted the benefits of the market place approach Statutory Instrument. That policy comes from a to energy infrastructure without the need for number of sources, implementation of international specific targets. commitments, European Directives, sometimes we are simply putting flesh on a Parliamentary Bill which Q138 Chairman: Maybe you would care to give us a has just passed and we are implementing that Bill. It supplementary note on that because it is of interest to is an important part of the process on Statutory us, not necessarily the examples but also to get into Instruments that the policy administrators and the the skin, by what process you stimulated that to lawyers work closely together in developing policy happen, because that is the diYcult bit, is it not? and drafting right from the very start. If there is one Mr Inglese: I do have one or two other examples I thing which characterises the work, it is that can give. formation of a team right at the beginning and the identification of that piece of work as a project, which Q139 Chairman: Can you drop us a note because enables us to form a timetable and look at when it is that will allow us to absorb them. This is extremely V going to come into e ect and count back, look at the interesting stuV and very much what the Committee various stages as we define the project and take is interested in exploring. But the Committee would account of the need to give guidance, the need to like to have a go at asking questions as well, so if you consult and the length of time it takes to produce a could bring it to a conclusion, I will give you a chance good draft. We always aim to draw up a timetable, at the end to say anything you feel we have not and any Statutory Instrument which is of a properly explored with you. significant size is normally run as a project, and in the Mr Inglese: I will skim quickly. We have a DTI we have a project centre that gives guidance on consultation with stakeholders. Consultation can be how to run things as a project for those people who and always is formal but we also have informal are coming new to the concept for the first time. One methods of bringing stakeholders together and we of the key things is to identify the stakeholders in the can say more about that later. Once the consultation process early on. We consult them at an early stage. is over and there is further drafting, we have For example, with our Statutory Instrument on the occasionally consulted again if we have to go back to Supply of Extended Warranties on Domestic the people, but usually at that point we have got the Electrical Goods, the oYcials met the key Statutory Instrument together in the Department. stakeholders to discuss the policy proposals and We seek and obtain ministerial approval, we link listened to their concerns before even the first draft of with our parliamentary unit to discuss how to take the Statutory Instrument was prepared. When the forward the making and laying of the Statutory first draft is put together, the lawyer and the Instrument, and we also finalise the Regulatory 3247872064 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch
Impact Assessment and the Explanatory Mr Inglese: May I say two or three sentences before Memorandum with a view to putting all of that answering that about Common Commencement together and showing it to the Committee and Dates? I think everybody in this room is probably in publishing where appropriate. favour of the notion of Common Commencement Chairman: Thank you very much indeed for that Dates for Statutory Instruments which have an extremely interesting introduction. There is much we impact on business. When Government consulted want to explore. businesses there was a very high level of response in favour from businesses; I think 83 per cent of those consulted were in favour. It is worth saying that we Q140 Earl of Northesk: Your observation about the are not questioning the idea of Common broad range of your legislative responsibilities Commencement Dates, which Government will roll sparked a thought in my mind. Of course, the ambit out into other areas as well; but what is being of your legislative responsibility is rather wider than questioned is the bunching of Statutory Instruments within your own Department in that you are made in the run-up to a Common Commencement guardians of the Technical Standards Directive. Date? What suddenly occurred to me is that, if you are guardians of those particular directives which reach across government department boundaries, what Q143 Viscount Colville of Culross: Yes. mechanisms do you have for liaising with other Mr Inglese: In preparation for this hearing I have departments in respect of SIs relating to or touching tried to find out some of the basic facts about DTI on the cusp of the Technical Standards Directive? Instruments, to explain what happened with them in Mr Inglese: I cannot answer for the Technical the run-up to the 6 April date of this year and the 1 Standards Directive but I can give an answer about October date. May I give some figures? On 6 April we how we consult other departments on other things. had 11 DTI Statutory Instruments coming into force which had a Common Commencement Date of 6 Q141 Earl of Northesk: That would be extremely April. Of those 11, one of those was laid in January, helpful. two of those were laid in February and eight of them Mr Inglese: There is a lot of cross-departmental work were laid in March. There were two others which on legislation and supporting legislation. For were made in March but they were not subject to any example, I know because it happens all the time, parliamentary procedure. So one, two, six. If you lawyers speak to other lawyers in other departments, compare that with DTI’s overall output of other show them drafts, ask them if those drafts work in Statutory Instruments during that period, we laid five those other departments, often show them drafts in January, 10 in February, including three which with some sketched-out wording or gaps and ask were not subject to parliamentary procedure, and in them to fill in those gaps insofar as they relate to the March—and I realise I am leading with my chin responsibilities of other departments. A very good here—we laid 27, including seven which were not example of that is something we have recently done subject to parliamentary procedure. So I think we, on implementing the Civil Partnerships Act, which is and possibly other departments, helped to produce one of those Acts which covers legislation in all sorts what has been called a spike in March. Can I say of other departments and that has involved a lot of something about October? collaborative work— Earl of Northesk: We have noticed! Q144 Chairman: If it got better, we would be pleased to hear it. Q142 Viscount Colville of Culross: We know! Mr Inglese: Yes, I would say that, but I think there is Common Commencement Dates: I quite understand still room for improvement. In October there were there is a great deal to be said, particularly if you are 14 Common Commencement Date Statutory dealing with businesses, for having a common Instruments coming into force on 1 October. Three of commencement date for groups of Statutory those 14 were laid in July, eight were laid in August Instruments. It does cause a major traYc jam, it and three were laid in September. If you then look at causes one at the HMSO but it certainly causes one DTI Statutory Instrument output during that period here. Is there any reason why you cannot plan ahead with other Instruments which were not Common so that, although they are all going to come into force Commencement Dates, in June we made and laid at the same time, which will help the businesses, you seven, in July we laid ten, in August we laid 14 and in can nevertheless get them in front of Parliament and September we laid eight. If you look at that in the all the other people concerned in smaller numbers form of a graph, there was a big spike in March, but over a period of time beforehand? I think it would be the thing in June, July, August, September was more a huge help if you could. of a hill. 3247872064 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch
Q145 Chairman: The conclusion we draw from that be to reduce the bunching. But I think it would be is that with active management there is no reason true to say there will always be some bunching. why one cannot with common commencement dates get an even flow. You would agree with that, would Q148 Viscount Colville of Culross: That is very you not? helpful, but to judge by what you said about the Mr Inglese: I would. I think Mr Welch would like to preparation of Statutory Instruments, which is very add something on that as well. considerable, you must know fairly early on which Mr Welch: What I would like to add to that, my Lord are the ones which are going to be subject to a Chairman, is that we have an increasing number of Common Commencement Date. steps that we have to go through before making Mr Inglese: Yes. Statutory Instruments. To begin with, we have a three month consultation period, we have twelve Q149 Viscount Colville of Culross: For the rest of weeks to provide guidance to business before it comes them it does not actually matter all that much into force, and obviously the 21 days minimum to the probably when they come into force and when they JCSI. This means we are already talking about are laid. Why do not you concentrate on the having to start seven months before the Instrument Common Commencement Date ones and get them comes into force. When we add to that the possibility down quickly so they can come out in a series? of the notification to the Technical Standards Otherwise the system just does not cope with it, Directive and the possibility of AYrmative particularly, if I may say so, in September. Instruments debates, we end up with quite a Mr Inglese: I think the figures I produced show that complicated and elongated timetable, and of course actually it is the other ones which out-number the at the beginning of that is the question, what does the Common Commencement Date ones. Because the minister want to do and when does he or she want to Common Commencement Date ones seem to be do it by, which overlays that. This is the diYculty of more significant to us in planning terms, in the sense saying we can simply make the spike disappear, that we tell the world about them and we put them in because it depends how far back we start and we our annual Statement of Statutory Instruments, it is already have to start really quite a long way back more likely we are going to be running them more as from the coming-into-force date. part of a programme of Statutory Instruments. It is probably the other stuV which could be the issue. I do Q146 Chairman: I am not persuaded that that means not have as much visibility as to what the other stuV it is impossible or even diYcult. is, to be able to say that a lot of that can easily wait. Mr Welch: Indeed no. The best thing I can say is that this hearing, if I can speak frankly, has concentrated the mind and has Q147 Chairman: It requires one to plan it like a enabled me to go away and think there is something project which you have described and start it earlier which needs to be done, but I would be foolish if I in the process rather than leaving it later in the promised to make it go away entirely. process, does it not? Mr Inglese: The spike in March may have had Q150 Lord TunnicliVe: Do you analyse the something to do with other sectoral commencement outcomes of the Statutory Instruments you have laid, dates—the start of the financial year, the general whether they achieve their policy objectives, whether election—so I think that gives you a challenge for they create a disproportionate burden, et cetera? next March. We ought in departments to take on the There is an awful lot which goes into the creation of aim of minimising bunching but I think it would be a Statutory Instrument. How much learning do you foolish for us to volunteer to eliminate bunching take from its actual impact afterwards? because, as Bryan says, there will always be some Mr Inglese: We have recently set up an advisory slippage in some projects. Sometimes key people are forum on the impact of employment policies, and the away sick, as occasionally has happened to us; aim of that forum is to assess the impact of the sometimes policy discussions go to the wire—rather regulatory framework on employment. So that is like Fireworks, for example. We made Fireworks looking at all Bills and Statutory Instruments. In Regulations late, but people can imagine there is a lot some of the fields in which the DTI works, we have of discussion going on in the run-up to the fireworks people who are actually users of the supporting season. But the aim we should have is to produce a legislation and primary legislation in the smoother picture, and not just to run each Statutory Department. So, for example, the Insolvency Service Instrument as a project but to find a way of running is a continuous user of insolvency legislation, and a group of Statutory Instruments more as a that is currently carrying out a review of the programme. I would love to say that is very easy and eVectiveness of the Enterprise Act and the Statutory we will go away and do it, we will certainly go away Instruments made under it. Similarly, with and try and do something about it, and the aim would intellectual property law we have the Patent OYce 3247872064 Page Type [O] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch which does the same. I might say something later not doing it because we do not take it seriously, but about consolidation. Then it is general DTI policy to trying to ensure we have a disciplined and structured review regulations after implementation where there approach to evaluation. I am sure we can do more. has been a Regulatory Impact Assessment. That is There are two factors going on at the moment which our general approach to evaluation. will help us on this. The Cabinet OYce-led Better Mr Leimon: I think the Committee has heard Regulation programme, the cross-departmental previously from others about the value of standing programme, has launched firstly the Admin Burdens consultative bodies which structure a continuing Review, which is a Domesday Book-exercise across debate. There is plenty of evidence, within DTI, of Government which we are going about. That in the regulatory round; of legislation like the theory will give us a calculus of all the administrative Enterprise Act having settled down, coming up for burdens laid on businesses as a steady state against rethinking and evaluation by stakeholders. So the which we can measure the increases and decreases of work plan in large areas of the DTI is, like the Forth burdens on business. So that will give us a calculus Railway Bridge, around the continuous maintenance going forward for evaluation of what we do and of legislation. Secondly, all of us must schedule—in whether it delivered more or less positive and that point of post-evaluation by instinct so far as the negative benefits than we anticipated. Secondly, DTI, points of post-evaluation are concerned, and they following the Cabinet OYce, is leading on the are often anticipated by general debate about calculation of cumulative burdens, not just of the enforcement in the business communities of what has administrative burdens but of the policy cost, and worked and what has not. That debate is lively, and that very intellectually significant exercise should feeds into the better regulation debate, of which I come through in about 18 months. That may lead us am part. towards the concept of regulatory burdens. So all of this I think will lead towards a more disciplined Q151 Lord TunnicliVe: Your answer seems to say to context of looking at the impact of regulation. me that it happens but it does not seem to say, as directly as I wish it did, that it is structured. In other Q153 Baroness Morgan of Drefelin: I am wondering, words, is there a paragraph in your project having listened to the last couple of answers, whether programme which says, “After the SI we will look at as a result of preparing for this Committee you might the impact. It may happen somewhere, so we can be looking at your risk register or your risk map steal that. But we will guarantee every SI is looked at again thinking about a more systematic approach to for what its impact is and what we can learn about the evaluation and assessment of burden? process which led to that SI”? Mr Leimon: It has certainly been a salutary Mr Leimon: Every RIA, which also cover SIs and experience for me. Having joined the Department as other forms of secondary legislation which have a a professional project manager, I was not expecting business impact, sets the point at which the impact to find myself in front of a Committee of this will be assessed. So there is an absolute commitment seriousness. We are looking hard at what we have to that post-implementation assessment is scheduled. do. DTI as a department takes very seriously the For example, the RIA on the Voluntary Provision of better regulation initiative. We have to be very Directors’ Remuneration we are evaluating in 2008. committed to it. Our new permanent secretary, Sir The key thing is that evaluation goes into the full Brian Bender, has stressed that DTI must be in the working plan of the Department, and is scheduled. premier league on better regulation. For us, secondary legislation is just as important as primary Q152 Lord TunnicliVe: What have you learnt legislation. Looking forward, we are tasked with through that process? bringing forward a culture change. As I say, I think Mr Leimon: In preparing for the Committee we did the DTI has in many respects a very good story on not automatically find lots of directly resulting better regulation—and we should have, should we evaluation analysis. As was said earlier, in the work not? It would be very embarrassing if we did not. But in the Department people are constantly engaged in we do see the need for a significant leap forward in fixing previous legislation and bringing forward the various aspects of it. If I can re-interpret your point next stage and the natural developments thereof. slightly, I would say the thing I take from it is the Within the Better Regulation team, I have a student challenge we have in getting foresight of forward as part of an MBA doing an analysis of the years of the work programme. The challenge is of Department’s approach to evaluation, because we whether it will be diYcult or even sensible for us to see it as part of the loop of policy formation which is impose a central bureaucracy of great grip and at the heart of better regulation, and those findings strength. Nobody likes that, and it can cause are interesting. We will have to, as part of the Better performance to deteriorate rather than to improve. I Regulation programme, plan some more activity and think our challenge of looking at how better foresight improve our game on evaluation. But, as I say, we are can be maintained across the regulatory activity of 3247872064 Page Type [E] 21-03-06 23:44:56 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch the Department is one of the things we will be looking to why this should be? Is it that some sections within for in the coming months, and looking at the the Department are not as conscious of what they scorecard and making Best Practice guidance. ought to be doing as others? Is it the Legal Department, which pays more attention to things in Q154 Chairman: Can I leave with you a question some instances and not in others? Could you explain following on Lord TunnicliVe’s question on this this patchiness? The second question I want to ask is area? It sometimes appears to us as if departments with regard to the, I can only describe it as, sloppy make regulations without much of a thought about way in which some departments draft Statutory how they would retail those, without much of a Instruments. Your Department much irritated the model of how they would incentivise compliance with Committee last year because you succeeded in them and with a very weak understanding of how having, of the 60 Instruments you laid, five of them they would actually track what has happened in which were corrections from previous mistakes, and practice. I am generalising. What is characteristic that particular thing really does make us very cross. often is that there appears to be no feed-back Across the whole of government, you were the fourth mechanism, to know whether that regulation has worst department. This year we are very pleased. worked, and then no collective feed-back mechanism Again there is patchiness but this year you have laid which learns across government or across 46 Instruments, none of which were corrections. I departments when you have regulated in certain ways wonder if you could tell us, when you saw those very and in certain circumstances to get better compliance bad figures from last year, what did you do in the with the policy outcomes, which is what it is all about. Department to create a situation this year where Do not feel you have to answer that now, but we things were infinitely better? I think we would be very would welcome, perhaps building on your student’s interested to know what you did in your Department note, some further thinking on this, how you think because in dealing with other departments, and I am you as a department will be taking this forward. You thinking particularly of the OYce of the Deputy understand the argumentation; I am sure, without me Prime Minister, which had an absolutely disgraceful labouring it? record over two years, we might feel inclined on the Mr Inglese: Can I just respond on one point there? It basis of what you could tell us to see if that device is important for us to work closely with our might be usefully implemented. stakeholders in the DTI. We see ourselves as a Mr Inglese: I would like to be able to say that we did department which has to be closely linked with three things and they had immediate impact, but I business, and a lot of our SIs are being inflicted on think it is not quite as simple as that. I will do my best businesses. When we consult our stakeholders, 74 per to answer both questions. The first thing is whether cent of them tell us that they are involved in policy- we get this right or wrong. We do take this work very making by the DTI, which I believe is quite a high seriously. We value people who do it well and that figure, and that is something where we think we have comes up, for example, in the way we give out a dialogue with them. If they think we are not doing it bonuses to people for doing good work and the way right, they certainly will push back. One of the things we appraise staV. We regard good drafting as an which senior civil servants in the DTI do is every year important part of the skills of a DTI lawyer. When we to spend a week in the world somewhere, which we recruit people, we are looking for analytical skills, call a week-in-business, and a number of us choose to creativity and the practical nature, so they can turn go where there is a lot of regulation, so people can that into a good draft. One of the things we ask new give us the benefit of their opinion on the regulation recruits in a written question which they will have to we do. answer is a little drafting point to see if they are the Chairman: Let me leave the question with you, and if kind of people who will come to grips with drafting there is some further evidence, we would welcome it. or will somehow shy away from it. So that is something we do take very seriously. What we have Q155 Lord Jopling: I would like to ask two questions done since last year is that we have set up two which arise from the general impression I think we Statutory Instrument co-ordinators within the Legal have that the DTI’s handling of Statutory Services Group, who have the job of dispensing feed- Instruments is somewhat patchy. We find sometimes back from this Committee and the Joint Committee that you lay Instruments with plenty of time, other on our Statutory Instruments and giving people times you do not, and we would be critical that time guidance. That sort of thing went on before but it was is very low. I will not get on to consultation because not done by these two individuals. We have always we are going to talk about that later, but the same had a system of checking Statutory Instruments in could apply, that consultation varies—sometimes it draft by a second pair of eyes, and the thing we have is good and sometimes it is much less than good. done since last year in one of the three directorates I Again the matter of Explanatory Memoranda varies have which draft statutory instruments is that the considerably. Could you give us some explanation as head of the directorate now acts as a third pair of eyes 3247872064 Page Type [O] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch which he says has been very helpful because, amongst Q158 Lord Methuen: SIs can have a significant other reasons, it has given him a greater professional impact on industry. How eVective is your machinery, contact with the junior lawyers doing drafting. So a ie the Small Business Service, for assessing such third pair of eyes has come into it as well. But impact before the event? dissemination of critical reports from Committees Mr Inglese: The Small Business Service itself and the does act collectively on us as a wake-up call because Small Business Council are there to work across we do not like to get it. We know that other people government, as I think you have hinted, to represent read it and may think less of us and it is one of the the views of small business and impact on things which keeps you on your mettle. So one of my Government proposals. One of the particular pieces messages is, please do continue to give us feed-back of work they do is improving the impact of regulation because we find that helpful even if it is painful. Other and policy insofar as they relate obviously to small things we have done are that the Statutory businesses. All Regulatory Impact Assessments have Instrument co-ordinators have arranged Statutory to undertake a thing called the small firms impact test Instrument training within the Legal Services Group to see if the proposed new regulation will have an and, since last year, we have extended training to our impact on small businesses and then any burden on newest lawyers, our legal trainees, who previously did small businesses identified needs to be reflected in the not have training in Statutory Instruments. I do not options that are submitted to ministers in the full and know if that is genuinely significant. We have had a final RIA. It makes those small business issues much talk from the Joint Committee lawyer who came a more visible across government than they might few months ago and gave us the benefit of direct feed- otherwise have been. back from the Joint Committee, which was helpful to us. Those are some of the things we have done and I could not honestly say what the impact of them has Q159 Lord Methuen: Do you not find problems with been except maybe the proof of the pudding is in the relative size of the CBI mandate versus the small the eating. businesses? Mr Leimon: The Small Business Service is a two-way street, of course, it does lobby across government on Q156 Lord Jopling: Could there be a connection behalf of small businesses. Also, it is extremely handy between the fact that you have got three groups having them physically very close to us in the DTI to which you talked about in drafting Statutory channel back what they are hearing from their Instruments and the patchy impression that your stakeholders to take the small business point of view. Department gives us? We have just set up a Ministerial Challenge Panel to Mr Inglese: As Head of the Legal Department I be the top of the DTI pyramid of consultation and would like to know more about the patchy challenge within the Department. That involves a impression in order to understand how that really minister chairman, the Minister for Better works but I do not think that the three groups come Regulation, chairing the panel, with the Cabinet into it. The lawyers in my Legal Services Group, on OYce Better Regulation Executive and Her the whole, are going to be working in one post for Majesty’s Treasury represented on one side of the three or so years and moving to another post, and as table, and then an array of business representation— they move posts they are turning themselves into picking up your point, the CBI is present, the good all-round lawyers whose drafting skills improve Employers’ Federation, but also Small Business because they are deploying those skills against a Council and then small business representatives V di erent background. Some of the law that we do is forming a phalanx of business representation. heavily detailed and statute-based, some of it is Against that star chamber line-up, oYcials bring the V implementing EU Directives, and the more di erent measures they are in development of to the panel, and kinds of experiences you get the better you get at they have to give a short, sharp presentation on why drafting. There is quite good information-sharing it is good, what problem it is setting out to resolve, the between lawyers at all levels. I do not think the fact extent to which alternatives to heavy-handed there are three directorates doing this makes any regulation, have been looked at where the benefits or V di erence. costs to businesses will lie, and, above all, what their plan is for consulting all aspects of business. If, Q157 Chairman: I wonder if there is anything you heaven forefend, they have a CBI—heavy have missed—and do not cover it now because time consultation strategy, we would expect the small is tight—in terms of your processes of trying to business people to speak up loudly. We set that panel improve the quality of Statutory Instruments and up in the summer. It has met once already. It proved improving the outcome of them? Could you let us to be a formidable experience, and the challenge was have a supplementary note on that? We are interested robust and vigorous. It has now set a forward agenda to know how you are attempting to address the of things it will wish to challenge and see back. We are improvement. hopeful that will cap the routine consultation, 3247872064 Page Type [E] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch measure by measure, and also send a strong message well. But, if every other department still essentially to oYcials about the vibrancy of challenge in DTI. thinks more about their policy rather than its impact or does not think about a participative process, it will Q160 Chairman: That is extremely interesting. not be a better world, will it? Therefore, does it look at any regulation that will Mr Leimon: It is not a helpful answer, Chairman, but aVect business or only DTI’s regulations? DEFRA, for example, also have a challenge panel— Mr Leimon: It is a DTI panel. diVerent in style perhaps from the DTI’s—and we, the DTI, and other departments are represented on it. Q161 Chairman: I knew the answer. Why not go So there is a move to some degree to sectoral wider? interlinking. Mr Leimon: It is an extremely good question, Chairman I think the first point I would make is that Q165 Viscount Colville of Culross: Trade and it has just been set up. It has had its first outing over Industry—yes, of course that is what the Department the course, and we are seeing where it wants to go. is called. But what about the public? Lots of the tasks The panel members have very much been set up with that you told us about at the beginning have a direct the terms of reference; they have the power to call in impact on the public and they are not very easy to what they want to see. A halfway house to what you consult and it can be quite expensive for them propose is, as Anthony mentioned earlier, that we sometimes. Have you got any views about how have Business Relations people in DTI who look consultation could be improved? There must be across government to lobby for the business interests better, proactive regulation, Mr Leimon? that have been tabled with us. They can be called in Mr Leimon: I think there are two agendas going on. on what they are doing to influence other There is Better Regulation, whose critical focus is on departments. the reduction of burdens on business and, therefore, in theory, that excludes the consumer agenda as such. Q162 Chairman: Can I leave you with a thought? In fact, for Better Regulation to make sense and to be One of the things which strikes us is that all sorts of justifiable it has to fit within an agenda around better government departments are making legislation for policy-making per se. My own passionate belief all sorts of stakeholders out there and there seems to would be that, if oYcials are good at better us to be little collective tracking, let alone collective regulation, ie if they are planning, addressing the impact assessment or collective improvement of skills required in the team delivering regulation, process. Surely, you could make an argument that, thinking through creative structures for proactive business with DTI, local government with ODPM, consultation, then you cannot be competent at all the voluntary sector with the Home OYce or that and then exclude the consumer view, the trade wherever, you could do with processes like that which union view, the equalities—orientated view, and so would allow the stakeholders to grip and be part of on. I see better regulation as a core part of better the process irrespective of which department policy-making, which takes us there. The better generates it? Would you agree? Assuming your panel regulation theology is still evolving, because I do not works, is that not the logical direction of travel of think across government yet we have fully thought governmental process? through what it is and what the objectives are. Our Mr Leimon: The Prime Minister’s Panel for permanent secretary has talked about the focus for Regulatory Accountability of course has a cross- DTI going forward as being about addressing the government review. issues arising from globalisation. Better regulation must be about a lighter touch and therefore market- Q163 Chairman: Indeed but this is more focused, is based solutions. And we do not see a natural tension it not, onto the impact on sectors and on how sectors between market-based solutions and consumer as part of the consultation process in a very dynamic interests. We all gain from a vibrant consumer way leads to better regulation and better SI economy, with as much self-regulation, as much light production? touch and as much risk—based enforcement, not Mr Inglese: I think it is very dangerous if I speculate heavy-handed state-based enforcement, as possible. aloud, but we all agree there has got to be challenge. Therefore are major areas of convergence between So do you want the challenge to be sectoral-based? the better regulation agenda and the consumer Or do you want the challenge to be back in the agenda. The better we are at consultation, the better departments making the regulations. we will be at taking evidence-based consumer consultation. But they are subtly diVerent things. Q164 Chairman: Do you think, if there was not such a process, business, whom you are trying to protect Q166 Lord TunnicliVe: Do you have a responsibility from bad regulation, will have a rich experience, we across government to challenge regulation as it were hope, from DTI, if all of what you are doing works as a representative of industry? 3247872064 Page Type [O] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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Mr Leimon: On the Prime Minister’s Panel for of the market. Secondly, with the Gershon-type staV Regulatory Accountability, or the Regulatory reductions—and the DTI has taken its fair share of Burdens Panel, our Secretary of State sits there as staV reductions—the reduced extent to which we that business representation, and the head of the have the resources to do command and control Small Business Council sits there as well, so those are regulations will also push us towards lighter-touch two ex-oYcio posts within the DTI family, because of regulation. The point from the Hampton Report was that business connection. lighter touch enforcement until the risk assessment or a fault says you deserve a particularly heavy touch. It Q167 Lord Boston of Faversham: As Lord Jopling is about the strong arm of enforcement being has indicated, our reaction has been somewhat properly targeted. Are reputable and decent mixed, but we have been favourably impressed in businesses which are doing their best to comply, V more recent times and felt therefore you have set, in su ering a routine and consistent overly heavy level some ways in the ways indicated, a favourable of inspection, versus being trusted to get on with it example. Is there any sign that other departments until there is intelligence or evidence that they are have followed or are following this favourable doing something wrong, whether from a consumer example? If they have not, have you any reason to complaint or market analysis, at which point more know why not? Is there a way of encouraging other serious penalties are then deployed? So you are departments to follow the good practices which have creating a risk regime which moves the touch into a been established like that? few heavy punches, rather than a consistent pattern Mr Inglese: That is a question which is very diYcult of interference. for me to answer and possibly would be foolish for me to answer with my other colleagues looking at Q169 Chairman: Could you give us your assessment what I say. The best answer I can give is that in all the of the scope there is for either market-based departments where I have been, people do take this regulatory approaches or self-regulatory work very seriously and sometimes there are areas approaches? Sir David Arculus gave us the good which do not quite go right—sometimes people have examples of the Advertising Standards Authority or a bit of bad luck—but sometimes everything is emissions trading. But we all use those same working so well the results are good. I have never examples and, whilst it is nice to think there would be worked in a place where people pooh-pooh this sort a lot more which could be shoved into that territory, of work or where they relegate it to the final thing is that true? If so, give us a flavour of what you think they do in their in-tray. Normally, when my is the volume of potential alternative ways of getting colleagues in other departments resource this sort of policy outcomes without requiring SIs which can at work, they make sure it is covered by— times be burdensome? Chairman: I do not think that is our experience. I do Mr Leimon: I feel like asking for at least a minute or not think we would expect to see examples where two to think about that. It is a tough question. oYcials pooh-poohed this work, but in many departments we sense, from what we see in terms of the end result, that it is dealt with a long way down Q170 Chairman: If so, by all means. It is relevant to the food chain and does not have a deal of senior us because it would lead to fewer SIs coming before attention given to it. So I do not think you have us, and indeed better SIs coming before us, and persuaded us that that is the case at all, which is why hopefully will lead to more compliance. The policy of course the question was asked in the first place. Let debate is how much, how do you do it and when do me not be beastly to you. Viscount Eccles? We have you do it? covered quite a lot of your question already, have Mr Inglese: This is something we would gladly we not? contribute further on over the next few days.
Q168 Viscount Eccles: We have done quite a lot of it. Q171 Viscount Eccles: Would I be right in thinking Before consultation do you think the concept of a that the Department has always pursued an lighter touch is helpful? and how would you define it? appropriate level of regulation and that actually that Mr Leimon: First of all, there are aspects around is what you are going to go on pursuing? Or is there building market-based solutions. For example, the going to be some discernible and describable change DTI merged three years ago the Consumer Policy in policy? and the Competition Policy Directorates—Under- Mr Inglese: It is really hard to disagree with a Secretary commands—because of the interaction question which has the word “appropriate” in it. between those two dimensions. The extent to which you need consumer protection varies according to the extent to which you have a vibrant competitive Q172 Viscount Eccles: You can always say it has not environment, protecting the consumers by the hand been appropriate. 3247872064 Page Type [E] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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Mr Inglese: I think I would say it has been can be very transparent about the extent to which we appropriate. I would also say that the work that Mr follow the points David Arculus made to you last Leimon has been describing of looking at the overall week about 1:13. regulatory burden is something that gives everybody a chance to reassess what we mean by “appropriate”, Q176 Viscount Eccles: Do you have a method for and so it has come at a good time. calculating how confident your stakeholders are that they been properly consulted? Q173 Viscount Eccles: On consultation, you Mr Leimon: Mr Inglese’s DTI MORI survey means it mentioned the figure of 74 per cent. 74 per cent is 74 is very important, I think, at DTI board level. per cent of what? Stakeholders’ views of our openness to business and Mr Inglese: This was 74 per cent of the DTI our listening skills and therefore how well they feel stakeholders whom we consulted in 2004. consulted is high level. Mr Inglese: We see that as a very important part of Q174 Viscount Eccles: How do you identify the 100 our reputation and we want our stakeholders to be per cent? going round saying, “The DTI is eVective at engaging Mr Inglese: I think I would have to pass on that but I with us, it is a good place to go to if we have issues” am assuming it is the result of a sort of survey of rather than “We do not want to go to the DTI at all”. our stakeholders, a MORI survey of the DTI At board level we regard it as very important to be an stakeholders. engaging department.
Q175 Viscount Eccles: I ask because we have quite a Q177 Lord Boston of Faversham: I would like to ask lot of trouble, when we read the paragraphs about you about consolidation in relation to insolvency, consultation, when trying to assess the weight of the and you will recall the correspondence which we had evidence you were given. Where did it actually come with your ministers earlier this year. We were told from and what did you think about the level of that it would be a matter of some priority for the response? We were talking earlier about small Insolvency Service to be asked to bring forward business. When we see small business is consulted, do proposals about this and we would be interested to we mean we consult somebody who represents small know where your Department stands in relation to business? It might be the CBI. Is that what we mean this and also whether you can draw from that by consulting small business? particular example any general policy approach Mr Leimon: The learning point for us all over recent which you would wish to see. years has been that consultation is an art as well as a Mr Inglese: May I answer that by giving some details science. I hope we are seeing a move away from—and of the insolvency consolidation and also talking this is maybe unfair in some ways—an internally- about patterns as well. It is quite instructive to have drafted consultation document which can be chucked two cases of consolidation on the go at the moment. out into the public arena and comments come back The state of play on insolvency is that our Secretary in and are duly assessed by the machine according to of State, Alan Johnson, wrote to Lord Hunt potentially-not-transparent criteria. Of course, there informing him that he had instructed oYcials in the will always be reasons why some of that is necessary Insolvency Service, and I would say the Legal in certain circumstances. But I am conscious, looking Services Group as well, to bring forward proposals round the Department, of much creative and for work to begin on the consolidation project. In dynamic practice around working and staYng July 2005 our Minister for Employment Relations potential consultation, through the creative use of and Consumer AVairs, Gerry SutcliVe, wrote to Lord workshops which are sectorally constructed, which Filkin to detail the Statutory Instruments that would bring businesses of diVerent sorts together, to think be considered within the scope of this project. We through what the consultation should be seeking to have now started the project, and if you wanted to I achieve. Secondly, consultations in which you could brandish a GANT chart which shows how we actually engage as good a cross-section as possible; are approaching it. It is a very big project in terms of then the third stage, when you have the consultation consolidating subordinate legislation and we started back, where we are open and transparent about the it with guidance from our internal project centre. One conclusions we draw rather than perhaps just picking of the lessons that we have learned right from the the usual suspects and listening to the loudest voices. start is that we are going to get on better with the So we see good practice around the Unfair project if we divide it into chunks. We may be able to Commercial Practices Directive, which we are consult on various chunks and get moving quicker working on at the moment, the transposition of it rather than proceed at the pace of the slowest. We into UK law, which is showing good creative practice have a project initiation document, we have got our around really dynamic consultation. A formal public GANT charts, and the aim of the project is to review consultation starts in the next few weeks, and then we the subordinate legislation to consolidate it—but not 3247872064 Page Type [O] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch simply to consolidate it, to simplify it, to modernise that better than starting afresh with a new it and modernise the style of the drafting as well as the Insolvency Act? content of the subordinate legislation. There are Mr Inglese: Yes, it is, because the practitioners have various points that I can make about the technical to use the subordinate legislation now, and it could task which may be instructive. The insolvency rules, and should be better. At the moment I do not know as the Committee knows, have been amended 14 whether we need a new Insolvency Act but I do know times since they came into force 19 years ago. I have the Insolvency Service is looking at that whole area of to say we are probably going to need to amend them law and at some point may come back and a couple more times before the consolidation takes recommend in favour of something like that. That is eVect. The project is also looking at a further nine not what is being said at the moment. It is important Instruments that are associated with the insolvency to get the subordinate legislation right. I suspect rules. They will all be reviewed and amended or some people are wondering why it is 44 down to 10 consolidated as part of the project and overall we will and not 44 down to one. The other nine are a mixture probably be able to turn 44 Statutory Instruments of related orders, rules and regulations that cannot into ten. One of the aims of the project is to simplify actually be put together all in one because they are what we have got and to modernise our procedures, diVerent strands of subordinate legislation and they for example to bring our insolvency enforcement do not fit together. You cannot consolidate orders procedures in line with the civil procedure, the Woolf with regulations but the aim is to get the thing down Reforms. That would save judicial time as well as to a minimum. making it easier for users. Another of our modernising strands is that we are going to introduce V the possibility of electronic communication in the Q179 Chairman: E ectively, it is one big one with a field, which will again cut down on forms and few subsidiaries? paperwork and, all being well, will save a lot of Mr Inglese: Yes. money. Currently, we are consulting with members of the insolvency and legal profession and other Q180 Lord TunnicliVe: If there were to be another stakeholders—for example, banks—and we have set Act, would the work you are doing create a base such up a small working group of consultees and we are that that would be a much clearer and smoother going on visits. We are starting the consultation process? Or would the work you are doing eVectively process by identifying the people who can help best at be aborted? this stage. The aim is to meet the Common Mr Inglese: It would not be aborted but—and I am Commencement Date of 1 October 2007. That is that not trying to duck the question—I think it is a particular piece of work. And, while that is going on, hypothetical question. It is very often the case that which I think I ought to be briefer on, we are also subordinate legislation carries through into a new consolidating the patent rules which go back to 1978 regime even where there is a change at Act of and have been amended 10 times already. They are Parliament level; and, if we are modernising our drafted in a style that people would now see as quite subordinate legislation, then if there ever were to be a old fashioned, some rather large rules, some hefty change at primary legislation level one would assume provisos, lots of blocks of text. The aim is to break a that modernised procedures would be a good fit lot of that down, make it more thematic, avoid under the new primary legislation as well. I think that duplication, again bring it in line with the civil could be a hypothetical question as well. procedure rules so that we can have better tribunal procedures. For that one we are aiming for the Q181 Chairman: Thank you. I think we have Common Commencement Date of October 2006. probably done Common Commencement Dates. I You asked if there are any lessons learned. I think there are some lessons. One of the lessons for me think, Lady Morgan, your section is probably done personally is that I now realise, more than I did as well. Is there anything else—if this is not too before, that consolidation fits the better regulation encouraging a comment—that you would like to say and the lifting of burdens agenda much better than I over and above the invitation to send us further used to, frankly. I used to think consolidation was information as we have marked or anything else in very diYcult—I have done consolidations in my time hindsight you wish to add to it? V and worthy but dull, and I now realise it is much more Mr Inglese: I ought to o er to review the SIs which than that and there are significant gains which can be needed to be amended and corrected, to see if there made from good consolidation work. I have become are any lessons which can be drawn from that. If a convert to consolidation. there is anything worth troubling this Committee Chairman: On that positive note, shall we draw a line? with further on that, then I could do that. Chairman: That is a good oVer. Could we thank all Q178 Lord Armstrong of Ilminster: Could I ask one three of you for presenting extremely interesting and supplementary on that. You said you were thought-provoking evidence. I think Sir Brian has consolidating 44 on insolvency, 44 SIs down to ten. Is been well-served by sending you into battle. 3247872064 Page Type [E] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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Supplementary letter from Anthony Inglese, Department for Trade & Industry (DTI) Annexes A-D to this letter give answers to Questions 137, 154, 157 and 169 of the unedited transcript of the session. I also promised (Question 181) to review the SIs which the DTI needed to amend and correct during 2004 and look at what lessons we could learn. This we have done. Four of the five instruments involved the correction of minor drafting errors. One of these was spotted by the JCSI, but the other three were spotted (after laying) by my lawyers. This willingness to identify errors and correct them as soon as possible is something which I very much want to foster in my teams. While clearly the Departmental culture has very firmly to be to avoid errors in the first place I would certainly not want that approach to produce a situation where lawyers avoided admitting to mistakes, which otherwise might not be picked up. We do of course strive to avoid any kind of drafting error, and I can assure you that all of my lawyers will continue to aim to get things right first time. Our statutory instruments cover a very wide range of subjects. The great majority of them call for original drafting (as opposed to simply following an earlier precedent). These are on the whole drafted to a high standard. The fifth error was the result of a less sophisticated early version of the SI template, which was in no way the fault of the drafting lawyer. We are playing our part in the development of the template to ensure that it works as well as possible. We are of course ready to answer any further questions which you or the Committee may have. 7 December 2005
Annex A
Q.137. (Page 29) of Transcript Following Anthony Inglese’s description of two-way challenge of SI by lawyer and policy oYcial, the Committee asked: “Can you give us an example where this has actually led to an SI being stopped because you found an alternative way of achieving the policy objective?”
General Line
The application of better policy making principles—a rigorous risk and options appraisal, together with economic input early in the process should allow for the examination of alternatives and for these to be fed into the negotiating process where applicable. It should also expose non-viable options, and show whether there is a valid business case for taking a measure forward. Non-viable options should be discounted at this early stage.
Examples of where Intervention has Led to Reduced costs to Business
Electricity security of supply directive
In negotiating the Electricity Security of Supply Directive, DTI’s Energy Group persuaded the EC to drop a regulatory provision requiring member states to have inter-connector capacity amounting to 10 per cent of installed electricity generation capacity. DTI explored alternative approaches and successfully promoted, in collaboration with other Member States, the benefits of a market-based approach to energy infrastructure without the need for specific targets. This involved high-level interventions with other member states, sustained and co-ordinated influencing in EU meetings of oYcials and use of informal networks. Changes to the Directive brought about a UK saving of £750 million, on the assumption that half the cost of the inter- connectors would have been met by another Member State, otherwise total UK costs would have been around £1.5 billion. 3247872066 Page Type [O] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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Electromagnetic compatibility (EMC) directive The proposal produced by the EC for amendment of the EMC Directive contained provisions which could have increased costs for UK industry by a total of £40 million. During the course of Council negotiations the DTI successfully gathered support for amendment, including removal, of aspects contained within the EC proposal. DTI was thereby able to ensure the impact of the new EMC Directive will be cost neutral.
Emissions legislation An RIA produced by DTI, with the Department for Transport on emissions legislation (Euro 5 tailpipe emissions), was used in EU negotiations to lobby for cost-eVective standards: statistical modelling indicated that proposals to reduce emissions to the very lowest levels appeared disproportionately costly—for only marginal environmental gain.
EU end of life vehicles directive This required manufacturers to dispose of vehicles they produce at the end of their life-cycle. The RIA led to a light touch, market-based approach to transposition. This reduced costs to business from £100–£150/car to around £25/car, and should reduce the overall costs from £200 million to £40–80 million a year (based on 2 million end-of-life vehicles per year) without prejudicing the environmental objectives.
Annex B
Q.154. (Page 38 of Transcript)Taking Forward Evaluation “It sometimes appears to us as if departments make regulation without much of a thought about how they would retail those, without much of a model of how they would incentivise compliance with them and with a very weak understanding of how they would actually track what has happened in practice. . . . What is characteristic often is there appears to be no feed-back mechanism, to know whether that regulation has worked and then no collective feed-back mechanism which learns across government or across departments . . . We would welcome, perhaps, building on your student’s note, some further thinking on this, how you think you as a department will be taking this forward.”
DTI Workstreams on Evaluation of Legislation The DTI Strategic Policy Analysis Unit leads a Cross Whitehall Economist Group on Regulation, which is developing a methodology for evaluating the costs and benefits of regulation. In connection with this SQW (economic development consultants) produced a report for DTI on how these costs and benefits can be best assessed before and after regulations have been introduced, identifying areas of improvement for the UK practice of RIA (both ex-ante and ex-post). DTI is to undertake a follow-on study, that will develop a test methodology using the area of Consumer and Competition Policy as a pilot, from which lessons will be drawn for the whole of the Department and the rest of HMG.
Employment Relations Research Series The Employment Market Analysis and Research unit (EMAR) is a multi-disciplinary branch of economists, statisticians and researchers located within the DTI’s Employment Relations Directorate. EMAR publishes a Research Series to disseminate the results of its ongoing programme of evaluation and research. The series aims to inform and encourage public debate and dialogue between the social partners. Recent publications include a review of research, commissioned to a team of academics, on the impact of employment regulations legislation, and a Review of research into the impact of employment relations legislation and Employment Relations monitoring and evaluation plan 2005. Both of these documents can be found at http://www.dti.gov.uk/er/inform.htm The Small Business Service (SBS) commissioned Kingston University to undertake a study on the impact of regulation on small business growth. The first stage has now been completed and SBS are going ahead with the implementation of the Research Programme identified in stage 1. 3247872067 Page Type [E] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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Description of MBA Project Looking at Evaluation Within DTI DTI recognises that evaluation is an important element in evidence-based policy-making. We are currently carrying out a research project (which is being undertaken by a DTI MBA student) to examine how the Department evaluates regulation, and specifically the role that evaluation can play in the Department’s programme to simplify regulation. The objectives of this project are: — To document the range of methods and approaches used within DTI to evaluate regulation. — To describe a set of hypotheses concerning the “success factors” which enable evaluations to contribute to regulatory simplification. — To investigate a small sample of recent evaluations in DTI, in order to explore the extent to which they contributed to regulatory simplification and the success factors which enabled them to do so. — To make recommendations to DTI about how its evaluation practices might be improved, in order to contribute eVectively to the department’s programme of regulatory simplification. The project takes a wide view of evaluation, recognising that evaluations should be “fit for purpose” and that a variety of diVerent approaches may be useful in diVerent situations. Useful evaluations can include, for example, internal assessments informed by consultation with stakeholders, as well as independent evaluations by outside experts. The project will enable DTI to improve its approach to evaluation, allowing us to learn from experience in order to improve future policy making.
Example of DTI Evaluation in Practice
Monitoring of the flexible working law “The new laws were developed as a collective endeavour with trade unions, family groups and large and small business. It is vital to continue this partnership to ensure that the laws work eVectively. Sharing experiences will help us ensure that employers and working parents can identify flexible working solutions that suit them both.” Patricia Hewitt, Secretary of State, June 2003
Introduction On 6 April 2003 a new law was introduced to enable parents with a child under 6 or a disabled child under 18 to make a request for flexible working, placing a duty on employers to seriously consider such requests and only reject them for good business reasons. It was part of a package to provide parents with more choice and support to help balance their work and childcare responsibilities in ways that benefit everyone: employees, their children and employers. The measures also included improved maternity pay and leave, paid paternity leave, and adoption pay and leave. As the flexible working law was new in concept and approach it was vital that we measured its impact. We wanted to ensure that the policy itself and the targeted, “light touch” approach was working for employers and employees. Alongside this there was a commitment to not make any changes to the laws before 2006, to give suYcient time for the impact of the legislation to be assessed.
Objectives of the Monitoring Strategy 1. The objectives are: — To have a sound base of evidence to inform the development of policies aimed at working families. — To provide early warning of unforeseen diYculties or gaps in the support for employers, employees and their representatives; and to enable well targeted and timely publicity, guidance and awareness raising activity. — To actively engage stakeholders and intermediaries in the monitoring process to encourage support for the flexible working law and the promotion of best practice. 3247872067 Page Type [O] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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2. The monitoring process also provided the opportunity to ensure that employer and employee stakeholders and intermediaries were actively involved in assessing the impact of the new law, and to put in place eVective communication channels allowing policy oYcials better and more timely access to the reality of how the law is being used. This dialogue has led to broad support for the proposals on flexible working recently announced as part of the Work and Families Bill.
Measures of Success 3. DTI’s role is to help business succeed because the stronger our economy, the stronger our society. Jobs and prosperity go hand in hand. The flexible working law aims to provide parents with greater choice and support about how they can best balance caring and work responsibilities, whilst being compatible with, and beneficial to, employer practices. 4. Increasing use of the new law will contribute to greater participation of parents, who want to work, within the workforce and help prevent children being raised out of poverty. Employers gain through a better environment for business success. Employers who implement family friendly policies report: improved productivity; improved customer service; reduced staV stress and absenteeism; reduced recruitment costs; retention of skilled staV and improved morale. The benefits to employers and employees take forward DTI’s ambition of delivering prosperity for all. The monitoring has sought to establish whether these benefits are being achieved. 5. Key measures of success of the new laws will be: — Increased availability of flexible working practices in the workplace. — Increased participation in the workplace of parents who want to work. — Increased satisfaction with work-life balance and personal choice. 6. Business benefits have been a key theme during the development and promotion of the law, and its success can also be measured by a change in employer and employee attitude towards flexible working, and an increase in the voluntary adoption of best practice models across the workforce, not just for parents of young and disabled children.
Specific Research 7. The strategy committed the Department to undertake substantial formal research, surveying both employers and employees. Reports on each of the surveys will continue to be published and be available on the Department’s website. 8. Prior to the new laws coming into force in April the Department carried out two extensive surveys to serve as a baseline for later comparison. These Work-life balance surveys covered both employers and employees and addressed actual working practices as well as attitudes towards work-life balance and the new flexible working laws. The detailed reports for each survey were published by EMAR. Both surveys will be repeated in 2006. 9. Questions relating to flexible working have also featured in a repeat Workplace Employment Relations Survey (WERS), a major survey of workplaces with 10 or more employees. First findings have been released, with detailed results available 2005–06. 10. Questions concerning the flexible working law were commissioned to appear in the monthly OYce of National Statistics Omnibus Survey of employees. This evaluated the impact of the law in the first twelve months of operation, and was published on the first anniversary. 11. A second, stand alone survey was commissioned to evaluate awareness and take up of flexible working in the two years after implementation, with the results available for the second anniversary. 12. Questions have also featured in the British Social Attitudes Survey on an annual basis since 2004.
Stakeholder Input 13. Active engagement of stakeholders has been crucial in the gathering of qualitative evidence, as they have provided a direct link with target groups and acted as a conduit for feeding back key issues on the law operating in practice. Crucially they also provided a direct avenue to establishing employers’ experiences of 3247872067 Page Type [E] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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8 November 2005 the new rights, reasons why it has not been possible to accept a particular request, positive case study examples (we have more readily picked up cases of where the employee is unhappy about an outcome), and how the business grounds for declining a request have been used in practice. 14. In the first year we supplied grant funding to a number of organisations including One Parent Families and Maternity Alliance, to support monitoring activity including survey work and focus groups, and collected a range of qualitative feedback. 15. Just after implementation we printed an overview of the monitoring strategy and circulated this widely to stakeholders to underline the Government’s commitment to keeping the law under review, explain the broad approach, and further encourage others to share their experiences. The leaflet was also available at a number of organisation’s conferences which we attended as part of the associated awareness raising activity. 16. The CBI has published its Employment Trends Surveys in 2003, 2004 and 2005, all of which considered the impact of the flexible working law. 17. We have worked closely with the CIPD in the development of survey work. They carried our research into the use of the flexible working law during its first six months, and have followed this up with a survey in February this year. 18. British Chambers of Commerce, the Federation of Small Businesses and the Engineering Employers Federation have all provided anecdotal feedback. 19. Employee organisations who have contributed experiences of the operation of the law include Working Families; Council for Disabled Children; Equal Opportunities Commission; Fathers Direct; Contact A Family; and the Trades Union Congress. 20. We have also have periodic updates from Acas and the Employment Tribunal Service which highlight the numbers of cases going to full hearing, and settled by Acas.
Additional Activity 21. Prima Baby magazine sought the Department’s input in surveying its readership. The Department also undertook specific monitoring of the awareness of the new laws either side of the adverts placed in the national press and on the internet around the implementation of the new law. This ensured that subsequent awareness raising activity was able to target those groups where awareness could have been higher. These were small employers, and parents who may lack confidence or opportunities to exercise their rights ie lone parents, parents of disabled children, parents whose first language is not English, fathers.
Future Proposals 22. In seeking to build on the success of the whole package of new laws launched in April 2003, the Department carried out a series of roundtables around the country, and held a Citizen’s Jury to consider what more could be done to help working families. Retaining the commitment to make no changes before 2006, the work fed into proposals put forward in the Work and Families consultation launched in February 2005. 23. The consultation asked whether there were other groups who might benefit from an extension in the law, such a parents of older children, and/or carers. The consultation produced broad consensus that carers face particular diYculties, and should be the next group to benefit. The case for parents was less clear, and taking on board business concerns about the ability to manage an increasing number of requests from a wider section of the workforce, and retaining the targeted nature of the law, the Work and Families Bill announced the decision to extend to carers only at this time. The exact definition of which carers will be included will be the subject of a further extensive consultation in early 2006. 24. Further to this, Stakeholders identified a number of other issues during the consultation, including looking more closely at tribunal cases relating to flexible working, how the right interacts with other legislation such as discrimination legislation, unfair dismissal and the right to be accompanied, and whether individuals who had their requests accepted were subsequently suVering some kind of detriment. 25. Planning is underway to carry out the third work-life balance surveys of employees and employers in 2006. The results will be directly comparable with the baseline surveys carried out before the legislation was introduced. 3247872067 Page Type [O] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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26. DTI will produce a compendium of evidence early in 2006, bringing together in one place all the data currently available on flexible working. This will include a review of tribunal cases, and disputes which ACAS has resolved before going all the way to a tribunal hearing. Alongside the results of the third work-life balance surveys, this work will provide a baseline against which the eVect of extending the scope to carers can be measured.
Annex C
Q.157. (Pages 41-42 of the Transcript)Improving the Quality and Outcome of Statutory Instruments I wonder if there is anything you have missed—and do not cover it now because time is tight—in terms of your processes of trying to improve the quality of Statutory Instruments and improving the outcome of them? Could you let us have a supplementary note on that? We are interested to know how you are attempting to address the improvement.
Answer DTI has a wide and varied workload and the range of issues covered by our SIs reflects this. DTI has a number of good systems in place to ensure that our SIs are properly managed. Key to the whole process is good project management and the drawing up of a realistic timetable that allows for significant time for policy formulation. Failure to do this is likely to lead to the production of SIs of an inferior quality.
Outline — Policy that leads to SIs emanates from a number of sources eg the implementation of international commitments; adoption of European Directives; bringing new primary legislation into force to name but a few. — DTI administrators and legal advisers work closely together on the development of SIs, using the procedures set out below.
Steps — Identified stakeholders are consulted at an early stage of policy formulation eg on the supply of extended warranties on domestic electrical goods order oYcials and legal advisers met with key stakeholders to discuss the policy proposals and listen to concerns before preparing the first draft of the SI. — Consultation documents drafted—DTI consultation template used. Before drafting, discussions take place with DTI’s consultation co-ordinator on process. Consultation guidance available on DTI’s “Better Policy Making” intranet site. Draft put together in conjunction with legal adviser. Consultation document includes a draft Regulatory Impact Assessment and may include a draft SI. The draft SI will have been produced by the legal adviser following discussion and receipt of instructions from the lead policy oYcial. The draft SI will have been discussed and proof-read by the legal adviser’s line manager. This provides an opportunity to identify any errors or legal diYculties and to improve drafting. — The consultation document will also include key questions to elicit views and information regarding the impact or otherwise on stakeholders. A summary and copy of the primary legislation or copy of the Directive, for example, will also be included in the consultation. — All documentation will be cleared with the Better Regulation Unit, Small Business Service, Competition Assessment Unit etc. Ministers are then asked for clearance before going out for formal consultation. — Once Ministerial approval is obtained, the consultation document is circulated for a three month consultation period. DTI tries to ensure that this is a pro-active process rather than a formal written procedure—meeting with key stakeholders and OGDs to discuss proposals. — Once the three month consultation period is completed responses will be considered. A summary of responses will be placed on the DTI Website. 3247872068 Page Type [E] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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— Parliamentary Unit will be consulted about the timetable for making and laying the SI. — The legal adviser will be instructed to revise the SI as appropriate. — The RIA will be finalised in liaison with the Better Regulation Unit and Legal Services Group. — Legal will revise and finalise the SI. — The Joint Memorandum to the JCSI and House of Lords Merits Committee, transposition note (for EC regulations) and submission to Ministers will be drafted. These will be cleared by Legal. — All documents—final version of the SI for Ministerial signature, final RIA, Joint Explanatory Memorandum for the JCSI and House of Lords Merits Committee and transposition note if required—will be sent to Parliamentary Unit who will then submit all documents to the Minister for approval and signature of the SI and RIA. — Once the SI and RIA are signed and the Explanatory Memorandum is approved by the Minister it will be sent to HMSO for registration/numbering and publication. Parliamentary Unit will lay the SI, Ex Memo and RIA/TN once they have the registered SI returned from HMSO. After Laying Parliamentary Unit will provide copies of the SI, Ex Memo, RIA and TN to the JCSI, Merits Committee, Vote OYce and Printed Paper OYce as soon as possible. Copies of the RIA and TN will be deposited in the House Libraries.
Policy — Better policy making intranet site: site guides oYcials in producing workable, deliverable, and coherent policy solutions. Includes guidance on what good policy is; project management on risk; evidence based policy making; and the evaluation of policy. Other elements of the site include guidance on producing Regulatory Impact Assessments; developing consultation documents; oVers alternatives to regulation; the importance of carrying out as small firms’ and on how post implementation measures should be evaluated.
Legal — DTI ensures that legal advisers who will be drafting SIs are subject to supervsion appropriate to their experience and are trained in SI drafting and are kept up to date on current procedures. They will attend the three day GLS Drafting Statutory Instrument course at the National School of Government. In addition, internal workshops on SI practice are held on a regular basis. The audience at these workshops includes a mix of experienced DTI legal advisers as well as those who have recently qualified. Two workshops took place last month and focused on plain English drafting and, in particular, on the new drafting styles that are being imposed by SI Practice Circular No. 4 (05) which comes into force in the New Year. — DTI Legal also fields tutors for two half-day slots on the GLS Drafting Statutory Instruments course, which runs 5 times a year. — The Department’s Legislative Board (responsible for the oversight and co-ordination of the Department’s bids for the Legislative Programme) organises training on Statutory Instruments for lawyers and policy oYcials. — DTI legal advisers work closely with policy oYcials to develop the instructions to draft SIs. Legal advisers will then produce the draft SI using the guidance made available on the LION website (the Legal Information Online Network, a Whitehall-wide legal intranet for the Government Legal Service), for example, HMSO’s Statutory Instrument Guidance including the recent guidance on modernising SI drafting. Within Legal, draft SIs are subject to the “two pairs of eyes” principle that no SI is submitted for laying in draft or for signature by Ministers unless it has been vetted by the line manager of the legal adviser with drafting responsibilities or by some other person designated to carry out the task by the line manager or the Directorate head. A pilot scheme involving a third pair of eyes has recently been trialling in one of our advisory Directorates. — Legal Services has two legal SI co-ordinators. Their role is to: (i) provide advice to DTI legal colleagues on SI drafting best practice. 3247872068 Page Type [O] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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(ii) disseminate guidance on SI drafting best practice—currently they are engaged in preparing a DTI Legal SI Procedure Guide, which will comprise step-by-step desk guidance for DTI lawyers to ensure that best practice is adopted consistently within DTI Legal in preparing SIs. The Guide will cover internal auditing requirements (eg 2nd pair of eyes procedure), the preparation of supporting documents (eg Memoranda for the Parliamentary Committees which scrutinise SIs) and how to work with Counsel to the scrutinising Committees, the DTI Parliamentary Unit and The Stationery OYce. (iii) maintain the SI pages on the DTI Legal Group intranet. (iv) Membership of the Whitehall LION SI Site editorial team.
The SI Coordinators report to a Director of Legal Services (Rachel Sandby-Thomas, or in her current absence on maternity leave, to Anthony Inglese)
Annex D
Q.169. (Pages 47/48)
“Could you give us your assessment of the scope there is for either market-based regulatory approaches or self-regulatory approaches? Sir David Arculus gave us the good examples of the Advertising Standards Authority or emissions trading but we all use those same examples and, whilst it is nice to think there would be a lot more which could be shoved into that territory, is that true? If so, give us a flavour of what you think is the volume of potential alternative ways of getting policy outcomes without requiring SIs which can at times be burdensome?”
Non-Legislative Governance by External Bodies
The professional accountancy bodies regulate their members in relation to matters such as qualifications, monitoring, complaints and discipline—requiring them to observe appropriate regulations and byelaws, including a code of ethics. A professional body may take disciplinary action against a member who fails to meet the requirements on him or her. The sanctions available to the bodies include fines and/or exclusion from membership. Statutory rules govern accountants and/or accountancy firms in their role as a statutory auditor.
A professional accountancy body may act as a recognised supervisory body and/or oVer a recognised professional qualification where it has been duly authorised to do so by the Secretary of State. The recognised bodies have day to day responsibility for ensuring appropriate supervision of auditors and audit firms. The requirements which the bodies must observe in carrying out this supervision role are set out in Schedules 11 and 12 to the CA89.
FRC
The Financial Reporting Council (FRC) is the UK’s independent regulator for corporate reporting and governance.
Their aim is to promote confidence in corporate reporting and governance. They are a unified regulator with a wide range of functions: — setting, monitoring and enforcing accounting and auditing standards; — statutory oversight and regulation of auditors; — operating an independent investigation and discipline scheme for public interest cases; — overseeing the regulatory activities of the professional accountancy bodies; — promoting high standards of corporate governance. 3247872069 Page Type [E] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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Organisation Chart
Board Council
Professional Accountancy Accounting Auditing Financial Committee on Oversight Investigation Standards Practices Reporting Corporate Board for and Discipline Board Board Review Panel Governance Accountancy Board
Audit Corporate Urgent Issues Inspection Governance Task Force Unit Unit
Accounting Standards Board
The role of the Accounting Standards Board (ASB) is to develop and issue accounting standards which apply to all companies, and other kinds of entities that prepare accounts that are intended to provide a true and fair view.
The Auditing Practices Board
The Auditing Practices Board (APB) sets out the basic principles and essential procedures with which external auditors in the United Kingdom and the Republic of Ireland are required to comply.
Professional Oversight Board for Accountancy — independent oversight of the regulation of the auditing profession by the recognised supervisory and qualifying bodies; — monitoring of the quality of the auditing function in relation to economically significant entities; — independent oversight of the regulation of the accountancy profession by the professional accountancy bodies.
Financial Reporting Review Panel
The FRRP seeks to ensure that the provision of financial information by public and large private companies complies with relevant accounting requirements.
Accounting Investigation and Disciplinary Board
The AIDB is the independent, investigative and disciplinary body for accountants in the UK. The AIDB Scheme establishes the framework and sets in place the legal formalities of participation between the AIDB and the Participating Accountancy Bodies ie the Institute of Chartered Accountants in England and Wales, the Association of Chartered Certified Accountants, the Chartered Institute of Management Accountants and the Chartered Institute of Public Finance and Accountancy. 3247872069 Page Type [O] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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Cross-Whitehall/Industry Sector Specific Groups Discussion in these fora can lead to voluntary action by industry, which prevents the need for legislation. The automotive sector has voluntarily oVered certain features like antilock brakes, provision of daytime running lighting and emergency brake assist technologies, aimed at improving safety.
Codes of Practice The OFT’s codes approval scheme gives consumers the information you need to choose trustworthy businesses to buy from. In this area of the site consumers can: — Search for a business in your area that operates under an approved code of practice. — Search for a code sponsor—an organisation whose code has been approved by the OFT—and a list of their member businesses. Travel agents are not yet listed on the OFT codes website but details will be available shortly.
How does the scheme work? The trade body (such as a trade association) works with the OFT to devise a code of practice that is: — fair to customers; — goes beyond what the law asks for; — easy to understand. But before the businesses that are in the trade body can use the scheme logo they have to prove to OFT that their code of practice is working. The OFT insist on real evidence that their members are using the code properly and that their customers are benefiting. Only when the OFT are completely sure that the code is eVective—by looking at things like mystery shopping and analysing complaints information—do they give their approval to their code. Their members can then display the scheme logo.
Name Details Options Direct Selling Website: www.dsa.org.uk List businesses Association Code of practice: http://194.203.128.226/code consumer.htm (DSA) Industry type: Direct selling; 29 Floral Street, London, WC2E 9DP 020 7497 1234
Ombudsman Website: www.oea.co.uk List businesses for Estate Agents Code of practice: www.oea.co.uk/about/code of practice.htm Company Industry type: Estate agents; Limited (OEA) Beckett House, 4 Bridge Street, Salisbury, Wiltshire, SP1 2LX 01722 333306 3247872069 Page Type [E] 21-03-06 23:44:57 Pag Table: LOENEW PPSysB Unit: PAG2
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Name Details Options Society of Motor Website: www.smmt.co.uk List businesses Manufacturers & Code of practice: www.smmt.co.uk/consumeraVairs/ Traders Limited newcarcode.cfm (SMMT) Industry type: Motor trade; Forbes House, Halkin Street, London, SW1X 7DS 020 7235 7000 Vehicle Builders & Website: www.vbra.co.uk List businesses Repairers Code of practice: www.vbra.co.uk/docs/code of practice Association Ltd 011204.doc (VBRA) Industry type: Car body repair; Belmont House, Finkle Lane, Finkle Lane, LEEDS, West Yorkshire, LS27 7TW 0113 253 8333 324787PAG3 Page Type [SO] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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TUESDAY 22 NOVEMBER 2005
Present Boston of Faversham, L Maddock, B Colville of Culross, V Methuen, L Eccles, V Morgan of Drefelin, B Filkin, L (Chairman) Northesk, E Jopling, L Tunnicliffe, L
Examination of Witnesses Witnesses: Mr Donald Macrae, Director General, Legal Services, Ms Anne Sharp, Head of Fishing Industry Management Division, and Mrs Sue Ellis, Head of Waste Management Division, Defra, examined.
Q182 Chairman: Good afternoon. Welcome. Thank to me but it is not something that has ever been you very much for coming to give us evidence. Could articulated before. The production of SIs is you introduce yourselves and outline your role something that we have always done and just do as succinctly in the relevance of statutory instruments? opposed to something which is actively managed as a Mr Macrae: I am Donald Macrae, the Solicitor to the generic process. That has been changing recently. Department for the Environment, Food and Rural Within the last few years, there has been a AVairs. I have various other capacities as well which considerable growth of PPM, programme and I will come round to in answering the first question, project management, as a way of doing business. but in the meantime can I introduce my two That has been applied to the production of individual colleagues? Sue Ellis is Head of the Waste SIs. Many SIs are run on proper project terms, but Management Division and Anne Sharp is from the what we have been tending to lack is the programme Fishing Industry Management Division. element of looking at a collection of projects. What we certainly lack is one single overview of the entire legislative output. That is something which has been Q183 Chairman: Could you explain how the overall brought to a head by your initiative and something responsibility within DEFRA is managed for which we are still trying to grapple with and decide V ensuring that SIs are well laid, e ective, free from how best to implement, but we can see that we do errors and proportionate? have some deficiencies in that area. Mr Macrae: I said that I would explain further my capacity in being here. In addition to being the Solicitor for DEFRA and therefore I suppose the Q184 Chairman: If you are playing what is called the person accountable for the legal, technical quality of St Augustine defence, could you amplify a little on the legislation, I am also the Director General on the what you think would be the characteristics of such a Board who is responsible for regulation. I am better system that you are intending to put in place? referred to as the Regulation Champion. Therefore, Mr Macrae: It can be seen in what is happening in one I am also accountable for the quality of the part of DEFRA, in the Environment Directorate regulation in DEFRA. If I am responsible for the General. That is an area where we have some quality of the regulation and the technical quality of extremely complex legislation to deal with because the legislation, I think I am probably the appropriate we are implementing European directives. These give person to answer the questions this afternoon. I hope rise to all sorts of problems. The legal team in to do so to the best of my ability. In these capacities, particular has an interest in better quality I welcome this initiative by the Committee because management of the process because they are the ones DEFRA turns out a considerable amount of who produce the deliverable, the actual document. legislation, as you will be aware. It is something Therefore, they have a de facto interest in the which we deem almost as second nature. It is so much betterment of the process. A lot of the pressure for part of the culture that there are lots of questions that PPM has come from the legal team in order to make we just do not ask about what we do. It takes an their job easier to do. Two years ago I agreed with the external body such as yourselves to ask the simple Director General for Environment that we would and obvious questions, once we see them, about how systematically apply PPM to the implementation of we are doing it. My answers to quite a lot of your all environmental legislation. In approaching that, questions may well be “Not yet” in terms of how we we first of all devised a separate methodology within do things, because you are asking questions about the overall delivery of PPM for the implementation how we manage SIs in ways that we simply have not of directives. This is a generic function that many thought of. In terms of who has overall responsibility departments have. All departments that have to for managing and controlling SIs, probably that falls implement directives have to find some way of doing 3247872070 Page Type [E] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis it, so we devised that particular methodology and it think. Not all of the SIs have gone according to the is now being looked at by the Department for original plans. There are many that have strict Education and Skills, the Department for Transport transposition dates that we have to hit. These will and the Department of Trade and Industry as a tend to take priority if there is pressure on resources possible way forward in standardising this generic because we would be breaking the law if we are late activity. To that extent, we have been starting to try in transposition and we could be accused gold plating and get a handle on the management of the SI process if we were early in transposition. We do our best to but in addition in the Environment DG they are also try and stick to the timetables. The idea of having applying the programme element. There are regular project planning helps that, but it is still something meetings of myself as DG for Legal Services and Bill which tends to be quite variable. I am not sure Stowe as DG for Environment looking at the overall whether the Committee has had the benefit of seeing programme of environmental legislation. That is the our statistics on SIs? model we have in one of the DGs. That is something which we are actively looking at in terms of spreading Q186 Chairman: I think some of us have. We are across the rest of the department. It is certainly a aware you have a lot. good place to start. Mr Macrae: We do. We look at it in terms of the monthly figures to see how things have worked out in Q185 Lord Jopling: We have been concerned as a terms of bunching. It has tended to be the case that committee about the uneven flow of orders. I wonder there is some bunching around March and December if you can tell us to what extent you try and plan out which arises from the need for various bits of the year in advance and how does that work? How legislation to come into force at the start of the does it work as the various divisions within the financial year or at the start of the calendar year. That Department prepare their SIs? You must know a year is a seasonal thing which we have always had. It was in advance, with new legislation in particular and particularly aggravated this year because of the with other matters, roughly where you are going to be calling of an election, because that also leads to a in terms of quantity of secondary legislation. To what huge amount of activity to clear the decks before the extent is there an overall plan of timing? Do you ever election. Beyond that, the spread tends not to be all look as a Department as to whether you are going to that uneven. 11, 10, then a bunch of 24, 10, 13, 15, 7, create logjams and uneven flow? Particularly, what the summer recess, 17, 15 and so far it is 5. That is a control do you have from the centre, from the top, fairly even spread but that is not by design or over each of the divisions within the department in planning. In terms of Ministers, we have to specify trying to coordinate the production of these the Minister who is signing the SI and there can be SIs documents? I wonder if you could also tell us if SIs go which are signed by the Secretary of State. They to only junior Ministers? Do they go to the Secretary would be specified as the Secretary of State. The work of State or do they happen to go to whoever happens that goes into the accompanying submission along to be in the Department conveniently, so somebody with the SI is something which is part of the quality shoves it in a box and hopefully he will look at it the assurance process. It is not a matter of trying to find following morning? an available Minister to initial an SI. It is very Mr Macrae: One of your questions has the answer carefully planned. “Not yet” in terms of overall management and trying to avoid bunching. We plan out the work of the legal Q187 Baroness Morgan of Drefelin: If SIs are teams and there is very detailed business planning coming into force on a couple of key dates, is it which is done each year in order to justify the possible to spread the work throughout the year so resource we are going to need for the following year. you do not have the bunching? You were talking Each of the legal divisions will work closely with the about project versus programme. If you look at policy divisions in trying to anticipate how many everything as a project, you would work everything regulations or bills or whatever sorts of legislation are back and have the same start date for all the SIs that going to be needed. What we have not done is pull came into force. The issue we have concerns about is that together into a coherent programme. It is that that makes scrutiny very diYcult. Do you agree obvious once it is pointed out but it had never it is possible to spread the work to promote greater appeared to be obvious to us before. I am grateful to scrutiny? the committee for raising the issue. We will be Mr Macrae: This year it has been a fairly even spread looking more closely in the future at what the overall apart from the election. It is one of the functions of impact is. It is also our experience that, as we are programme management that it should be possible to doing our business planning for one year, we look manage all the diVerent projects in order to meet any back on how good our planning was in the previous particular deadlines. In theory, yes, we can do that, year. What we tend to find is that this is not as but in practice it is another matter. We have predictable a production line as some people may enormous pressures on us, particularly where we are 3247872070 Page Type [O] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis implementing European obligations. Our pressures eVective but not very original. It would be useful if are aggravated by the fact of devolution, which is you could not say “Not yet” to this question and very real. It means that the other governments or indicate what is going to happen in the future. My assemblies very often want to implement in their own specific question is on the issue of quality control. way but they also want to find out what England is There is sometimes a feeling that an SI grows and doing. Very often there is pressure on us to try and somehow ends up a bit like Topsy. Do you have some accelerate what we are doing in order that they can process for a final quality check by a second pair of take that into account. The real complication is, eyes that works with a checklist, something like: does although we have devolution within the UK, it is still it achieve its policy objectives? Is it enforceable? Is it the UK government that is answerable for any late intelligible? Was there proper consultation? Finally, transposition. If we were to try to take a few months the key issue: is it proportionate? oV our timetable for transposition, we would find Mr Macrae: In answer to the “Not yet” question— there would be quite severe problems. As it is, the what it is we propose to do—that is something which time we normally have for transposition is barely unfortunately I cannot give you much clarity on. The enough to do a thorough job, particularly with committee’s initiative is forcing us to examine these complications of having to liaise with other issues and to try and see what possibility there would assemblies and parliaments. My simple answer to be in getting management of the overall spread of SIs. your question is, in theory, yes but, in practice, it That is just one aspect. There are other things which tends to be more diYcult. are already in train which will help to deliver that overall objective. That does come down to some of Q188 Lord Methuen: You have mentioned Common the aspects of quality assurance. Let me deal first with Commencement Dates, and one of the things which the technical quality assurance from the legal side, worries us is giving adequate time for scrutiny of and then I will move on to the quality assurance on these SIs, particularly at the beginning of the long the regulation side, because a lot of criteria that you recess. We had to have a meeting in September to mention do not relate to the quality of drafting and clear the backlog. Do you try and make sure that the thinking behind the intervention. In terms of the there is adequate time for the laying of these so that legal quality control, we have a lot of very our Committee can look at these things and they can experienced draftsmen and they will work with be debated if necessary? teams. Although there will be one draftsman Mr Macrae: First of all, on Common responsible for drafting, that person will still be Commencement Dates, they do not tend to aVect our talking to colleagues and have a very close working work much. This year we have only had five SIs that relationship with policy colleagues as well. That have required Common Commencement Dates. lawyer’s line manager will be the person who “keys” Common Commencement Dates do not apply to the SI. The keying process is quality assurance in European legislation, just to domestic legislation. terms of checking the vires, checking the drafting, Given that most of our legislation is European, our checking that it makes sense, checking it against Common Commencement Dates are not a major instructions. There is a very thorough quality factor in our business management. In terms of assurance check. The SI is also subject to a third pair allowing enough time for laying, one of the statistics of eyes from the specialised SI drafting division that that we put together was the number of times that we we have. The process of keying and the third pair of failed to comply with the 21 day rule. I am pleased to eyes will tend to happen before an SI goes out to say that over the last five years the percentages have consultation and will happen before an SI goes up for dropped from 19 per cent, which was largely as a signature. It may also happen at other points. result of foot and mouth disease, down to 11 per cent, Sometimes it will be repeated, depending on what the then 5, 5 again and this year 3. When we gave you quality assurance process finds. If it finds mistakes, it these figures we did not have any benchmark figures will go back through the process. We have that across government, so we do not know how that professional process which would include the compares with other departments but we were criterion of whether the wording is readily intelligible pleased to see that trend. If we can manage to meet but it does not look at whether it will deliver the the 21 day rule in 97 per cent of cases, then outcomes that the intervention is intended to achieve. professionally I am very satisfied about that. It still In looking at that, DEFRA has done a lot in terms of leaves three per cent where we have not made it. the Better Regulation agenda, to get a lot better grip on its work as a regulator. We are fully signed up to Q189 Lord TunnicliVe: In your opening statement the better regulation programme which tries to you said, “It probably falls to me”, which was a little reduce the unintended impact on business, but we disappointing because responsibility tends to be a bit also look to regulation as something which is an more eVective if people are clear whether they have it eVective way of delivering policy. We use regulation or not. You used the answer “Not yet”, which is in order to try and deliver public goods, better quality 3247872070 Page Type [E] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis water, air and environment, and better control on ‘thinking check’ at the end? Is there a policy to say— animal disease outbreak. We use regulation for a yes, all these inputs have come together and produced purpose and we have to be good at eVective a good SI? Secondly, I hear all these initiatives, but do regulation as well as trying to avoid placing an you have a plan to draw them together into a single, unnecessary burden on business. We probably holistic management for the SI process? produce more regulation than any other department Mr Macrae: In terms of the final check, it is called the and therefore we take the better and eVective Minister because there has to be a check on the regulation agenda extremely seriously. We have a overall quality of what the Minister is about to sign. Better Regulation Unit which carries out checks on That is supplemented by the submission that is put up all the regulatory impact assessments of all the to Ministers. That submission has a lot of priority proposals for any sort of intervention and that may and resource put into it because that is summing up be before it ever gets to the stage of an SI. The RIA the entire process. It is what you are referring to as will be there even if we do not contemplate using the final check. Before it goes up for signature, we regulation, to try and see if there are alternatives to have to be sure that that is what we want to do and regulation. We have also instigated the Ministerial that it will meet the Minister’s requirements. That is Challenge Panel for Regulation, which is a quality part of our professionalism in serving Ministers. The assurance check on various dossiers. That committee check would be a combination of the Minister’s meets every six weeks and will look at maybe four perspective on what he or she is about to sign and the dossiers. Before that, a filter committee of myself as work in doing the submission. The Minister may also Regulation Champion and one of the Non-Executive want to discuss it with other advisers and Ministers. Directors on the Board examines 10 to 15 dossiers It certainly does not stop at the technical check by that have been prepared for us by the Better lawyers. It depends on the regulation, how much time Regulation Unit. We filter that down to four going to there is, what other pressures there are. As regards the Ministerial panel. That has been on the go for just your other question about pulling it all together, we over a year now and has proved to be very eVective are trying to pull together as holistically as possible in terms of getting out messages on a better focus on what we are doing in terms of the regulation regulating for outcomes and being more mindful of programme. Whether we will try to ensure that our the impact on business. We are also preparing a new legislative programme is coherent will take a bit of Better Regulation programme where we intend to further thinking because we do legislation at so many extend that quality assurance process. We intend to diVerent levels. What would be valid in response to try to develop a more methodical Gateway Review these initiatives in looking at the management of System for any legislative proposal, all the way from initial inception through to the enforcement on the secondary legislation would also be valid in terms of ground. There are a lot of things that we have in train looking at primary legislation. At present, we are to try to ensure that our regulation is eVective. increasingly getting involved in primary legislation DEFRA last year made a public declaration that we but we also have a considerable number of directives, will reduce administrative burdens of DEFRA regulations and decisions on the go in Brussels. We regulation by 25 per cent over five years. This is are also heavily involved in international law. On the something which all other departments are looking at environment side, if you think of the Kyoto now as a result of the Better Regulation Task Force agreement, the environment is very much dominated report in March. Last December, Defra volunteered by international law. We have legislative for this 25 per cent target, so we have to deliver that. programmes at international, EU, primary and Therefore, that also puts much greater focus on the secondary level; and there is a need to ensure the management of our legislative programme. I mention interdependence of all these—is it not just a matter of all these things in saying that we have not looked at looking at the secondary legislative programme. it simply as: do we have a grip on the secondary legislative programme itself? That is not a question Q191 Lord Boston of Faversham: I should like to ask we have been asking and we can see benefits in better you about any guidance on best practice which you quality management of that, but in terms of the have within the department in producing SIs. If you substance of what we are trying to do, in terms of have, what means do you have for distributing and trying to be more eVective at regulation, there is a disseminating that within the department? If you do huge amount on the go. that as well, what form does that take? Do you make any guidance of that kind subject to amendment, Q190 Lord TunnicliVe: You have described a particularly in the light of your own experience number of benign objectives and I accept those. The within the department on the management of SIs? Do essence of my question was—is there a final check on you take into account any observations which this the SI. You said there is a whole series of inputs that committee might make on any of your SIs? I might should display better thinking in the SI. Is there a need to follow up with a supplementary, depending 3247872070 Page Type [O] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis on Mr Macrae’s answer, with your permission, my Chairman: It can be sent electronically to our clerk. Lord Chairman. Lord Boston of Faversham: I was interested in what Mr Macrae: In terms of best practice, I hope this does you said about the GLS because one of the things we not embarrass my colleagues in the room but our first are interested in is any consultation that there might step in ensuring best practice is ensuring best lawyers. be between departments on these matters. We were We have some of the best draftsmen in the interested, for example, last week to hear from Mr Government Legal Service working in DEFRA. I say Pawsey of HMSO that there ARE a number of that not just as the current Solicitor in DEFRA, groups consulting with each other throughout where I have been for three years. This is my ninth government departments. I wonder what you think department in government. The quality of drafting about the value of that consultation. He mentioned, amongst the experienced drafters in DEFRA is of a for example, a legal group and no doubt you are a very high standard. Therefore, we have best practice member of that or in touch with it at the very least. I that we want to spread. We recently created a special am wondering whether there are any other groups of SI Drafting Division, so we have focused some of our which you have experience and whether you feel that best experience into that SI Drafting Division which that sort of interdepartmental consultation is— performs the third pair of eyes check. It also can take on some particularly diYcult exercises and it is also Q193 Chairman: Would you mind if we stored that responsible for disseminating best practice. In terms question until later on? Mr Macrae, you said that of identifying and disseminating best practice and regulation is for a purpose, to achieve a policy keeping guidance up to date though, that does not objective. Could you describe what, if any, is the tend to be done within DEFRA legal; that tends to be mechanism for assessing the outcomes of statutory done collegiately across the Government Legal instruments that the Department makes and lays? Service. Therefore, if we have some best practice, we Mr Macrae: It depends very much on the area of do not simply feed it into the other divisions in legislation. There is a lot of environmental legislation DEFRA. We feed it into the intranet that the which is measurable. The purpose of the legislation is Government Legal Service uses. Until recently the to improve the quality of air, water, bathing water, head of our Statutory Instruments Drafting Division drinking water or whatever. Therefore, that includes was also the editor of the practice site on that very strict enforcement and measurement activities. intranet. He has now moved on to work with the That is one area where valuation is most definitely House of Commons Legal Service. We had that built in and done. We also get feedback from quality of expertise, and our dissemination of best enforcers of regulations and we always take account practice was spread across the GLS. The GLS works of the experience of the diYculties in delivering or collegiately in trying to develop skills in drafting. In enforcing a regulation. In the field of animal disease, terms of spreading best practice on regulation, that is we have a very keen interest in whether we have the something which we try to do through the DEFRA right tools to deal with an animal disease outbreak. Regulation Unit on the DEFRA website. We also At present, we are doing a lot of work in respect of have another panel, which was set up at the same time avian influenza. It is a very wide range of legislation as the Ministerial Challenge Panel, which is called the and we have diVerent things that we are trying to issues panel. It is a workshop on regulation topics, a achieve, diVerent outcomes. There are some that are half day workshop which we run every two or three easily measurable. There are some which it is very months. It will take topics such as consultation. We important for public health that we eVectively get quite a considerable turn—out at these measure. There are others where it may be a bit more workshops. What comes out of the Ministerial diVuse and it is more a matter of trying to influence Challenge Panel does go wider than just the behaviours and that is more diYcult to measure. particular dossiers. Q194 Chairman: Is there a systematic process in The Committee suspended from 4.48 pm to 5.56 pm for deciding which ones you will try to evaluate or not? Is there any methodology that you use? or is it all a division in the House happenstance? Mr Macrae: In the Regulatory Impact Assessment Q192 Lord Boston of Faversham: I take it that the we will be required to build in proposals for review. guidance you distribute is in written form. Would it be possible for us to see that if it is not too long? Q195 Chairman: I am talking about the past. Mr Macrae: The guidance tends to be in electronic Mr Macrae: I regret to say, No. The reason for that form. We tend to work from the intranet. It is tends to be simply resources. There is so much reducible to writing but we have internal DEFRA pressure to create further regulation and give eVect to guidance and GLS guidance on SI drafting. I can further policies that it does become very diYcult to supply you with a printout of both. get the resource to deal with something which is 3247872070 Page Type [E] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis already happening. The way that we deal with the Q200 Chairman: Having all these pieces of paper stock of regulation in the past tends to be when from the smaller boats, what is then going to happen something new is happening in that area. If we have to save the fish? to address an area of regulation again, we do not Ms Sharp: The fishermen do not have to do anything simply overlay that on the past; we will look at what apart from help their buyers. If the fishermen sell is there and try and see if we can make sense of what their fish to an auction market, the auction trader has is there. In terms of looking at areas that are not to provide a sales note to the Marine Fisheries subject to new regulation, that is not something we Agency. If the fishing vessel sells its fish directly to a do. restaurant, the restaurant, for example, has to provide a sales note to the Port OYce. The Q196 Chairman: The answer is that Less is More, as information on the sales notes enables us to get a we have been advised. proper handle on the amount of fish that is being Mr Macrae: Yes. landed by those small boats, for which at the moment we have a limited amount of information. Several things have pointed us to the need to improve the Q197 Chairman: Can I take one specific example we information on these smaller boats. I will not struggled to understand, which was the regulation mention the EU, but the Prime Minister’s strategy about the registration of fish buyers and sellers? If I unit report on a sustainable and profitable future for understand it, this is a regulation that says that, when the UK fishing industry pointed to the need to have small boats caught more than 25 kilograms worth of a high transparency system following the sales of fish. fish and sold it on the market, there had to be a Because we are very concerned about the burden on document that went from seller to buyer, and, when the buyers of fish—in particular from these small the buyer had that document saying his catch of fish vessels—we now have an electronic sales note on our had been bought from Fred Bloggs, it was then sent website that can be despatched directly to the correct to the fisheries register or something. We understood Port OYce and we are exploring the methods of that this was in some way about trying to ensure that further automating the system. there were some fish left in the sea, which is a perfectly sensible policy objective. But I think we were Q201 Chairman: I think we understand that this struggling as a committee to understand how this eVectively allows you to have better information paper chase was going to do that. We would be about what is being fished by small boats—or at least interested to know what has happened to all those better information about those who fill the forms in, pieces of paper, I think 100,000 documents a year which is not necessarily the totality. What is from recollection, going into this paper factor. What happening as a consequence to protect over-fishing? has happened since? and how has the world become Ms Sharp: It does two things. One, it enables the a better place? scientists to make better estimates of what is being Ms Sharp: If I go back to what the regulations caught and landed. At the moment, the scientists are require, the under-10-metre boats, which is the area aware that there is quite a high proportion of fish that you are particularly interested in, at the moment illegally landed, and that makes it very diYcult for are subject to fewer controls on landing of fish, so them to make proper estimates of how much the there is much less paperwork associated with the stocks are under threat. under-10-metre boats than with the larger boats. There are EU requirements in place for sales notes in relation to all landings with— Q202 Chairman: If the purpose is essentially estimation—to get an idea of volumes, there are many other ways that that could have been achieved Q198 Chairman: Could you answer the question rather than simply asking, every single fish that is without falling back on the EU? Ministers signed up caught, to have a little piece of paper put in a central to the EU, so there must be a good purpose. What is warehouse. There could have been sample checks and the fundamental purpose that is being sought to be estimations done at all sorts of landing points to get achieved by this pile of paper? a better picture. Ms Sharp: The fundamental purpose is to ensure Ms Sharp: That has been done in the past but there sustainability of fish stocks and better information are additional requirements to cross check data from than we have at the moment. diVerent sources so that you get information on the sale of the fish as well as on the landing. That is why Q199 Chairman: How does the information help the information is coming from two diVerent sources. sustain the fish stocks? The other thing that the information will enable us to Ms Sharp: Because at the moment we do not have do in practical terms is to have a much clearer idea of information on landings by these smaller boats in the where we are in terms of the uptake of the UK quota same way that we do for the larger boats. and what is being landed. 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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis we have that in order to help conserve and sustain purchasers have to provide the information to the stocks. enforcement agency.
Q203 Chairman: What is your estimation of the Q207 Chairman: If we were completely masters in scale of compliance by fishing boats and buyers and our own court with what you know now, would you sellers? do it this way again? or would you find a better way? Ms Sharp: The regulations have only been in force Ms Sharp: If we were completely masters in our own since the beginning of September fully. In that period court, we would be looking at ways of improving it we have had 6,000 extra sales notes over and above along the lines that we have already suggested to the what we would have had—that would be mostly the EU—for example, reducing the frequency with which smaller boats—of which 3,000 included cod and sole, the information has to be provided and a greater which are stocks that are particularly vulnerable and aggregation. That is what we have suggested to them. under recovery plans. We are not yet in a position to estimate the compliance because we think it is still quite early days. What we are looking at is the duties Q208 Lord Jopling: I hear what you say. I wonder on the buyers, educating them as to what they are whether you can give me an estimate, before these required to do. regulations came in, as to what the margin of error was with regard to reporting catches and what the margin of error is with these regulations, because you Q204 Chairman: You see the thrust of the question. said there is illegal landing. I remember in my time as Without being experts in this, we would doubt Fishing Minister the Dutch Minister had to resign whether you would get total compliance. There are because of landings on the beach, which you may plenty of other methods for estimating fish depletion recall. Apart from those estimates of the margin of and it is imposing a burden on lots of people and error, my question leads me to ask whether you think generating mountains of paper. Do you think it is the that there is any other country in the EU that is going best way of getting to that objective? through this bureaucratic palaver. Or is it that we are Ms Sharp: It is slightly diYcult to answer the gold-plating what are EU suggestions and that the question without reference to EU requirements. Dutch, French and Spanish as usual take very little notice at all? You will know as well as I do that there Q205 Chairman: If you are saying, “It is because the have been allegations of corruption among fishery EU told us to do so”, we will not feel very happy inspectors and blind eyes have been turned to illegal about it. landings. It was for that reason that the UK proposed Ms Sharp: I understand that, but we want to achieve many years ago that there should be a major the outcome in terms of better information to help us strengthening of the inspectors of inspectors and that with sustainability of fish stocks and enforcement of non-nationals should go and make sure that the local the requirements. inspectors were doing their job because there were very serious suggestions that they just were not and Q206 Chairman: Are you really saying that you they were turning blind eyes. Is it not that we are think there probably was a better way but the EU pursuing this with this sort of vigour but nobody told you to do it this way and therefore you had to much else is? comply? Ms Sharp: In terms of estimates of the margin of Ms Sharp: No. This was useful information that we error, if I turn to the first part of your question, it is had for the over-10-metre boats and not for the diYcult for us to estimate that at the moment because under-10-metre vessels. There are lots of other ways what we are going to be doing is looking at the in which the under-10 do not have to fulfil the information we are getting now and comparing it documentary paper trail that the over 10 vessels do. with what we had prior to the regulations. In fact, one This is one of the only sources of documentary of the commitments that we have made to the information that we have in respect of that. I think industry is to review—this goes back to one of the the EU requirements could be improved, so I agree earlier questions as well—the initial application of entirely about that. Simplification of the EU the regulations and how they are working. We said requirements on fishing control is one of our top we will do that in three months, which is quite early priorities during the presidency. We have written to days but we think it will be very useful at that point the Commission about simplification and we have to look at the quality of the data we are getting and identified the burden falling on the purchasers of fish what it shows in comparison with the previous directly from the smaller boats. We have suggested situation. The other thing we are doing at the simplification in this area, more particularly to allow moment, again going back to points which were aggregation of the sales information so that it reduces made in the earlier question, is looking at what we are the burden on the frequency with which the getting in and assessing how reliable and complete it 3247872070 Page Type [E] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis is in order to see how best it can be used in our small percentage of that. Is your analysis likely to statistical time series. throw up a statistically interesting result in relation to the stocks of cod in the North Sea, for example? Q209 Lord Jopling: You forgot to give me the Ms Sharp: I would not like to pass a judgment, not margin of error previously before these regulations being a statistician, but the person who will make came in. those judgments is from our statistical unit, so we are Ms Sharp: I think we will not know that until we see working very closely with them. We would not draw what information we get. The margin of error will be any inappropriate conclusions from the information in part indicated by the comparison between what we that we receive from the diVerent sources. are getting now and what we estimated we were Chairman: I think Viscount Eccles has put his finger getting before, and then the diVerence between the on our concerns. Viscount Colville, can I pass over to two will give us an indication of the margin of error. you on waste management licensing. We need to have something to compare it with in Viscount Colville of Culross: Can I include in this order to make that judgment. question consultation? Chairman: There are a number of areas that we Chairman: That was going to be a question led by would like to explore on waste management Baroness Morgan. licensing. We saw this as a specific example where the Baroness Morgan of Drefelin: I am very happy for my Committee was troubled by what we saw. question to be consolidated. Viscount Colville of Culross: We had before us today, Q210 Lord Jopling: I did not get an answer to—are and I do not know whether any of you know we the only people who are doing this? anything about this, three sets of regulations about Ms Sharp: Basically, the answer is—No, we are not the supply of water and the various fittings and things the only people. We have used our personal contacts which have to be installed. Evidently this was a very and, indeed, our embassy contacts to explore what is successful exercise. It began with a consultation done in other Member States. We have made paper in 2002 and it has led to further consultation, enquiries in Denmark, the Netherlands, Sweden, and it has arrived at a scene where you continue the Germany, Portugal and Spain. We made enquiries in consultation. There are not very many people rather more Member States but those were where we concerned—I think, the water undertakers for the got the replies back from. We have been told that the V main part and larger users. There was feedback and pattern of purchases is di erent there because in all you changed the regulations and, as I understand it, those countries much more use is made of auctions all is well. Plainly that has not been so with waste rather than direct sales. But they do have systems in management. You have had the questions that we place for the same information to be provided as we were going to ask you, so you know what the are now requiring. The only derogation that they references are. It is very plain that this has not gone have in place is the same one that we have for small smoothly and I wonder why. First of all, is it because purchases for personal consumption. you do not consult the right people? or they do not tell you the answers? or you do not incorporate their Q211 Lord Boston of Faversham: When are you answers in your Statutory Instruments? or what? As likely to be in a position to make that comparison? In an addition to the waste management ones we are other words, when will the definitive answer be talking about, last week we had the duty of care upon available in reply to Lord Jopling? householders— Ms Sharp: In terms of the margin of error? Chairman: You pinched Baroness Morgan’s question. I do not think you should pinch Baroness Q212 Lord Boston of Faversham: Yes? Maddock’s as well. Can we let the witnesses have a go Ms Sharp: I do not want to over-promise and then at those very diYcult questions to start with? fail to deliver. I think we will be making our initial examination of that around about February. The diYculty for us is that we do see that there is still quite a programme of education to be done. I cannot be Q214 Viscount Colville of Culross: It is the sure when we will have the fullest picture of direct consultation that I want to know about. Whom do purchases coming on board. Certainly within a year you consult? How do you decide who is going to be of the regulations being in place we ought to be in a consulted? What do you do with the results? sound position to be able to see what the comparison Mr Macrae: If I may, I will hand over to my colleague is between our previous estimates. in a moment. But can I say, generally, on these SIs on waste management that, whilst all legislation is Q213 Viscount Eccles: This is sensitive analysis stuV. important, there is some legislation which is even If we take cod as an example, the small boats land in more important than others. A lot of what has been total 10 per cent of whatever is landed and cod is a dealt with here in waste management licensing relates 3247872070 Page Type [O] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis to exceptions, this is not the mainstream theme. Q216 Baroness Maddock: I will not bother to read it Mainly what we have been dealing with here on these out. You have read the questions. I think the thing SIs are, as I say, exceptions to the main rules and that was interesting for us was that this aVects every because of that are less likely to get the same degree single person who has a house in England—they get of priority as some other projects within DEFRA. I a new duty, which is a pretty big thing. After there should say, also, before my colleagues put in more was a press release from the Minister we found a piece perspective, this is something where we recognise we in some of the newspapers—I found another one this could have done better. We find it diYcult to argue weekend. But as a householder my local authority with the committee in terms of the overall has not informed me at all about this duty that is performance here. We put through an awful lot of about to appear. I wonder what care has been taken legislation, including a lot more legislation on waste, to tell the people who needed to be told, to tell those so it is not just that we are bad on waste. That is not who needed to get this duty, what care you took and the case at all, but this is one instance where it is how long ago local authorities might have been told probably more at the bottom end of our performance that this was coming down the line? league than some other things. Having said that, I Mrs Ellis: The initial consultation on extending duty will hand over to Mrs Ellis to deal with your specific of care, as we call it, to householders was undertaken comments about consultation. in 2002. Local authorities did respond to that, and quite favourably, because the issue is that local authorities are dealing with a large amount of fly- Q215 Chairman: Do not feel the need to amplify if tipping— you do not want to because, in a sense, the acceptance that this was not good is helpful to the committee Q217 Baroness Maddock: We know the issue. because it matches our perception. Mrs Ellis: That was followed by two subsequent Mrs Ellis: I think we have learnt a number of lessons consultations. The last one followed on from an from this particular exercise. The committee was adverse judgment in the European Court of Justice in asked to look at three separate Sis, which is not December 2004, which required us to put a duty on satisfactory. I would say that we were consulting on householders—they had formerly been exempt. We exemptions. We had been asked by a Commons select have been working with the LGA to make sure that committee to tighten up considerably because they they know what is going on and what is required, and were concerned about abuse of those exemptions indeed they have alerted local authorities to the fact which covered in the main land spreading and that this requirement is now in statute. I would say it composting. The problem was that this was quite a does not require responsible householders to do complex set of proposals; it covered a large number anything other than what they do at the moment with of diVerent types of waste and it covered a number of their domestic waste—that is, they should be handing diVerent activities, so there was complexity there. it over to the local authority for recycling or disposal. There were a number of diVerent industries with They can do that either by their domestic waste interests and I think we did consult the right people. collection or they can take their rubbish down to the But the trouble was that under the Waste Framework local civic amenity site or tip or dump, or whatever Directive we are required to develop general binding people call it, or they can ask the local authority to rules. The devil, as usual, was in the detail of those take away bulky items. Local authorities do either general binding rules, remembering that the select free or subsidised systems. Really there is no committee had asked us to tighten up the existing change— rules which were there. It was that tightening up and the complexity which led to the problems. I think you Q218 Chairman: There is a change, surely. If my had noted that it had taken some time from the start builder takes away materials and I fail to ask my of the exercise to when we considered the first SI, and builder “Are you properly registered?” I have I would say that was because we were having quite committed an oVence. That is what the regulation extensive and intensive discussions with various does, if I am not mistaken? industries on the detail of those exemptions to make Mrs Ellis: Yes, that is right. You are quite right. sure that we did deliver the policy outcomes we were looking for—which was to encourage the proper recovery of waste rather than it going for disposal, it Q219 Chairman: Do not tell us there is no change, was going to be used in a beneficial way. Does that quite clearly there is a change. help? Mrs Ellis: You should ask them if they are registered Chairman: I think that helps, yes. I wonder if waste carriers. Baroness Maddock would like to pursue the theme of waste by a regulation which concerned us recently Q220 Chairman: Indeed, and when they are not I about the Household Waste Duty of Care. have broken the law. 3247872070 Page Type [E] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis
Mrs Ellis: If not, you should not be using them. Q226 Viscount Colville of Culross: You put out a Baroness Maddock: That is the point. I have builders legislative paper, I did not read it, my fault. You in my house at the moment, this is about to come into consulted the Local Government Association, you operation and nobody has informed me that that is a probably consulted LACORS? new responsibility. The whole point of my question Mrs Ellis: Yes, I think they were on the list. was—how long in advance did you tell them? Viscount Colville of Culross: It came into operation Q227 Viscount Colville of Culross: Do you know yesterday. what happened in terms of the Environmental Health Baroness Maddock: Yes. How long in advance did Department in the District Council getting down to those responsible for getting out the information— realising that something has to be done about this? LGAs and then down to local authorities—know For instance, did they issue a little leaflet to be put that it was going to come into force yesterday? inside the dustbin when it is collected (which is what our one does in Norfolk, to tell people)? How far Q221 Chairman: If I could add to that, how will you down the chain do you go in order to check up that measure what proportion of households are aware of something is happening? this responsibility? Mrs Ellis: LGA have sent out one of their briefing Mrs Ellis: We did put out a press notice in October, notices to chief executives in local authorities. It is for which was part of a Government drive to highlight the local authority to decide whether they are going fly-tipping issues, and we did publicise it at the time. to use the power to enforce this particular duty or We put out a further press notice on 14 November not. The likelihood is that some local authorities will which included the Environment Agency advice to decide to enforce more than others and they have householders. That advice on what householders been asked to make sure that householders are aware should do is held on our website, so people should be if the local authority is likely to take enforcement able to find it. There they will find, also, the telephone action in particular circumstances. number and website reference. Chairman: I think we have got the picture. Could I Chairman: You are implying the rest of us should move on to Lord Methuen, who is going to ask a trawl a government website to find if there is a new question on secondary legislation. obligation that government is imposing on us. Lord Jopling: It is cloud cuckoo land, totally Q228 Lord Methuen: Secondary legislation can have unrealistic. a significant impact on industry. How eVective is your machinery for assessing such impact on Q222 Baroness Maddock: My question was—when industry? Do you make use of the Small Business did you tell LGA, therefore local authorities, that this Service? What use do you make of that? was coming? How long ago? That is the key thing. Mr Macrae: The impact on industry is dealt with Mrs Ellis: The work with the local authorities started through the Regulatory Impact Assessment and we in 2002. make considerable use of the Small Business Service. Baroness Maddock: I want to know when they knew It is part of the RIA that we should check with SBS the regulations were coming in. and it is something that we do make very active use of. Q223 Chairman: Can you focus on the specific question. Q229 Baroness Morgan of Drefelin: To some extent Mrs Ellis: The formal consultation was— some of my question has been picked up but if I might very quickly ask: do you have specific standards Q224 Baroness Maddock: What I want to know is— regarding consultation that you adhere to across the how long ago did LGA tell local authorities? Department that you can describe to us? Mrs Ellis: The specific proposals were published in Mr Macrae: For consultation we follow the Cabinet the summer. OYce guidance on consultation. We are very careful about trying to observe the 12-week period and our Q225 Chairman: Can you answer my question on statistics for that are reasonably good. In terms of the how you test what proportion of households is aware eVectiveness of our consultation there is always more of this obligation? If they are not aware of it, the that we can do. We have some examples of dynamic regulation has failed, has it not? It goes to the heart of consultation. There was one in particular which the regulation, perhaps, as to whether the public are involved a barn dance as a way of trying to engage aware they have this obligation. I suggest to you that with the particular community, and I understand is a central piece of information testing regulatory that was highly eVective, or we may have some compliance. How are you going to do so? innovation where there is more we can do. Just as an Mrs Ellis: We have not got any proposals at the illustration of how we are trying to improve things, moment to measure it. we have tried to adopt the five minute rule as a result 3247872070 Page Type [O] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis of discussions with the CBI, where we became aware extended to look at the public sector and the that recipients of our consultation papers will voluntary sector as well. probably give us five minutes in reading it to decide whether this is something they understand, something they want to engage with, and if they do Q232 Baroness Morgan of Dreflin: I am not sure not want to, it goes in the bin. We are now trying to whether it is your policy to publish all the responses apply the five minute rule to our consultation paper received. Do you do that? and have it redrafted if it does not meet that rule. We Mr Macrae: It is our policy. We do do that, yes. are trying to improve our processes but we have a long way to go. An important plank of our Better Q233 Lord Jopling: I am sure you would agree, with V Regulation strategy is to engage more e ectively with regard to consultation, that there is nothing more the people that we regulate. That is not something irritating to the people who are aVected than when which has been the main focus of our regulation in you get these things wrong. When this committee the past. Increasingly we see, particularly from the started work, you were being fairly good at not experience of the Danes and the Dutch, that if the serving up a lot of incorrect Orders which needed to people we regulate understand the purpose of what be corrected. This year you have gone very much we are trying to do, if we engage more proactively downhill. Of your eighteen SIs that you have laid with them, then we can increase compliance and from the current session, no less than eight have been V e ectiveness and also reduce the number of burdens. correcting SIs. You told us earlier you have been in We see getting smarter on consultation as a very the Department three years, and so your supervision V important part of more e ective regulation. of these things has been constant presumably over those times. Why do you think it is that the Q230 Baroness Morgan of Dreflin: Because of the Department is going through a very bad spell indeed, very broad remit that you deal with, how do you which irritates this committee and, I am sure, irritates ensure that your consultations touch on a the customers? I know you said earlier that DEFRA representative sample of those aVected by the was the biggest server up of Statutory Instruments. regulation? Actually, that is not quite true because since this Mr Macrae: That is very much one for a case-by-case committee started work, in the year up to March this V basis. That largely depends on the level of year, Constitutional A airs, Health, DTI and understanding that we have of that sector. Certainly, Transport had more than you did. I just say that to with a lot of the environmental regulation it could put the record straight. There are other departments aVect almost everybody. Sometimes we say that some who have a bigger flow of SIs than you do. Why is it of our stakeholders are not yet born! We have to find that in the last few months you have really not been ways of trying to canvass opinion across as wide a excelling yourselves? range of the population as we can. Sometimes on Mr Macrae: With respect, I am not sure what the other areas we are looking at very specific sub- eight SIs refer to. We had notice of what the sectors, particularly in agriculture or livestock, and committee regarded as correcting SIs, but we are still there it does become easier because we have got well- trying to understand your definition of a correcting established channels of communication with a lot of SI. If we understand correctly, three of them we had these sectors. identified as ones where they were not drafted for the purpose of making corrections that we have recently discovered, they were SIs which had a further Q231 Viscount Colville of Culross: You have just purpose, and in addition to that we were taking the mentioned RIAs. We quite often see in the opportunity to make some corrections to things that documentation that comes with a Statutory had been done many years before. We are not sure Instrument that you have not carried out an RIA whether these were what were referred to as V because it has no e ect on businesses. The Cabinet correcting SIs. Also, there were two of the SIs that we Y V O ce regulate on the basis of what the e ect is on are dealing with on waste management licensing, businesses. You have just told us that a number of where we explained that it was not so much an error V your activities have e ects on vastly larger ranges of in the drafting as further evidence that came through people and interests. Are you sure that you have got in terms of the response from various sectors to the the consultation process right and you do not in fact publishing of the first SI. follow the better regulatory eVect of only concentrating on businesses? Mr Macrae: Certainly not. We would be looking at Q234 Chairman: EVectively you are saying you do the impact on people on whom we would have the not think you have gone downhill, are you not? impact. The RIAs were originally intended to look at Mr Macrae: I am still trying to understand exactly the impact on industry, but they are now being what it is that the committee is complaining of. 3247872070 Page Type [E] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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Q235 Chairman: I think we would have some meeting of the board—level Better Regulation diYculty then resolving all of the detailed figures in Champions run by the Cabinet OYce and the Better limited time. All Lord Jopling is putting to you is a Regulation Executive, which is meeting as we speak. view from the committee that it has not seemed to us And there are also networks of the Heads of Better to be a ‘golden year’ in the last 12 months for your Regulation networks. So there is quite a lot of Department in terms of the accuracy of its making of collegiate activity across government trying to SIs. Do you think that is a broadly fair picture? explore best practice. That is specifically in terms of Mr Macrae: I will have to consider more carefully regulation and drafting. I am probably on about 12 what the committee’s concerns are about the SIs. If interdepartmental committees of one sort or another, the committee could refer me to the specific SIs, I will so there is quite a lot of interdepartmental certainly have a look to understand better what is has consultation. Sometimes departments will jointly be gone on. responsible for an SI and there are some areas where even up to three departments need to work together Q236 Chairman: We will ask our oYcials to do that. on a particular SI. On your question as to whether We would have hoped you would have had an overall there would be value in central coordination of the sense as to whether it was going swimmingly or programme, I am still not sure to what extent the case whether it has got one or two troubles. has been made out for that. What I am grappling with Mr Macrae: My overall sense is that it has been going just now is the value of central coordination of the fairly smoothly. We have had some recent diYculties legislative programme within DEFRA. As I which have been pressures of time. mentioned earlier, it is one thing to look at secondary legislation, but we would also need to look at whether we were doing something similar for primary Q237 Lord Boston of Faversham: We have already legislation and for the EU and international dealt with consultation so far as SI users and legislation because it goes beyond just secondary stakeholders are concerned. My question is about legislation. I do not think it is for me to comment on consultation between government departments. It whether it would be useful to have central was for the first time this committee learned from Mr management for the whole of government. Pawsey last week of the various groups that exist for consultation, and you have yourself mentioned the Government Legal Service itself, Mr Macrae. What Q238 Viscount Colville of Culross: You have already value do you place on this consultation between been referred to the minimum residue levels in crops V government departments? Do you think that there is and food and feeding stu s, which I think largely some scope for further aspects of consultation comes from Europe. It is an ever-changing picture as Y between departments? Do you feel that, as a result of I understand it, and it must be very di cult for the V the need for this interdepartmental consultation, user to follow what is the current state of a airs. I there is also scope for some central government would like your comment on that in a minute if you management of the production of SIs? would be so kind. I want to give you another example Mr Macrae: I am very much in favour of from today. It is nothing to do with Europe, this is interdepartmental consultation. I referred earlier to about water fittings. Statutory Instrument 6 says, DEFRA being my “ninth” department. I am “The prescribed requirements for the purposes of somebody whose career in the Civil Service has section 66A of the Water Industry Act 1991 are the moved around departments, and I see the value of requirements in regulations 3, 4 and 5(1)(c) of the interdepartmental cooperation. The Government Water Supply (Water Fittings) Regulations 1999”— Legal Service I also said was very collegiate in its which are a Statutory Instrument in 1999, which was approach and that is illustrated by the number of amended about a month later and amended again by moves that I have had myself. There are a variety of another one in 2005—“in so far as they apply by diVerent groups within the Government Legal virtue of Regulation 2 of those Regulations.” How is Service looking at diVerent aspects of this anybody supposed to understand it? What is your organisation. In terms of consultation on the approach to consolidation? Do you like the thing? professional practice relating to SIs, that tends to be Mr Macrae: I have every sympathy with your carried out through the intranet and the committee of reaction to that particular example. Consolidation is editors that populate that website. There will be something that in some ways is a counsel of occasional coordination meetings looking at a perfection and certainly we would— specific problem, but there is not one single group that looks at drafting issues across all departments. Q239 Chairman: Could you focus on what you are In terms of regulation, there are an increasing doing about it. number of groups springing up across departments. Mr Macrae: Wherever possible, we do try to The GLS has its own regulatory reform group. If I consolidate. We try to avoid simply adding further was not here this afternoon I would be attending a layers for precisely the reasons that you said—it is 3247872070 Page Type [O] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3
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22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis very resource intensive and it takes a very large classic examples of alternatives to regulation is the amount of time. That is the main factor that is Emissions Trading Scheme. In the case of the UK holding back further consolidation. Part of it is Emissions Trading Scheme, that was something having the adequate powers in order to really which was a real alternative to regulation in that the simplify a particular area of legislation. Particularly trading scheme itself was a matter of contract rather where we are dealing with Europe, we have powers than legislation. The EU Emissions Trading Scheme, under the European Communities Act to implement on the other hand, is using the notion of a trading the Community obligation, but sometimes that will scheme rather than regulation in order to deliver the overlay a domestic regime and we may not have the outcomes and is an excellent example of that sort of powers to tidy up the rest of the domestic regime that method, but it still requires regulation to set up the is left over when we implement the Community trading scheme itself. That is what we tend to find regime. In terms of trying to get a better handle on it, with a lot of the alternatives to regulation—there one of our best examples is what we have done in the may still be an element of regulation as part of the Veterinary Medicines Regulations 2005. That was package, but we recognise that if we want to change where the Veterinary Medicines Directorate in behaviours eVectively then it has to be a combination DEFRA took a decision to do exactly what you are of diVerent measures and part of it will be education, advocating and consolidate all the legislation relating part of it in empowerment, part of it incentivisation; to veterinary medicines. It has repealed in one SI 45 and, if it is changing human behaviours, then we need other SIs and disapplied another 22 and also some sort of catalyst in order to get the level of disapplied the Medicines Act 1968, so that everything change. Regulation has to be seen as part of a that you need to know about veterinary medicines is package of measures. It may be that we will still have in the one regulation. It has also been done in very small bit of regulation even though we have a broader close consultation with industry and, because it is a spread of other measures. A lot was made of the provision for making changes and fees, we have the success in Ireland of the plastic bag tax. A plastic bag prospect of revising that SI every year and our costs 15 cents. This had an enormous environmental intention is to revoke and re-make every time. impact, it was claimed, but there still needed to be Having got everything into the instrument, we will some regulation about pricing the plastic bag. continue to have only one instrument that is updated Looking at alternatives to regulation does not once a year. That is what we would love to do with necessarily mean total exclusion of regulation, it a lot of our regulation. The real challenge is more a means getting regulation into the proper perspective question of resources than principle. in terms of how little it can do to try and change behaviours. In terms of a lot of what we get from Q240 Earl of Northesk: In your introduction I think Europe, we would proselytise about alternatives to you said that subordinate legislation is second nature regulation because, when we have European to the Department; it is part of the culture. You have regulations, to implement, jurisprudence from the also said that the Department is fully signed up to the European Court of Justice precludes using voluntary Better Regulation programme. Given that one of the regulation or some other self-regulation measures. major recommendations of the Better Regulation We have to establish to the courts that there is a Task Force is to think outside the box, to consider legally enforceable method of implementing the alternative methods of delivering policy other than regulation. There may be times when we would prefer regulation, how actively and seriously is this something which is non-regulatory, but we then need considered in the Department? Do you have any to consider whether it fits with the ECJ’s case law. We specific examples where alternatives to regulation would proselytise in Europe for trying to find have been used by the Department? Thinking about alternatives. We have been trying to persuade DG this from a pan-European context, to what extent are Environment that the real issue is not—can we have you able as a Department to proselytise this more environmental regulation? but can we make the alternative agenda at the European level? regulation we have more eVective? Mr Macrae: Wherever possible, we do try to think of Chairman: We share that endeavour. Could I thank alternatives to regulation, but what we are ultimately you, on behalf of the committee, for your help with trying to achieve is to deliver public goods to further our inquiry. You have had a long session interrupted outcomes and we will try and see what package of by a couple of divisions. It has been very helpful to us. measures is most eVective in doing that. One of the Thank you very much indeed. 324787PAG4 Page Type [SE] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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TUESDAY 29 NOVEMBER 2005
Present Boston of Faversham, L Methuen, L Eccles, V Morgan of Drefelin, B Filkin, L (Chairman) Northesk, E Jopling, L Tunnicliffe, L Maddock, B
Memorandum by the Institute of Directors (IOD)
1. The Institute of Directors 1.1 The Institute of Directors welcomes the opportunity to contribute to the Select Committee’s inquiry into “managing secondary legislation”. 1.2 The IoD is a non-party-political organisation with some 68,000 members world-wide, including 53,000 in the UK, whose aim is to help directors to fulfil their leadership responsibilities in creating wealth for the benefit of business and society as a whole. 1.3 The IoD has not conducted detailed research into the processes of formulating and scrutinising secondary legislation and is not, therefore, in a position to answer all of the questions in the Committee’s “call for evidence”. We do, however, oVer some thoughts on those aspects of particular interest to business.
2. Q.3. Best Practice
What are the Government’s mechanisms for distilling and promoting best practice in relation to the instruction, drafting, laying, revision and repeal of statutory instruments? How is best practice monitored and enforced? 2.1 These mechanisms are essentially internal Government processes and, as such, are little known outside Whitehall. Although it is diYcult to state this with certainty, we are bound to wonder whether a more open process, which would involve business and voluntary groups at an earlier stage, might make for a better end product. 2.2 Although business would not wish to be consulted on any and every measure (the burden of consultation is relatively heavy already), there may be instances where greater business input would be of benefit.
3. Q.5. Correction
Why are so many correcting instruments required? What are the repercussions in a department if a correction is required? Is there a process of inquiry about why a correction was needed? 3.1 There is a suspicion in the business community—albeit diYcult to substantiate—that the large number of correcting instruments is a by-product of the relatively rapid turnover of personnel in Whitehall departments. If those responsible for drawing up SIs find themselves moved to a new post by the time the instrument takes eVect, there is bound to be less of an incentive for review and lesson-learning. 3.2 This forms part of a wider business complaint about Whitehall processes in general. The development of a policy and the steering of legislation through Parliament are often seen as separate from the task of implementing the policy in practice. OYcials will often move on to new projects as soon as the legislative stages are complete. It is encouraging to note that a diVerent approach is being taken with the Hampton Review of inspection and enforcement, where HM Treasury oYcials who have played a leading role in the Review itself have been moved to the Better Regulation Executive to oversee its implementation. 3.3 As an aside, it is interesting to note the Committee’s perception of “so many correcting instruments’. In a major study of SIs over the period 1987–97, Prof Edward C Page assigned just 261 out of a total of 27,999 to “errors”—less than 1 per cent of the total number of SIs1. The IoD has not seen more recent figures compiled on a comparable basis; it would be interesting to know whether there has been a significant increase in the number of SIs designed to correct earlier legislation. 1 Governing by Numbers, Edward C Page, Hart Publishing, 2001. 3247872071 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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4. Q.8. Commencement
We are keen to avoid the bulk laying of statutory instruments in the run-up to each common commencement date. How will departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny? Are departments developing annual statements on proposed regulation?
4.1 The IoD strongly supports common commencement dates, although it is essential that this very welcome innovation does not lead to a “pile-up” of consultations for business organisations or—even worse—a short- term overload of scrutiny work for Parliament.
4.2 Although perhaps easier said than done, departments will simply have to adopt a new modus operandi to ensure that the common commencement date approach is a success. This will involve better forward planning of policy development and drafting work in order to spread the burden throughout the year.
4.3 There may be a co-ordinating role here for the Cabinet OYce; we suspect that, unless some authority polices the system and checks that departments are getting ahead with their work, a last-minute legislative logjam is all too likely to result. The Cabinet OYce should be best placed to ensure this does not transpire.
5. Q.10. Consultation
How well observed is the Code of Practice on Consultation? How can the results be best presented in Explanatory Memoranda? How do the Government co-ordinate consultations with shared stakeholders, so that they are not overburdened? What changes could be made to the consultation process so as to lead to better secondary legislation?
5.1 The Code of Practice on Consultation is becoming more widely recognised around Whitehall, but there is still room for improvement in at least four areas:
5.2 (i) 12 week period. Regrettably, the 12-week recommended consultation period is still flouted. It is too easy for oYcials to find excuses (“If we don’t put this through now as an amendment to legislation before Parliament, we won’t have another opportunity for X years” etc). The 12-week requirement should only be ignored in extreme circumstances.
5.3 The Government should consider introducing a requirement that the 12-week rule could only be waived if a central authority (perhaps the Better Regulation Executive?) agrees to it.
5.4 (ii) Genuine consultation. There is still a perception that some consultation exercises represent little more than “going through the motions”. At worst, this can mean that consultation responses appear to have been ignored.
5.5 The Government should consider requiring departments to publish summaries of consultation responses in the resulting White Papers or other final proposals.
5.6 (iii) Input from small businesses. Inevitably, it is easier for Whitehall Departments to deal with other large organisations (such as large companies or even the IoD) than it is to identify the small businesses, charities and voluntary groups who may be disproportionately aVected by new proposals.
5.7 We would encourage the Government to continue to make greater use of Business Test Panels. We accept that representative groups such as the IoD have a role to play in this process.
5.8 (iv) High-quality RIAs. Wherever appropriate, consultation papers should contain a Regulatory Impact Assessment (RIA) or partial RIA. In some cases, these are missing altogether. In rather more cases, the partial RIA is unsatisfactorily cursory.
5.9 We would like to see far more attention to detail in this area. Crucially, Ministers must be prepared to send poor RIAs back to oYcials before signing them oV. 3247872071 Page Type [E] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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6. Q.12. Better Regulation
The Government are committed to implementing in full the recommendations of the March 2005 report from the Better Regulation Task Force (BRTF), Less is More. What differences to secondary legislation should Parliament and users expect to see as a result and by when? 6.1 The “one in, one out” approach promoted in the BRTF report is intended to put a brake on the “flow” of new regulation, as well as promoting a pruning of outdated or burdensome “stock”. We see it as complementary to the Better Regulation Executive’s on-line appeal for examples of regulations or government forms that would benefit from simplification. We note that the Government is committed to responding to such submissions within 90 days. 6.2 We would expect to see two principal diVerences as a result of these policy initiatives: 6.3 (i) We would expect to see a reduction in the number of SIs promoting new regulatory initiatives. 6.4 (ii) Conversely, we would expect to see an increase in SIs designed to revise and simplify existing law. 6.5 So, in theory at least, we should see a switch in the emphasis of secondary legislation from new initiatives to simplification of existing law.
7. Conclusion 7.1 The IoD sees the process of improving the formulation and scrutiny of secondary legislation as a significant element in delivering “Better Regulation”. 7.2 The IoD would be pleased to assist the Committee with requests for further information on any of the points discussed in this submission. 22 November 2005
Memorandum by the Confederation of British Industry (CBI) Introduction 1. The CBI is the national body representing the UK business community. It is an independent, non-party political organisation funded entirely by its members in industry and commerce and speaks for some 240,000 businesses that together employ around a third of the UK private sector workforce. The CBI’s membership includes 80 of the FTSE 100, some 200,000 small and medium-sized firms, more than 20,000 manufacturers and over 150 sectoral associations. 2. The increasing level of regulation has become one of the main issues of concern for business, with firms now reporting that they must spend more time and money complying with government imposed requirements, rather than on actually “doing business”. A recent CBI/MORI survey showed that the nature and level of regulation aVecting business is the second most important factor—of eleven listed factors—influencing a company’s investment decisions.2 3. There are over 3,000 statutory instruments (SIs) made each year, and each of these receives a fraction of the attention of civil servants, lobbyists and parliament compared to the 30 or so bills that are passed. 4. We very much welcome the day-to-day work of this committee to provide a dedicated examination of SIs. We congratulate the committee on launching this inquiry to take a much-needed look at the system as a whole. 5. We agree with the principle behind making SIs and realise that the purpose of SIs is to do away with the lengthy parliamentary scrutiny that is required for primary legislation. It is nevertheless important that SIs should be subject to an appropriate level of consultation by government department and scrutiny by parliament. At present this is hampered by a system which, from the perspective of a “user” is confusing and where accessing information is cumbersome. 6. The CBI is concerned that so many decisions are passed and that access to information for outside interest groups on these is so limited. This is relevant both during the “consultation” stage by the relevant government department, and the “scrutiny” stage by parliament. In particular we call for: — An improved explanatory memorandum (paragraph 13). — An examination of the best method of consultation on SIs (paragraph 14).
2 CBI/MORI (2003), Economic Outlook Survey 2003—Is the UK a Good Place to do Business? MORI, London. 3247872072 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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— More information from government departments on SIs (paragraph 16). — More information on the parliamentary website (paragraph 19).
Commencement
We are keen to avoid the bulk laying of statutory instruments in the run-up to each common commencement date. How will departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny? Are departments developing annual statements on proposed regulation? 7. One of the CBI’s suggestions for how to deal with mounting administrative costs faced by business in complying with regulation was common commencement dates for implementation of domestic legislation. The CBI argued that common commencement dates would minimise the management time spent scanning the horizon for legislative change; make the total cumulative impact of regulation more transparent; and help concentrate government minds on the quantum of regulation facing business. 8. However, there are a number of hurdles to overcome. These include ensuring that parliament and business is not overwhelmed by the total quantum of changes on any given date, that the quality of legislation is not damaged, and that implementation dates of EU legislation are harmonised. 9. To avoid the risk that there may be too much legislation for parliament and business to cope with around one commencement day, the CBI has suggested that Government should ensure that the total amount of legislative changes is limited to enable business to manage these changes, for example by focussing on total compliance costs. If the total cost exceeds a particular amount, legislative changes should be postponed until the next commencement date. Early notification of legislative changes will also be important for avoiding diYculties related to “bunching’. This could be done by announcing future legislative changes at the same time as announcing immediate changes, for example, changes that will happen in October should be announced on the April common commencement date, and vice versa.
Consultation
How well observed is the code of practice on consultation? How can the results be best presented in Explanatory Memoranda? How do the Government co-ordinate consultations with shared stakeholders, so that they are not overburdened? What changes could be made to the consultation process so as to lead to better secondary legislation? 10. The CBI believes that eVective consultation is the prerequisite to eVective policy-making. To be meaningful, however, genuine consultation should cover the need for action in a particular area and the rationale for action being taken. Stakeholders should not just be presented with a fait accompli. EVective consultation also helps to ensure achievement of a regulatory framework that supports, rather than undermines, competitiveness; with the concomitant eVects of reducing costs and oVering legal certainty. 11. Reasonable timeframes are the most important element of a successful consultation and the CBI is pleased that the number one criterion in the Code of Practice on Consultation is that government departments and agencies should allow a minimum of 12 weeks for written consultation. 12. It is our understanding that primary and secondary legislation are subject to similar consultation requirements. However experience suggests that they are not always followed. Whilst government departments seem to be improving their record on SI consultation, some have made greater headway than others. Proposals for primary legislation are now, in almost all cases, subject to well-managed consultation with stakeholders, but when it comes to secondary legislation, it is more of a mixed bag. It is not unheard of for key stakeholders to be unaware of proposals, or that consultation is rushed, or only carried out at the 11th hour when problems surface. 13. In their current form, Explanatory Memoranda are a missed opportunity to inform the debate on SIs. At present they are brief, technical notes that provide very little additional information to anyone looking for more in-depth information on a particular SI. Instead Explanatory Memoranda should state, in plain English, what the law is at present, how passing this SI would change the law, and why this is necessary. By giving a little more detail of the proposal and by making this accessible for the non-specialist, the opportunity for more eVective scrutiny is thrown wide open. 3247872072 Page Type [E] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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14. It is important to acknowledge that good consultation does not always mean more consultation, due to the problem of overburdening stakeholders. Due to the quantity of secondary legislation this problem is likely to be most acute for SIs. There could be a number of ways through this dilemma, including, for example, a trigger mechanism whereby full consultation occurs only if the costs of implementing a measure exceeds a certain amount, or a consultation forum where the decision on which SIs require further consultation are taken by a group representing a broad range of stakeholders. The best way to prevent the overburden of consultation is only to introduce changes where absolutely necessary, and where possible to do this within the framework of existing provisions rather than by creating new law. 15. Where statutory consultation exists (for example the Health and Safety Commission) this works well in ensuring that there are no “nasty surprises”—where an SI is introduced without the knowledge and against the wishes of an interested party—but the level of commitment and resources required for statutory consultation means that this may not be appropriate in other spheres. 16. In general terms, not nearly enough information is available to the wider audience and tracking down SIs is prohibitively cumbersome. This means the government is able to choose whether, when, and how to divulge information. An outside interest group seeking information on an SI must rely entirely on the co-operation of the relevant oYcials. Instead there should be much more comprehensive information provision, such as a page on the relevant government department website listing, alongside the original Act, all SIs referring to the Act, dates of implementation, and links to departmental guidance and relevant caselaw. 17. The Law Society, on 23 November published a “Better Law Making Charter” covering a number of issues that are relevant to this inquiry, which the CBI thoroughly endorses. The Law Society is sending the committee a copy of the Charter.
Users and Impact
What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone in Government (or in the sectors affected) monitor the collective impact of regulations on eg small businesses or local authorities?
18. For an outside interest group, accessing information about the progress of SIs is of primary importance. This is true whilst the SI is being developed by a government department, as discussed above, and also as it is passed through parliament. Following an SI through parliament, and identifying who to lobby and when, can be diYcult—although the establishment of this committee has greatly improved the situation as it provides a single point of contact. Whilst the vast majority of SIs will be uncontentious, there are significant exceptions, and it is important that interest groups can raise concerns without undue hindrance. 19. The main source of information at present is the House of Lords Notices and Orders of the Day which lists the date and place that upcoming SIs will be taken. This is a useful tool but more use should be made of it online—including links to text of SIs, consultation documents, and the appropriate government departmental webpage. 20. Occasionally, negative instruments are laid during recess so there is no opportunity to pray against them— which undermines the role of parliament and circumvents any possibility of voicing objection. Unless absolutely necessary, this practice should be avoided. 21. A further concern is the growing tendency of government to draft primary legislation as a framework from which many details, and often controversial elements, are lacking. These details are then added at a later date in the form of SIs. This means that interested parties are unable to press issues to the same extent during the passage of the bill, where these are not mentioned on the face of the primary legislation—and eVective scrutiny is undermined. In this way, important decisions are then delegated to SIs. This is worrying as it adds to the volume of SIs that are created, and particularly so given the diYculties surrounding the tracking and lobbying on secondary legislation that have been raised. 22. It is often not individual pieces of regulation that cause concern for business but rather the cumulative burden of administrative costs related to complying with all regulations that cover a business’ operations. This is particularly the case for small and medium-sized enterprises (SMEs). 3247872072 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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23. The CBI welcomed the Better Regulation Task Force recommendation that the government should measure the total costs to business of complying with regulation and then set a target to cut these costs. The CBI believes that applying a “What gets measured, gets done” strategy, as set out in the “Less is More” report, will ensure that government is held to account on the delivery of its deregulatory promises.
Links to Better Regulation
The Government are committed to implementing in full the recommendations of the March 2005 report from the Better Regulation Task Force (BRTF), “Less is More”. What differences to secondary legislation should Parliament and users expect to see as a result and by when? 24. An appropriate regulatory environment provides certainty in the functioning of the market, underpins investor confidence in an economy and is crucial for preventing rogue companies flouting the law and thus undermining the market position of compliant companies. Businesses accept the need to meet a certain level of regulatory requirement, combined with a commitment to best practice in company operations. The CBI is pleased that better regulation is a key priority for the Government. Real progress on regulatory reform will require a long-term commitment to the better regulation agenda and include lessening the overall burden of regulation on business. 25. The CBI would argue that there are two main strands to consider in any regulatory simplification programme: simplifying existing regulation and ensuring that any new regulation is necessary, light-touch and proportionate to risk, according to the Government’s “better regulation” commitments. 26. The Better Regulation Task Force report “Less is More” provides recommendations for managing regulatory burdens and for how the Government should precede with simplification of existing regulation. However, questions remain as to how this would apply to secondary legislation. In section 4.3 of the report the use of regulatory reform orders is recommended as a mechanisms for delivering simplification of regulation. However, it is not clearly explained how simplification of secondary legislation will be delivered. The CBI thinks that this could be an area that the Committee may want to explore further. 27. As stated above, the Government has committed to regulating only when necessary and to doing so in a light-touch way that is proportionate to risk. The CBI is of the view that to honour this commitment, the Government should use the opportunity that implementation of its better regulation agenda provides to ensure that any new regulation created in the UK, including statutory instruments, adhere to the principles of better regulation set out by the Better Regulation Task Force—proportionality, accountability, consistency, transparency and targeting. 28 November 2005 3247872073 Page Type [E] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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Examination of Witnesses Witnesses: Ms Antonia Norman, Head of Parliamentary Affairs, Confederation of British Industry, Mr Matthew Fell, Head of Corporate Affairs, Confederation of British Industry, Mr Stuart Etherington, Chief Executive, National Council of Voluntary Organisations and Mr James Walsh, Head of European and Regulatory Affairs, Institute of Directors, examined.
Q241 Chairman: Good afternoon. Welcome and with which we are very much engaged. To our thank you very much indeed for coming to help us knowledge at least, this committee is the only group with our inquiry. We are under threat of having that is specifically looking at the involvement of divisions, so at some stage you will see us all leave the Statutory Instruments in the Better Regulation room; we would be grateful if you would not leave the agenda. So that is clearly welcome from our point of room also, but wait for our return. I will not go into view. I hope you will have seen from our written what the inquiry is about, as I assume all of you have evidence that we very much believe that our expertise read the call for evidence. And thank you both, the is on the broader Better Regulation agenda, and that CBI and the IoD, for the written evidence you have is what certainly I hope to oVer a few comments submitted; we have received that, the Committee has upon. But we do on occasion work with individual read that and it has been most helpful. Before we start government departments on particular Statutory the first question, could I touch on process, because Instruments as is necessary, to ensure that they are as with four excellent witnesses there is a diYculty in business–friendly as possible. I think the biggest issue avoiding asking the same question to every single we have here is actually tracking and keeping tabs on person? What I would like to do—and tell me if this the sheer volume and quantum of those, and we do feels inappropriate—would be generally to start with find that the work of this committee is very helpful in looking to the CBI and asking for their comment on a that respect. Antonia, would you like to add particular question, then asking the IoD if they either anything? V di er from that or have any material issues that they Ms Norman: Specifically on Statutory Instruments, wish to add to it—no obligation to if you do not, but one of our primary concerns is, as Matthew has said, do engage if you do—and then asking Stuart on accessing information, and we face two diYculties Etherington from NCVO if he has any perspective on on this issue. The first is during the drafting stage in it from the voluntary sector. Does that feel government departments. There is always an option acceptable, so that we in a sense can focus upon Y V of tracking down a relevant o cial and ringing them where it is di erent rather than there being an on the telephone, and nine times out of 10 they will be obligation to necessarily repeat if there is no V very helpful. But this is quite a cumbersome process di erence? and it is very time consuming for each and every Mr Etherington: That is fine. Statutory Instrument–and, equally, whenever you Ms Norman: I agree. think that a Statutory Instrument might have changed in some way. So what we would like to see is Q242 Chairman: I will not, if you will bear with me, a page on the government department website introduce the committee to you; we all have our name detailing Statutory Instruments, any consultation badges on in good primary school fashion, so I hope documents and a timetable moving forward. When that helps. What I would like to do is start by asking the Statutory Instrument is then laid before each of you, in the way that I indicated, just to say Parliament, there are also diYculties. The Minutes who you are and where you are from, so that we and Order Paper is published online and that does position that: and then I will start by asking for have a list of Statutory Instruments that are before specific views to oVer on the Government’s Better the House, but I think more use could be made of Regulation agenda and the fit or the relationship of that, perhaps with again linking it to the text of the that to secondary legislation. Could I invite the CBI Statutory Instrument, the governmental department first of all to say who they are, and then we will pass website and the Explanatory Memorandum. Just on round the table? that point I would like to say one more thing, which Mr Fell: My name is Matthew Fell and I am Head of is that the Explanatory Memorandum, I think, is a Corporate AVairs at the CBI and my responsibilities bit of a missed opportunity. For a layman reading the include the Better Regulation agenda. To my right is Explanatory Memorandum very little light is shed on my colleague, Ms Antonia Norman, who has the subject, and what we would like to see is a responsibility for our parliamentary aVairs and statement in plain English about what the Statutory functions, and I will ask her to say a few words about Instrument is trying to do and what the law is at that in a moment. I think we would like to say that we present, and how it will change and why that needs to welcome this investigation by the committee; we do be the case. As Matthew says, the CBI is not as see it as a key part of the Better Regulation agenda, involved as it might be in the Statutory Instruments 3247872073 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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29 November 2005 Ms Antonia Norman, Mr Mathew Fell, Mr Stuart Etherington and Mr James Walsh process and I am sure that from time to time that members, about Statutory Instruments in particular, means that we may miss a trick on behalf of our but I, like my colleagues, welcome the construction of members. That is partly our fault but, equally, it is to the link between secondary legislation and the Better do with the huge volume of Statutory Instruments Regulation initiative. There are perhaps four that I that are passed and diYculties in accessing could flag. One in particular relates to consultation information that I have just been explaining. and this really echoes the CBI’s evidence in the sense that quite often people do not know where to find Q243 Chairman: Thank you very much. We note this, it is not easy to locate and the extent to which it that in your evidence and we will no doubt be can have an impact is not always obvious. And I reflecting upon that before we finalise our report. think there is an issue about bringing these Mr Walsh. instruments to the attention of those who have an Mr Walsh: Thank you, my Lord Chairman. I am interest in them appropriately and in a timely way— James Walsh; I am Head of European and and I will come on to the timely way in just a second. Regulatory AVairs at the Institute of Directors. We So that is one issue which I think would be generic to have 53,000 members across all sectors, most of them everyone—that we do not know where it is, we are from SME backgrounds, so that gives you a fair not quite sure when it is passed, we are not quite sure V appreciation of where we stand and whom we what e ect it has. And this will apply to individual represent. Like my colleagues in the CBI we are very members of NCVO who might have a particular interested in and very supportive of the interest in a particular subject. The second area is that Government’s Better Regulation agenda. We find there is a lack of clarity often about the future of that the idea of it is very encouraging and we are secondary legislation as the primary legislation is seeing the Government putting a good deal more going through. I can cite you a case in relation to the energy and eVort into better regulation. But, of Children’s Act where the NSPCC was not really course, the real test will be whether that energy aware of the volume of the Statutory Instruments delivers some practical outcomes for our members in and the secondary legislation that would result from the form of an actual reduction of the administrative that Act and therefore they were really unsure about burdens, and we have not yet got to that point, but we what the shape of this would actually look like at the look forward to that day. On secondary legislation time that the legislation was being passed. The third area I think relates to impact. Often Statutory we very much welcome the establishment of the Instruments are applied at fairly short notice. You committee and this inquiry and clearly it fills an will be familiar in your former ministerial career, My important gap in parliamentary scrutiny of the Lord Chairman, of the Criminal Records Bureau and legislative process. It may be that on the business side charges that were levied on voluntary organisations. we also need to look again at what we are doing about The use of a Statutory Instrument meant that with 26 scrutiny of secondary legislation because, as my CBI days’ notice the fees were increased from 7.6 million colleagues have said, our input to the Government to the voluntary organisations to 9.3 million, so these through the consultation process is usually at a stage Statutory Instruments can have a very dramatic before one gets to the Statutory Instrument—it is eVect on organisations. There is a consultation code perhaps a Green Paper or some other consultation as part of the contract which the government has document—and there we find that we are very signed with the voluntary sector, and that engaged, we give a written response, often we go and consultation code pretty much underpins a lot of the have meetings with civil servants and Ministers and Better Regulation work that is going on, and we see so on. But it is actually quite rare for us to submit no reason that the code cannot be applied similarly to formal evidence to a government department in these instruments. The final issue, which I think is response to the drafting of a Statutory Instrument diVerent but may be echoed in other sectors too, is the itself and it may be, as Ms Norman says, at that stage extent to which Statutory Instruments are used to we allow some things to slip through the net. pre-empt primary legislation. I will give you an example of that. When the two lottery funds were Q244 Chairman: Thank you very much indeed. Mr merged, before the Lottery Bill—and the Lottery Bill Etherington. has still not been passed to create a new lottery fund, Mr Etherington: Thank you, My Lord Chairman. I it is in eVect operating as a single fund—Statutory am Stuart Etherington, Chief Executive of the Instruments that would apply to both of the pre- National Council of Voluntary Organisations, which existing funds were applied in order, de facto,to is the umbrella for voluntary and community create a new fund before Parliament had expressed its organisations in the UK. I think many of our view about the creation of that fund, and that seems concerns would be the same as those of business, but to us to be particularly bad practice. So there are there are one or two that are slightly diVerent, I think. some examples, some of which echo what colleagues Four issues emerged from our consultation with our have said and some which go a little further. 3247872073 Page Type [E] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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Chairman: Thank you very much, that was very generally I think that 12 weeks is plenty of time for us helpful in all respects. to respond. Mr Etherington: I concur. I think three months is fine, and it is also written into the Compact Code, but Q245 Lord Boston of Faversham: I would like to turn there are too many opportunities where this is not to consultation generally and there are several adhered to. The CRB case that I gave you is a case in questions I would like to put to you. The first one is: point, and it is not stuck to enough—there are too do you feel that you get enough warning, enough many exemptions. time, for proposed new secondary legislation and that you have an ample opportunity or not to feed in your worries to the departments concerned? Also, do Q246 Lord Boston of Faversham: The second you think you have enough time to prepare question really deals with the form that the yourselves for the impact that proposed new consultations take and whether you think that they secondary legislation will have? are suYciently eVective. Does it usually take the form Ms Norman: Part of this is to do with the access to of written consultation and does it include oral information that I was talking about earlier, in that discussion? does it include appropriate meetings, for consultation is much more likely to be successful example, with the relevant departments? and do you where information is put out there and available to have workshops with departments, or more than one key stakeholders. It becomes much harder if you have department, if appropriate, to try to sort out these to start untangling the web about which statutory things? When I ask if they are eVective enough, do instrument is where, and when it is going to pop up you feel that they are not just going through the next. Broadly speaking, I would say that the CBI is motions? We note that the IoD’s memorandum, for consulted, but I am also aware that we may be in a example, referred to the undesirability of going privileged position on that. In preparation for this through the motions only. One other limb of this session I got in touch with some of our Trade question is whether the consultation goes so far as to Association members and got a pretty mixed seeking your views on other forms which could be feedback. One of our members in the transport taken instead of through secondary legislation to industry had a lot of diYculties with the Department achieve the desired aims? There is just one subsidiary for Transport where they found that they were only point I would ask about this. We have heard during told about a consultation exercise through their own the course of the inquiry that there are several cross- monitoring rather than directly from the Department department groups—for example, the Government for Transport. Even when they had responded to the Legal Service is involved in one? with lawyers from consultation they were then not kept up to date with information as the debate progressed, and this made various departments where it is appropriate. Do you it very diYcult for them to keep their members get involved in those or that particular one and, if so, informed of any preparations that they would need to do your own lawyers get involved in them? make for when the Statutory Instrument was passed. Ms Norman: Normal practice is for consultation to Mr Walsh: My Lord Chairman, I think in general we have a written element and then laid on top of that feel that we do have suYcient time for consultation there may or may not be additional consultation by because broadly speaking the Code of Practice on way of discussion groups and that type of thing. Best consultation is adhered to, now we get a 12-week practice would obviously be where consultation is period of consultation. So as long as that is followed more dynamic. I could give you one example of where we find that is plenty of time. The diYculties of course this has worked fairly well, which is on the Age arise when the 12-week period, for one reason or Regulations, which are currently being consulted on, another, is disregarded and sadly that does still and the DTI has had a conference on this. And they happen. OYcials usually have quite a good excuse for also launched an Age Advisory Group to facilitate doing so; they will say, “Here is an opportunity to get discussions and to try and drill down on some of the some amendment into a Bill that is already on its way issues. On the question of whether departments through Parliament and, if we do not do it now, we merely go through the motions, we do get the will not be able to make this useful change to the law impression that that is sometimes the case. However for some years because of pressure and diYculties in sometimes that may be because the instrument is getting items into the Queen’s Speech,” and so on. So implementing European legislation. In this instance there is often quite a plausible excuse. But we think there is not a great deal of latitude in the matter, the that Ministers and Permanent Secretaries just have to consultation happens but there is only one direction be a bit tougher about this and say that the 12 weeks that it can go. This is particularly relevant to your has to be adhered to, and that may mean better point about whether there are other forms that could forward planning in departments in order to ensure be used instead of a Statutory Instrument—when it is that last minute crises simply do not occur. But a case of implementing European law it will have to 3247872073 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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29 November 2005 Ms Antonia Norman, Mr Mathew Fell, Mr Stuart Etherington and Mr James Walsh go on the statute and therefore another form would have to be a process that just goes on in London. We not be possible. encourage government oYcials to get out of London Mr Fell: If I could just add that I think where the and visit our members, to go and spend some time in benefit of informal discussions can really play a part a factory or a shop or whatever it is and say to a real in this is at the early compensation stage, to say: what life businessperson, “How will this change in the law is it we are trying to achieve out of this, what is the aVect you?” We accept that takes a lot of time, and of policy objective? I think if we can have some of those course resources are limited in Whitehall and it is not early soundings and informal discussions with always possible, but on the occasions that I have oYcials at that stage, when it is in the gestation managed to marry up, if you like, our members with period, then we can say, “OK, we see what you are Whitehall oYcials, I think both sides have found it a trying to achieve, but from our point of view, the very worthwhile process. business community, this is how we would deliver Mr Etherington: If I could add to that, my Lord that outcome for you in a way that is least Chairman, I think it is quite important that there is burdensome to us.” I think that the early stage proportionality in consultation as well as informality of those discussions is what can really proportionality in regulation. If it is fairly standard lead to benefits. stuV, then I think the approach that you can take to consultation does not have to be as wide. Also, I think it is quite important that the Government is Q247 Chairman: We are extremely interested to hear clear about what is changeable and what is not that because that is an argument that Sir David changeable. There is nothing more frustrating than Arculus and others have put to us. It is only by that being consulted about an Instrument which you sort of process, whereby you are having an informal know you have really no chance of changing. This is discussion with those who are to be regulated about really an expansion of the European point but it the policy objectives, that you get a dynamism about applies domestically too. So I think it is important. alternative ways, and unless that happens we are The other point is that, where there is a really doubtful whether you are going to see much less extensive piece of work—and childcare, as I regulation or much better regulation. Is that a view mentioned earlier, obviously relates to that—then it that the IoD shares, that you need to get into the is important that those responsible do actually get process early rather than downstream? out to the organisations that are aVected. That in our Mr Walsh: Absolutely, my Lord Chairman, I agree sector can mean not only the large players, who are very much with my colleagues’ comments. It is very pretty well equipped to lobby both on primary and important to get into the process early, and of course V secondary legislation, but also small and medium- achieving that requires constant e ort on the part of sized voluntary organisations that are often outside organisations such as ours. It requires developing a V Y London and will be a ected by any changes, and relationship with o cials and with Ministers, rather getting hold of those means that government needs to than just expecting that they will pick up the phone to have a decent mechanism for getting in touch with you out of the blue when an issue comes up that is of them and giving them the time to be able to respond. concern. So you have to work at it and I find that a So the first thing would be to distinguish between number of government departments are very good at Y where you can change things and where you cannot; this. On the Better Regulation side the Cabinet O ce and the second is where there is a significant change and the DTI are getting a lot better and make a real V as a result of Statutory Instruments that those e ort to seek our views from businesses and to organisations that are aVected, who are not the consult with us informally. Of course, some of that normal suspects, are also engaged in the activity necessarily happens below the radar, so the consultation. public do not necessarily see it: and there is merit in Chairman: I think we take many of those points. I am having consultation processes which are open and not sure that we would be totally sanguine to think visual, so you have to do both the informal activity that there are some regulations that cannot be and also the public level of consultation as well. If I changed where the departments are open enough could add one point on the form that the early enough. Not open about their policy objectives consultations take. Generally we find that, if it is because in a sense government has a right to pursue consultation on a fairly small-scale Statutory its policy objectives subject to Parliament, but about Instrument or Order, it is probably just a matter of how it gets there, because I think that is where real life process, and sometimes there is a feeling of going will actually inform it most eVectively. through the motions—there is no doubt that is the case. But good consultations are those that are, as Ms Norman said, much more imaginative and dynamic, Q248 Lord Boston of Faversham: Just before putting they should certainly involve meetings, but also take my final question, which is quite a short one, there is the process beyond Whitehall. Consultation does not a linked point relating to the ones you have just 3247872073 Page Type [E] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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29 November 2005 Ms Antonia Norman, Mr Mathew Fell, Mr Stuart Etherington and Mr James Walsh answered. From all of your own practical experiences the path that they are going to take and instead it is and the clear need for a certain amount of going to be administered by the department. So that consultation between government departments, do is an example of where ours and 96 per cent of the you feel that there is any case at all for—at least to a respondents concerns were not listened to. Equally, I degree—central government management of SIs, can give you an example of one where they were, secondary legislation? which was the Occupational Pensions Schemes Mr Fell: My instinct is that it goes back to our (Cross-Border Activities) Regulation, which applied opening remarks about accessibility and to businesses with secondees overseas, & how long transparency, bearing in mind the sheer volume that that secondee can be overseas before the business there is, and I think that the kind of facility that qualifies for steeper funding requirements. We were Antonia Norman was referring to, very much that concerned that this was only going to be a year that central repository, so that we are able to tap into that the secondee could be overseas, we fed in that and have knowledge of what is going on at the concern and we have recently heard that that is going current state of play, and I think that that is what we to be increased to five years now. So sometimes they would visualise as being much more valuable rather listen and sometimes they do not. than necessarily a hands-on management role, if you like, but some sort of central repository where we could keep up to speed with exactly what the state of play is in the legislative process. Q250 Chairman: As ever. Mr Walsh: I agree with that, and I also think that Mr Walsh: If I could give one positive example, my where a central coordinating body could play a role Lord Chairman, but it does not necessarily relate to is in ensuring that we do not get a last-minute sudden a Statutory Instrument, to demonstrate that rush of consultation for businesses or voluntary sometimes a consultation process does work. We groups in the run-up to legislative milestones. We have a debate on at the moment over the working now have this system of Common Commencement time directive at EU level. We have been lobbying the Dates, which business would strongly support, but of Government hard with our views and our concerns— course one of the problems it generates is that and perhaps this is not the time to go into some of the consultation can come all at the same time of year, specific points of policy detail—and it may suYce to suddenly dropping on the desks of business say that we have been impressed with the way that the organisations in a matter of weeks. So there is DTI has taken those points on board. We feel that certainly a role for a coordinating that body that they have been genuinely representing our view at the spreads that out and manages the timing of the European negotiating table. Interestingly, that has process so that it is easier for both Whitehall and the been a process where as well as a written exchange of consultees. views we have also been closely involved in attending Mr Etherington: I would concur with that, My Lord meetings with the department and have had plenty of Chairman. opportunities to put our views forward. Mr Etherington: One success story which involves this Q249 Lord Boston of Faversham: When you have own committee’s work, the Leonard Cheshire expressed your worries about proposals, do you feel organisation campaigned in relation to the Disability that they are being taken into account? Can you give Discrimination Act and there were exemptions us any examples, good or bad, giving an indication to allowed in the secondary legislation for trains and what extent, if at all, they have been taken into other operating companies to be exempt from account? conditions of the Act by a negative procedure, so they Ms Norman: To be honest this is a diYcult question all went through it and nothing much happened. But to answer. It is very much a mixed bag. I can give you Leonard Cheshire lobbied quite hard with the a couple of examples, if that would help? We support, as I understand it, of this committee, and responded to a consultation, WEEE Directive, on that has been changed now and they require an Y Waste Electrical and Electronic Equipment. I think a rmative decision and therefore subject to much there have been three consultations on implementing more scrutiny. So that is an example of how the that directive. The final one was at the end of last process can be used. That is also an example of how summer, and in that consultation the Department of it operates the other way around and in the voluntary Trade and Industry suggested that there should be a sector sometimes campaigning for slightly more National Clearing House to administer the recycling eVective regulation rather than just less regulation in of electrical and electronic equipment. The CBI, order to support is constituents. But there is an along with 96 per cent of respondents, according to example of how a department did react both to the DTI, agreed that that would be a good thing, but pressure from a voluntary organisation and also to the latest information is that that is not going to be parliamentary scrutiny 3247872073 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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29 November 2005 Ms Antonia Norman, Mr Mathew Fell, Mr Stuart Etherington and Mr James Walsh
Chairman: Thank you very much. horizon scanning, looking out for new regulatory problems and keeping up to date. So this is a real brake on Britain’s enterprise culture. Some of the Q251 Lord Methuen: I would like to ask about the initiatives that the government is now pursuing burden that secondary legislation puts on V should help to address this. The Hampton Review, organisations. It is obviously a very di erent matter which the Chancellor is now pushing forward, is for a large firm with a big legal team as opposed to an encouraging inspectors to be much more risk-based SME or a small voluntary organisation. Would you and is turning the culture of organisations such as the care to comment on the load? Environment Agency and Health and Safety Mr Fell: Clearly putting a costing on this is very, very Y Executive into being the advisers and helpers of di cult, to say what is the burden specifically on business, rather than heavy-handed enforcers. That business. The independent Regulation Task Force will do a great deal to help SMEs keep themselves earlier this year in a report they published estimated abreast of the latest developments. So that is very that the form filling requirements, if you like, on important. The other thing which we welcome and business were anything between £20 billion and £40 which we hope will be a significant success is a billion per annum on business across the piece. I programme on measuring and then, we hope, think, more than that, what our members would reducing administrative burdens on business. report is actually the diversion of management time Sometimes, whether we like it or not, a government which they spend scanning the horizon making sure policy imposes a burden upon business and, if the that they are on top of all the legislative change and government is committed to it, then they are not the opportunity costs that that involves. We have had going to change it. But let us see if we can reduce the reports that some of our members in the financial admin, form-filling, the paperwork that often sits services sector estimate that something like 15 per alongside the policy; that is often where the quickest cent of their total IT spend each year is due just to wins are to be had. making sure that their systems are up to speed and Mr Etherington: I suppose the situation is slightly compliant with legislative changes, and something diVerent in terms of the scale in the voluntary sector. like a third of all the training that they do is due to It needs to be remembered that, whilst the larger making sure that the staV are aware that they are household-name charities are well known, the vast compliant with legislative change again. So it is a majority of voluntary organisations have no staV at significant number there. The uncertainty point, I all and our community-based volunteer-led think, is another one that is drawn out. If you do not organisations probably do not know anything about know what the rules of the game are, then quite often this. So whether or not they are aVected by it is an we hear that investment is held up, and certainly interesting and moot point because they do not international investment, where occasionally actually know what is going on. decisions are impacted upon if there is disruption in the legislation field, because they do not know what the rules of the game are going to be and whether they Q252 Lord Methuen: I was going to ask you that. should choose to invest on the back of that. We Mr Etherington: I think the organisations that would would certainly agree with the view that there is have principal diYculties here are organisations in inevitably a disproportionate impact on the small the middle range that do employ some staV but have business community, and I think that again comes no specialist functions, do not have any specialist back down to the management time. What they do legal advice and would have diYculty in complying. not enjoy the benefits of, which larger companies do, The other point is, we wrote a recent report on is in-house expertise and specialism, so it is quite regulation which drew the distinction—which often the management team, the classic image of the voluntary organisations often do not draw a “Jack of all trades”, the manager of a small business distinction—between general regulation and those trying to keep track of everything that is going on obligations enforced on voluntary organisations by across numerous areas of the various legislation. So nature of, for example, a public sector contract. It is we would certainly agree that they have a quite an important distinction between the two: one disproportionate impact. is voluntarily taken on, if one signs a contract, and Y Mr Walsh: I agree. These are di culties which are the other is of a much more general nature. But for much more severe for SMEs than large companies. large numbers of voluntary organisations they just As Mr Fell rightly says, very often in small companies simply will not know anything about it. the burden will fall on the owner/manager who is, after all the entrepreneur who ought to be the person really driving the development and progress of the Q253 Lord Methuen: And they ignore them in total? business. It is particularly disappointing that it is that Mr Etherington: They ignore them because they do person’s time which usually is taken up by doing the not know anything about them. 3247872073 Page Type [E] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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Q254 Lord Methuen: Can I go on from that? We possibly this is a question more for the voluntary have been talking about the quality of SIs, and I sector—and the business world is very much in would like to ask Ms Norman—Are you certain that favour of Common Commencement Dates, as you you are talking about Explanatory Memoranda and probably know. But is there an issue there for the not Explanatory Notes, which I think are almost voluntary sector? Then a question for everyone: totally useless? apart from the issues around bunching of Ms Norman: Yes, I am sorry, I was talking about consultation that we have all heard about, are there Explanatory Notes. any other undesirable eVects of Common Commencement Dates that we need to be Q255 Lord Methuen: You were talking about concerned about? Explanatory Notes? Mr Etherington: I think that the voluntary sector Ms Norman: Yes. views this as double-edged, as I implied, I think, in the Disability Discrimination Act issue-which is, on Q256 Lord Methuen: Because we have attempted in the one hand, of course, we are aVected in the same this committee to ensure that Explanatory way that business is by over-regulation, by lack of Memoranda are written in plain English and are clarity in relation to Statutory Instruments and by intelligible, and we believe that we have had some the diYculties in interpretation and all of the other success there. standard regulatory issues. However, of course, Ms Norman: I am sorry. I was talking about many of my members will have been pushing for Explanatory Notes. some of these regulatory requirements in relation to business to comply more eVectively with disabled Q257 Lord Methuen: Thank you. One of the other consumers or whatever the particular issue would things is that the quality of these SIs, a lot of them I have to be in relation to the environment or anything find are totally unintelligible because they merely else in which voluntary organisations are engaged. So refer to sections of the Act with vast quantities of you may well find on that side of the fence that the cross references, which are almost, particularly to a voluntary sector would be pushing for small firm, totally unintelligible. So something like commencement dates as soon as practically possible consolidation is absolutely essential, I would have in relation to many of these things. But I think that thought, for the average person, for the average firm. there is a divergence of opinion. We can be seen in a To what extent do you consider that to be true? sense as a sector in our own right but we are also Mr Fell: I would wholeheartedly agree with those campaigning for change in the activities of the state sentiments, certainly. and in the activities of business and increasingly in the activities of business, so I would have thought Q258 Lord Methuen: I am an IT person, so I would that from that perspective the idea of delaying have thought that it was comparatively easy for the commencement or having extensive exemption website to be put up the latest version, and somebody criteria would be something that we would be much must have it anyway somewhere. Can I come back more anxious about. for another question on the EMs? We have been Mr Fell: If I could turn to the perhaps broader issue talking to the various government departments of bunching, that you say might be a downside about including EMs as part of the SI, and there are problem for Common Commencement Dates. Our departments that are refusing to do that because of members would certainly take the view that the the cost of so doing. Would you be prepared to pay upside benefits of Common Commencement dates, in more if such a thing was available? It is available on terms of the clarity that it brings them and the the Internet, on the website. What are your management time that it saves them in scanning the comments on that? horizon, would far outweigh the downside risks of Mr Walsh: I think my suggestion would be that, if we bunching. I think what they would like to see if the had less legislation coming forward, fewer new laws, system is working really well is that early notification as we ought to get under the new, one-in, one-out, is as important if not more important than the actual process that the Government is committed to, then commencement date of the legislation. I think what perhaps we could have fewer but better explained and we can see helpfully developed to build in the system better quality Statutory Instruments? here is almost a virtuous circle, if you like. So at six- Chairman: Touche´. Thank you. monthly intervals, before all the legislation actually comes into force on the commencement date, that the Q259 Baroness Morgan of Drefelin: We have previous six-monthly interval, if that was well touched on this question already, so feel free to move signalled and that was notified to all the people who on quickly if you want to. You have already would be impacted by it, they could use that time to mentioned Common Commencement Dates—and start to phasing in, planning, putting the systems in 3247872073 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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29 November 2005 Ms Antonia Norman, Mr Mathew Fell, Mr Stuart Etherington and Mr James Walsh place to deal with the new legislation. So I think if you that front. The real jewel in the crown, if you like, is had that virtuous circle built into the process and the the talk of a risk based approach to regulation, and I notification that one was actually coming into being, think if you get that right that will be the most I think that would go a long way to addressing any fundamental change that this whole agenda will bring concerns around bunching and would give about, the correct targeting and proportionate companies suYcient time to put systems and approach to regulation, so that when in the future procedures into place to comply with the new there will be regulation only where there is risk, and legislation. I think that will be a really key area. The fourth Mr Walsh: I very much agree with that. I do think strand is one that we identify as one where there will that the pros outweigh the cons by quite a significant be a rationalisation in the number of national margin. One of the pros that perhaps we do not talk regulators across the piece, and we can quite clearly about often enough on the business side is the eVect see that there are eYciency gains to be had here, that, I imagine, it has on Whitehall oYcials. If you single points of interface with business to deal with have to prepare a list of all the regulations about to them and again increased regulation of the regulator. take eVect in your department or across government A caveat to that which we have stressed is that it is as a whole, it makes the burden on business very plain very important that, because of the sheer scale of to see and should, I hope, concentrate the mind. One what might come about by that rationalisation, the diYculty that we do have of course is that at the regulators do not lose touch and lose knowledge of moment this regime applies to UK legislation and the industries that they are actually regulating. So I ideally we ought to find a way of extending it to EU think there are four key strands of activity there legislation as well. which we see as all very positive. Clearly business would judge all of that activity on delivery at the end of the day and how it perceives the regulatory Q260 Viscount Eccles: On the question of policy we environment. One thing, I think, that is perhaps have been talking about policy background to missing from that, that we are stressing above all else, individual Statutory Instruments rather more than is the need to bring about culture change within the whole picture. What do you see as the outcome of Whitehall and within the individual regulators the Better Regulation Task Force and the Better themselves to carry out the enforcement and the Regulation Executive and the Government campaign V inspection. I think if we can get that culture change to achieve some di erent outcome to the one we right, coupled with the risk-based approach to experience at the moment? Can you see that picture regulation, that will really bring about a diVerence, clearly? and are you confident that we could predict but time will tell, of course. an outcome? Mr Fell: I think, if we were to attempt to distil the current initiative for the work that is going on right Q261 Chairman: What do you mean by culture across government to pursue the Better Regulation change? agenda, there are four key strands that we would see Mr Fell: Culture change of oYcials within Whitehall as positive indications. One is the approach that we departments who are actually drafting the legislation have adopted that has been pioneered by the Dutch and culture change within individual regulators as to administration, which is all about measuring this their knowledge of business, their willingness to overall quantum that I referred to earlier on and adopt a risk–based approach, so that they need real getting a handle on the total administrative burden. I knowledge of the business and the industry that they think that unless we get that precise measure we do are regulating, to say, “OK, I can see what is not have a chance of reducing it. Until we know what happening there; is there a proportionate approach is out there and that is measured and then there are to regulating that area?” So it is really industry-based systematic targets set to reduce that, I think that knowledge and a willingness to use the risk-base would be a beneficial step for the transparency that approach rather than a safety-first approach. we have around that, and the parliamentary Mr Walsh: I very much agree with that, especially Mr accountability will be extremely useful. So that is Fell’s last point. I feel that this prize of culture change strand one, the measurement and target setting is the real prize that we are all working towards and approach we would find useful. James Walsh referred that all the Government’s individual policy initiatives to the “one-in one-out” approach, which I think are a means towards that end. In fact that is how we should at the very least hold steady the overall stock see the role of the Better Regulation Executive, the of legislation that is impacting on business and other Better Regulation Task Force and the Commission. stakeholders, and I think that would be particularly It is, I think, about promoting culture change, flag- important. We are certainly doing our bit to push waving around Whitehall to raise the profile of the that there should be as close as possible a pound-for- Better Regulation agenda and to change mindsets. pound approach in terms of the cost to business on This is, of course, a slow and gradual process, it 3247872073 Page Type [E] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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29 November 2005 Ms Antonia Norman, Mr Mathew Fell, Mr Stuart Etherington and Mr James Walsh cannot be achieved overnight, but I think there is Mr Walsh: You have perhaps spotted a little gradual progress being made. Perhaps if I can put in scepticism in my remarks. We would like to see the a little more perspective, my Lord Chairman. You overall burden of regulation reduced, and the said to Mr Fell, “What do you mean by culture Government is about to set the target for reducing change?” The sort of things that we would mean from the administrative burden of regulation and we hope the Institute of Directors would be getting oYcials to that they will deliver on that. But as yet we have not treat regulatory solutions to problems as very much seen the delivery, so we remain a little sceptical and the last resort, so that first you would ask them to we hope that our scepticism will not be justified. I consider whether there is a possibility of self- think it is also important to note that the regulation, Codes of Practice or other lighter touch Government is explicitly not talking about de- alternatives, and also getting Whitehall departments regulation but about better regulation. That is their to abandon decades of the traditional Whitehall/ mindset, so we are working with them and trying to Westminster virility test, which is all about how many push further down that road. Bills can you get into next year’s Queen’s Speech, how much legislation can your department get Q265 Viscount Eccles: If we could ask you if you had through, and allied to that how much money can you any examples where you thought something could be win in the spending round? While we have those done which would reduce the burden but not the measures of political success of course those all lead eVectiveness of the regulation, would you let us to more government legislation and more know? government intervention and so more regulation, Mr Walsh: Certainly. Shall I give an example now, and we need to reverse that mindset. It is diYcult; My Lord Chairman? perhaps pie in the sky, but that is what we need to do. Chairman: Why not drop us a note, if you can bear to, that would be most helpful. And it is open season for any further thoughts, which we would welcome. Q262 Chairman: Can we press you a little on self- Baroness Maddock. regulation? We have seen examples, have we not–of the Advertising Standards Authority, maybe more questionably the Press Complaints Council, Q266 Baroness Maddock: I want to look particularly Emission Trading Standards. Those are the three at the European Union dimension, which has already that are trotted out. Can you give any examples been mentioned this afternoon, and in the CBI’s where you think that self-regulation could have been submission to us they have been very critical of gold done but instead the traditional model was used? plating, particularly DEFRA, I think. Can you give Mr Walsh: There may be a role for expanding it in the us any specific examples of gold plating and also let V Health and Safety field. We do not necessarily want us know whether your criticisms have had any e ect? to turn the clock back completely, but if one were to Lastly, do you think that enough is being done, when go back to the Victorian age, for example, the main applying EU regulations, to try and minimise the impetus for raising standards in health and safety burden on business, on individuals and on charities? Mr Fell: If I could turn to the first point of your then came from insurance companies, who would say question, on gold plating and the EU dimension? to the factory operator, “If you comply with this set Certainly, some work I did on behalf of the CBI in the of good standards, your insurance premiums are latter half of 2004 on financial services threw up a lower.” We have exactly the same thing nowadays couple of examples. Perhaps one could mention the with domestic insurance, after all—if you fit better Consumer Credit Directive where the original locks on your household windows, then you pay less directive was aimed very much at consumers but in insurance. I think that that is the sort of market where the UK chose to include sole traders and mechanism that we can exploit a good deal more in partnerships within the scope of that legislation. We terms of balancing standards in health and safety, also had a lot of work to do on the Insurance environmental protection, and so on. Mediation Directive, where we found that that was designed to protect retail investors but the Financial Q263 Viscount Eccles: If you sum that up, better Services Authority proposed requiring parents regulation entails less regulation, from your point companies to be registered to protect their of view? subsidiaries. So there are a number of examples in the Mr Walsh: Ideally, yes, but not always. financial services sector, which I would be happy to drop you a note about on those in a little more detail. I think that, when we talk about gold plating more Q264 Viscount Eccles: Does that mean that you do generally than that, it is a classic criticism that is not really believe that there is going to be such a thing thrown at the UK government. I think the way that as less regulation? gold plating quite frequently occurs is where 3247872073 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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29 November 2005 Ms Antonia Norman, Mr Mathew Fell, Mr Stuart Etherington and Mr James Walsh legislation is poorly crafted and it leads to Q268 Baroness Maddock: Can I follow up on the last uncertainty for business. It means that it racks up point that I put to our representatives today? Do you what business does to make absolutely sure that it is think in general, given that there is this discussion complying with legislation and applies a belt and around gold plating, that departments are trying to braces approach. So whether it is gold plated, make an eVort when they look at an EU regulation whether it is regulatory creep, unless there is coming forward, to try and think more carefully precision in what businesses are required to do to about how it will impact and what the practicalities comply with legislation, I think that perhaps is one of are for people? and is there another way of doing it? the most common complaints and a root cause of and are you involved in this? gold plating taking place. Mr Fell: I believe there is an increasing awareness of Mr Walsh: It is a little more diYcult to find examples the need to do just that. I also believe, although I do of gold plating than is popularly supposed, but they not have the details exactly to hand, that the do exist. One example from one of our members, a Chancellor of the Exchequer recently announced that farmer, related to the IACS, the Integrated all forthcoming legislation will be scrutinised to make Administration and Control Systems, which is a sure that it does not get gold plated, and is scrutinised system of agricultural payments. In the UK, DEFRA and reported on; but I need to get back to you with implemented this by requiring every farmer to submit more details on that. detailed maps of every field on the farm. One of our members complained that he had to purchase 22 Q269 Lord TunnicliVe: You have your maps, some of which had to be specially constituencies, and when consultation happens, commissioned from the Ordnance Survey at some presumably you ask at any rate a representative expense. It seems that this has been a very heavy- collection of the membership, whichever of your handed and overly intensive way of implementing the three organisations it is. Can you help us at all about system. Our member tells us that the French IACS how one gets through to the general public? It is not maps were hand drawn by the farmer and did not cost very often that there is not some organisation which anything except time. is the target of the regulations, but it does happen. We had one the other day about throwing out waste, which laid a duty upon individual members of the public. Can you think of any way in which one could Q267 Chairman: It is just as well Lord Jopling is not consult better with members of the public as such; here! Thank you very much indeed. and perhaps, if there were an analogy here, it would Mr Etherington: Just briefly, my Lord Chairman, it is be the way in which you cascade down your own amazing how many of these cases involve DEFRA! consultation to the various constituent members of Again, there was a case which was basically a your constituency. This is quite a problem to us and regulatory requirement in relation to submission of you might be able to help us? very, very detailed receipts that you would not expect Mr Fell: My immediate reaction is that there are on the basis of these particular types of funding quite clearly a number of consumer lobbies and their programmes, and we can send you details of that. It representative organisations, that might be a source was successfully overturned by the Compact to do that. My colleague James Walsh made Advocacy Programme in that it breached several reference to policy makers getting out and about aspects of the Compact between the sector and the around the country to speak to businesses, and I Government, and DEFRA agreed to change the would imagine that that would equally be possible to basis of that, and actually advising the Union public meetings and hearings on other occasions as regarding that. So we can find you details of a well. The other strand of thought on that is to say that successful case. Can I raise one point, if I may, my perhaps in actual fact there is a bit of an artificial line Lord Chairman, made on the previous discussion. between what is the interest of business and what is Not all regulation is a bad regulation. It seems to me the interest of the public. At the end of the day that regulation risks are clearly related but regulation business is seeking to serve its customers and is also an aspect of social policy. You can use therefore would want to have their interests very regulatory regimes in order to achieve policy much as part of the mix, if you like. So I think that is outcomes that you would not otherwise be able to a route that will be taken on board in their thinking, achieve, and many of my members would be not when we are responding, to make sure that it is going claiming that we should regulate absolutely to make markets work better and it will benefit everything, but would be looking to eVective customers as well, otherwise it is not in their interests. regulation to change behaviour in companies and other institutions. It is just worth pointing out that Q270 Lord TunnicliVe: Mr Etherington might be there are counter arguments. able to help as well on this. 3247872073 Page Type [E] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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Mr Etherington: Obviously there is a consumer lobby, that diYcult for the criminal or the miscreant to find which my colleague has already identified. A lot of ways to evade the obligation, and yet the burden sits small voluntary and community associations are in on the rest of the sector which is undergoing essence citizens’ groups of various kinds, which can administrative processes or other issues. That worry be organised locally—rarely nationally—and is reinforced as departments often do not make much obviously we can access them. The important issue eVort to promote or even to monitor whether the for them would be how they made any sense of this, regulation achieves its policy objective or not. Is that that actually, if you are a local group which is an unfair set of comments? thinking about a very local community, an estate or Mr Fell: I do not think it is an unfair set of comments even smaller than that, then getting some sense of at all. I think the solution again lies in getting this what this means and how you structure a dialogue risk-based approach right. Clearly the philosophy with them is extremely tricky. You have to be out underpinning that is to target rogue traders to make there with things that are relevant to them, otherwise sure that there is a risk based approach to inspection Y they will find it quite di cult to respond. There are and enforcement on businesses and therefore the 300,000 voluntary agencies in the UK and possibly companies with a good regulatory track record of Y more below the radar, and getting to them is di cult. complying are rewarded accordingly with a lighter It is possible, but you have to ask questions which are touch regulatory approach, and then the scarce meaningful, otherwise they just will not respond. But resources are able to concentrate on those that are certainly we can help access those groups, if you flouting the regulation. would find that helpful. Mr Walsh: I very much agree with your analysis, my Mr Walsh: On this question of how one finds out Lord Chairman, which is at one with the Hampton what the general public think across the board, Review, all about focusing the inspection and consultation does not just have to be done by enforcement eVort on those who are most likely to traditional processes of calling a meeting with policy abuse the system. Of course, in every sector there are people or sending out a consultation paper. I see no real reason why the Government should not use the cowboy or rogue traders and of course they should be same techniques that businesses use for market dealt with very severely indeed, and the flip side of research when they want to find out what the that should be a much lighter touch, much more consumer thinks, and that might mean intermittent inspections for companies that have opinion–polling, focus groups, and why not? There demonstrated a consistently good track record. may be issues where public meetings will work, especially if there is some particular local issue, but it Q272 Chairman: And a strong whacking of those is not always easy to motivate people to come along that do not? to a public meeting. There is always a risk of getting Mr Walsh: Certainly. the people who feel particularly strongly one way or the other rather than the person with more typical views. Of course, ideally in the 21st century one Q273 Chairman: Mr Etherington? would make as much use as possible of email, Mr Etherington: I think that is probably true. Internet and other means of electronic Regulation can be and clearly is a part of the policy communication to tap into what people think, but I framework. I think you are trying to reward those am no expert on those techniques. It is easier said who are culturally going in the direction you want than done because you have to get people to log on to and to be slightly more aggressive with those who are your website or you have to have their email address not. Would we really have changed attitudes to in order to contact them. But I am sure that there are disabled people in the workplace, would we have plenty of people out there with marketing and changed environmental policy, would we have research expertise who are better placed to advise changed human rights issues for companies and about what should be done. others, had we not had a legislative framework that was enforceable? You could argue that—yes, they Q271 Chairman: Can I put one final question to you would have all got there in the end; but I would which is–as Mr Etherington said, quite clearly suggest that public policy-making is about regulation is part of policy making generally and it encouraging people to get them in the direction you has some policy objectives lurking behind it. want them to go slightly faster. So I think it is about Sometimes it seems to us that it is a rather simplistic that and I think that there is a way of achieving that or naı¨ve delivery model that the departments operate objective. It is not always best achieved just by law on, that they believe passing a regulation which and regulation, but that can work when you are creates a duty leads to compliance. We have seen a trying to eVect behavioural change over the long number of examples where, it seems to us, it is not term. 3247872073 Page Type [O] 21-03-06 23:55:40 Pag Table: LOENEW PPSysB Unit: PAG4
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Chairman: Thank you all very much indeed, that has a number of places. Or if there were further evidence been extremely helpful. Do feel at liberty to come you wanted to submit that you felt was germane, we back with further evidence, as we have signposted in would welcome that. Thank you very much indeed.
Supplementary evidence from The Confederation of British Industry (CBI)
EXTRACT FROM THE CHANCELLOR’S SPEECH TO THE CBI NOVEMBER 2005 “And for some time I have been concerned about what is called the goldplating of European regulation where in the process of translation into our own UK laws we end up with additional and unnecessary burdens. So I have asked Neil Davidson QC, the former Solicitor General for Scotland, to work with departments and the better regulation executive to conduct a full audit of all areas where gold plating of European regulation has in fact led to additional burdens so they can be addressed and where possible removed. And going forward we will rigorously enforce guidelines prohibiting goldplating”. 30 November 2005 324787PAG5 Page Type [SE] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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TUESDAY 17 JANUARY 2006
Present Armstrong of Ilminster, L Jopling, L Boston of Faversham, L Maddock, B Colville of Culross, V Morgan of Drefelin, B Eccles, V Northesk, E Filkin, L (Chairman) Tunnicliffe, L
Examination of Witnesses Witnesses: Mr Martin Bryant, Head of Strategic Policy Issues, Mr Richard Clayton, Assistant Legal Adviser and Mr Graeme McCabe, Better Regulation Team, Home Office, examined.
Q274 Chairman: Good afternoon and welcome. onwards—we produced 19 SIs. Of these six were Thank you for coming to help us with our inquiry. I commencement orders—that is orders bringing into am Lord Filkin, the Chairman. You can probably all force Acts of Parliament—and as they were not see who we all are by our name badges so I will not subject to any parliamentary procedure they would go round the table and introduce everyone. If you not come before your Lordship’s Committee. This could just say very crisply what each of your role is in year we have only produced one so far. The Legal the Department that is relevant to the Committee’s Adviser’s branch is divided into nine teams which inquiry. reflect the structure of the Home OYce. The teams Mr Bryant: My name is Martin Bryant. I am would deal by reference to topic, such as Director of Strategy for the Home OYce and a immigration, prisons, the criminal law, the police, member of the Group Executive Board. serious crime, terrorism, extradition and mutual legal Mr Clayton: My Lord Chairman, I am an Assistant assistance. In addition, one of the teams in the Legal Legal Adviser. I head one of the teams which reflects Adviser’s branch advises the Northern Ireland OYce the topics in the Home OYce, about which I will because we are responsible for legal advice to the explain a little more a little later, and I also have a role Northern Ireland OYce as well as the Home OYce. in looking at the drafting of SIs generally with a view The lawyers within each team are responsible for all to their vires and drafting points. aspects of those particular topics, so that means that Mr McCabe: My Lord Chairman, I am Graeme they will be working on Bills and any important and Y McCabe and I head up the Home O ce Better significant litigation as well as on drafting the Regulation Team. secondary legislation. The advantage of a member of the team drafting the secondary legislation rather than perhaps having specialist draftsmen is that they will then be more likely to be aware of the particular pitfalls. For example, calculation of sentences is one Q275 Chairman: Thank you very much indeed, that of those ghastly subjects, which are full of errors to is all very clear. You have some understanding of fall into, and a member of the prison team is more what the Committee is about so I will not talk about our terms of reference; I am sure you have had a look likely to be aware of these than somebody who just does specialist drafting; and of course there are at some of our previous evidence sessions so you V V know some of our areas of interest. If I could start oV di erent ways and di erent approaches through V by asking if you would outline the arrangements that di erent departments. But the benefit at present is exist within the Home OYce for the preparation and that one produces all-rounders, people who can deal laying of Statutory Instruments? with litigation, people who can deal with Bills and Mr Clayton: My Lord Chairman, the Legal Adviser’s people who can deal with subordinate legislation. branch is responsible for both drafting and laying The importance of drafting is recognised, and as part Statutory Instruments. They are laid once they have of their induction each new lawyer would spend a been returned to the administrator who will then put three-day course at Sunningdale on drafting and them to the Minister for approval or making, as the training in drafting. case may be. The Statutory Instruments are drafted on policy instructions from the relevant administrators. It possibly might help if I put it in Q276 Chairman: Thank you, that was clear. Could context by saying that the Home OYce does not you clarify for us that there is no one individual produce a large number of SIs. Taking, as an within the Home OYce who has overall example, the six weeks after the end of the summer responsibility for the management of the process of recess last year—so that will be from 10 October preparing and laying SIs? 3247872075 Page Type [O] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe
Mr Clayton: That is correct. departments of state, which are more centralised in their operation. Q277 Chairman: Why is that so, because it is not normal across Whitehall from what we have Q281 Chairman: I do not want to spend much more experienced? time on this but delegation does not mean abdication, Mr Clayton: I think because one cap does not always does it? You may delegate finance functions within a fit all. structure but you still have some ability to bring to account the quality of finance functions being carried out, for example, amongst those to whom it has been Q278 Chairman: What is diVerent then about the Y delegated. I think you posit them as a false dichotomy Home O ce compared to other departments? between the two. Mr Clayton: V Nothing is particularly di erent but is Mr Bryant: I was simply explaining how we organise there any reason why one should just have one our management structure and to support Richard’s particular method of doing something? point that we do not then have a single individual taking responsibility for the totality of secondary Q279 Chairman: Because there is clear legislation work. accountability if there is one person responsible for the totality of the process—not for executing it all but Q282 Chairman: That is what I was pointing to. You at least having a leadership responsibility for are going further, you imply that because it is ensuring it is well done. That is why you normally delegated you do not need someone and that was have one person responsible. what I was really raising with you, whether that was Mr Clayton: The head of the team would be in fact true? responsible for Instruments within his team, but the Mr Clayton: My Lord Chairman, I certainly would teams reflect the structure of the Home OYce and act not be suggesting that myself, but because the area is in response to administrators. Martin was going to quite varied a single person might not necessarily be make some general comments on the structure of the aware of all the aspects of policy. The people who are Home OYce and I do not know whether it would closer to the aspects of policy are the team who work assist if he made them? with particular administrators and they know what needs to be delivered. If there is one additional Q280 Chairman: It might because, whilst I accept person, I am not sure that that person would be in what you say, that in terms of an individual quite the same position. I also think that perhaps one V Y Instrument there may be clarity, the issue is wider of the di erences of Home O ce subordinate than that; there is how the Home OYce performs as legislation and subordinate legislation of other a department in terms of the totality of making departments is that, with exceptions which I will secondary legislation in an eVective and good policy come on to, a great deal of it is rather more manner. determined by the primary legislation. Quite often we Mr Bryant: Would it help, my Lord Chairman, if I are merely putting flesh on the bones that are there gave a very brief outline of the structure of the Home and our scope for that is really quite limited. So the OYce, because I think the characteristic that Richard person doing the quality control is not actually was referring to is that we are a very devolved bringing added value for his pay. organisation, with the power and the responsibilities pushed down to the major operating parts. Q283 Chairman: I must move on to other questions Essentially we organise ourselves around three because there are plenty of areas where other ministerial pillars, as we call them internally, so they members want to come to, and I will call on Lord would be responsible for immigration, nationality Jopling in a second. But every department always and citizenship, which is one pillar; a second one thinks it is unique. This is part of life, is it not—and would be to do with crime, security and sound one understands that. Our point is essentially—no communities; and the third pillar is to do with disagreement with what you say about informing the oVender management and the criminal justice individual—that departments need, in our judgment, system. Each operating part of the Home OYce has to ask the question, to have some capacity to look at a Director General in charge of it and they form the the totality of how they manage and make secondary Group Executive Board alongside some of the central legislation, and the Home OYce appears to have no support functions. Essentially the way we operate is such process, responsibility or system that we can that the policy accountability is pushed down to the detect, and you have confirmed that to us. operating arms of the business through those Mr Bryant: Can I come back to the planning aspects Director Generals and then obviously reporting of that, where in our research for appearing here we through their ministerial pillar. That is one of the indicated ourselves that one of the areas where we are reasons why we may be diVerent from some other not as strong as we need to be is around the planning 3247872075 Page Type [E] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe of secondary legislation and making sure that we do Q286 Chairman: It was not the question I asked, have a more complete deal. One of the proposals I because I understood that Ministers sign oV SIs. It have discussed with my colleagues at the Board is was a question about whether there was any that we should push up the responsibility for looking Minister, perhaps one who has a responsibility for across the secondary legislation to at least the Better Regulation, who looks over the piece to see Director General level and have a conversation once how the department is performing on making a quarter at our Executive Board about the upcoming secondary legislation. programme. That at the moment is something which Mr McCabe: My Lord Chairman, we do have a we do not well enough. Better Regulation Minister, Andy Burnham, who has Chairman: We would share that view and be pleased overall responsibility for the whole Better Regulation to hear that you have that at least in your sights. agenda, but his responsibility is more about the Lord Jopling. aspects of Better Regulation, which involves good public consultation, producing Regulatory Impact Assessments and that sort of thing, rather than Q284 Lord Jopling: It seems to me, listening to the focusing specifically on SIs. replies we have had to this fairly soft first question, Chairman: Thank you. Lord Armstrong. that Yes, Minister lives. You say that the Home OYce V is di erent because you are in three pillars and that Q287 Lord Armstrong of Ilminster: I perhaps ought you are putting flesh on the skeleton. I should have to start by declaring an interest as a former thought that you could describe Statutory Permanent Under Secretary of State at the Home Instruments in general as putting flesh on the OYce, but it is so long ago that, if I knew then how skeleton, and other departments are divided into SIs were dealt with in the Home OYce, I have three or even more pillars in this way. You have not completely forgotten. I think you have indicated that begun to try and answer the question of why you stick you are beginning to think about having a kind of by this attitude not to have somebody in charge when plan for Statutory Instruments over the years, but most of the other departments think to the contrary. that is in its infancy, if that is the right word. What How you can justify that? happens now? Does one of the policy divisions say, Mr Bryant: Again, back to the organisational “We need a Statutory Instrument on this,” and then structure about devolving accountability, I think it is work out what the Instrument needs to do and then part of the operating process that we use. As I have said, in our planning we think that that can be talk to the lawyers? Mr Bryant: substantially improved by having Director Generals My Lord Chairman, as of today we have forward look. But the actual management then of the a quarterly trawl for future SIs, which is initiated by individual SIs and instruments across the whole of our parliamentary section. So we are looking one the Home OYce we have devolved to the relevant quarter in advance in order to try and anticipate what policy oYcials working with our colleagues in the would be required. As I said earlier, that, I think, is legal branch. only partially successful and therefore to elevate this to a more senior level is something that we would like to do and we very much welcomed your insights on that. As many of you will know, very often the Home Q285 Chairman: We were not arguing it should not OYce’s business is sometimes dictated by events be so—the latter; we were arguing that over and outside of our own control and therefore the degree above that there needs to be a capacity of an to which we can be authoritative in planning all of organisation to look at the totality of the matter and this is somewhat mitigated by our need to be able to the process, the quality by which they make policy respond to external events. So I am not promising through secondary legislation. We will not get any that we would ever have a system that is as watertight further I think today, but I hope you have on forward planning as all of us would wish it to be, understood what we have said and we leave the door simply because of the nature of the business we have open for you if you wish to put further thoughts. to deal with. Ministerial scrutiny: clearly presumably Ministers do sign oV SIs. Is there any ministerial scrutiny about the totality of the SI process or not? Q288 Lord Armstrong of Ilminster: We used to call Mr Clayton: The Home Secretary of course is in them banana skins when I was in the department! overall control of his department and might You have this trawl every quarter. Is there any personally sign some particular SIs, but Ministers, as mechanism for, as it were, monitoring the progress Martin would explain, have areas of responsibility against the trawl—how is that SI or this SI doing? are and the Minister who has the area of responsibility is we up to speed with it? is it coming forward at the the one who will make the SI by signing it. right time? and so on? 3247872075 Page Type [O] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe
Mr Clayton: My Lord Chairman, the trawl is very Mr Bryant: My Lord Chairman, if we could double- much directed at aYrmative resolution instruments hand the answer to that? I would like to start with because they are the ones which will take time in the how we review the eVectiveness of policy because House. So it is putting in a forward bid for time for Instruments are only there to make sure we deliver debate. eVective policy. And then I will ask Graeme to pick up some specific examples of how we then review the detail of the regulation. On the policy front, as most Q289 Chairman: Do you wish to pursue, Lord of you are aware, we commit ourselves to delivering a Armstrong, why not negatives as well? They are number of public service agreement targets which we clearly of potential interest and relevance to the monitor on a frequent basis, and they would House, and how they are managed aVects certainly normally come in front of the Permanent Secretary of our scrutiny function and may aVect the interests of the Home OYce on a monthly review basis in order the House. to assess how well we are performing against those Mr Bryant: My Lord Chairman, we absolutely policy objectives. Then quarterly we would equally accept that. That is something which is probably part review right across the piece the type of performance of expanding our capacity for forward planning by each of the pillars I referred to. Both of those types should take into account. of review would tackle the issues: do we have the appropriate legislation in place and is what we have Q290 Lord Armstrong of Ilminster: The other working in order to deliver the policy outcomes we question that would interest me on this is whether expected? So I believe that, yes, we do have at the there is any kind of reference to demands on senior level in the oYce a pretty complete and parliamentary time in the way you bring Statutory eVective mechanism for monitoring performance Instruments forward. Or are they just brought against the policy outcomes. I will ask Graeme to pick forward for parliamentary scrutiny just before they up specifically on some of the examples around are due to be implemented? It would be helpful to this regulation. committee and perhaps to the House generally if they Mr McCabe: My Lord Chairman, I think some did not just wait until they nearly had to be previous witnesses have spoken about the admin implemented but were brought forward in good time burdens project that is being led by the Cabinet so that both this committee and, if necessary, the OYce. This is aimed at looking at burdens that House of Lords could look more evenly, if you like, regulation imposes mainly on business but also at the flow of Statutory Instruments and give better charities and the voluntary sector. The Home OYce attention to them. is fully engaged in this exercise and as part of that we Mr Bryant: My Lord, we accept that we do have have had to identify all the regulation that impacts on some bunching as a consequence of inadequate business. We are clearly not a big player in this planning processes and that is something we would particular field; we only have about 40 regulations seek to significantly improve upon. So, the answer is which actually impose such a burden compared with yes, we accept that point. many hundreds by DEFRA, the DTI and other Baroness Morgan of Drefelin: My Lord Chairman, departments, for example. As part of that exercise we would it be appropriate to follow on with my have set up a steering group which involves members question because we are talking about planning at the from the banking sector, the airline sector and from moment, and I wanted to ask about whether or not the voluntary sector to make sure that we are actually you actually in your planning process look at viewing looking at the appropriate regulations and doing a the eVectiveness of Statutory Instruments, which I proper analysis. The results of that exercise will think is government policy at the moment. actually be published fairly soon, but I am not really Chairman: Why not? We have a division; please do able to give you too much detail at the moment other not go away, we will be back shortly. than to say that we are working on developing the information that we need to make a public The Committee suspended from 4.33 pm to 4.44 pm for announcement about it. The other area that I think we are beginning to make some progress on is in the a division in the House production of Regulatory Impact Assessments. Part of the impact assessment process now requires our Q291 Baroness Morgan of Drefelin: Would you like policy oYcials to describe both how policies and the me to repeat my question? We were talking about legislation flowing from that are going to be planning and my question is about whether or not the delivered, and also how they are going to go about Department reviews the eVectiveness of the Statutory reviewing it. It is still early days for us, I am afraid, Instruments and if you could give us an example of but I think we are starting to show a much better doing such a thing and, if not, what your view is understanding and awareness of how the whole about the merits of doing such a thing? delivery chain works and how things are actually 3247872075 Page Type [E] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe working on the ground and how we are going to go we produce. Previously most of those focused on the about reviewing them. private sector but since about the middle of last year Chairman: Lord Jopling. the Cabinet OYce now requires us to produce them in relation to the public sector a well. So we are Q292 Lord Jopling: As you know, you are supposed starting to get to grips with a much better analysis of to lay SIs at least 21 days before they are designed to the full range of impacts of policy proposals on come into operation and I would like to ask you how organisations like the police. The Home Secretary you think you have done over that. I am told that five actually has a police bureaucracy adviser and we of the last 59 Instruments breached the 21-day rule, have a police bureaucracy steering group which has Y and there is a case that has been drawn to our police o cers on it, and they are involved in the attention of immigration regulations in the session policy–making process and advise us on the impact 2003/2004 where you actually laid regulations on 29 that it will have on the ground. April which came into eVect on 1 May 2004. How do Chairman: Lord Armstrong, have we finished with you think you do over this 21-day rule? your questions on departmental planning? Mr Clayton: My Lord Chairman, in the case of Lord Armstrong of Ilminster: Thank you, yes. immigration regulations which relate to visas, the Chairman: Lord Boston. breach of the 21-day rule is deliberate so as to avoid persons travelling to the United Kingdom before the Q294 Lord Boston of Faversham: Thank you, Lord additional restriction comes into play. That is Chairman. Perhaps I should also declare an interest, explained in the memorandum that is supplied with having been at the Home OYce, like Lord the Instrument. There was one of those in December. Armstrong, some years ago—it goes back to 1979 One of the Instruments breached the 21-day rule by and in a comparatively minor role. We had pillars but one day and the reason for that was given in an they were diVerent pillars in those days. My Lord Explanatory Memorandum. Of course a breach of Chairman, I should like to turn to the question of the 21-day rule is always regretted. You will assess central coordination throughout departments of your own view on the basis of the statistics given on Statutory Instruments. Can you tell us what role, if how you feel we do on it, but I fear that departments any, the Cabinet OYce plays in coordinating the do breach the 21-day rule occasionally and I fear that programmes of departments? And whether you we are amongst the departments that do occasionally consider that at least some degree of central breach it. management or orchestration of Statutory Chairman: Baroness Maddock. Instruments should be carried out; and, if you do, how you think it should be carried out? Y Q293 Baroness Maddock: My Lord Chairman, still Mr Bryant: The Cabinet O ce does not have a on planning, which is where we were. You will coordinating role in the management of secondary remember, my Lord Chairman, that we had evidence legislation at the moment. It does have a very from a lady working in Kent for the police force, powerful role in terms of making sure that standards where she was drawing to the attention of the police are adhered to, so it publishes extensive guidance, the when various bits of legislation were coming into Statutory Instrument Practice manual, which we seek force. She made a particular point, and I wonder if it to adhere to. There are codes of practice around is one of the things you considered when you are consultation and the way in which the consultations planning this—in fact she made several points but should be conducted and how they should be put into V one particularly sticks in my mind—which is, how a e ect. So that guidance part of the responsibility we Statutory Instrument can perhaps aVect the think is absolutely critical and important and we see operations of a police force if they have to change the that is the primary responsibility of the Cabinet Y way they operate. When you are making the SIs and O ce, but we see that the responsibility for planning ahead, are these the sorts of things you take legislation, whether primary or secondary, should sit into account? with the appropriate Secretary of State, the Home Mr Bryant: The answer is yes, we should, and that is Secretary. why we embed the responsibility for these in the policy areas where the expertise resides. That is not to Q295 Lord Boston of Faversham: Thank you very say that in every case we succeed adequately, but the much. Departments have to prepare every January a answer is yes, we should take into account all of the statement about SIs with common commencement impacts of that particular Statutory Instrument on dates. Do you do this yourselves in the Home OYce? the operation of our business and the others that and, if you do, what does the Centre—the centre of interact with us. government I mean—do with your report about that? Mr McCabe: Might I just add something, which Mr McCabe: Cabinet OYce again has issued very might be quite helpful? I mentioned that we are trying helpful guidance in combination with the Small to improve the Regulatory Impact Assessments that Business Service on how departments should try and 3247872075 Page Type [O] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe brigade together the regulations and SIs that they are Q299 Lord Boston of Faversham: That is one source bringing forward which are going to impact on of guidance, yes. business. The Home OYce will be publishing a Mr McCabe: What that actually does is to point statement by the end of this month, and it is people in the right direction of other guidance that something that we are currently in the process of might be available. So part of the template addresses collating. We are following a similar sort of process consultation, so somebody who is completing a to the one that Richard described earlier, about Regulatory Impact Assessment would look at this trawling all of our policy contacts in the Home OYce, part and it points them in the direction of the but so far we are not getting an awful lot of guidance. Somebody may be fully familiar with all information that is likely to be relevant to the the requirements of consultation and so need not announcement because, as I said, we are not a big look any further, so it is fairly easy for them to follow player in things that have a burden on business. the template. But, if they want more guidance, it points them in the right direction, which seems to Q296 Lord Boston of Faversham: Does what you work reasonably well within the Home OYce. have just said mean that you have some thoughts about that sort of coordination throughout SIs, not just ones with common commencement dates then? Q300 Lord Boston of Faversham: Does the Centre Mr McCabe: I think it was something that was itself take an interest in your enforcement of discussed when the guidance on common regulations? and, if so, how does it do that as far as commencement dates was being considered, about the codes of practice are concerned in particular? whether the Cabinet OYce should have a greater role Mr McCabe: At the risk of shooting myself in the foot in coordinating the whole thing and perhaps having I think that the Centre may sometimes take too great a central announcement. But I think the feeling was an interest, but that is only to be expected. They want that by giving it to each individual department they to ensure that we follow their guidance; that we would accept greater responsibility for their duty to follow best practice, that we are planning properly make sure that they were aware of what was coming and that we are fully supporting the Better forward and to make a suitable announcement. Regulation agenda. So they certainly do hold us to account; we have to report to them regularly, they Q297 Lord Boston of Faversham: Turning to codes give us guidance on what we need to publish in our of practice, there are various forms of guidance which annual report. The Better Regulation Executive and are issued, and you have already mentioned in a the Better Regulation Task Force, which is now the diVerent context the Small Business Service, and Better Regulation Commission, drag us over the there are several others as well. Do you feel that it coals frequently where we fail. would be helpful if all of those forms of guidance were under one roof? Mr McCabe: My Lord Chairman, I think that is quite Q301 Lord Boston of Faversham: I do not want to appealing that it would be in one place for ease of embarrass you but does that mean that you would reference, and it would certainly help my team in rather be left to yourselves, on the whole? promoting this guidance because currently if Mr McCabe: No, not really, you need somebody to somebody is going to carry out a consultation we hold you to account. have to point them in a particular direction and if Mr Clayton: My Lord Chairman, there may be quite they are bringing forward a legislative proposal we a wide range of codes of practice, and some codes of have to point them in another direction for guidance, practice may aVect the regulated sector and other and so on. But the diYculty with drawing it all codes of practice are in diVerent areas. For example, together is that you then may end up with a huge there are extensive codes of practice under the Police compendium that people would struggle to actually and Criminal Evidence Act and prior to issuing a new get to grips with. I think there is a good argument for code of practice the Home OYce has to discharge its keeping it in fairly small, separate manageable statutory duty of consulting with the Association of chunks. Chief Police oYcers, the Bar Council, the Law Society and quite a wide range of bodies. A code of Q298 Lord Boston of Faversham: So just going on practice of that sort is a code that aVects people’s from there, does that mean that you would not liberty and aVects the way in which the police behave. favour central management of that guidance as And in terms of changing it, in connection with the possibly one element of central management of SIs? Terrorism Bill there is an undertaking to issue a Mr McCabe: I think there is probably already a fairly special code in connection with detention under good mechanism in place which is through the Schedule 8 to the Terrorism Act—that is, people who Regulatory Impact Assessment process, which is a are detained prior to charge when they are suspected standardised template about good policy–making. of terrorism. 3247872075 Page Type [E] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe
Chairman: Baroness Maddock, quality control. the need for the Statutory Instrument, that it is written in layman’s language. We fully accept that this is something which we need to be better at. At the Q302 Baroness Maddock: Obviously part of our moment you have highlighted one of our deficiencies, investigation is looking at what arrangements which is that we do not have a separate view of this departments have for quality control. When you are outside the line of drafting and we have a proposal, drawing up Instruments is there anybody outside the which has been agreed by my colleagues, that chain of drafting—in other words, a second “pair of we would make sure that each Explanatory eyes”—that is there to vet the various processes? You Memorandum in the future is signed oV by the head have already touched on making sure that it fulfils its of unit, so that a senior civil servant looks at this after policy objectives, that the burden on whomever it will the individual policy executive has signed it oV, and land is not disproportionate. Also of particular interest to us is that the Explanatory Memorandum it is looked at from that perspective with a view to explains very clearly what the Instrument is for, and making sure that that best practice guidance is so on. So do you have arrangements for somebody applied. else other than the drafter to do these sorts of things? Mr Bryant: My Lord Chairman, if Richard could Q303 Lord Jopling: I am concerned, with regard to pick up our quality control around the drafting of the quality of the service which the Home OYce gives Statutory Instruments, and I will pick up about the to Parliament, that you seem to have what I can Explanatory Memorandum and how we link that describe as a totally dismissive attitude. I will give into the policy side. you a number of examples why I say that. Our clerk Mr Clayton: Just looking firstly at the processes, it is wrote a letter to the Home OYce on 4 October, for the administrator to determine that he is satisfied asking questions about four particular orders. The with the Statutory Instrument which was drafted by Home OYce thought fit to wait for 20 days before it the Legal Adviser’s Branch before he puts it forward condescended to respond. It said—and I will quote to the Minister to make it, or to approve it in the case parts of the letter—“The Home OYce parliamentary of a draft Statutory Instrument, so that is a quality briefing delivery unit play no part in the drafting or control. The administrator needs to be satisfied that laying of delegated legislation. This is dealt with by what the lawyer has drafted is what he wanted. There the Legal Adviser’s branch and our role is to arrange is, I think, a rather wide range of cases. For example, and oversee the parliamentary debates required for if you were just doing an Instrument that increases aYrmative orders or prayed against negative orders fees it is to be hoped that the legal adviser can draft after they have been laid”. And the letter ended by something and send it back to the administrator and saying, “Having now received”—and this is 20 days one hopes that in that case it is all perfectly later—“advice from the Legal Adviser’s branch on straightforward. In the case of an Instrument that is this I am advised that it is to these oYcials you should long or complex, or in the case of one which exercises be approaching for the information sought.” That is a power for the first time, there are likely to be totally dismissive –to wait 20 days when it must have extensive exchanges between the administrator and the lawyer before the thing is settled. The lawyer been known perfectly well that this Committee is on a very tight time lapse between the laying of an order might perhaps say, “Are you sure that this is the V policy that you want?” and perhaps there is this, that and it coming into e ect so it can report it to the and the other disadvantage. Or he might ask House of Lords. As a result of that the Chairman of questions more fully to ascertain quite what the the Committee—and the Committee was extremely policy is. Again, at the end of the day it is the irritated by this impertinent letter, and I can only put administrator, subject of course to the Minister being it that way,– wrote a letter to the Minister, Mr satisfied, that what is produced is what they want. Burnham, on 11 October explaining the Committee’s This consultation might also involve consultation irritations and he ended his letter by saying, “The outside the Home OYce. If you have an Instrument Committee has recently launched an inquiry into the that aVects the prosecutions or the court, the management of the secondary legislative process and Crown Prosecution Service, the Department for shall be taking evidence from Home OYcials on 17 Constitutional AVairs then the courts are likely to be January.”—and that is three months ago, I may consulted at various stages of the drafting. say—“I do hope that, by then, your oYcials will be Mr Bryant: If I can carry on with the Explanatory able to oVer a more constructive response.” I may say Memorandum side, on which this Committee has that neither your Minister nor anybody in the very helpfully brought to our attention some specific department has given our Chairman the courtesy of examples of where really we have not applied the a reply; we have not had that information. That is good practice set out in the practice circular? The why I think that your department’s attitude to the issue, as we are all aware, is to make sure that this is House of Lords is reprehensible and dismissive and I a clear, straightforward explanation of the policy and would like you to comment on that. 3247872075 Page Type [O] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe
Mr Bryant: My Lord Chairman, all I can do is rule that answers should come within two weeks. I apologise on behalf of the Home OYce; it is certainly have here this morning’s Order Paper, which lists all not our intent to behave like that at all. We take the the outstanding questions. If you leave aside the aVairs of this Committee very seriously. We believe Northern Ireland OYce, which has particular that you have raised many good points which we problems because of the suspension of Stormont, believe we can do better on, which we have tried to there are 50 questions which remain unanswered for explain in our evidence this afternoon. I can only a period of between four and 11 weeks—that is apologise as to the tone of the letter and, where you starting at twice the House of Lords’ rule. Of those 50 have not received a reply, I will go back and make no less than 26 are from the Home OYce, exactly the sure that a reply is forthcoming. same amount as has come from the Northern Ireland OYce. Can you understand why some of us feel that the Home OYce particularly is a highly idle, dilatory Q304 Chairman: It is because we felt that there was department? All I can say is it is a great pity that Lord an absence of a quality of control function in the Armstrong is not still the Permanent Secretary! Home OYce that the question was originally raised by our clerk, and the response saying, “It is nothing to do with me, ask some other oYcial,” reinforced Q305 Chairman: Let us leave the thrust of the our view that there was not a guiding spirit overall. I question with you. It is slightly outside our terms of therefore wrote to your Minister on 11 October reference but in a sense Lord Jopling is emphasising asking who is responsible for taking an overview of perhaps some of the concerns in the Committee exercise of quality control. At every briefing session reinforced by these other points. Feel free to make for about two months I asked my oYcials, “Have we any comment if either of you wish to, but it is slightly had a response?” and they said, “No, there is still a outside our scope. Mr Bryant: debate going on within the Home OYce about what I understand, my Lord Chairman. the answer is to that question.” And after a while I gave up asking because I was told, “We will tell you Q306 Lord Armstrong of Ilminster: Can I take one if ever there is a sign of response.” The point of my point, my Lord Chairman? You said that a senior story is that our oYcials have repeatedly asked the civil servant at the top of the chain reviewed Home OYce, “Please can we have an answer to the a Explanatory Memorandum. Would there be letter?” and we were repeatedly told, “It is not ready something to be said for having somebody who was yet.” This beggars belief that a department can right outside the chain for that particular Instrument, behave in this way to a proper parliamentary who would then read the Memorandum and would committee. be able to say as a novice, as you might say, “I still do Mr Bryant: My Lord Chairman, I only give my not understand what all this is about”? I yield to none apologies on behalf of that and I will go back and you in my respect for senior civil servants but they are not will get your response. always able to have that degree of detachment, as it Chairman: It beggars belief that you come to us now were, which enables them to look at the document as unaware even that this row has been going on for cold, as it were,—that they comment on it as if they three months when we are, as you can see, somewhat had never seen it before. exercised about it and your department has been Mr Bryant: My Lord Chairman, we do not have that reminded about it numerous times. You are proving proposal in place but I would certainly take that back our point that no one is in overall charge of the to my colleagues. At the moment the proposal is to quality of secondary legislation because you, who get senior civil servants to sign oV the Explanatory have, as far as we can see, some of that role, have no Memorandum to make sure that it meets the understanding that this is even going on with a requirements of this Committee in terms of clarity, proper committee in Parliament. I will leave that use of plain English and the correct explanation of comment with you. Lord Jopling. policy. Lord Jopling: I will give you another example of your Chairman: Viscount Colville, consultation. department’s dismissive attitude to the House of Lords. There was a reply from the Leader of the Q307 Viscount Colville of Culross: My Lord House of Commons the other day about answering Chairman, I have to declare the same interest as Lord parliamentary questions—and I know this is slightly Boston has done, only quite a long time before wide of this Committee’s remit but it is all about the him. I do not remember ever signing Statutory same thing—and the Leader of the House of Instruments in those days; I think it was done by the Commons made a statement in the Commons just Secretary of State. Consultation, we are continually before Christmas when he said that Ministers should told by other departments, leads to changes in the have a duty to Parliament to respond to written draft of the Statutory Instrument in order to meet the questions in seven working days. The House of Lords responses that have been given. That is all very well has, for some reason I do not understand, a diVerent for instance, as you have said, in the case of the DTI 3247872075 Page Type [E] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe or similar ministries, which is dealing with coherent Instrument in place in order to ratify the United bodies with whom to consult, and that is the Better Nations Convention against corruption. Regulation system which we were told about; it is really all about businesses and now the voluntary sector. By contrast your type of Statutory Instrument Q308 Viscount Colville of Culross: My Lord impinges upon the general public and probably not Chairman, none of these answers seem to be to the very much on businesses or even on the voluntary point of how do you consult the citizen. Mr Clayton: organisations. I only want to illustrate this—and I I prefaced my remark, and I was inviting am not making any comments about the thing—by you to interrupt me. Mr Bryant: the Identity Cards Bill which is going through at the From the regulation point of view we moment. We have been told that there are going to be undertake a great deal of consultation with a variety dozens of Statutory Instruments in order to put the of audiences with regard to what is the appropriate flesh upon the skeleton of that, and one draft code of policy response to the issue that has been identified, practice is available now in the Second House for and if we come to that now I think that leads exactly to your question. members to look at whilst the Bill is going through, but all the other ones are still in limbo and I do not know whether they have been thought about. Even if Q309 Chairman: Exactly so because there is a you know what sort of thing the Statutory diVerence between consulting on a draft order and a Instrument is going to contain—and you must do consultation about the objectives which the policy is with the Bill at the stage it has now reached—how do addressing and what is the most eVective way of you set about consulting the members of the public? achieving it. There was an amendment yesterday which said, in Mr McCabe: To try and be as helpful as possible, I fact, that you have to say where you have lived over mentioned earlier that the Cabinet OYce issue the last period of time—and it was cut down to six guidance on consultation and we seek to follow that years as opposed to birth. That is the sort of thing guidance as closely as we can, and it requires a that I would have thought would have warranted minimum period of 12 weeks’ public consultation consultation if it were going to be in a Statutory and we have recently revamped the Home OYce Instrument. How would you do this? I think it is website to make it more accessible to stakeholders. terribly important because that is the only way that So all the consultations that result in the production these things are ever going to be able to be amended of SIs can go through a long gestation period. For before they are made. What is the mechanism? It is example, the Home OYce announced today some not the same as the Better Regulation department in proposals in relation to prostitution. There was a the Cabinet OYce. consultation a year ago that involved a huge range of Mr Clayton: My Lord Chairman, I do not think that stakeholder events, Ministers going out to meet with what I would say would be of a great deal of use to the public, and there was a special website address set the noble Lord’s question. I could if you wish explain up which received something like 200 specific how there is a statutory requirement for consultation comments. So all of that information from the public in relation to quite a lot of Instruments, for example helps develop policies which the Home OYce then related to drugs or related to the police or related to puts forward and the document that was issued the private security industry. I could also explain the today—I have not had a chance to read it yet, it is extent to which there is informal consultation. When about 60 or 80 pages—which describes all of the you are concerned with people who are perhaps not proposals sets out some of the legislation that we are in the United Kingdom or perhaps diYcult to planning to change. So all of that has to be thought identify in the United Kingdom, there is consultation through by policy oYcials and Ministers before we with the independent Sir Bernard Crick’s Life in the actually get to the stage of instructing our lawyers on UK Advisory Group on what the citizenship, the the SI that we want to draft to put that into eVect. British-ness test should be. Quite a lot of our stuV is Following on from Richard’s point there are certain enabling. Under the Criminal Justice Act 2003 we SIs that we must consult on and we do our best to needed to make a provision about mandatory life comply with that, but it would be quite diYcult, for sentences and on that there was extensive example, if we were introducing something to do with consultation with the Department of Constitutional prison rules; how do you consult the ordinary AVairs, the Criminal Proceedings Rule Committee members of the public? Do they have a great deal of and the Court of Appeal OYce. Under the Proceeds interest? Do we actually want to consult the of Crime Act 2002 we have made a very long order to prisoners, and so on? So there is a whole raft of issues a large extent replicating various parts of the Act so that we have to think through and I think we would that we can give eVect to external requests and orders freely admit that we do need to do better in terms of relating to the proceeds of crime which were made public consultation and, again, it is something that outside of the United Kingdom, and we need the the Cabinet OYce hold us to account on and we have 3247872075 Page Type [O] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe to report on how well we are doing it. So there is Mr Bryant: Certainly we believe that the greater scope for improvement there. public engagement in the development of the policy that Statutory Instruments were designed to eVect should produce therefore better policy and a better Q310 Viscount Colville of Culross: Of course I Statutory Instrument as a result. So the answer is yes, understand that, when you are going to amend the going to understand the responses and views of the PACE code or something like that, there are audience within sensible limits. As we said, on requirements to consult certain people and you terrorist Statutory Instruments you would not go and always do. I am not at the moment concerned about consult widely with terrorists, of course; but yes, that. When you talk about stakeholders—this broadly speaking we believe that consultation terrible modern phrase—everybody is a stakeholder produces a better outcome in terms of the policy. under identity cards. There is not a single person in the UK who is not involved in this somehow, and that is what I am interested in. That is not unique, by Q312 Earl of Northesk: There is an onus of any means. The Cabinet OYce system for Better responsibility on you. That is the point I am trying to Regulation consultation simply does not take a grip make. And you accept that? on that type of Statutory Instrument. It is totally Mr Bryant: Yes, indeed. irrelevant because the people concerned are quite Viscount Colville of Culross: If there is any progress Y diVerent from those with whom the Better made on this subject by the Home O ce before we Regulation organisations normally deal. At the come to report I think it would be very helpful if we moment I think I am understanding that you find it could be told. We have concentrated the minds of our very diYcult, although you try. What I would like to witnesses on this point and I think probably my know is whether you see any progress, any method colleagues are in agreement with me that it is an whereby you could do it rather better because that, I important issue—how to consult the public. If think, would be of great interest to us and we shall anything turns up by way of improvement, we would look for the results in your Explanatory Memoranda be very grateful to know before we report. as they come out because that is where we find them—“We have amended the thing because of the Q313 Chairman: Thank you very much, Viscount consultation.” Colville. Can we leave that thought with you? You Mr Bryant: I think the answer is yes, we believe we might of course find it interesting just to read the can do them better; we believe that the code of transcripts of some of the previous evidence which practice is something which sets out a sound basis for has been given to us, from which you will understand consultation. Clearly conforming to the best practice in part some of the issues that are in our heads as with regard to the Explanatory Memoranda, you are a result of—without mentioning names—some quite right, we should start to see what we have done departments’ proposals on how they manage and what we have changed as a consequence of secondary legislation and how they consult. It might consultation. be at least food for thought. V Lord Tunnicli e: Could I build on this point and not Mr Clayton: My Lord Chairman, at one stage in really ask for an answer but invite you to write to us? previous sessions I think there was an indication that You do have this very concrete example of the by the time something had reached being a Statutory identity cards. If this legislation is to be successful, it Instrument it might be rather too late to change has to be introduced in a way where the average significantly the policy behind it. I must say I agree citizen feels comfortable with it. I think you have a with the point that was made. Quite often the particular challenge under that Bill to set up a system enabling powers may be quite narrow and your of consultation that does get to the average citizen Lordships’ Delegated Powers Scrutiny Committee and allows its smooth introduction. The DTI under quite rightly ensures that powers are addressed at the Enterprise Act 2002 have super complainants, what they are perceived to do at the particular time. where they say particular bodies that are closely But if one is taking a wider view, the wider view needs associated with the public will be consulted, and we to be taken before the legislation itself is finalised. would commend that to you and perhaps it might form part of your answer. Q314 Chairman: I think it is both rather than either, if you follow me? I strongly agree with what you are Q311 Earl of Northesk: My Lord Chairman, just saying in principle because some thoughtfulness quickly on this particular subject. Do you think in about the deliverability of the policy objective fact that greater public engagement at an individual through various options is crucial, but there is also a level with Statutory Instruments should in theory serious process of consultation around the specific give rise to better Statutory Instruments? Instrument itself, which needs dealt with. 3247872075 Page Type [E] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe
Mr Clayton: My Lord Chairman, I was merely trying recognises the importance of consolidation and it is to register the point that obviously some powers are something that we try to do. At the time when the more widely drafted than others and the wider the noble Lord, Lord Armstrong, was Permanent power is the more scope you will have in what you do. Secretary it was necessary to consolidate the police Chairman: Lord Boston, you wanted to come in. regulations fairly frequently because there were about four changes per year to them, partly reflecting inflation at the time and a series of allowances. Now Q315 Lord Boston of Faversham: Thank you very a lot of it has settled down rather more, although the much, Lord Chairman. Just one additional quick police regulations were consolidated in 2003 and it is point on consultation. As Lord Colville has something that needs to be accessible. Work is in indicated, the question of identity cards is so progress on consolidating the police pensions widespread for consultation that everybody in the regulations. You refer to resources and I fear that country almost would have a view. Apart from resources are the problem with it. Although one consulting, as appropriate, clearly identifiable might think that consolidations ought to just be specific bodies interested in particular policy matters, scissors and paste and therefore not take very long, do you also aim to consult much more widely and they do quite often involve rather more complex amongst the public generally, who may not be issues, particularly if an allowance, for example, members of particular bodies, using in particular which was available is withdrawn and you then need random samples, and you will recognise that I use the to put in rather complicated transitional word random in its scientific sense. It would be useful arrangements. The regulations may be technical in to have thoughts on that when you give your written the sense that they rely on primary legislation and the reply, but there may be something you wish to primary legislation itself may have been altered in the indicate now? interim and possibly the consequences of it have not Mr Bryant: My Lord Chairman, I have to say that on been spotted. I would certainly agree that the fact the more general point about how we gather opinions that it is diYcult makes it all the more important that from a wide group of the public about the policy one does it and that one does aim to keep the SIs up to direction, we do talk with focus groups and we do date; and it is true, I think, that the more frequently it have those kinds of events. The statistical is done the easier the process is. One of the methodology I will have to come back to you in Instruments made in December absorbed writing on, but our policy oYcials are encouraged to amendments that had been made to a schedule to get as much contact and understanding from some 2000 regulations and just substituted a new members of the public about the issues they are schedule. So it was then available in consolidated seeking to address. This is several stages upstream form. It is important but on occasions it can be time from the drafting of the Statutory Instrument, so this consuming. is really the policy formulation end rather than when it comes down to the more technical legal drafting V Y and then testing those words on individuals that, as Q317 Lord Tunnicli e: It is very di cult for a mere we have said, we probably do not do as well as we citizen to see why it is not cut and paste, i.e. ought to. particularly the amending ones, which are the most Chairman: Lord TunnicliVe, consolidation. confusing to read. I cannot see how the lawyer that creates the amending document other than writes out the whole paragraph to understand what he is doing. Q316 Lord TunnicliVe: Legislation is almost So at some point in the process of creation the impenetrable to the average citizen because it is a amended paragraph or clause presumably exists and Statutory Instrument, and then a Statutory why can we not capture that? Instead of, “Put these Instrument upon an Act that amends an Act. Clearly three words in there and move them to there,” why the way out of this is consolidation. I believe we have can we not just say, “Take this paragraph out and put asked you one or two times about possible this one in,” so that much, much more of it is consolidation and you have responded that there is a readable. Why can that not take place? short of resources. Do you have a general comment Mr Clayton: My Lord Chairman, that is something on the Home OYce’s point of view on consolidation? that I encourage and it does happen and it has Mr Clayton: My Lord Chairman, this is not really an happened; as I said, there is an immigration answer but I hope that with commercially available instrument. We do bear in mind the importance of copies of statutes and Statutory Instruments those keeping them under review. In relation to the Private who need to see them, those who need to see the Security Act it was done as well. The diYculty is the actual wording, will have access to that, and they are longer the consolidation the worse it becomes, but often available in a marked-up form, in a form that is when you are updating short bits that is probably the actually up to date. But the department very much best way of doing it. 3247872075 Page Type [O] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe
Q318 Lord TunnicliVe: You have what seems to me all departments were meant to be having a forward a superb middle ground on the immigration rules plan for consolidation to try to rationalise some of where I understand you keep a live copy on the the plethora of secondary legislation. Am I right in website of where they stand. my recollection? Mr Clayton: Immigration rules are not statutory Mr McCabe: Yes. instruments as such. They are more loosely drafted but they are of particular importance. Q322 Chairman: If so, what are you doing about it because it sounds from what, with great respect, Mr Q319 Lord TunnicliVe: Is there any reason why that Clayton has said that the answer is you are not doing website approach should not be extended to more very much about it. legislation and more statutory instruments? Mr McCabe: It is probably because the Home OYce Mr Clayton: In the case of the website approach, all has such a wide range of business and responsibilities. that one would be oVering is the department’s view of As I mentioned earlier— what the law is and ultimately it is a matter for the courts to determine what the law is. What matters is Q323 Chairman: Come on, lots of departments have what the Minister has made, or in the case of a wide range of business. something that needs to be approved by Parliament Mr McCabe: As I mentioned earlier, the admin what Parliament has approved of a law a Minister burden project, which is looking at the burden that has made. So the website is not a complete answer. As regulations create, we only have 40 items. When we I say, there are commercially available websites—but get the information from that exercise we will be this may not be a complete answer. I suspect that with publishing a simplification plan, like other a certain amount of Home OYce legislation people government departments, as to how we will be are rather more inclined to look at the circulars rather implementing the things that do actually create than work their way through the intricacies of legal burdens and I anticipate that that will require drafting, but I may be wrong on that. changes to Statutory Instruments to put into eVect, and we would be describing that in our simplification Q320 Viscount Colville of Culross: My Lord plan, and I will certainly take all the messages that I Chairman, the longer these things are left the worse have heard to day to make sure that that process is the problem of consolidation. I do not think that well followed. marked-up versions, whether it is of other people’s websites or published by Sweet & Maxwell,isa Q324 Chairman: Is that just part of the obligation of wholly satisfactory method of telling the public what the department or is it part of the government’s it is that the law has already become; it is not a matter wider process? of interpretation, it is what the law says and what you Mr McCabe: Yes. are supposed to know. Statutes do get updated, yearly at any rate by the Halsbury’s Statutes series, Q325 Chairman: Because I was slightly surprised to Statutory Instruments do not, and there is no way of hear that the game was still, “We will do what we can finding out what is the current state of play on a with the resources we have,” which is arguing that Statutory Instrument other than getting great you need get more resources on that to get out of the bundles of books down oV the shelf and looking it up, mess—I do not mean that rudely—to get out of the and this is a very unsatisfactory situation. historical problem that one is in. Mr Clayton: My Lord Chairman, I am sure, because Mr Bryant: My Lord, we certainly absolutely my colleagues use it, that not only are statutes in up understand the importance of consolidation and to date form but Statutory Instruments are as well. I there is clearly an issue about resourcing time, am not actually as good at using computers as some because we are very busy with the primary legislative of my colleagues, I fear, but they certainly have access programme, but we will improve on that. to the original form. I very much agree with the noble Lord about the importance of consolidating and to Q326 Chairman: You have said that the Cabinet Y the extent that we can we do. One of the di culties is OYce holds you to account. I am unclear about how that there are a limited number of lawyers and if there they do that, apart from the most simplistic level, is primary legislation we have to concentrate on partly because they do not seem to ask information primary legislation. about some of the subtleties; it is fairly basic stuV,is it not, about 21 days? It is not into the more Q321 Chairman: In a sense what departmental sophisticated stuV, the quality, for example, of the lawyers, for understandable reasons, have said from consultation process. So (a) how do they hold you to time immemorial? I thought, but tell me if I am wrong account, given they do not know much; and (b) they because this is from recollection, that the thrust of the do not have any sanctions to exercise even if they did Better Regulation process by government meant that know much? 3247872075 Page Type [E] 21-03-06 23:57:06 Pag Table: LOENEW PPSysB Unit: PAG5
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17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe
Mr McCabe: There are probably several angles to OYce Ministers where we have failed in this regard. this, but on the Better Regulation side of things I Similarly, at oYcial level we meet regularly with think I mentioned earlier that we are required to Cabinet OYce colleagues, who ask us, “What are you publish in our annual report how well we have doing on this particular policy proposal? How are complied with requirements of consultation, have we you undertaking this consultation? How are you followed the 12-week rule, for example. going to make sure that you get eVective results from it?” and so on. Q327 Chairman: Indeed. It is the low level stuV,isit not, the basic stuV? Q328 Chairman: Thank you, we will note that. Mr McCabe: Yes, and similarly if we have gone out Could I, in conclusion, thank you very much for your to consultation they monitor how well we have done time. You sense from the vigour of our questioning that and we have to report on whether or not we have that these are issues that we are very interested in and produced a Regulatory Impact Assessment to they are important to us. I hope you will take the accompany it, and they check as to the quality of the spirit of that and I think the response that Mr Bryant RIAs and so on. So they have a number of ways of has made signals that you intend to do so, even if at interacting with us, and I am sure you will appreciate times we were rather robust in the ways in which we that at ministerial level, when Ministers are seeking expressed certain things. Thank you very much for collective ministerial agreement, for example, coming. Cabinet OYce ministers may well highlight to Home Mr Bryant: My Lord Chairman, thank you.
Supplementary letter from Andy Burnham, MP, Home Office Thank you for your letter of 11 October highlighting the Committee’s concerns about a number of recent Home OYce Statutory Instruments where you felt that the accompanying Explanatory Memoranda were neither as clear nor as helpful as they could have been. I know that Home OYce oYcials appeared before the Committee on 17 January to answer questions about this. I need to oVer some apologies. Firstly, I am very sorry that I have not been in a position before now to reply to your letter of 11 October—with the result that you did not receive an oYcial written communication before the oral evidence session this week. I will ensure that all in the Department who have a responsibility for dealing with queries from Parliamentary Committees are reminded of the importance of responding swiftly to queries. I should also apologise for the fact that, in your initial dealings with the Department, you were not provided with the assurance you were seeking about overall quality control of Statutory Instruments. In response to the Committee’s concerns, the Department has made some significant changes to procedures. As I understand oYcials outlined to the Committee this week, we are taking steps to ensure that in future Explanatory Memoranda are written in plain English and avoid overly-legalistic language. We are placing responsibility on relevant Heads of Unit (who are Senior Civil Servants) to exercise local quality control and sign oV all Explanatory Memoranda; the Department’s Group Executive Board will exercise central oversight of the picture across the Home OYce through quarterly reviews of the legislative picture; and David Normington, our new Permanent Secretary, will send a message to the Department about these new arrangements, stressing the need to improve our game. As Minister with responsibility for regulatory issues, I will also keep a close eye on how these arrangements are working. I am conscious that as a Department with a considerable legislative workload, there is a reputation issue at stake for the Home OYce in getting things right on primary and secondary legislation. We will, of course, look carefully at any particular recommendations the Committee brings forward on the management of the secondary legislative process. Andy Burnham 3247872082 Page Type [SO] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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TUESDAY 31 JANUARY 2006
Present Armstrong of Ilminster, L Maddock, B Colville of Culross, L Methuen, L Eccles, L Morgan of Drefelin, B Filkin, L (Chairman) Northesk, E Jopling, L Tunnicliffe, L
Examination of Witness Witness: Mr Rick Haythornthwaite, Chairman, Better Regulation Commission, examined.
Q329 Chairman: Good afternoon and welcome. about last time. I think that the Better Regulation Thank you very much for coming to see us; it is very Executive shares our view and does not discriminate much appreciated. I am Lord Filkin and for my sins I between primary and secondary legislation. We are chair the Committee. You are probably aware of who very keen to see both looked at. I think we face two most of the Committee members are. We have our issues at the moment. The first you referred to, which name badges, so you will forgive me if I do not go is that we do not have a good means of working out round the room and introduce everybody. If you are the cumulative cost. We tend to see these aspects of happy, we would like to start straight oV really with secondary legislation coming through on an one of the questions that I think is of particular incremental basis, therefore they are looked at on an interest to us. We understand what your role is incremental basis, and I do not think we have yet following on from the excellent work done by Sir come up with a satisfactory solution to that issue. David Arculus, and we had a good initial session with The second is an issue that I know your Lordships are him. What I would like to put to you first of all is that tackling, and that is the fact that they tend to come in SIs, perhaps from our perspective, are an important waves and as a result quite often they are not getting part of the regulatory landscape because they are the the scrutiny they deserve—because, in particular, if means by which government actually does a large one takes the example of common commencement amount of its regulation, and they in practice are the dates, we have seen a confusion between common default modes of government legislation and commencement dates and common laying dates and regulation. We know that the Government is trying significant burdens coming through, and that really to reduce the amount through alternatives to gets in the way of proper scrutiny. So we do not regulations, but regulations are going to continue to distinguish, in summary, between primary and be the major substance. We are therefore surprised secondary legislation. We do believe, that if there is a that the remit of the Cabinet OYce and of the BRE significant impact cost and burden, we must look at appears only to be interested in the instruments it and submit it to rigour but there are barriers to V which have a very significant cost to business. I think being able to do that in an e ective fashion at present. from our perspective that seems to us to be too partial because there are costs to others than business and Q330 Chairman: Do I infer from that that you think V the e ect of a large number of instruments that have the exclusion of what I will call, for want of a better a less than £20 million cost is nevertheless very term, the smaller impact instruments from the BRE’s serious on business and on others. Could we have purview is right? your comments as to whether you accept that Mr Haythornthwaite: I think in the end there have to argument and, if so, whether you would share our be priorities set. The first point I would make is that Y view that the BRE and the Cabinet O ce should take I think the accountability, ownership, responsibility a wider view? and burden of proof for all legislation, whether Mr Haythornthwaite: I think I would start from first primary or secondary, must continue to lie with the principles, my Lord Chairman, in that the Better departments; they must be accountable. Our aim has Regulation Commission believes that all legislation, to be not only to curb the worst excesses and poor whether primary or secondary, if it has a significant disciplines but also gradually to change culture. I impact on business, the private sector or the public think it would be a very diVerent proposition if one sector, should be subject to the disciplines of better were seeking to check every piece of legislation regulation and to the procedures that have been laid coming through as opposed to trying to catch the down. I think all of them really do deserve to be major issues. Certainly at the moment I think the subject to early impact assessment and continuing Better Regulation Executive are doing a good job impact assessment and sensible consultation and exercising a sensible filter, but we have a long way to rigorous costing, all the angles that Sir David spoke go yet. 3247872076 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Rick Haythornthwaite
Q331 Chairman: Let me agree with the first two an interest in Statutory Instruments and that is why limbs of your response and disagree with the third the BRE gives no guidance on Statutory Instruments. and just explore it slightly more. Accountability for Given how central they are to better regulation we instruments has to lie with departments because they find that perverse, but perhaps you have said all you have to make them. There is a massive cultural wish to say on this subject. change but part of the process of cultural change is Mr Haythornthwaite: I have said what I wish to say. I the challenge at the centre as to what its form actually would be interested to hear the conclusions of the proposes. To say that the Cabinet OYce or Better Committee upon that. Certainly we will continue to Regulation Executive should have an overview of the push our point with the Better Regulation Executive. totality does not mean that it should inspect every Chairman: Thank you. Lord Jopling? one, but it should have the ability to dip in or to seek to have processes in place to ensure that the stimulus is there. Some departments will do it, I am sure, without stimulus, but our evidence so far is a picture Q333 Lord Jopling: You mentioned a few moments that is extremely varied between departments. ago the issue of SIs with common commencement Therefore without some process for challenging dates and, as you will have heard, this Committee is departments on the smaller instruments as well, I unhappy about the overall guidance and think we are sceptical that we will see the management of SIs. Can I try and tempt you, do you Government achieving its Better Regulation not think that it would be better if SIs in particular initiative across the piece. There are simple ways of with common commencement dates, which are doing so—by saying in Explanatory Memoranda, for currently overseen and guided by the DTI Small example, they must make it clear why this is the only Business Service rather than the Cabinet OYce, were way of getting the policy objective and what other under the ambit of the BRE? routes have been explored. Mr Haythornthwaite: I think initial conclusions from Mr Haythornthwaite: First, I agree with your the operation of common commencement dates, suggestion there. We are completely supportive that which were clearly designed to help businesses, on any legislation there should be a burden of proof particularly small businesses, to understand and within the department to have consulted widely and prepare for evolving legislation, would suggest that to have considered all the alternatives and to regard there has been a healthy take-up, and I think the DTI the imposition of regulation as a last resort, and that has been a good champion of the take-up of common when going through the thinking process there commencement dates and they are welcomed by the should be impact assessments throughout, and so I small business community. We have seen them do not think there is any substitute in legislation of extended now to areas of health and safety, company any scale for high-calibre thinking and to ensure law, pension law, and so on and so forth, so from our within the department that the civil servants, the standpoint the adoption of common commencement Better Regulation ministers and the champions for dates is moving along exactly the lines that the Task Better Regulation really stand for high-quality Force hoped to encourage. We see no reason why one argument within the departments. I think that is a should take them out of the DTI, particularly the sine qua non. The question is the extent to which the Small Business Service, because they are much closer Better Regulation Executive and ourselves, the Better than the BRE could ever be to the stakeholders. Regulation Commission, can push that through as a However, this confusion between the common cultural change. I think the Better Regulation commencement dates and the common laying dates is Executive, if I might say, is adopting the right initial clearly a big project issue. Someone has got to take stance, but it is early days. I do not regard William ownership within the departments of good, solid Sargent as someone who would feel confined by any project management and make sure that the SIs are procedural or any specific rule. He is very committed, laid at a pace that they can be given due consideration as is Jitinder Kohli, the Chief Executive, to change and that we do not get into these positions of the culture. I think he is looking for every possible unrealistic workloads and inadequate time for angle to do that. If that requires dipping into some consideration. It seems to me the issue to deal with is smaller aspects of legislation to make a point, I do not common laying dates as opposed to common think he would hesitate to do so. By saying that his commencement dates, and I would far prefer that we starting point is to take the more significant parts is focus attention on the DTI and ask their oYcials to code for saying that that is sensible prioritisation, but make sure that that whole area of project I do not see it as being applied to the exclusion of all management is addressed. I would very much prefer other options. keeping the process with the DTI. We will of course continue to monitor that as it comes through but I Q332 Chairman: But that is not what he has said to think that it is far more our role to evaluate and to us. He has made it clear that the BRE does not take advise. 3247872076 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Q334 Chairman: We take your point about good, Q336 Viscount Colville of Culross: So it will develop? solid project management; you probably therefore and have you got the right people to enable it to share our view that it is surprising when in one or two develop? examples we have found departments who can give Mr Haythornthwaite: We have got the right people us no answer to the question “who is responsible for and indeed we have established a rotation of secondary legislation and Statutory Instruments?” succession that would allow us to gradually refresh Mr Haythornthwaite: That is clearly concerning. We where we need to refresh within the Commission. come back to the point that from a Better Regulation However, I have to say that I am also encouraged Commission standpoint we need a commitment that as I go around departments and talk to some of within every department to an adherence to Better the more enlightened department champions they see Regulation principles and discipline. It is a that they need to take on board some of the governance issue within the departments that we technology that is being introduced around need to push. businesses, particularly in costing the administrative Chairman: Thank you. Viscount Colville? burdens and thinking how to take those forward; they are thinking voluntarily about how one can adapt that to the public sector. I think that those departments that are particularly thinking about Q335 Viscount Colville of Culross: I think the history where to go from here and whose administrative of this started with impact assessments, and therefore burden is more in the public than the private sector it seemed logical to begin with business, and it has are already moving in that direction. Although one now expanded to the voluntary sector, and that is as would never describe encouraging better regulation far as it has got. There are quite a number of other as pushing on an open door, it is slightly ajar. aspects of public life or private life in this country which are aVected by legislation and of course as far as we are concerned by subordinate legislation. Are Q337 Lord TunnicliVe: There was a point that was we going to stop with the business and voluntary missed there and that was the citizen; the citizen is sector? or do you see there is any chance that we frequently impacted by regulation. Are you putting might eventually cover the entire spectrum of those enough focus into encouraging departments to who are aVected by legislation? We had the other day consult citizens, because it is an area that is very the question of the Identity Cards Bill, for instance, important in things like ID cards? which aVects all of the general public. Do you think Mr Haythornthwaite: It is an area that is vitally we are aiming in that direction? important and I would say that stakeholder Mr Haythornthwaite: I think we most certainly are. It consultation remains patchy in that area. My has been natural over the last year that we have observation is that in this first round of simplification started with business. Although we are performing plans the tendency of the more enlightened well as a nation, still there are quite considerable departments has been to go out and think about who competitive issues that we face, and so it was very are the people they need to speak to who know logical. I think that with the Task Force able to draw something about how to reduce regulation. The less attention to the potential for a one per cent increase enlightened departments who are going through the in GDP if we can bring down the administrative motions at this stage—and we intend that that should burden by 25 per cent, it was most logically focused change in the future but at the moment they are going on business and that is naturally where the BRE is through the motions—tend to go to the same focusing its attention. However, I do not sense that stakeholder communities that they consult on the BRE is focusing its attention on business to the regulation and it is not surprising that it is not a exclusion of the public and private sector. Certainly I particularly fruitful source of ideas, so I think that is can assure you from the standpoint of the Better important. Again, on my limited experience (I have Regulation Commission, that we are very not been in this job very long) I find that there are a deliberately comprised of a group of business people, number of areas where the independent regulators trade unionists, members from public sector and seem to have close contact with the consumers and voluntary organisations because our terms of there is a lot of very fertile work going on in that area. reference ask us to look at all the sectors to which you We as the Better Regulation Commission have one refer, and we willingly do so. If one looks at our substantive piece of work that we are doing this year agenda as we more forward, clearly one of our roles which is to research how the perception, allocation is to think about where this should move next. There and management of risk drives the regulatory is a bias towards the public sector and indeed towards machine and how it can result in unhelpful the voluntary sector as a whole. So I can reassure you consequences, particularly for the citizen. I think a that we will be looking in those areas and I think it is lot of our work will be gradually moving to the citizen critically important. by virtue of that particular study. So over time it will 3247872076 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Rick Haythornthwaite happen, but I would not describe it as adequate as Better Regulation Commission, the Executive and of today. elsewhere, and indeed these Houses, has to be reinforcing that message. Q338 Lord Methuen: We are concerned as a Committee from the evidence we have so far received Q339 Chairman: Could I, with Lord Methuen’s that the guidance issued by the various limbs of the tolerance, build on his question because whether it is Government’s Better Regulation machine (the BRE, in business or in government it is almost axiomatic the HMSO and SBS) is just that—guidance. We are that, if you want something to happen, you do not concerned that there is not adequate policing of the just ask people to do it or give them guidance. You rules laid out in the Statutory Instruments have to have some system of intelligence to know procedures manual. Would you like to comment on what is happening, because particularly in areas the fact that they do not actually police the thing where cultural change is required, you know that it properly to make sure that the rules are obeyed and will not happen without both finding out what is the timescales are obeyed? going on and some system to bring people to account Mr Haythornthwaite: My Lord, the absence of a and to incentivise them. From what we have reference to Better Regulation in the procedures understood from the BRE there does not appear to manual is a disappointing start, I will admit, but let be an adequate intelligence system. We are not asking us step back again from the mechanisms that we have every department to be able to give information put in place. If one looks at the impact assessments, about everything they are doing—that would be consultation, alternatives, common commencement nonsense, that would create another regulatory dates, post-implementation reviews, all those are burden. It has to have the ability to sample, to bring very necessary but they are insuYcient conditions for to account, to know whether the guidance is being change, and so we do need a number of other areas to observed or not, at least at a high level. Why we are be working for this to make a diVerence. I am pressing this point is because, from our own limited encouraged by the appointment of William Sargent. evidence from only three government departments, it I think he is a very committed individual in this area is transparently not being followed in a very large and has experience and he and Jitinder Kohli number of cases, the variability across those between them are recruiting a very good team. They government departments is quite surprising, and yet are a very, very important part of policing this whole the centre appears to be unbelievably hands-oV—“it area and I think their scrutiny, their coaching of the is nothing to do with us; it is up to departments”. If teams, and their application of the disciplines, is that was good enough to change the world, we would going to be very important. However, what they are have had perfection years ago by giving guidance. It seeking and what we are seeking is clearly cultural will need more than that, will it not? change, and I think there are still some areas that we Mr Haythornthwaite: It will, and to be frank it is too absolutely have to make progress in. The first is the early for me to say how hands-oV it is going to be. fact that still there are a lot of people within There are clearly two parallel systems, there is the government departments who are enjoying fantastic formal and the informal. In the informal system there careers dreaming up regulation around complex and is a lot of contact involving the members of my not necessarily important problems and we have got Commission and members of the BRE on a day-to- to change career progress within departments, so day basis. Whether it is sitting formally on champion until that changes and until the removal of regulation boards or whether it is shadowing the departments in and the freeing up of various stakeholders, is seen as their stakeholder groups, shadowing the champions, virtuous, then it is going to be very diYcult to make there is a network of informal contact, and I suspect any of what we are doing sustainable. That has to be that will be the most fruitful route. In theory, the supported—and will be supported, I believe—by the Better Regulation Executive has a role and to an re-energised Panel for Regulatory Accountability, extent we have, which is to continuously drive the which is meeting monthly and which does consider best leading indicator we have, namely the impact the significant regulations coming through from a assessment system, and improving the quality of that better regulation standpoint, and I envisage that that so we do see at an early stage the direction of travel panel will send quite a number of items back and of some of these regulations. Of course I talked make clear points. I very much hope that this earlier of the domestic aspect. We have the European Committee will consider it. Can I just make the point, aspect as well, which is very significant, and that that without good argument, without good poses its own issues. In theory I would say that the consideration of impact assessments, consultation, framework that is in place should be adequate to get alternatives, these regulations are unacceptable, and a sense of whether we are making progress and to hopefully over time that message will sink in, but I keep the pressure on that. I reserve judgment at this think it is going to take eVorts from many, many early time as to whether that is enough because I angles and every signal throughout departments, the completely agree with you that culture change is 3247872076 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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firstly about attending at a detailed level and board of the departments. Do you have any feeling of secondly about being absolutely relentless in that kind? Am I getting it wrong? reinforcing the messages and making sure that when Mr Haythornthwaite: I do not think you are, my one sees practices that are unacceptable that they are Lord, but I think that it does not necessarily stem raised and that people do not benefit from them. It is from the quality of people that have been assigned too early for me to say whether we are eVective yet, the task of making sure the better regulation but if we are not what I do promise you is it is principles and good planning of the programme are something that I shall pick up personally because I put in place. It is more about the backing that they believe we have to go at this with great teeth and can get from the top. The departments that operate eVectiveness, so I will be watching for it. well are those departments where there is very clear Chairman: Thank you very much. Lord Armstrong? support from the top for the better regulatory programme and everything else falls into place because the Better Regulation ministers and the Q340 Lord Armstrong of Ilminster: I think that is a Better Regulation champions have a clear mandate in good point but from the evidence we have heard we the departments themselves and things follow. So I have concluded really that there are too wide really do think it comes back to the basics of culture variations in the way in which departments plan and change, that it has to be seen to be personally manage their preparation of Statutory Instruments. rewarding and virtuous to be able to deliver this There is little or no evidence of department-wide or programme in a well-managed fashion. I do not think inter-departmental, as it were, statutory instrument it is going to help greatly just throwing more talent at programmes or integrated planning and it within an unwilling department. management. I wonder whether you would agree Lord Armstrong of Ilminster: As a former Permanent with that and, if you did, what more you thought Secretary, I hear what you say. Thank you. could be done to promote better and more active management of the process right across the board? Q342 Lord Jopling: My Lord Chairman, can I ask a Mr Haythornthwaite: First, I would agree with you, I supplementary question to Lord Armstrong’s. You think the evidence is of punishing and heavy said that you thought the only sanction was to send workloads which one sees around these Statutory them back. Do you mean by that that Parliament Instruments. My practical solution would still be to should be more ready to refuse to endorse them? focus on the departments themselves to try to do this. Mr Haythornthwaite: I think all regulation represents To have a pan-government solution when one has a significant imposition and therefore they should not resolved it locally will, I suspect, be doomed to have had due consideration. It is only reasonable to failure. I think pressure should be put on all the expect that. If, through poor planning or poor departments to manage their legislative programmes consideration from the department, you feel that it in a far more eVective fashion and recognise that a has not been given due attention then it is only successful outcome is one where all items of any reasonable to say, “I really need more work done on significance get due consideration as opposed to this and I am not prepared to be pushed into moving being rushed through. I think the only way we can at this stage.” I do not think it will take many of those push that—and I come back to the point I made instances for the message to get through that it is before—is to start sending them back. If they are better to get Instruments coming through on coming and there is clearly inadequate planning in staggered common laying dates and give the departments there has to be a sanction, and the only committees plenty of time to consider those aspects sanction there is is that one does not get the success of legislation, and hopefully over time we will also see that one sought in the first place. I see no other way. V a gradual improvement in the impact assessments for It is inelegant but it probably will be e ective if one every Statutory Instrument. keeps it up for a while. If one can achieve some sort of programming at a departmental level then perhaps one could consider something across government but Q343 Lord Jopling: Can I tempt you to be a little I reckon we should begin with stage one. more precise. There is a tradition in the House of Lords that only very, very, very rarely are Statutory Instruments voted against. Are you saying that you Q341 Lord Armstrong of Ilminster: We also had an think over the years the House of Lords has been impression that there is very wide variation in the unnecessarily supine in dealing with these matters? range of quality of the people who manage these Mr Haythornthwaite: I think clearly the House must processes within departments, and I certainly use the occasions with discretion. However, one wondered whether there should be more attention hopes there can be some sort of process prior to the given to having somebody very senior and high absolute date of consideration where it becomes very quality in the department whose mission it was, clear that, if this particular Instrument appears in this whose duty it was to address this positively across the state, it will not get the easiest of passages. I hope that 3247872076 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Rick Haythornthwaite that dialogue will take place even if it is at the impact assessment stage. We have the opportunity to eleventh hour, so that a lot of work can be done on consider any impact assessment which comes it. Whether or not the Lords choose to exercise their through, which we do. We have the opportunity to political will to make that particular statement is up express an opinion at the Panel of Regulatory to you, but I think there needs to be the occasional Accountability. We have the opportunity, once exercise of refusal but certainly a very heated debate passed, to propose implementation reviews and feed in the last stages about the quality of what is being them back if there is any secondary legislation presented before your Lordships. attached to it which allows us to feed back into that process. In certain instances we can pass impact Q344 Lord Jopling: Otherwise this Committee assessments to the National Audit OYce for a second could, maybe in drawing the attention of the House level of scrutiny. We will also take our lead from to an Order, say it felt it was better that the consultation with our stakeholders to think about department took it back before it was debated on what areas we need to focus on, but with, correctly, a the floor? small secretariat and a small commission we have to Mr Haythornthwaite: I think you would get to the pick our spots, so we do not cover all the ground but stage where the department would find that very we aim for those areas which we think are helpful. Indeed the support of this Committee is not particularly important, whether for business, private, just to the basic tenor of the Instrument, it is also its public or voluntary sectors. quality and preparation. Q348 Viscount Eccles: Would it be your ambition to Q345 Earl of Northesk: Lord Jopling’s questions are take what might be described as a holistic view of the not supportive of my case but I gained the impression subject rather than getting too involved in the from much of the evidence we received that those minutiae? charged with preparing Statutory Instruments are Mr Haythornthwaite: I think it depends. Certainly we pretty ignorant in truth of the process of scrutiny. Do would start from a holistic view. I think the issues we you think it would help if those charged with would be looking at would be driven by a holistic preparing SIs on a departmental basis were more concern. But I think quite often one cannot aware of the way in which scrutiny takes place and it contribute meaningfully to the debate unless one might actually improve the process within the dives into the detail. We have no theology on where departments? we should sit on these but we would generally start at Mr Haythornthwaite: We would absolutely welcome the level of principle and systemic issues as opposed the departments being very clear on the process and to symptoms and the detail. indeed very clear about the threshold of quality which is implicit within that process, or even explicit. Q349 Viscount Eccles: As an initial view, do you Any support in that area would be very welcome and expect there to be less or more regulation? indeed we would be very interested in the results of Mr Haythornthwaite: I expect the worst and we will your inquiry to understand how you might go about work for the best. There is no doubt that, if one were that and how we might support you in that. to look at the trends, they are not optimistic. Over time we will see but certainly we are going to have our Q346 Viscount Eccles: We, of course, concentrate work cut out, not only to reduce the stock of very much on Statutory Instruments, that is what we legislation but there is a fairly healthy flow of new are here for, and we grumble about spelling mistakes, legislation coming through and our aim is to reduce and we should apologise to you for spelling your net burdens. But what comes through will come name wrong on your name plate. through and we will tackle it. Mr Haythornthwaite: Thank you. It is not the first time. Q350 Chairman: Our remit is not the same as yours, quite clearly, but one of our remits is to look at Q347 Viscount Eccles: We should be inclined to send Instruments as to whether they adequately or that back to the department! You mentioned earlier inadequately fulfil their policy objectives and to give primary legislation. Would you like to expand on our comments to the House. In some cases it seems how you as a commission get involved in considering highly questionable to us whether they will “work”; primary legislation as well as supporting legislation? they have a very crude model of potential. Sometimes Mr Haythornthwaite: We get involved obviously, we wonder whether this really was the best way that having laid down the principles of better regulation, the policy objective could have been achieved. There and so as a backdrop to the consideration, the is some overlap therefore with your process of trying context of it, we try to make sure in the departments to ensure alternatives to more regulation. Would it those principles are adhered to. In terms of specific therefore be helpful to everyone if departments were aspects of legislation, we see them largely at the expected in their explanatory memorandums to say 3247872076 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Rick Haythornthwaite how they have explored alternatives to yet one more Mr Haythornthwaite: Coming back to the need in this Statutory Instrument or regulation, and why was this process for culture change to continuously reinforce the only or best way of actually fulfilling that? the message, we welcome every time that someone Mr Haythornthwaite: Just as with primary legislation, asks, “Have you really thought about the there should be a very well constructed argument alternatives?” so we can canvass support there if that from the earliest stages of the impact assessment as to was the way forward. who has been consulted, what are the clear outcomes V required, what are the possibilities considered, and Q353 Lord Tunnicli e: You seemed to imply in one of your answers that less regulation was a good thing. why any regulation at all is required, and what are the I am in a minority of one in believing regulatory costs of that; who is going to benefit and what is going burden is not volume but fit-for-purpose. Do you to be the return on investment. If there has been Y carry the same regard to making regulation less su cient change when the secondary legislation burdensome by being good regulation as you do to comes through, that it is clearly a step away from the the volume of it? primary legislation, I think exactly the same rigours Mr Haythornthwaite: Let me first say that I do not should be applied. Therefore the answer to your regard regulation as good or bad. There are good question is very much yes, provided there has been a regulations. My belief is, first, if a regulation is going substantive change from the primary to the to be in place then it should be put in in a highly secondary. If, however, the basic principles were in eVective fashion, and one should start with the desire the primary and were looked at as part of the primary of policy outcome or potential outcome and then impact assessment, then on those occasions one work to minimise the burden thereafter. That is what could be less rigorous. we are working for; whatever it takes to get there.
Q354 Viscount Eccles: Is there anything you would Q351 Chairman: Then, of course, it would take no not want us to miss in our considerations before we eVort at all for oYcials to cover the story in the come to our report? explanatory memorandum because the work will Mr Haythornthwaite: I think we have covered most of already have been done, will it not? the ground. Really the critical point for me is that the Mr Haythornthwaite: That is very true, you are just principles of better regulation have been very clearly communicated at a high level. They have yet to get to passing it through, but that is simply transferring the point of deeply influencing the behaviour of the information rather than starting it again. departments and we would welcome any support that your Lordships could give us on that. Equally, we will be very happy to support you on the Q352 Chairman: We would then be informed, recommendations which come out. We will watch because we would be told in a paragraph, “This is with great interest anything that emerges from this what we did and why this was the best way” and inquiry that is helping to reinforce the message of therefore we would know that this had been explored better regulation. rather than it had not crossed anybody’s mind at all, Chairman: On that note, thank you very much which of course is what we sometimes, in our evil indeed. We have enjoyed having your evidence, it has way, suspect. been most helpful.
Memorandum submitted by The Cabinet Office on behalf of HM Government
Co-ordination
1. How is secondary legislation managed across and within Government departments? Who has overall responsibility within each department? Who has co-ordinating responsibility across Government?
The Government does not believe it would be practical to have one Minister responsible for co-ordinating secondary legislation across Government. Individual Secretaries of State are responsible for all of their Department’s legislation—primary and secondary. Secondary legislation is an integral part of the policy making process. Following policy approval from Ministers, oYcials work closely with departmental lawyers to draft the necessary secondary legislation. Her Majesty’s Stationery OYce within the OYce of Public Sector Information oversee the arrangements for production and publication of all Statutory Instruments. 3247872077 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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In the context of the better regulation agenda, Departments are helped and advised on the development of their policy through training and guidance around the Regulatory Impact Assessment (RIA) process and the Code of Practice on consultation. The guidance on Common Commencement Dates includes guidance on eVective project management. This advice and training encourages eVective project management, and covers policies delivered by primary and secondary legislation and by non-legislative means.
Drafting—Policy
2. How do departments take decisions on the revision, laying and commencement of linked groups of statutory instruments? How is the scope of any individual instrument within a group decided? How is the user’s convenience taken into account? Is the existing regulatory impact assessment process an effective way to ensure that secondary legislation is made in the least burdensome way? Decisions on the revision, laying and commencement of linked groups of statutory instruments and the scope of an individual instrument within a group are taken by the lawyer responsible for drafting the statutory instrument(s), in consultation with the policy division. Factors taken into account might include the date by which the statutory instrument is required to come into force; what other legislative changes need to be made in relation to the same or related subject matter; the Parliamentary procedures applicable to each instrument; how much advance notice has been given to those aVected; consideration of how best to manage a large programme of change in a particular area; and available resources within the Department. The Government endeavours to link related statutory instruments when appropriate. How this is done, and the degree of co-ordination, will depend upon the circumstances. In some cases, however, it may be easier and clearer for users if strands of amendments are kept separate (and given self-explanatory titles accordingly). It may also be helpful for transitional amendments to be put in a separate instrument because of their relatively short life-span. The Better Regulation Executive (BRE) promotes the use of Regulatory Impact Assessments (RIAs) for all policy changes. The RIA is a framework for analysis of the likely impacts of a policy change and the range of options for implementing it—including “do nothing” and non-legislative options. It is a comprehensive and flexible tool that is central to the better regulation agenda. The Explanatory Note should say that an RIA is available, and where it can be obtained. BRE continues to work with Departments to impove the quality of RIAs.
Best Practice
3. What are the Government’s mechanisms for distilling and promoting best practice in relation to the instruction, drafting, laying, revision and repeal of statutory instruments? How is best practice monitored and enforced? The Government has produced the Statutory Instrument Practice manual which is issued by Her Majesty’s Stationery OYce. This is principally intended for the use of civil servants and others concerned with the preparation and making of statutory instruments and the parliamentary procedures relating to them. This is supplemented by specific guidance on the Code of Practice on Consultation, preparation of Regulatory Impact Assessments and Transposition Notes issued by the Better Regulation Executive and guidance from the Department for Trade and Industry Small Business Service on Common Commencement Dates. Departmental Lawyers can access all of the guidance materials and legal advice on drafting and amending legislation through the Government Legal Service’s intranet website—Legal information online network (LION). The Government Legal Service also provides extensive training programmes to departmental lawyers, dealing with drafting skills generally and more specialist skills for example the implementation of European law. Several Departments supplement this with their own internal guidance and training on the preparation of statutory instruments. All of these tools promote best practice and good project management across Departments in the management of secondary legislation. 3247872077 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Drafting—Who
4. Who instructs the drafting of statutory instruments? Who drafts them and within what guidelines? Are there cross- government drafting standards?
Statutory Instruments are normally drafted by departmental lawyers based on instructions from policy divisions. They are drafted according to the available guidance and best practice as outlined in the previous point.
Correction
5. Why are so many correcting instruments required? What are the repercussions in a department if a correction is required? Is there a process of inquiry about why a correction was needed?
The Government endeavours to keep the number of correcting instruments to a minimum. We naturally regret the inconvenience for users and for Parliament when one is required. In session 2003–04, from 22 March to 18 November 2005, the total number of corrected reprints for all Departments was 30 out of a total of 568 negative instruments. The figures for 2004–05 were 28 out of 531. In both cases a total of approximately 5 per cent. Although regrettable the Government does not consider that this indicates a serious problem. Corrections may be required to deal with mistakes in drafting or in the printing process. The statutory instrument drafting process is technical and diYcult. Every eVort is taken to minimise drafting errors by a careful checking process. But it is inevitable that some errors will arise. When an error is found, the reasons for the error are investigated thoroughly and action taken to prevent a recurrence. OYcials are required to provide Ministers with an explanation for the error and the need to make corrections. Any correction to an instrument, either by way of the issue of a corrected reprint or a correction slip has to be approved by the SI Registrar within Her Majesty’s Stationery OYce.
Consolidation
6. How do departments take decisions on the consolidation of statutory instruments; how will consolidation be promoted in future?
The decision to consolidate statutory instruments is always treated on its merits. A key consideration should be the convenience and ease of comprehension of users. The Government agree that in some cases consolidation is appropriate and helpful to the reader. However, it should be recognised that it would be impractical in the case of lengthy statutory instruments, or statutory instrument which are amended frequently. In such cases, the benefit to the reader may be disproportionate to the extra cost which the reader would incur by buying a longer consolidated statutory instrument each time it was amended. The Government believes that consolidation can make a contribution to the better regulation agenda and that significant gains can be made from good consolidation work. However, consolidation does have resource implications for Departments which must be taken into account before any decision is made. The Better Regulation Executive is already working with departments to map and measure regulations that impose administrative burdens on businesses and other stakeholders and coordinating the development of departmental simplification plans, which will include measures to consolidate and rationalise regulation. The proposed Regulatory Reform Bill will also help with the consolidation and simplification of legislation. 3247872077 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Timetabling—Peaks and Troughs in Laying
7. Why are there peaks and troughs in the laying of secondary legislation? How can these be ameliorated to facilitate proper scrutiny? The Government is aware that peaks exist in the laying of secondary legislation. The Government is committed to ensuring Parliament has an opportunity to scrutinise all of its legislative proposals. The policy formulation, consultation, drafting and preparation of a statutory instrument is undertaken over several months, in some cases over a year, prior to the statutory instrument being laid before Parliament. In the preparation of a statutory instrument Departments are working towards a coming into force date and a work timetable is prepared based on that. Departments make every eVort to fit this timetable within the Parliamentary calendar, to take account of the need for Parliamentary scrutiny and approval. However, significant changes in proposals, further consultation and redrafting can have a significant impact on this timetable. The knock-on eVect can result in “bunching” prior to recess dates as Departments ensure that Parliament is aware of proposals. Outside events can also have an impact on a Department’s timetable. For example, if changes to legislation need to be enacted urgently, if a General Election is called or if the Parliamentary calendar is revised.
Commencement—Common Dates
8. We are keen to avoid the bulk laying of statutory instruments in the run up to each common commencement date. How will departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny? Are departments developing annual statements on proposed regulation? The Department for Trade and Industry’s Small Business Service issues guidance on Common Commencement Dates. Under this guidance Departments are required to prepare an annual statement, which is issued in January, listing regulations expected to be commenced on the following 6 April and 1 October. This approach is already being applied to some areas on legislation, and will be progressively extended across all areas of domestic regulation. Section 12 of the guidance clearly sets out how Common Commencement Dates should operate with the statutory instrument process. It clearly states that Departments must allow time for Parliamentary scrutiny. In particular it states that, “Working to a CCD timetable does not prevent you from laying instruments throughout the year, thereby allowing time for parliamentary scrutiny and, if appropriate debate, well in advance of commencement”1. The guidance also states that departments should avoid laying just before the 21 day minimum period before commencement.
Commencement—21 Day Rule
9. How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comes into force? Should the period be lengthened? The Government believes that the 21 day rule is well observed. Departments should ensure that they fulfil the requirement to lay an instrument at least 21 days before the instrument is due to come into force. However, the Government accepts that some instruments must take eVect at shorter notice, but subject to that, the rule should be strictly observed. Where instruments are required to be brought into force at shorter notice Departments must provide Parliament with an explanation as to why the instrument could not have been made and laid sooner and why it had to come into eVect on the day specified. An updated version of the Statutory Instrument Practice manual will be published shortly. This will emphasize that 21 days is the minimum time period between the laying and coming into force of an instrument and that Departments should, wherever possible, provide longer lead times between laying and commencement. The Government does not believe the period should be lengthened, as this would be likely to result in greater pressure to break the rule. 1 Page 6, Common Commencement Dates: Guidance for Co-ordinators and OYcials. 3247872078 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Consultation
10. How well observed is the code of practice on consultation? How can the results be best presented in Explanatory Memoranda? How do the Government coordinate consultations with shared stakeholders, so that they are not overburdened? What changes could be made to the consultation process so as to lead to better secondary legislation? In 2004, compliance with the 12 week consultation period was 76 per cent, if the Departments and agencies reporting for the first time in 2004 are taken into account (eg DFID, Planning Inspectorate and Rural Payments Agency). Compliance rates remained at 77 per cent for those Departments and agencies who reported in both 2003 and 2004. The Better Regulation Executive (BRE) supports a network of consultation co-ordinators to help support informal and formal consultation. A key role of the consultation co-ordinator network is to promote, where possible, “joined-up consultation”, in order to reduce overlap with consultations being carried out by other Departments and agencies. This means liaising eVectively with policy oYcials to make sure that they have investigated whether other Departments have, or are about to, consult on a similar topic. The guidance on consultation issued by the BRE is aimed at both Consultation Coordinators—who advise policy oYcials—and those making policy. It advises on who should be consulted and when. It explains how to analyse consultation responses and build consensus. It also notes the importance of identifying the most frequently expressed views for each question in the consultation document, with weight being aVorded to the responses that have a sound evidence base. The guidance suggests that particular attention may need to be given to key representative bodies, such as sizeable business associations and trade unions and that those coordinating responses should understand who the diVerent bodies represent and the methodology used to gain members’ input into the response. The guidance was recently revised to strengthen these messages. The Cabinet OYce annual report on consultation includes a section on “lessons learned” with the aim of driving up the standard of future consultations. BRE will continue to work with the consultation co- ordinators’ network to ensure consultation best practice is embedded in the policy-making process to improve the quality of upcoming legislation. The Government recognises the importance of setting out the results of any consultation exercise which has been undertaken prior to the production of an instrument, and it believes that the present arrangements for inclusion of this information within Explanatory Memoranda fulfils that requirement. The present arrangements are set out in the existing guidance to departments on preparing Explanatory Memoranda and which took account of previous comments by the Committee.
Users and Impact
11. What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone in Government (or in the sectors affected) monitor the collective impact of regulations on eg small businesses or local authorities? On the method of making secondary legislation users concerns include that in developing secondary legislation Government fully consult them on and take account of their views; consider the cost of any amending or new laws; allow them adequate time to implement the changes; issue eVective and targeted guidance on compliance. Users would also expect that Government would respond quickly to any identified problems with legislation which are causing them diYculties. As part of the Government’s commitment to better regulation, the Small Business Service in the Department for Trade and Industry has set up the Small Firms Consultation Database. This database provides a cross sector and an all region snap-shot of small and medium enterprises in the UK. Through this Whitehall policy oYcials can seek the views of small businesses at an early stage of policy making when undertaking the Small Firms Impact Test, which is an integral part of the Regulatory Impact Assessment process. The database has also been called upon to provide challenge panels, steering groups and participants at review workshops to look at issues for example, the Hampton Review. ODPM also works across government to enhance local flexibility in shaping regulations which will impact on local government. They are working across Government and with local authorities (as part of work with them local area agreements) to reduce bureaucratic burdens. The cost to local authorities of implementing regulations is set out in Regulatory Impact Assessments and the adequacy of funding is scrutinised as part of established arrangements for dealing with new burdens on local government. 3247872078 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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As an integral part of the better regulation agenda, Departments are currently pulling together simplification plans which will be published by the 2006 Pre-Budget Report. The plans will identify measures for simplification and to reduce administrative burden reductions. This is being informed by a measurement exercise that is determining the current administrative burdens Government places on the private and voluntary sector. The Government also recognises that it is worthwhile doing further research into regulatory budgets as they might provide a usefully comprehensive overview of all regulatory costs. Building on the work to measure administrative burdens, the Better Regulation Executive will therefore do more research into developing the fundamental elements of a methodology for assessing the total cumulative cost of regulation. This research will be conducted over the next two years and subsequent consideration will be given to the benefits and feasibility of establishing regulatory budgets. In addition, work taking place following the Hampton Review is seeking to make the enforcement of regulations more proportionate to risk, and encourage regulators to be more open and give more advice. These are areas where small businesses, in particular, stand to benefit.
Links to Better Regulation
12. The Government are committed to implementing in full the recommendations of the March 2005 report from the Better Regulation Task Force (BRTF), Less is More? What differences to secondary legislation should Parliament and users expect to see as a result and by when? By accepting all eight recommendations of Less is More, the Government has defined the better regulation agenda for the next two to three years. Progress is already underway to achieve structural, policy and cultural changes to secure a rebalancing between regulation and deregulation. For example, departments are currently pulling together simplification plans which will be published by the 2006 Pre-Budget Report. Simplification plans will identify legislation for simplification and administrative burden reduction. The Better Regulation Executive expects a considerable proportion of the proposals in the plans to be implemented within the lifetime of this Parliament. Departments will continue to work closely with stakeholders throughout the development of plans and their implementation so that stakeholders understand the timetable for delivery. 14 December 2005
Letter from Jim Murphy MP, Cabinet Office The Cabinet OYce does not have a co-ordinating role in the management of secondary legislation. Ministers in the Cabinet OYce are only responsible for secondary legislation laid by this Department before Parliament. Her Majesty’s Stationery OYce (HMSO) operating from within the OYce of Public Sector Information is part of the Cabinet OYce and is responsible for the Statutory Instrument Practice manual to which all departments should adhere. HMSO also has a number of statutory duties in relation to statutory instruments which include the registration and numbering of all statutory instruments and their subsequent printing and publication. The Better Regulation Executive (BRE) as part of the Cabinet OYce is responsible for driving forward the better regulation agenda across Whitehall. The BRE issues specific guidance to Departments on Regulatory Impact Assessments, the Consultation Code of Practice, and preparation of Transposition Notes. These help to inform Departments’ approach to secondary legislation. I am aware that in the course of its inquiry the Committee has already taken oral evidence from oYcials from HMSO and BRE. l am of course happy to discuss further any of the issues which arose from those sessions. I hope that this brief overview of the Cabinet OYce’s responsibilities in respect of secondary legislation is helpful. I would be happy to discuss with the Committee in the New Year the areas for which the Cabinet OYce has responsibility. 14 December 2005 3247872080 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Examination of Witness Witness: Mr Jim Murphy, a Member of the House of Commons, Minister for the Cabinet Office, examined.
Q355 Chairman: Thank you very much for coming common cause and a common purpose in respect of to join us. You may have had the chance to see some better regulation, and to my surprise for the two of our previous evidence and I would hope that you hours or so of giving evidence that was absolutely the will see, whilst the terms of reference of the case, and we have built quite a strong relationship Committee were not the same as the objectives of the since then. That was in December. So I am really keen Government on Better Regulation, (clearly they are to work in partnership, and the Cabinet OYce is very not), nevertheless the objective of the Committee is to keen to try and achieve this. Where we have try to ensure there is good secondary legislation made mentioned some of the specifics I hope we will get and that secondary legislation is hopefully only made there, but nevertheless work in partnership to see when it is necessary for it to be made and not where we can advance the cause of better regulation otherwise. So potentially the Committee may across government. In respect of the BRE’s role, the actually be a support to you in your role. This is Better Regulation Executive of course is absolutely probably the only time you will have heard this said crucial to the delivery of our really quite ambitious when you come before a Committee of either House. plans for better regulation, but the way in which they I wanted to make that as perhaps an opening are currently configured and the remit they are comment. Let me then focus on one area that we are currently given is largely about the regulatory impact in a sense scratching our heads on. It is clear that of proposals, regardless of how the legislation Statutory Instruments are the usual means by which delivers those proposals, whether it is through Government actually expresses its regulatory primary legislation, whether it is through SIs or endeavours. It is not the only means, but Statutory whatever. The fact is that the BRE was not created Instruments are enormously important in terms of nor configured nor resourced to monitor or regulate putting into practice regulations from government, the internal processes within government and the cumulative eVect of them, as we know, is departments as to how they construct or compile considerable and there is a wide debate about this. Statutory Instruments. They are of course engaged in You have seen from our remit that we look at these, analysing the outcome, the policy proposals which we look at the way in which they have been consulted come from substantial SI proposals, but they are not on, whether they are clear, whether the policy involved at that early stage in drafting and objectives are transparent, whether they are an structuring the SIs. That is largely because, as I say, eVective means of fulfilling their policy objectives, their job is about the impact of government proposals and we work away in our humble way in this as they aVect the regulatory framework for business, endeavour. What surprises us is that the BRE seems the public sector or the voluntary sector. If we were to to say that SIs are something separate from the Better change that role of the BRE, there would be resource Regulation agenda, whereas to us they seem to be a implications because of the scale of the job involved, very important part of it. We are surprised because but my initial sense—and of course I am happy to we would have expected there to be quite a degree of have a conversation with your Lordships about this, interest by the BRE in the whole process by which the and this is something we grapple with across the Government makes these mountains of Statutory Better Regulation agenda—is how do we deliver Instruments and that it would be keen to ensure they eVective change within government departments. Is it were better done. Could you help us with this exclusively from an external challenge function? or is conundrum? it from allowing departments to develop a structure Mr Murphy: First of all, can I thank you for the and culture which delivers the Better Regulation opportunity to come here today to give evidence. I agenda which fits with the organisation of their think I am right in saying I am the only Minister with department? It is our sense, at least for the moment, that privilege. that we need to change the culture within departments across government rather than give the Q356 Chairman: You are. You are the only Minister BRE if you like that challenge function at that early from the Cabinet OYce as well. stage. That is our assessment at the moment. Mr Murphy: Also to say that I do welcome the tone of your initial comments about working in Q357 Chairman: Thank you. As we were asking the partnership and seeking to advance the Better previous witness, we find it diYcult to understand Regulation agenda. The only point where there is how the centre of government, by which I mean the slight disagreement is that I had a similar experience Cabinet OYce and the BRE for these purposes, will in the Regulatory Reform Select Committee in the know. Its guidance is issued for a purpose, but at Commons, where entirely reasonably they started by present it does not appear to us they have particularly saying they were happy to work in partnership to a eVective ways of knowing whether its guidance is 3247872080 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Jim Murphy being observed or not, or very much accepted that guidance. That is really the challenge for us at the they would wish to do anything about it if it were not. moment. I am being slightly unfair perhaps but there is a flavour of very much a hands-oV approach; in other Q359 Lord Methuen: We had an early evidence words the tone is, “It is up to departments”. It is up Y to departments. We are not saying the centre should session with HMSO, which is within the O ce of be in charge of all SIs, that would be stupid. But I Public Service Information, and its function seems to think we are arguing that somewhere there has to be be very limited to providing guidance to departments a bit of a challenge function. What is being put to us on preparing and laying Statutory Instruments more is that we are that challenge function, which seems to than anything else. Do you not think there would be confuse the executive and the legislature. Clearly, we benefit in bringing the HMSO function within BRE are a challenge function but Government itself needs and giving it a regulatory dimension? My personal to have the mechanisms to know what is going on and opinion, and it is not necessarily that of the to encourage, if I can use a polite word, those who are Committee, is that it adds very little value to the a bit slow about getting the plot to do so. Could I ask process. you to reflect on that, either now or later? Mr Murphy: I referred in passing to this matter in Mr Murphy: My initial response is that I do not know earlier exchanges, but HMSO has this responsibility the specific evidence you have already heard this to publish this substantial document here—Statutory afternoon of course, but certainly it is our sense that Instrument Practice—and a decision could be taken from the Secretary of State down there needs to be within government of course that the BRE would clear leadership given as to the way in which have responsibility for this but, without reiterating departments really should meet the challenges of this the similar points mentioned earlier, there are clearly much more ambitious Better Regulation agenda financial and resource implications for the BRE, and which has been set from the Prime Minister and the it is also about the core role of the Better Regulation entire Cabinet. In the sense of the guidance we Executive. As I say, the BRE’s responsibility publish I will look at this again, but the Cabinet primarily is about analysing and challenging the OYce publishes over a hundred or so diVerent sets of regulatory eVect and impact of a policy proposal guidance—I think it is about 120 or so from 15 or 16 rather than oVering guidance internally in terms of diVerent managing units within the Cabinet oYce— the structuring, the page numbering, the layout, the and really perhaps I should provide additional headings, the structure of the text, which HMSO evidence to the Committee and additional currently fulfils. So it is something which should be information as to where that list is. We do not, if you done but it is a significant change in the BRE’s like, enforce that guidance in very many of those responsibility and it has a significant impact on cases if indeed at all, particularly when it comes to the resources. I look forward to the conclusions and structures and protocols within how departments recommendations the Committee produces but I am relate to the business community, the voluntary not sure what it would add in addition to what sector or indeed to Parliament. If you wish, I would HMSO already does. If your Lordships have willingly provide that list of all the diVerent concerns about the way in which this document is consultations and whether we do provide an external structured and are concerned that it does not reflect challenge function. the Better Regulation agenda, I would happily invite oYcials from the BRE and HMSO to discuss the way in which this document could be improved. As an Q358 Chairman: I am not sure we need to see all the initial response to the question, I would not be other guidance, but the question is essentially—how inclined to suggest the BRE should take does one ensure that change comes about unless there responsibility for the production of this document. I is some process of bringing, if only in the most will ask if that would be appropriate, if your focused way, those to account who are clearly not Lordships would think it would be helpful, I will doing what it is the Government’s wish they do? certainly ask the BRE oYcials to have a conversation Mr Murphy: The sense would be that we publish the with HMSO to see if there are ways in which this guidance, we then publish publicly the league tables document can better reflect the Better Regulation of the departments’ adherence to those various agenda. targets and guidance, and then it is for—and I am sure your Lordship almost predicted my response when you said it is for Parliament and Government Q360 Lord Methuen: On the same theme, we note collectively—Secretaries of State within their own the lead in providing guidance to departments on departments to challenge why it is as a department Common Commencement Dates lies with the DTI’s they have signed up to a set of guidance on which they Small Business Service. As this is essentially a are consulted but yet in terms of the league tables regulatory function, would it not make sense to bring have not fulfilled their responsibilities within that this within the BRE’s scope? 3247872080 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Jim Murphy
Mr Murphy: Again, this is not a matter where there providing a challenge function with his links to is a dogmatic response. It is simply that a very business. Without being party political, successive substantial number of Statutory Instruments, and governments have tried to address the Better such a substantial burden which is created by SIs, Regulation agenda with varying degrees of success. falls upon small businesses, that at the moment we We have appointed very senior people to important feel that would be the most appropriate place for it to posts and the expectation is that that leadership at a be. Again, to give the responsibility to the BRE senior level will impact on leadership within would stretch its current formal responsibility, but if departments and change the culture within your Lordships feel that is a substantial change which departments. The culture attaches as much kudos would improve the regulatory regime, I would and credit to the Better Regulation and Deregulation certainly welcome listening to the recommendations agenda as it currently does to the new regulation from it. At the moment, based on the fact the Small agenda. This is not on any script but in the time I have Business Service currently has that responsibility been in the Cabinet OYce, as I listen to business because of the impact on small businesses, that is people around the country and talk to Government where we feel it naturally fits at the moment. ministers, quite rightly, there is a lot of eVort put into implementing new regulations so that they are implemented eVectively and wisely. It is sometimes Q361 Lord Armstrong of Ilminster: You said that seen as a career advancement within the Civil Service you provide guidance to departments on good to be on a Bill team. As yet, we are not in a position regulation but that you have no authority to police whereby being responsible for lightening the the system and that you were looking to Parliament regulatory burden is in any way considered to be of to do that. Whether Parliament can adequately do equal validity or importance. That is a reflection of that is open to question. It would involve rejecting the culture within departments. If we have to change secondary legislation and very often statutory the culture, emblematic of that culture would be the legislation. Very often, it reaches us very late in the way, first of all, ministers and political parties say, day to do that. Unless we are going to get a better, Y “Vote for me. We have some very substantial ideas to more even flow, I think it will be very di cult. It remove regulatory burdens”; and secondly within the would be better, rather than wait for Parliament to machinery of government proper priority should be pick things up, if there was some way of doing it given to simplification proposals as well as new within the Government’s system. I wondered how far recommendations. We feel that is a culture change you call departments to account for their rather than a central policing of that change of performance in carrying out the guidance. Clearly, culture. The guidance is important. The publishing of they have to manage it day to day themselves. But is league tables is important. At the moment, we are not a more robust arrangement for coordinating what is V Y convinced as to the e ectiveness of a central policing done, policed by the Cabinet O ce, possible? delivering the improvements that we all wish to see. Mr Murphy: In terms of the extent to which departments are challenged collectively by the government, the Panel for Regulatory Q362 Lord Armstrong of Ilminster: Drawing on my Accountability chaired by the Prime Minister in my own experience from a long time ago, I would have experience provides a very robust challenge function felt that, if you could get Ministers and Permanent on policy proposals and regulatory proposals across Secretaries in each department actively on your side, government. In respect of the specifics of individual you would achieve a great deal in cultural change SIs, the management and policing, our sense is that quite quickly. I do not know what is being done now each department has such a myriad of responsibilities but if the Prime Minister were to put some emphasis which have evolved through time, mostly for good on that as one of the things he expected Ministers and reasons. They execute and are responsible for such a Permanent Secretaries to do, that might be one range of policies and regulations that to have eVective means to a quite quick cultural change. policing of this from the centre would be remarkable Mr Murphy: In my experience, there is nothing to in terms of resources, people and time. We await the focus the mind so much as the Prime Minister outcome and recommendations from the Committee chairing a committee in which Secretaries of State to identify how this could happen but, as yet, without have to present new policy proposals and where the any convincing evidence that it would have the Prime Minister is challenging the impact on the impact that we all wish to see—that the departments regulatory agenda. That is one lever. We have to find adhere to the guidance and the Government additional ways in which we can change cultures regulation agenda is delivered across government— within departments. It is about engaging Permanent our preference is setting an example from a very Secretaries, as you rightly say. Some of that is already senior level with the Prime Minister chairing the happening. William Sargent is doing that work as Panel for Regulatory Accountability and William well and he has to report directly to the Prime Sargent—who I think you have had evidence from— Minister. I think the Prime Minister announced that 3247872080 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Jim Murphy at the CBI conference. If your Lordship’s Committee Mr Murphy: I have not yet found it a healthy career has additional suggestions—I do not know if it is prospect to speculate on what is in the Prime within the remit of the inquiry you are undertaking— Minister’s mind, particularly when every day he about ways in which we can change the culture and suggests there should be a ministerial reshuZe. The the management of SIs, the Cabinet OYce would be Prime Minister has set the tone for this and given delighted to hear how we can do that. substantially of his own time and energy in establishing this new framework within government. Q363 Lord TunnicliVe: You said culture change is a It does provide the most senior challenge function good idea. We all agree. You said you are not in the possible. I know from talking to fellow ministers that policing business which is quite an eVective way of it is not an experience that other ministers look bringing about culture change. Do you have any forward to if their department has not made a really specific proposals or programmes to bring about serious eVort to meet the challenges set by the BRE culture change, because my experience of culture and others. The BRE, in advance of the Prime changes is that they require an enormous amount of Minister chairing these meetings and challenging the eVort and thinking through. It is not just the odd top Better Regulation Executive and others, analyses the manager—if I can call the Prime Minister the odd top proposals, and finalising the proposals is a really manager—making a speech; it is about processes and substantial piece of work. Departments have to programmes that go right the way through. Do you engage in that agenda to the Prime Minister’s have anything of that magnitude in mind? satisfaction. When they do not, it would be Mr Murphy: One of the substantial vehicles for inappropriate to comment on specifics, but I can delivering this change of culture is the Legislative and assure your Lordships that there is a robust dialogue Regulatory Reform Bill, which is currently expecting and the Prime Minister leaves Ministers under no a Second Reading on 9 February. One of the illusions as to the importance that he, the Chancellor diYculties is that simplification proposals or Law and the rest of the Cabinet attach to this agenda. Commission reports quite often are worthy in intent but gather dust on shelves because we are not able to find parliamentary slots for them. It has been diYcult Q365 Lord Jopling: Twice already since this to engender parity of esteem to the new regulation Committee was set up fairly recently, we have drawn and the Better Regulation culture when time is taken attention to the problem which comes to Parliament Y up largely with new regulation. The Legislative and when instruments come in a rush. It is very di cult Regulatory Reform Bill is about providing a for everybody. Years ago, I was one of the framework whereby the simplification proposals on Government business managers and it was an the Better Regulation agenda can be delivered. As we absolute curse when, with a poor Statutory begin to see that, of course with the willingness of Instrument, some measures had to be taken on the both Houses, if that Bill becomes law, the expectation floor to organise business at certain times of the year. is that that will be the vehicle to deliver a substantial I wonder if I can tempt you to metaphorically jump amount of Better Regulation simplification over the table and join us as parliamentarians rather proposals. As that happens, that would be an than as a Spokesman for the Executive. The situation important driver in the change of culture. At the is still unsatisfactory and I am afraid your written moment, there may be a sense in some departments evidence does not give us too much confidence that that we are willing to engage in the Better Regulation things can be made better. I wonder whether you agenda and suggest simplification proposals but, to think that, if we set our minds to it, we could make be blunt, they do not expect to find a parliamentary things better with regard to this uneven flood, slot. If we create an alternative, fast—track means by possibly by a self-regulating limit on the overall which these simplification proposals can be delivered, number of Statutory Instruments which Whitehall that would be an eVective way to change the culture could submit in any one week. That does not mean a so that there is a purpose to it. Teams within legislative slot. It could be done with an informal departments will become responsible for driving that agreement. Do you not think that would encourage culture change because the departments themselves more active management and more central know there is an outcome to their eVorts. We expect coordination, which is something this Committee that to be an important change, building upon the would very much like to see? What do you think we 2001 Act but going substantially further. could do to stop these uneven flows being inconvenient to everybody? Q364 Baroness Morgan of Drefelin: Relating back to Mr Murphy: As I understand it, the most significant the comments about the Prime Minister chairing the peak is in advance of general elections being called, committee, I wonder what kind of awareness the parliamentary recesses and financial year ends. Some Prime Minister might have of the volume of of that is inevitable and unavoidable and, in respect secondary legislation that currently exists. of financial year ends, desirable. 3247872080 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Jim Murphy
Q366 Chairman: Most of the election part is benefit of seeing the grain of what individual predictable. It does not mean to say that, because you departments were saying in response to the have to get things done by a due date, it all has to be Committee’s inquiries. We would not wish to done at the last minute. contradict what we have originally said, but we Mr Murphy: Absolutely. Some are inevitable because would find it very helpful indeed if you could allow us of the calendar cycle and the political cycle in terms sight of what the individual departments have given of elections. Otherwise, there is no reason across because the process is informed, often in very helpful government why there are these intermittent peaks ways, by hearing what departments have to say about and troughs. We would encourage departments to this agenda. There has been one department, which behave in such a way that, outside the good reasons will be nameless, which we thought was very which we have already rehearsed, avoids these peaks impressive in the way it went about this whole and troughs. agenda. It has been very valuable to have that on the record. It would help us to get the flavour of these Q367 Chairman: We can bring it to your attention other three, if that would be possible. when we feel that they do not and you will try to Mr Murphy: As I understand it, it was the redress it for us? Department for Constitutional AVairs, Transport Mr Murphy: We will encourage them to adhere to the and Work and Pensions. I will happily provide that guidance. If your Lordships have a specific in mind as correspondence to the Committee. to which department, which time of year, we would Viscount Eccles: You were talking about welcome what is said in any report that you submit stakeholders. Looked at it from our perspective, for the Government’s consideration and response. As when we get explanatory memoranda, it is quite an yet, we do not have a central challenge function. For interesting challenge to work out what consultation example, the 21 day rule. Sometimes departments has taken place and what weight to give to diVerent need guidance as to the maximum that they should types of consultation. We tend to get a percentage do, rather than the 21 days which is the minimum. It saying they are wholly in support and another comes back to this idea about a Better Regulation percentage saying they have some concerns. How do culture within government departments. you see the whole business of consultation moving on and, in particular, what about the citizen, the voter, Q368 Lord Jopling: You said that there was not, as because it seems to us that consultation with bodies yet, central control over the management of is something which is a more comfortable and Statutory Instruments. Can I take it from those two recognisable thing than trying to find out what words that you feel, in conjunction with this individual citizens think. Committee, it might be a rather good thing if there was? Q370 Chairman: Shall we leave that last part to Mr Murphy: What I should have said was “at the Baroness Maddock? Do you want to focus on the moment” rather than “as yet”. What you can take first bit as to how you hope the consultation will from my comment would be that the Government improve? would prefer the peaks and troughs not to be Mr Murphy: There is guidance on the 12-week attributed to the financial year end, summer recesses consultation. The phrase used in the code of practice and general elections. Those are natural, but we is “bringing the consultation to the attention of all would like to see departments operate in such a way interested parties.” It is always diYcult to identify that they enable this Committee and others, who may be interested but departments, including stakeholders and others, to have ample opportunity the Cabinet OYce when on occasion we have to comment on their proposals. There are often good legislative proposals, do a scoping exercise as to reasons why proposals have to be brought forward which organisations, individuals and stakeholders relatively quickly but, under normal circumstances, would be likely to have a substantial interest in the we would like to see a system whereby these peaks matter of dealing with a policy proposal. Do they and troughs are the exception rather than the norm. always get it right? I have a sense that they do in most cases. A pattern of disquiet about who has been Q369 Chairman: When we initiated the inquiry, we consulted, the breadth of consultation and the nature asked three departments to give oral evidence. We of it has not been brought to my attention. It is the invited three others to give written evidence. We also nature of all consultations that those organisations signalled in our original invitation that we were very or individuals whose opinions have been reflected in happy if that was pulled into one consolidated piece changes or adjustments to government policy are of evidence, which is exactly what the Cabinet OYce always happier with the consultation than those did. What we found from the evidence was that it was whose opinions are not. I am not aware of a common essentially retelling the Cabinet OYce’s perspective complaint being raised about government of what this was all about and did not give us the departments, individually or collectively, failing to 3247872080 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Jim Murphy consult and making a very reasonable attempt to understand that at the moment departments are consult with what are described as “interested expected to publish their consultation on their own parties”. websites on the day on which the consultation starts. That is an important step forward. The issue then is Q371 Chairman: One in four departments do not how do you drive internet traYc through those abide by the 12 week period. That seemed to us to be websites in such a way that there is a substantial very high. Would you agree? citizen interaction with the consultation. There have Mr Murphy: I do not want to comment about each been some good examples. In the Health White Paper and every one of them but they should all adhere to there was a substantial attempt to engage citizens and the 12 week rule on consultation except in potential future patients on the content of it. That exceptional circumstances. was a significant step forward. There was criticism from some of the media that this was unnecessary, a waste of money and ineVective. Nevertheless, the Q372 Chairman: One in four is not exceptional? Government has to continually find ways in which we Mr Murphy: I welcome the analysis of your can empower individuals in public service reform, for Lordship’s Committee as to what the one in four is. I example, at a time when we are looking to could undertake to do research as to what proportion increasingly personalise the delivery of public of that is exceptional and what proportion is just services. It is important that we allow individuals the because of human error. That is not acceptable. opportunity to feed into that process. My role is as an There is an expectation that stakeholders and others e-Government Minister, but I know that is not why should be consulted over a 12 week period. The we are here. Cabinet OYce did so in a Bill on Better Regulation but there are some instances which we all interpret as exceptional—emergency measures, issues relating to Q374 Chairman: Do not take us there. immigration, disease control and others—where 12 Mr Murphy: I will not. There are some very good weeks would not be appropriate. The response would experiences coming from Canada about citizen be, “Why are we waiting 12 weeks to do this?” The engagement and public service restructuring and normal circumstance would be that 12 weeks is the reform from the Canadian customer insight panels. minimum. If your Lordships wish to oVer an analysis We are committed to replicating a UK version of that of departments which do not adhere for reasons so that there is direct input from the citizen, not only other than exceptional reasons, I am happy to on consultation but on the restructuring of our public respond. services. There is an enormous opportunity aVorded to us with the use of technology but of course there Q373 Baroness Maddock: We know that originally are some who do not use technology. We have to find the emphasis was on consulting businesses and other additional ways to reach those harder–to-reach Y organisations about better regulation. It has been groups. The Home O ce did something quite extended to major charities and other voluntary challenging in respect of the consultation on bodies. There are quite a lot of things that aVect prostitution. That was criticised in the media but ordinary people, rather than people who are signed nevertheless it was a genuine attempt to have a up to any special interest group. Sitting here, thinking meaningful dialogue with a harder-to-reach group about one or two of them, one that comes to mind is whose voices are rarely heard within Government one that came before this Committee where we, as circles. individual citizens, suddenly discovered that our responsibility for getting rid of our waste was quite Q375 Chairman: I should correct the record. I said diVerent from what we thought. We had no ‘one in four departments’ failed to meet the 12 weeks. information about this. That is just one of them. It is ‘one in four consultations’. Could I put before There is a rather bigger one where there has been a lot you what we have heard from David Arculus and the of discussion amongst interest groups, something DTI? They talked to us about consultation on SIs. that came out of the last Housing Bill, which is home They were saying that if you consult on the SI itself, information packs and how they are going to happen. it is too late. You have to consult much before that, It is not the individual people who are going to be eVectively with expert groups of people who will be aVected by it who have been asked; it tends to be aVected by this. If you have a discussion with them interest groups. I wonder if you have any ideas about about the policy objective, they will often identify how we can do better on consulting individual people better means to get towards the policy objective, about these matters rather than special interest which may not require an SI or, if it did require an SI, groups. might lead to a better SI. We are very interested in Mr Murphy: One of the great opportunities that we this and we are reflective as to whether one way have is the development of technology, the ability of would be if government departments put in their the internet, e-mail, even text messaging. I explanatory memoranda what they had done to 3247872080 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Jim Murphy consult in this way before they did the consultation Q378 Viscount Colville of Culross: We would on the detail of the SI, which of course you need as welcome it enormously. Is there any take-up of the well. Do you have a view? recommendation of Less is More that you are able to Mr Murphy: In terms of substantial primary tell us about, because we keep on being told by the legislation proposals, there is recent experience departments that we see that they do not have the whereby stakeholder engagement consultation resources. It does not need much in the way of discussion and disagreement has strengthened the resources. content of proposals. For example, only last week the Mr Murphy: The substantial area of progress to government published— report is that, in line with our public commitments, every government department will have to come before the Cabinet Sub-Committee with their Q376 Chairman: We are on the same side about that; substantial simplification plans. The DTI, DEFRA it is really whether you agree with us that this might and the HSE have come forward already. Those are be one way of encouraging people towards voting. publicly available documents. Those are developed in Mr Murphy: Yes. It is an approach that should be consultation with stakeholders, as you would expect, commended. but also with the BRE providing a challenge function, trying to quantify the administrative impact and the fiscal impact of the simplification Q377 Viscount Colville of Culross: “Consolidation” plans, so that they do what they say on the tin. If I am is not a popular word in parliamentary circles. It does wrong in saying this I will provide clarification, but I not have the option of a slot. In terms of Statutory understand that by November of this year every Instruments, it does not require slots at all. You department will have to have been through that remember that the Less is More report accepted that process. there should be a rolling programme and, on the other hand, we have been told by some departments Q379 Earl of Northesk: You referred earlier to the that they do not have the resources to do it. I do not 21-day rule. We have noted so far this session that understand this because you will have the same something like one in 10 Statutory Instruments fails parliamentary experience as the rest of us. When you to comply with this. Even allowing for exceptional get a Bill or a Statutory Instrument, it is always occasions when breaching the 21-day rule may be drafted nowadays by terms of cross reference because appropriate, we feel, I suspect, that that number is that is the way the Westminster system works. The too many. Do you have any views about how to Statutory Instruments very much fall into that improve this level of performance? Viewed more category. Somebody somewhere must have set out widely, do you feel that there is a case for extending the text of what it used to be and what it will be when the 21-day laying period, not only to allow more we have made the amendments we are proposing to eVective parliamentary scrutiny but also to align the put in, so that you can see whether it hangs together. laying period with the 40-day praying period? Would That is all consolidation consists of and I imagine, in that not be quite sensible? the light of what you said about the IT revolution, Mr Murphy: The 21-day rule is the minimum. Some this is done by somebody in the department every departments on occasion see it as the actual day on time one of these Statutory Instruments is produced. which it has to be done. If they miss it by a day, they Yet, it comes out as a collection of changing what was miss it by a day. Most departments however do take in paragraph one or three or something in whatever it very seriously. There is senior leadership provided regulation, and it is incomprehensible. I am not to make sure they hit the 21-day minimum target. I suggesting it should happen every single time but fear it comes back to this point about embedding the surely it is a highly desirable system that we should culture of better regulation across government. I am start to get on the move, to try and publish the not in any way seeking to make a party political consolidated text so that people can understand and point. Each government has its own approach to see what they are meant to be doing—and, delivering its agendas with varying degrees of success incidentally, so that the people who are producing it but there is a substantial, multi-faceted drive on see that they have not made a lot of mistakes. Is that trying to embed this Better Regulation agenda into not a sensible idea? the culture of Whitehall and into the culture of local Mr Murphy: It does not sound an unreasonable government. suggestion. I am not party to the detail of your analysis in respect of the experience of Q380 Chairman: Could we, almost teasing you, incomprehension and lack of detail but I accept the suggest that some of this is just straightforward better general point that the use of technology reinforces management? It just requires this issue to be treated that opportunity to compare the drafts and so on. I seriously up the departments’ hierarchy and for them think it would be sensible. to believe that they do not want to breach these rules. 3247872080 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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I am advised that there have been 110 breaches of the not suggesting the UK goes from 12 to eight, but there 21-day rule in 2005. 79 of those were less than 10 days. may be an argument for extending the eight. We are There will be some exceptionally urgent reasons but it trying to encourage business organisations and others seems to us that those departments that own this at in the UK, when they have anxieties about an EU senior level will not behave in this way. proposal, to go through their trade organisations, Mr Murphy: I have a list of some of the 21-day their EU-wide bodies, so that their voice is heard with breaches in 2005. the Commission. Quite often, stakeholders and businesses come to the UK government. Of course we Q381 Chairman: You do not need to give us those. will take up that agenda on their behalf, where we can, Mr Murphy: There are exceptions and there are good but it is also trying to get departments to direct reasons. I am not aware of the Joint Committee on stakeholders and those who have concerns to go Statutory Instruments raising this as a matter of straight to their parent or trade organisations. concern. If this Committee wishes to make that recommendation, we are ready to respond. Q383 Lord Jopling: One thing that this Committee Earl of Northesk: This gets to the heart of peaks and has been told about is the existence of gold plating. troughs in some respects, and indeed the issue of I wonder if you share our concerns and whether parliamentary scrutiny. If we are going to end up with you think there is anything we could do to better regulation, it is quite important that the process avoid departments unnecessarily gold-plating EU of scrutiny—ie, the 21-day rule—is adhered to. directives. Mr Murphy: One of the significant things that has Q382 Chairman: Turning to the EU, I am told—I happened is that the BRE rightly is now challenging cannot recollect my source—that approximately 69 departments where the BRE assesses that there is even per cent of all Statutory Instruments originate in law an element of gold plating of directives. I have made in Europe. One of the issues that has exercised experience in Cabinet sub-committees where that has us is that, by the time an SI is made as a result of a been very eVective. As we move much more towards directive or regulation, there is very little indeed that the risk-based approach to better regulation, where a Parliament can do about it. We have previously department seeks to go further than the minimum and written to our own EU scrutiny committee drawing gold-plate, it has to be for exceptional reasons and it attention to this fact, saying it seemed to us to make it has to be accompanied by a rigorous impact that much more important that departments assessment that identifies the perceived benefits but consulted with those aVected in the UK about a also the administrative and fiscal burdens that it places potential directive or regulation before it was agreed. upon the business, voluntary or public sector. We are That is not normally what happens. I speak as a culprit making renewed eVorts on this. There could be some in that respect. One is so busy trying to get the thing debate as to the extent to which gold-plating already through or agreed. We recently saw an example where exists in the UK. That is sometimes a party political it had been done. I cannot remember which debate, but nevertheless we are taking it very seriously department but it was on the EU procurement rules. across the EU and within government. We were pleased to see this at our last meeting because it was where the department consulted those aVected by this very substantial directive or regulation before Q384 Lord Jopling: I wonder if we could see whatever Ministers signed up to it. Thatledtobetterlaw— guidance there is to departments on this issue. It might making, we believe. Should this not be, if only also be helpful if we could have what the Government selectively, much more common practice? perception is of a definition of gold-plating. For Mr Murphy: It should be more common practice on example, last week we had a debate on the floor here issues of substance and significance. At the heart of about artists’ resale rights, where there was a our EU presidency, we set a Better Regulation agenda. Commission directive which the Government fought There was some progress made. Importantly, that has like cats against. The European directive said that now been taken up as part of the sixth presidency these payments became due on sales of works of art to initiative. The Commission, who in the past quite the value of 3,000 euros. The Government decided to rightly have been criticised, seem substantially more reduce it to 1,000 euros, having opposed the whole comfortable and proactive on this agenda than they concept. When, on the floor, virtually everybody who have been in the past. You are right in your spoke accused the government of gold-plating, the observation that this should be more commonplace. Minister got up and said, “It is not gold-plating at all.” One of the issues is that, as I understand it, the period The same thing happened today on the floor. There of consultation is eight weeks rather than 12 in the UK was an accusation of gold-plating and the Minister guidance. That could be extended because it seems said, “No, it is not.” It would be helpful to know what unusual that there is an eight week time slot for EU the directive to departments is and also what the consultation and it is 12 weeks here in the UK. I am government’s definition of gold plating is. 3247872080 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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31 January 2006 Mr Jim Murphy
Mr Murphy: I will follow up that question with as Lord Armstrong of Ilminster: What you are doing is much detail as possible. I have a whole page on artists’ making the law, so that there could be quite serious resale rights but I think it would be inappropriate to importance given to more trivial pieces of legislation. swap facts and figures on it. Q387 Baroness Morgan of Drefelin: I was thinking Q385 Lord TunnicliVe: We get 1,000-plus Statutory about the work of this Committee. I am relatively new Instruments a year. The only things that make them to this Committee and I have found the level of do-able are the explanatory memoranda. They are, in experience and expertise that sits round this table quite my view, improving but their quality is extraordinarily breathtaking. The Committee are very committed to variable from absolutely superb documents to others the Better Regulation agenda and it would be very where you have to ask question after question to get to helpful for us to know if there is anything that you the bottom of them. One department told us that they think would be helpful for this Committee to were using a second or third pair of eyes to scrutinise. contribute. Is there anything else that you would like Is this a practice you endorse and, probably more to see going into this inquiry or any final thoughts that importantly, is it a practice you should promote? would be useful for us to understand and include in Mr Murphy: Part of the role of the Cabinet OYce is to our deliberations? Mr Murphy: provide central guidance and then share best practice. I agree with you in terms of the make-up Once we have a chance to read the evidence, provided of the Committee. I was given over the weekend the CVs of everyone on the Committee. There is a natural there are examples of best practice coming forward, Y we have no hesitation in sharing that best practice with synergy about where the Cabinet O ce wishes to get to. We may have disagreement about how we get there other government departments. The brief answer but, in terms of the Better Regulation agenda across is—yes. government, much of Parliament’s time is dedicated to generating new regulation. Within the parliamentary Q386 Lord Methuen: We are talking about errors in structure there are very few committees whose Statutory Instruments. About one in 20 errors are purpose it is to further the Better Regulation agenda. correcting errors in earlier Statutory Instruments. You I am happy as Cabinet OYce Minister to find common suggest in your written evidence that you do not cause with each and every one of those committees if regard this as a serious problem but it results in wasted we can advance the pace of the Better Regulation departmental and parliamentary time. Also, you have agenda and embed the culture of better regulation to print these things and they are issued free of charge. within government. I fully expect this Committee to Would you comment? make some challenging recommendations. I would Mr Murphy: The figures that I have are that 95 per hope that the Committee would acknowledge that the cent are error free. We have to ensure that the drafting, Government might not agree with all the specific structuring, layout, legal advice and everything recommendations but I would like to see that as an else that goes into the technical creation of an SI is area of disagreement about tactics rather than aim. going have senior importance within individual Beyond your report, I would be interested to see if departments. I do not wish to comment as to which there are ways in which we can deliver on the departments that may not happen in. Generally, it is simplification plans in an eVective way. We have said our view in the Cabinet OYce that talented and very publicly that the business, voluntary and public capable of people appropriately managed should be sectors have heard some of this rhetoric before from involved in the drafting of these SIs. In at least 95 per this Government and previous Governments. By the cent of cases that is true. There will be occasional end of this year, those with an interest in the delivery human error. We all accept that. Government of Better Regulation, if they have not looked beyond departments have responded to comments made by the rhetoric in a meaningful, tangible way, into this Committee and others about drafting errors. We delivery, there would be a high degree of cynicism and have to find ways of minimising the 5 per cent of we are going to be judged on what we deliver rather errors, but we all know they are often very technical. than on what we say we are going to deliver. If there If there are individual departments where the error are areas where we can work together, beyond this level is larger, then it is a human resource issue and it inquiry, I would be very happy and enthusiastic to comes back to the culture issue within that do so. department. I am not aware of the Joint Committee in Chairman: Can we thank you very much indeed for this House saying that the current error level is your evidence. We have taken a lot of your time. We unacceptable but we have to continue to find ways of look forward to writing our report and we look improving the error free level from 95 per cent much forwardtoseeinganoptimisticleadandapositive closer to the 100 per cent. Government response. 3247872081 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Supplementary letter from Jim Murphy MP, Cabinet Office
At the beginning of the session you queried the level of interest by the Better Regulation Executive in the process by which the Government makes Statutory Instruments and in ensuring that this was improved upon.
The better regulation agenda aims to reduce bureaucracy for business and for front-line staV in the public sector—to improve productivity and competitiveness, and to deliver better public services. The better regulation agenda’s focus is on achieving these outcomes rather than ensuring strict compliance with process. The Better Regulation Executive is responsible for taking forward reforms that will reduce regulatory burdens and simplify inspection regimes. Within this agenda Statutory Instruments are dealt with in exactly the same way as any other regulation.
Departments have responsibility for assessing the impact of all regulation and looking for ways to reduce burdens. In addition the centre scrutinises regulation (including SIs) with major impact on business, charities, the public and voluntary sectors. Departmental simplification plans are also scrutinised by the centre and through the Cabinet Committee. Proposals for reducing burdens placed by all regulation, including SIs, will be set out in these plans. Departments will have published simplification plans by November, by the Pre- Budget Report.
During the session I undertook to provide the Committee with copies of the contributions to the Government’s Evidence from the Department for Constitutional AVairs, Departments of Transport and the Department for Work and Pensions. Copies of these are enclosed.
During the session the noble Lord Jopling questioned me on the issue of gold-plating, asked for a definition of gold-plating and requested copies of guidance to Departments on this issue. Copies of these are enclosed.
The practical definition of gold-plating used by the Government is when implementation goes beyond the minimum necessary to comply with a Directive by, for example, extending the scope of the Directive, not taking full advantage of any derogations or providing sanctions which go beyond the minimum needed. A full definition can be found on page 17 of the Transposition Guide. This provides guidance for Ministers and departmental oYcials on how to implement directives eVectively and stresses the importance of avoiding gold-plating.
There is no evidence of widespread gold-plating in the UK. It is Government policy not to go beyond the minimum requirements of European directives, unless there are exceptional circumstances, justified by a cost- benefit analysis and extensive stakeholder consultation. Instances of gold-plating must be explained in the Regulatory Impact Assessment and cleared by the Panel of Regulatory Accountability.
However, given concerns about the possibility of gold-plating, the Government has asked Neil Davidson QC, the former Solicitor General for Scotland, to work with the BRE and departments to identify areas where over-implementation of EU-sourced legislation may have taken place. The Review Team is now in place in the BRE. It will selectively review areas of UK legislation where EU-sourced rules are most prevalent to help identify specific proposals for simplification (where appropriate), as well as drawing out wider lessons for best- practice implementation. The report is expected by the end of the year.
I also undertook to provide some further details on the specific issue of Artist’s Resale Rights. The Government’s view is that the implementing Regulations do not go beyond the Directive. The Government has exercised options within the Directive to ensure that the implementation is the most appropriate for the UK, balancing the needs of the artists whilst protecting the art market. In particular, by setting the threshold at ƒ1,000 we have ensured that as many living UK artists as possible can benefit from resale right with minimal cost to the art market. Setting the threshold at ƒ3,000 (the highest permitted threshold under the Directive) would primarily have excluded British artists, as the majority of the works sold in the lower price bracket are by British artists. Many of these artists are among the poorest artists most in need of financial assistance. 6 March 2006 3247872082 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Annex A
Department for Constitutional Affairs Response to call for evidence from the Select Committee on the Merits of Statutory Instruments—Inquiry into the management of secondary legislation The Committee invited the Department to submit written evidence to its inquiry on the management of secondary legislation. The call for evidence consisted of a set of questions covering all aspects of the management of secondary legislation. The Committee indicated to the Department that it need only respond to the questions that it wished to. This response does that. All figures quoted in this response are based on Departmental records. The Cabinet OYce is co-ordinating a Government memorandum to the Committee and this response will be submitted to the Cabinet OYce as part of that exercise.
1. Co-ordination 1.1 Due to the width of the Department’s responsibilities, there is no single authority within the Department with overall responsibility for the co-ordination of prospective Statutory Instruments (SIs) across the Department. There is also “no one size fits all” approach to co-ordination within business areas within the Department. Not all SI drafting projects are formally “project managed”, it will depend on the size, complexity and timescale of each instrument. But in all cases there will be close co-ordination between policy oYcials, drafting lawyers and Parliamentary Branch to agree timetabling for all stages (policy instructions, initial drafting, policy scrutiny, drafting revisions, policy clearance (including any rule committee stages, or consultation requirements), Ministerial clearance and Parliamentary stages). 1.2 Larger volume drafting projects—such as the production of the Civil Procedure Rules or the legal aid regulations—are managed in accordance with a draft programme, looking between 6 to 12 months ahead, and agreed between policy oYcials, drafting lawyers and other stakeholders. Occasionally emerging priorities will mean that an SI needs to be drafted urgently to meet a particular need, but the planning process is meant to prevent any planned legislative requirement from being overlooked, as far as is possible. Where the SIs are required to implement Departmental primary legislation, an implementation plan is drawn up, which will take into account all the drafting stages. 1.3 The co-ordination of the Parliamentary process, laying before Parliament and ensuring the SI is circulated and published, is the responsibility of Parliamentary Branch. All liaison with the Parliamentary authorities is done by Parliamentary Branch.
2. Drafting—Policy 2.1 The decision to group SIs is taken by Ministers on the advice of oYcials who in turn will have sought the advice of Legal Group and Parliamentary Branch. If the SIs are subject to the aYrmative procedure, business managers in both Houses are consulted. The Department applied this approach to a block of electoral SIs in 2004 that were subject to the aYrmative procedure (see SIs 2004/222, 2004/225, 2004/226, 2004/293 and 2004/ 294). The aim of such an approach is to aid debate in Parliament and make for more eYcient parliamentary handling, but also to assist stakeholders (in the above case electoral administrators) by all relevant SIs being approved and commenced together. The Department allows as much time as possible in between making and the coming into force of an SI and publicises the instrument and the commencement date widely, including to known users and stakeholders. 2.2 The Department encourages its policymakers to make full use of the Regulatory Impact Assessment (RIA) process when new policies are in development. The RIA process provides a useful tool for policymakers to measure the potential impact of new policies, including those that may be implemented through secondary legislation. It encourages consideration of the most appropriate method of implementing the proposed policy change and encourages policymakers to consider potential burdens associated with the policy change.
4. Drafting—who 4.1 OYcials across the Department initiate SIs according to business needs. They instruct departmental lawyers who in turn draft the instrument. Departmental lawyers are qualified barristers or solicitors, employed by the Department, and members of the Government Legal Service (GLS). Drafting lawyers are trained in SI drafting techniques (by undertaking a specific course in SI drafting oVered by the National School for 3247872082 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Government) and by mentoring and tutoring “on the job”. Further specialist training is also available for implementing community legislation. GLS wide guidance is also available on the shared “Legal Information Online” intranet. In addition, GLS lawyers are experienced in their day to day practice, in interpreting legislation and in advising on, for example, vires issues. 4.2 Instruments are submitted to Ministers for approval to lay in draft, in the case of an aYrmative instrument, or signature, in the case of a negative one. Parliamentary Branch co-ordinates the process from this point ensuring that the SI is presented to Parliament. All SIs that are drafted and presented to Parliament by the Department aim to comply with the guidelines set out in Statutory Instrument Practice, and the supporting Statutory Instrument Circulars (issued by the OYce of Public Sector Information), and the Standing Orders of both Houses.
5. Correction
5.1 The Department is anxious to avoid the need for corrections, but should stress that when an error is identified, its primary aim is to correct that error as soon as possible. There is no formal process for investigating why corrections are needed but the Department recognises that it is vital that where errors occur lessons are learnt so as to avoid any recurrence. To that end, Parliamentary Branch regularly conducts seminars explaining the SI procedure and has made guidance available to oYcials. Similar experience sharing takes place within the Department’s Legal Group.
7. Timetabling—peaks and troughs in laying
7.1 The Department makes every eVort to avoid peaks in laying. We recognise the demands that large volumes of SIs can place on the Committee, however business needs may require periods of high activity, for example the need to change fees during February and March in the lead up to 1 April, the start of the financial year.
8. Commencement—common dates
8.1 The Department makes few new instruments that bear on business, particularly when compared to other Government Departments. Consequently the Department has not encountered any significant problems with bulk laying of regulations in the run up to each common commencement date. 8.2 Appropriate use is made of common commencement dates for the limited number of regulations that do bear on business. For example, the Civil Procedure Rules SIs are made, except in exceptional circumstances, according to a timetable so that new legislation is brought into force, each year, on one of two common commencement dates (6 April and 1 October).
9. Commencement—21 day rule
9.1 The Department takes this rule very seriously and only breaks it if there is a pressing need to bring an instrument into force quickly or if the in-force date of a delayed SI is immovable. If it is necessary to break the rule the permission of the Minister with policy responsibility has to be obtained and a memorandum explaining the decision presented to the Joint Committee on Statutory Instruments (JCSI). During session 2004/05 the Department processed 78 negative instruments with an average laying time of 24 days. 14 of these instruments (16%) broke the 21-day rule. Of these, five SIs were corrective instruments identified by the (JCSI) and two were required as a consequence of emergency situations (the tsunami and anti-terror legislation). Only seven instruments broke the rule due to policy or consultative delays. Every eVort is made within DCA to reduce this number. 3247872083 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Annex B
Department for Transport
Response to call for evidence from the Select Committee on the Merits of Statutory Instruments—Inquiry into the management of secondary legislation
Coordination
How is secondary legislation managed across and within Government departments? Who has overall responsibility within each department? Who has coordinating responsibility across Government? 1. Within the Department for Transport (DfT), the preparation of secondary legislation is an integral part of the policy process. Following approval from Ministers, policy divisions, in collaboration with lawyers, take forward both primary legislation and secondary legislation as appropriate. As set out below, DfT seeks to work in line with the best legal and regulatory practice, taking account of the needs of stakeholders as far as possible. DfT does not believe that a central point to manage this legislative process would be helpful.
Drafting-policy
How do departments take decisions on the revision, laying and commencement of linked groups of statutory instruments? How is the scope of any individual instrument within a group decided? How is the user’s convenience taken into account? Is the existing regulatory impact assessment process an effective way to ensure that secondary legislation is made in the least burdensome way? 2. Where a number of linked statutory instruments fall to be prepared, DfT tries to take these forward as a group. How this is done, and the degree of co-ordination, will depend upon the circumstances. Two or more instruments may be inextricably linked and require to be made and come into force at exactly the same time. On the other hand it may be that some instruments, whilst related, do not need to be made at the same time (in particular substantial instruments involving the deployment of scarce drafting resources). 3. It is often necessary to implement linked proposals in separate instruments because they are each made in exercise of diVerent powers or amend instruments belonging to diVerent “families” of S.I.s. Where a number of inter-related instruments are made together the Department seeks to produce a single Explanatory Memorandum covering them all. The Department’s aim is that users’ convenience should be a key consideration. 4. On the question about the value of the Regulatory Impact Assessment process, RIAs are an eVective policy- making tool which allow the impacts of proposed legislation, on business, charities, voluntary organisations and the public sector front line, to be clearly visible throughout the development of the measure. In turn this means that departments can take steps to minimise the burdens from compliance with the legislation, on those aVected by the measure, before the legislation is finally made. As far as the burden on Parliament goes, there are occasions where just one RIA has been used to cover several SIs on the same topic, which presumably saves the scrutiny committee’s time.
Best Practice
What are the government’s mechanisms for distilling and promoting best practice in relation to the instruction, drafting, laying, revision and repeal of statutory instruments? How is best practice monitored and enforced? 5. The drafting of statutory instruments involves both policy and legal oYcials working as a team. DfT’s internal intranet contains guidance to policy oYcials on the process. The subject is also covered in the legal awareness training sessions provided for policy directorates with particular emphasis on the preparation of good drafting instructions. 6. Lawyers undertake extensive training over the course of their careers. Newcomers to drafting attend an in- depth training course run by the National School of Government. The Government Legal Service sponsors seminars on the implementation of EU legislation and at DfT in-house training events regularly take place. Reports of the Joint Committee on Statutory Instruments (JCSI) and of the House of Lords’ Select Committee on the Merits of Statutory Instruments (the Merits Committee) are circulated to all DfT lawyers. 3247872083 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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7. The drafting of statutory instruments is subject to a detailed set of rules in “Statutory Instrument Practice” to which all Government lawyers have direct access. In addition— (a) the Cabinet OYce produces guidance on various aspects of statutory instrument production, including the implementation of EU legislation; and (b) a common set of guidance for members of the Government Legal Service is currently in the course of preparation. This will help to avoid duplication of eVort by individual Government Legal Departments and to ensure consistency of approach. 8. The Government Legal Service’s intranet (“LION”) contains a section devoted to Statutory Instruments, incorporating an extensive body of material including copies of oYcial guidance, the internal guidance on SI drafting issued by individual Government Legal Departments, synopses of reports of the JCSI and material related to the work of the Merits Committee. 9. So far as the monitoring of best practice is concerned, all general statutory instruments made by DfT that are laid before Parliament are subject to checks by two senior lawyers in addition to the drafter.
Drafting-who
Who instructs the drafting of statutory instruments? Who drafts them and within what guidelines? Are there cross government drafting standards?
10. In DfT the general practice is for instructions for the drafting of general statutory instruments to be prepared by policy oYcials and for the instruments to be drafted by Departmental lawyers. In some cases (eg transfer of functions orders or instruments amending primarily legislation) instruments are prepared, or at least cleared, by the OYce of Parliamentary Counsel who are instructed by Departmental lawyers on the basis of policy instructions. 11. Drafting is closely monitored by the Joint Committee (or in some cases the Commons Select Committee) on Statutory Instruments to which Departments are required to make annual reports as to the action taken in response to adverse reports.
Correction
Why are so many correcting instruments required? What are the repercussions in a department if a correction is required? In there a process of inquiry about why a correction was needed?
12. The Merits Committee’s Special Reports for the 2003–04 and 2004–05 Parliamentary Sessions contain tables showing (both by Department and in total) the number of negative instruments which were reprinted free of charge as a result of error during those sessions. In the case of 2003–04 the total number for all Departments was 30 out of a total of 568 negative instruments. The figures for 2004–05 (9 November 2004 to 18 March 2005) were 28 out of 531. In the case of 2003–04 the DfT’s performance (3 correcting instruments out of a total of 83) is better than the Departmental average but for 2004–05 (2 out of a total of 35) it is slightly worse. 13. In considering why negative resolution statutory instruments require correction and whether the number is too high the following factors ought to be taken into account — drafting statutory instruments is a demanding task often undertaken to tight deadlines; — there is no Parliamentary scrutiny stage before a negative instrument is made and there is therefore little chance to correct errors in it after laying compared, for example, with a Parliamentary Bill where there is usually an opportunity to make corrections between introduction and enactment. 14. In DfT, if an instrument is found to be defective the reasons for this are investigated and where general lessons are to be learned the attention of lawyers are drawn to these. 3247872083 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Consolidation
How do departments take decisions on the consolidation of statutory instruments; how will consolidation be promoted in future?
15. DfT tries to avoid as far as possible situations where, in order to understand the eVectofasetofRegulations, the reader is required to consider not only the principal Regulations but also large number of amending instruments (including instruments amending earlier amending instruments). Before a decision to undertake consolidation can be made account has to be taken of the overall number of new instruments required to be drafted and the resource- intensive nature of statutory instrument production. 16. Consolidation of SIs can make a contribution to better regulation, for instance in cases where there are large numbers of SIs and amending SIs on aspects of the same topic. Consolidation could produce benefits from a simpler legislative landscape, presenting less of an administrative burden for those aVected by the legislation. Opportunities for consolidation could be identified by oYcials who carry out reviews of their policy areas, for instance as part of the current simplification programme which is being promoted and taken forward throughout DfT. 17. A key consideration should be the convenience and ease of comprehension of users. As an example, in the case of new Transport and Works Act Inquiries Procedure Rules which were introduced last year and proposed new Applications and Objections Procedure Rules (which both revise earlier Rules), DfT deliberately chose consolidating SIs rather than amending ones. This is because the extent of the changes was and is so substantial that it would have been impractical and very confusing to have produced amending SIs rather than complete new ones. But there will be other situations where the amendments are so small that consolidation is not required.
Timetabling-peaks and Troughs in Laying
Why are there peaks and troughs in the laying of secondary legislation? How can these be ameliorated to facilitate proper scrutiny?
18. The table at Annex A shows the approximate number of general S.I.s produced by DfT each month during the calendar years 2003 to 2005. (The instruments include orders in council sponsored by DfT). The only general trend that appears from these figures is that a peak tends to occur around the start of the main summer holiday period.
Commencement-common Dates
We are keen to avoid the bulk laying of statutory instruments in the run up to each common commencement date. How will departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny? Are departments developing annual statements on proposed regulation?
19. DfT is currently scoping how to work towards bringing in common commencement dates and annual statements. As part of this process we will consider carefully how we would need to plan the laying of SIs.
Commencement-21 Day Rule
How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comes into force? Should the period be lengthened?
20. In DfT the 21 day rule is rarely departed from. In our view extending the period is likely to result in greater pressure to break the rule. It should be noted that there is also the significantly longer period “40 sitting days” for the laying of prayers for the annulment of negative instruments. Depending on the time of laying, extending the period could possibly result in a significant period of residual uncertainty before and after a period of recess. 21. It is also common for DfT to issue guidance and other material in advance of the date of introduction (including up to a year beforehand) to ensure that the aVected sectors have suYcient advance warning of any new regulatory burdens. Such guidance documentation can include codes of practice (which may themselves be statutory and subject to the 40-day rule). The potential for delays can therefore be doubled. 3247872083 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Consultation
How well observed is the code of practice on consultation? How can the results be best presented in Explanatory Memoranda? How do the Government coordinate consultations with shared stakeholders, so that they are not overburdened? What changes could be made to the consultation process so as to lead to better secondary legislation? 22. DfT makes every eVort to ensure that the code of practice on consultation is followed. However a flexible approach needs to be taken, as several factors may mean that not all aspects of the code of practice are appropriate. Most often the problem area is the advice to consult for a minimum of 12 weeks. The 2004 Annual Report on the operation of the Code of Practice on Consultation showed that 34 of DfT’s 55 public consultations met this criterion. However, allowing 12 weeks is not always possible, or necessary, for various reasons—eg the need to fit in with external timetables (EU or Parliamentary); or when the consultation is aimed at a very small group of specialised stakeholders; or when the consultation follows or precedes another consultation on the same topic, which did follow the 12 week rule. 23. With regard to Explanatory Memoranda, more guidance on the scope of information arising from consultation which might be useful to the Committee would be welcomed.
Users and Impact
What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone in Government (or in the sector affected) monitor the collective impact of regulations on eg small businesses or local authorities? 24. On collective impact, policy development teams within DfT have close working relationships with their stakeholders, so they are aware of the cumulative impact of regulation in their policy area. This also means DfT can take cumulative impact into account when working on new proposals. DfT has also begun to assess and review more generally the cumulative impact of its regulation on individual transport industry sectors, with a view both to providing more context for making new regulation, and identifying areas where the burden could be reduced.
Links to Better Regulation
The Government are committed to implementing in full the recommendations of the March 2005 report from the Better Regulation Task Force (BRTF), Less is More? What differences to secondary legislation should Parliament and users expect to see as a result and by when? 25. Implementing “Less Is More” will lead to a programme of simplification of existing regulation aimed at reducing burdens on business, and has also required departments to begin identifying oVsetting deregulatory measures when they bring forward for policy or legislative clearance new regulatory proposals which will have a high cost for a business sector. DfT considers that it is too early to answer the question with any authority. DfT’s monthly production of general S.I.s in the calendar years 2003 to 2005, including orders in council sponsored by DfT (figures exclude all orders of a kind now classified as local)
2003 2004 2005
January 8 January 7 January 7 February 13 February 10 February 12 March 23 March 16 March 9 April 10April 5April 6 May 6 May 12 May 9 June 9 June 9 June 9 July 25 July 27 July 17 August 9August 24August 23 September 10 September 4 September 13 October 7 October 5 October 9 November 13 November 9 November 16 December 10 December 12 December 8 TOTAL 143 TOTAL 140 TOTAL 138 3247872084 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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Annex C
DWP Contribution1 to Government Response 1. How is secondary legislation managed across and within Government departments? Who has overall responsibility within each department? Who has coordinating responsibility across Government? (a) Within DWP, each division dealing with policies or procedures which may require secondary legislation is responsible for ascertaining that the proposed changes are necessary or desirable, that the benefits are proportionate to the costs, and that the changes are consistent with wider Government strategy; consulting others within the Department or more widely, and obtaining Ministers’ approval, as required. (b) The policy division is then responsible for ensuring that the secondary legislation is prepared. It instructs the relevant legal division which will draft the legislation, and they agree a timetable for its preparation. The relevant legal director, and ultimately the Solicitor, oversee the secondary legislation process and programme. See also Q4 below on the checking and approval of SIs. (c) The Department’s Parliamentary Relations Unit arranges for statutory instruments (SIs) to be signed, laid and published. (d) The Unit also regularly collects information from policy divisions on forthcoming aYrmative regulations, to provide forewarning both within the Department and to the Parliamentary business managers. (e) Where a number of regulations are required to implement major policy changes, such as those arising from the Pensions Act 2004, the Department will normally draw up a programme for the relevant regulations (and may make this available to external stakeholders). (f) Similarly, the Health and Safety Executive (HSE) publishes a forward look of forthcoming regulations, which is updated every six months. (g) There is no formal coordination of individual instruments across Government, although sometimes several Departments make secondary legislation in a co-ordinated manner because of the nature of a particular piece of primary legislation. Examples include implementation of the Civil Partnership Act, and coordination between DWP and HM Revenue and Customs on changes to the rules aVecting private pension schemes. (h) Cross-Government coordination also happens on a more general level by various means, such as the Government Legal Service (GLS) intranet [LION] (which has weblinks to sites on Better Regulation and Secondary Legislation), the GLS Better Regulation Group and the user group on statutory instrument templates. Regulatory reform orders are coordinated by the Cabinet OYce. In addition, Whitehall Departments including DWP often consult and coordinate with the devolved administrations when they prepare secondary legislation.
2. How do departments take decisions on the revision, laying and commencement of linked groups of statutory instruments? How is the scope of any individual instrument within a group decided? How is the user’s convenience taken into account? Is the existing regulatory impact assessment process an effective way to ensure that secondary legislation is made in the least burdensome way? (a) Decisions about what to put in a particular statutory instrument, or group of statutory instruments, will be made jointly by the responsible policy and legal division, in consultation as necessary with other divisions. Factors taken into account might include the date by which the statutory instrument should come into force; what other legislative changes need to be made in relation to the same or related subject matter; the Parliamentary procedures applicable to each instrument; how much advance notice has been given to those aVected; consideration of how best to manage a large programme of change in a particular area; and available resources within the Department. (b) In general, we aim to keep the number of instruments to a minimum, even though they may be drafted and consulted upon as separate draft instruments. In some cases, however, it may be easier and clearer for users if strands of amendments are kept separate (and given self-explanatory titles accordingly). It may also be helpful for transitional amendments to be put in a separate instrument because of their relatively short life-span.
1 Including contribution in relation to Health and Safety Executive. 3247872084 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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(c) We also take users’ convenience into account, where possible, with regard to the timing of implementation and advance notice of regulations. For example, we try as far as we can to limit changes aVecting Housing and Council Tax Benefits (which are administered by local authorities) to April and October each year, and to leave six months between the laying and coming into force dates for those regulations to give enough time for IT software changes. See also Q10 below on consultation. (d) The regulatory impact assessment (RIA) process helps by ensuring that the impact of a policy proposal on stakeholders is analysed and that a number of options, including non-regulatory options, are considered for achieving the policy objective. Ministers also require any submissions on proposals for secondary legislation which may have a regulatory impact to cover that aspect.
3. What are the Government’s mechanisms for distilling and promoting best practice in relation to the instruction, drafting, laying, revision and repeal of statutory instruments? How is best practice monitored and enforced? (a) A specialist SI Unit in the Solicitor’s OYce at DWP provides expert advice on the drafting of SIs and the legislative process. It organises internal training, and publishes a regular newsletter for DWP lawyers which covers current SI-related issues and summarises the reports of the Joint Committee on Statutory Instruments (JCSI) and the Merits Committee (to which all lawyers also have direct access via the internet). Guidance on how to draft SIs and about the SI process is also available on DWP intranet sites. (b) The GLS intranet (LION) contains information about SIs including the various Departmental guides, which are in the process of being combined into a single guide. Training courses for GLS lawyers are also regularly run by the National School of Government, which all DWP lawyers new to drafting attend. (c) Policy divisions (working as appropriate with the Solicitor’s OYce) arrange for oYcials involved with legislation to be trained as required in legal awareness, legislative processes and good practice in policy-making. (d) Best practice in relation to SIs is monitored by careful checking processes in the Solicitor’s OYce— see Q4 below—and is promoted by a culture of formal and informal sharing of information by DWP lawyers.
4. Who instructs the drafting of statutory instruments? Who drafts them and within what guidelines? Are there cross- government drafting standards? (a) Instructions are given by the relevant policy division (see Q1 above). SIs are drafted by DWP lawyers, or may occasionally be drafted by consultant freelance draftsmen, in close consultation with the policy division. (b) Before it is sent to be printed, every SI will be checked by the drafting lawyer’s head of division for legal accuracy and to ensure that it reflects the policy instructions given to the lawyer. All SIs are also checked personally by the Legal Director for legal accuracy. The head of the responsible policy division will also check that the correct policy is reflected in the SI. (c) The checking process is designed to ensure consistency and accuracy, as well as adherence to good practice, by reference, for example to Statutory Instruments Practice and Circulars. (d) All Departments take comments from the JCSI and the Merits Committee very seriously and this helps to ensure cross-Government drafting standards.
5. Why are so many correcting instruments required? What are the repercussions in a department if a correction is required? Is there a process of inquiry about why a correction was needed? (a) Corrections may be required to deal with mistakes in the policy or drafting, or in the printing process. In particular, a change may be needed in the light of feedback after publication (notwithstanding DWP’s commitment to consultation—see Q10 below), or following decisions by the Social Security and Child Support Commissioners or the courts on the interpretation of the law. 3247872084 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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(b) Corrections of errors need to be distinguished from amendments of regulations consequential on other policy changes (eg changes to Housing Benefit regulations arising from the introduction of Pension Credit). (c) As far as drafting errors are concerned, the SI drafting process is technical and diYcult, and often undertaken under significant time and resource pressures, especially where there are strong public policy grounds for urgent implementation. We try to minimise drafting errors by a careful checking process (see Q4 above). But it is inevitable that the greater the pressures, the greater the likelihood that defects may creep in. (d) Similar considerations can sometimes apply to errors or omissions in detailed policy design, particularly where substantial change is being introduced, under urgent time pressure, to an area of complex existing law and practice such as occupational pensions. (e) If a correction is required, the Department naturally regrets the inconvenience for users and for Parliament. Making the corrections will also cause certain resource costs within the Department. Lawyers’ and other oYcials’ accountability for their work and its eVectiveness and accuracy are taken into account in the appraisal process. Managers will always enquire into why a correction was needed, and oYcials will explain to Ministers the need for any corrections. (f) Managers also aim to identify any general problems which may underlie errors in SIs, and to ensure that lessons are learned accordingly: for example, the checking procedures (see Q4 above) were strengthened earlier this year after errors were found in some SIs made under the Pensions Act 2004.
6. How do departments take decisions on the consolidation of statutory instruments; how will consolidation be promoted in the future? (a) Consolidation is considered wherever possible, particularly where new primary legislation is enacted, taking account as necessary of available legal and other resources. We are, for example, nearing completion of the consolidation of Housing and Council Tax Benefit regulations.). (b) In addition to formal consolidation, up to date texts are available of SIs as amended both on-line and in loose-leaf editions. The Blue Books which contain all social security legislation are constantly updated. (c) Consolidation will be promoted further as part of the Department’s developing programme of regulatory simplification (see Q12 below).
7. Why are there peaks and troughs in the laying of secondary legislation? How can these be ameliorated to facilitate proper scrutiny?
8. We are keen to avoid the bulk laying of statutory instruments in the run up to each common commencement date. How will departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny? Are departments developing annual statements on proposed regulation? [questions answered together] (a) Peaks can arise for a number of reasons. For DWP the annual uprating of social security benefits gives rise to a large programme of work from the publication of the relevant inflation figures in September/October through preparation of various SIs which need to come into eVect in April. Some other SIs are also timed to come into eVect for the new financial year. Some SIs may also arise at the same time if they follow Budget announcements. And where there is a large reform package (eg implementation of the Pensions Act 2004) there will often be set stages in the reform process when several SIs will come into force on the same day, which is usually beneficial if not essential for the people and bodies likely to be aVected by the measures in question. (b) Common commencement dates were introduced to assist business, charities and the voluntary sector, in line with Government policy on better regulation. DWP applies common commencement dates where appropriate. The HSE was one of the early adopters of common commencement dates. (c) Where possible and appropriate we aim to lay SIs well in advance of commencement (see Q0 above). (d) As noted at Q1 above, HSE publishes a statement of forthcoming regulations. Most DWP SIs do not aVect business, but DWP plans to publish annual statements of regulation that do aVect business from 2006. 3247872084 Page Type [E] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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9. How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comes into force? Should the period be lengthened. (a) DWP tries very hard to observe the 21 day rule. We regret any breaches of the rule, though such breaches happen in only a very small number of cases (around 5 per cent of all SIs to which the rule applies). (b) We do not believe that the period should be lengthened.
10. How well observed is the code of practice on consultation? How can the results be best presented in Explanatory Memoranda? How do the Government coordinate consultations with shared stakeholders, so that they are not overburdened? What changes could be made to the consultation process so as to lead to better secondary legislation? (a) DWP is required by law to consult on certain SIs. This includes consultation of expert independent bodies—the Social Security Advisory Committee, the Industrial Injuries Advisory Committee and the Council on Tribunals; local authorities; and relevant organisations aVected by private pensions legislation. (b) DWP also consults in many cases on the objectives and detail of other SIs, even where there is no legal requirement to do so. This again includes consultation of expert bodies such as the statutorily appointed Disability Living Allowance Advisory Board. Even where the Code of Practice is not applicable (because the subject is very specialised or has a limited audience) we still aim to apply best practice from the Code. (c) Where Explanatory Memoranda (EMs) refer to the results of consultation we would normally expect a brief reference (to keep the whole EM brief), with cross-reference to any separate announcement of the consultation results. (d) Where appropriate, DWP participates in cross-Government consultation exercises.
11. What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone in Government (or in the sectors affected) monitor the collective impact of regulations on eg small businesses or local authorities? (a) The “users” of DWP legislation are varied—eg local authorities, pension scheme trustees, professional advisers—and not necessarily the same as the individuals ultimately aVected by the legislation. So it is not necessarily straightforward to generalise about users’ concerns. (b) Subject to that point, however, on the method of making secondary legislation, users generally look for advance consultation and then for adequate time to implement the changes; though they do also generally look for a rapid reaction to any identified problems with legislation which are causing them diYculties. We do our best to meet users’ requirements, as outlined above. (c) On the substance of regulations, see Q12 below. It is also worth noting that DWP publishes a considerable amount of research information about the eVects of its policies, the details of many of which have been introduced by secondary legislation.
12. The Government are committed to implementing in full the recommendations of the March 2005 report from the Better Regulation Task Force, Less is More? What differences to secondary legislation should Parliament and users expect to see as a result and by when? (a) The Better Regulation Task Force report proposed procedures for measuring and then reducing the administrative burdens faced by business and other organisations in the UK. It also proposed that the Government strengthen controls over the introduction of new regulation and simplify existing regulations, including removing any which are unnecessary. The Government accepted the report in full, and taking forward the recommendations will achieve year on year reductions in the total administrative burdens faced by business and other organisations. (b) The need for targeted regulation to improve standards and protect rights will inevitably remain. However, it is important to get the balance right so that, wherever possible, new regulation is balanced by compensating simplification measures. The Department is developing a rolling simplification plan which will include proposals to reduce administrative burdens within five years, and will outline broader simplification measures such as proposals to consolidate and repeal 3247872084 Page Type [O] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6
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legislation. DWP is actively engaging with stakeholders to ensure that the regulatory impacts which are of particular concern to them are considered. (c) Whilst strengthened controls over the introduction of new regulation may mean fewer SIs, secondary legislation may be necessary to implement some simplification measures. (d) See also Q7 above on annual statements on proposed regulation. 3247872085 Page Type [SE] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Written Evidence
Memorandum by Tim Ambler1 and Francis Chittenden2 This paper responds to the two main questions for the inquiry, namely: — the management of the statutory instrument process and the links within that process to the Government’s better regulation initiatives, and — the working practices of Government, the House and Committee so that the House and Committee can most eVectively scrutinise the merits of statutory instruments and promote better regulation. The subsidiary questions deal largely with procedural matters rather than the more fundamental issues which should perhaps be considered first. Furthermore, the subsidiary questions appear mostly to have been answered in the Select Committee’s own admirable reports and by the clear recommendations therein. The level of these questions may not be suYciently fundamental. Baroness Amos’ response to the Select Committee’s first report3 indicates that she saw the role of the Select Committee as being to help Whitehall departments with their homework, as distinct from being part of the legislature deciding which and what regulations, albeit secondary, should be enacted. The workings of the Select Committee should first be understood within the context of regulation at both EU and UK governmental levels. Secondly, this paper set out the scale of the secondary legislation problem. The EU Commission and UK government each annually produce thousands of “regulations” and statutory instruments (SIs) respectively. The vast majority of these are not secondary legislation (permanent laws) at all so much as administrative orders (transient arrangements, eg for prices or road closures). Thirdly, the question is whether, and how, the work of the Select Committee and the parallel House of Commons scrutiny committee could be more eVective and productive. Their reports leave no doubt that the Select Committee is extremely hard working, thorough and serious: the question is not one of industry but the extent to which the burden to benefit ratio of regulation is being reduced by these eVorts. The paper concludes with some recommendations.
Context The Select Committee was appointed by the House of Lords on 17 December 2003 with the terms of reference “to consider every instrument which is laid before each House of Parliament and upon which proceedings may be or might have been taken in either House of Parliament, in pursuance of an Act of Parliament, being: (i) a statutory instrument, or a draft of a statutory instrument; (ii) a scheme, or an amendment of a scheme, or a draft thereof, requiring approval by statutory instrument; or (iii) any other instrument (whether or not in draft), where the proceedings in pursuance of an Act of Parliament are proceedings by way of an aYrmative or negative resolution; but excluding any Order in Council or draft Order in Council made or proposed to be made under paragraph 1 of the Schedule to the Northern Ireland Act 2000 and any remedial order or draft remedial order under Schedule 2 to the Human Rights Act 1998 and any draft order proposed to be made under section 1 of the Regulatory Reform Act 2001, or any subordinate provisions order made or proposed to be made under that Act; with a view to determining whether the special attention of the House should be drawn to it on any of the following grounds: (a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House; (b) that it is inappropriate in view of the changed circumstances since the passage of the parent Act; (c) that it inappropriately implements European Union legislation; (d) that it imperfectly achieves its policy objectives.”4 1 Senior Fellow, London Business School. 2 Professor, Manchester Business School. 3 Appendix 1 of HOUSE OF LORDS, Merits of Statutory Instruments Committee, 25th Report of Session 2003–04, HL Paper 206, 29 November 2004. 4 HOUSE OF LORDS, Merits of Statutory Instruments Committee, 3rd Report of Session 2003–04, HoL 73, 18 May 2004. 3247872085 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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The creation of the Select Committee was part of the government’s commitment, or claimed commitment depending on one’s point of view, to better regulation. The role was additional to scrutiny by a parallel committee in the House of Commons, the Better Regulation Task Force, the better regulation team within the Cabinet OYce and the committees in both Houses scrutinising EU legislation and its transposition into UK law.
The House of Commons, since 2003, has had a “Scrutiny Unit” that is part of the Clerk’s Department. Their role is to improve financial scrutiny by the House. The 18 staV are on secondment from other departments eg from the Audit Commission, National Audit OYce etc. Their remit is to support Select Committees in pre- legislative scrutiny (when invited) and to review department’s annual reports and perfomance against PSA targets etc. They engage with Select Committees most when committees conduct pre-legislative scrutiny of forthcoming Bills. They only see about eight Regulatory Impact Assessments (RIAs) per year (about four percent) when select committeess ask them to consider the quality of the Cost Benefit Analysis in initial or draft RIAs. This valuable resource might, perhaps, be more widely used—see recommendations.
The Panel for Regulatory Accountability (PRA) was strengthened in 2004 to reduce the flow and improve the quality of regulations and, at UK level, to ensure that regulation is used only where necessary. The PRA, now chaired by the Prime Minister, scrutinises all new regulations likely to impose a significant cost to business before they can become law. Since this meets in secret, and attempts to discover their conclusions through the Freedom of Information Act failed, we cannot know how eVective it may be.
Finally each government department has a unit responsible for producing RIAs for all proposed EU and UK primary and secondary legislation that may impact businesses, charities etc. This requirement appears recently to have been extended, but without any fanfare, to all changes of policy which might have a cost impact for the public and or private sector. The new wording is: “RIAs must be completed for all policy changes, whether European or domestic, which could aVect the public or private sectors, charities, the voluntary sector or small businesses. An RIA is needed whenever options are being considered or where costs or benefits could accrue. This includes all changes made using alternatives to legislation, both primary and secondary. So if the primary legislation is a framework Act which will be followed by secondary legislation, RIAs need to be carried out on both the primary legislation and on each subsequent piece of secondary legislation.”5
This seems rather sweeping and would include the requirement for an RIA every time any minister even considered any policy change, whether regulation was a possible outcome or not. We are seeking clarification but at this point have not changed our recommendations. This unit, and the RIA process, is supposed to bring eVective challenge to each legislative proposal to the point, presumably, where external challenge should be unnecessary. Audit is provided by the National Audit OYce which has, at least for the last two years, examined the eYcacy of the RIA process.
Regulation itself does not seem to be short of regulators but the question is whether they make any diVerence. The House of Lords clearly finds it convenient to have a Select Committee to winnow material items for their consideration from the thousands of SIs issued each year. On the other hand, if all this deliberation leads to minimal results, one may wonder not so much if the game is worth the candle but if the game should be played by diVerent rules. Maybe one committee doing a thorough job and supplying the needs of all parties, eg both Houses, would be better than seven, each of which probably has inadequate resources for the task, and failing to achieve it.
In the Select Committee’s transparent and candid reports, their Lordships themselves worry about whether regulation is actually being improved by their process and how they would know if it was. What are the measures of “better regulation”? They console themselves with the thought that their attention to SIs would help to ensure that civil servants took more care with the production of SIs. Tellingly, from the perspective of this paper, their Lordships shied away from their ability to reject SIs in favour of being able merely to delay them. With many thousands of new SIs each year, the UK could probably survive with a few less. It might be salutary for ministers and civil servants if some hostages were taken. So far as I know, no SIs have been rejected or even formally delayed. If they have been, then those occasions should have been given more publicity for the sanction to be eVective. 5 http://www.cabinetoYce.gov.uk/regulation/ria/overview/who—needs—ria.asp, 21 November 2005. 3247872085 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
194 management of secondary legislation: evidence
Scale of the Problem We need to consider UK secondary legislation within the context of the EU. So far as business legislation is concerned, the logic of the single or common market is that the UK should pass no secondary legislation at all because when it does so, the market is no longer common. For example, if the UK decides that cucumbers must be at least 20cm long when the rest of the EU only requires 18cm, the EU cucumber market is no longer common. The scale of diVerence is not the problem, just the fact that there is a diVerence at all. It follows that EU national governments should legislate in areas defined as subsidiary and the EU in matters defined as common. At present we have the highly undesirable situation of both legislating for both. The following is extracted from a report earlier this year6: “To provide historical context the trend in production of EU legislation over the period from 1958 to 2003 was sampled for the last three years and at five yearly intervals before that. Table 1 below presents the number of legislative instruments produced over the last 45 years.
Table 1
EU LEGISLATION PRODUCED ANNUALLY FROM 1958 TO 2003
Year Regulations Directives Decisions Total 2003 2,461 153 804 3,418 2002 2,537 120 896 3,553 2001 2,769 136 820 3,725 1998 3,008 158 735 3,901 1993 1,566 166 707 2,439 1988 1,801 133 546 2,480 1983 1,454 84 514 2,052 1978 1,329 116 615 2,060 1973 1,110 57 254 1,421 1968 443 37 182 662 1963 96 8 266 370 1958 20 0 23 43
Source: Extracted from CELEX”
The report analysed a ten percent sample of the “Regulations” and found that only six percent were legislative in nature and aVected business, ie they should have had RIAs and EIAs. Allowing for other types of secondary legislation, we can safely estimate that less than ten percent of all EU “Regulations” are legislative in nature, ie permanent laws. The other 90 percent or so are administrative orders, ie transient arrangements such as for prices or holidays. The draft EU constitution recognised this anomaly and proposed that Directives should become “framework laws” and Regulations should be divided into “laws” where they are legislation and “administrative orders” to reflect the comments above. Incidentally, the report also found that the EIA and RIA system simply does not work for EU sourced legislation and, in particular, many RIAs were produced after the legislative decisions had been taken. In the six years 1999 to 2004, SIs appear to have averaged 3,526 judging by the serial numbering system. The comparative figure for the first ten months of 2005 is 3,042 which seems on track for a total 3,600, ie about the same. This overstates the number of SIs because not all make it through the system. Taking a large sample (999) from 2004, 603 survived and therefore the average for the six years is probably about 2,130. The seven years to 1993 yielded an average 2,761 judging by serial numbers. A sample of 499 SIs from 1987 shows a 75 per cent survival rate, ie an average of 2,070 actual SIs. It is at least encouraging that the SIs have not increased although, taken together with EU “Regulations” the numbers have grown from 3,700 to 4,600 per annum. Quite why SIs should have such a high rate of stillbirth is a question beyond this paper and should perhaps be investigated. Before anyone claims a victory for better regulation, we would need to analyse the stillbirths between true secondary legislation and administrative orders. We know that, as in the EU, SIs are confused 6 Tim Ambler, Francis Chittenden and Chanyeon Hwang (2005) “Is EU Regulation good for us? A study of EU Regulations in 2003–04,” British Chambers of Commerce, London. 3247872085 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
management of secondary legislation: evidence 195 between secondary legislation requiring RIAs, and administrative orders which form the great majority of SIs, because the UK total number of RIAs covering primary and secondary legislation both for the EU and UK averages about 170 per annum.7 Even with allowance for non-business legislation, it is unlikely that more than about five percent, ie 100 SIs per annum, could be legislative in nature. About 95 per cent of SIs should not be receiving their Lordship’s attention at all. This will be discussed in the recommendations later.
Modus Operandi The scrutiny process seems to be driven by the arrival of SIs and a number of the problems such as not fitting with the dates when the House is sitting and lack of notice before the SIs become eVective, result therefrom. The system does not recognise that the government already has a system for distinguishing between secondary legislation, which should require their Lordships attention, and administrative orders which should not. The RIA concept was, for legislation aVecting business, an attempt to deal with this issue by requiring discussion of forthcoming legislation in good time. The report referenced below and its two annual predecessors found, somewhat to the surprise of the authors, that the system worked well in the sense that RIAs were produced for all UK sourced legislation aVecting business. At least, we found no examples of failure. The quality of the RIAs was another matter and, as noted above, the system does not work for EU- sourced Regulations and possibly not for Directives either. SIs have a similar system of Explanatory Memoranda (EMs) and Explanatory Notes (ENs). This is thoroughly confusing. Their Lordships have already recommended merging EMs and ENs and the distinction is not pursued here because the recommendation will be that the RIA system is expanded for all legislation, primary and secondary, UK- and EU-sourced with additional EIAs for EU-sourced. Alternatively, EMs should be produced for all such legislation which does not aVect business using identical guidelines. The report referenced below found that RIAs were inadequate and the similar findings from the previous two reports had been ignored. The Cabinet OYce function is advisory; they are not responsible for the quality of RIAs. RIAs should be scrutinised by one or both Houses but we found no evidence that they were, apart from those noted in the Select Committee reports. The net result seem to be that their Lordships are swamped by SIs, 95 per cent of which are not regulations at all whilst only scrutinising RIAs (or EMs or ENs) when prompted to do so by the SI. It might be both more eYcient and productive if the process was driven by the RIAs (and equivalents) so that regulations received a thorough scrutiny before becoming legislation. In other words, the Select Committee should review all RIAs (and the equivalents) at the earliest possible stage to challenge whether the legislation is required at all and, if so, what are the less burdensome means of achieving valid policy goals. It is widely accepted, even by the BRTF, that the RIA system has not resulted in serious challenge to new regulations, hence the introduction of these new committees. Some reasons are that the system is used by civil servants to facilitate the laws they wish to make, consultation is one-sided and sometimes sketchy and the case against the regulation is written into the RIA by the counsel for the defence. No system as one-sided as that can work and independent evaluation should help restore balance.
Recommendations My recommendations to meet the two main questions asked by the Select Committee are: 1. The House of Lords should press for EU Regulations and UK Statutory Instruments to be separated into regulations proper and administrative orders. 2. EU and national government areas for legislation should be more clearly delineated so that only one level legislates in each area, ie “subsidiarity” is properly defined. 3. Those regulations not now requiring RIAs, because they do not aVect business, should either be brought into the RIA system or have an identical EM system. This recommendation may have been overtaken by events and RIAs extended to all policy changing legislation. Even more so, clarification on RIAs, EMs and ENs is needed with a single cohesive system and a central database for RIAs (EMs and ENs). 4. The EU EIA and UK RIA systems should be properly coordinated for EU-sourced legislation and the assessments should be available to both Houses in good time. 7 Tim Ambler, Francis Chittenden and Chanyeon Hwang (2005) “Regulation: another form of taxation? UK Regulatory Impact Assessments in 2003–04,” British Chambers of Commerce, London. 3247872085 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
196 management of secondary legislation: evidence
5. Apart from the Cabinet OYce unit (now the Better Regulation Executive) which has a slightly diVerent role, the scrutiny committees should be replaced by a properly resourced Joint Committee of both Houses, reporting primarily to the Houses but also making their deliberations and findings available to the public. This Joint Committee could then be supported by resources of the House of Commons Committee OYce Scrutiny Unit. 6. The scrutiny of secondary legislation should be driven by RIAs (and EMs) and not by SIs. If RIAs (EMs) are unsatisfactory, either the assessments or both the assessments and the legislation, should be rejected. 7. Non-legislative SIs (administrative orders), and the processes which produce them, should be researched to establish why so many fall by the wayside and what external checks, if any, are justified. Maybe these 4,000 administrative orders a year (including those for the EU) need a simpler integrated system. An annual low level sampling and audit by the NAO is one candidate solution. 8. “Better regulation” should be defined so that the Joint Committee can measure performance and report annually on progress. 22 November 2005
Memorandum by Bryan Cassidy8
INAPPROPRIATE IMPLEMENTATION OF EU LEGISLATION 1. History 1.1 Since the early nineties, I have followed very closely the way in which European Community directives become law in the United Kingdom—a process popularly known as “gold plating”. 1.2 In 1992, the then President of the Board of Trade, Rt Hon Michael Heseltine, commissioned a study by the EYciency Scrutiny Team. Published in July 1993 with the title “Review of the Implementation and Enforcement of EC Law in the UK”, (but without a Cmd number) the report contained three very detailed case studies with one of which I was actively involved: that shown at Annex C of the Review on Fire Safety Regulations. 1.3 The Report made 65 recommendations on procedure plus an additional 36 based on the three detailed case studies included in the Review. 1.4 Recommendations 30 to 52 concern the Role of Whitehall and Ministers, some of which, notably number 46 urging “Departments need to keep in closer touch with the European Parliamentary process and be prepared to oVer revised briefing” appear to be followed. Another, number 51, recommended that the Deregulation Unit prepare a guide by the end of 1993 on the formulation and implementation of EC law in the UK was adopted and two very helpful user guides were produced. So far as I have been able to discover, however, these guides no longer exist. 1.5 I have drawn the existence of this report to the attention of the Better Regulation Task Force always soliciting a surprised response indicating that the BRTF had been unaware of its existence!
2. Implementation of European Legislation in the UK—the Devil in the Detail 2.1 Section 2.2 of the European Communities Act 1972 is the most frequently cited authority when Statutory Instruments (SIs) are tabled before Parliament. My monitoring of the HMSO Daily List shows that so far in 2005 (1 January to 24 November) 3,206 SIs have been tabled of which only 182 have their origin in the EU. These SIs are easily identifiable as the Daily List always shows an “EC note’. 2.2 Scrutiny by Parliament of SIs is unsatisfactory. “The devil is in the detail!” Quite often SIs are tabled while Parliament is in recess. Also, parliamentary procedure inhibits discussion of the details because MPs are subjected to Party whipping. This discourages debate.
3. The UK Approach 3.1 One of the main criticisms of the 1992 enquiry is that “the UK tends to approach negotiation and implementation as separate processes”. (No. 3 of Executive Summary). The United Kingdom is not alone in this, however. A recent Opinion9 produced by the European Economic and Social Committee’s (EESC) Single Market Observatory on the implementation of EU legislation (copy supplied) states “The EESC considers 8 Chairman, Single Market Observatory, European Economic and Social Committee Member of the European Parliament 1984–99. 9 Document“ CESE 1069/05. Rapporteur“ Joost van Ierse. 3247872086 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
management of secondary legislation: evidence 197 that the EU has an implementation and compliance problem. Statistics on the state of implementation of EU law show that Member States experience delays in the timely transposition of directives. Statistics of infringement proceedings reveal that often transposition is incorrect or incomplete. Indeed, 78 per cent of the cases initiated by the European Commission against Member States during 2002–05 concern transposition and application of directives. This suggests that Member States experience problems in determining the national method of implementation to give eVect to directives” (page 3).
3.2 In a separate Opinion requested by the British Presidency of the EU on “Better Lawmaking”10 (copy supplied) sets out a strategy for better lawmaking in Europe in its section 4, pages 7–10.
3.3 In this Opinion, paragraph 4.9 draws attention to the agreement on 16 December 2003 between the Commission, the Parliament and the Council concerning the implementing powers granted to the Commission to draw up regulations pursuant to a Framework Directive “in cooperation with representatives of the Member States”. This process known as “Comitology” appears to be outside the scope of scrutiny by Ministers or by Parliament (either European or British). I have asked what instructions are given to “national experts” to ensure that the line they take in negotiations in Brussels accords with HMG policy. I have yet to receive a satisfactory answer from Ministers of either persuasion or their shadows!
4. Fire Safety Regulations Case Study
4.1 When I was an MEP, I was very much involved in this. I discovered that the Home OYcer were drawing up very detailed new regulations for fire safety in places of work alleging that they were required by the 1989 “Health and Safety Directives” notably the Framework Directive and the Workplace Directive. Business was complaining bitterly about the additional burdens that they would have to endure with the implementation of the new regulation. I approached Michael Heseltine who in his turn approached the then Home Secretary (Kenneth Clarke) who gave instructions to oYcials that work should cease. And it did. However, work recommenced when Kenneth Clarke became Chancellor of the Exchequer and his successor allowed the process to continue and the new regulations are now in force. However, I made it my business to enquire of Commission oYcials in Luxembourg as to whether it was necessary for the UK to go to such prescriptive lengths. I was informed that it was not necessary but that the United Kingdom Government was faced with the need to codify and bring up to date its own national legislation, most notably the Fire Precautions Act 1971. The European Community’s proposals therefore provided a convenient scapegoat as so often happens where Ministers and local authorities wrongly cite “Brussels laws’. (I frequently came across this during my 15 years as an MEP).
5. Conclusion
5.1 The problem of “gold plating” continues though the Better Regulation Task Force has repeatedly drawn attention to the need for better Regulatory Impact Assessments. However, these are not comprehensive nor, for that matter, are the Impact Assessments which the European Commission is supposed to attach to all its legislative proposals. Their scope has been extended to require “social” and “environmental” impact assessments in addition to the financial impact on business. As the Commission is dependent on Member States for this information, unsurprisingly the assessments are inadequate. 1 December 2005
Letter from Chloe Hardy, Acting Head of Communications & Government Affairs Manager, National Housing Federation
The National Housing Federation represents 1,400 housing associations in England. Our members are independent, not-for-profit social businesses. Between them, they provide 2 million aVordable homes to 5 million people.
We are pleased to oVer the following comment to the Committee. 10 Document“ CESE 1068/05. Rapporteur“ Daniel Retureau. 3247872087 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
198 management of secondary legislation: evidence
1. (a) Did the sponsoring government department get in touch to tell you what was happening or (b) was the first thing you heard about the secondary legislation via one of your members? (a) This hardly ever occurs, and only ever when we already had an ongoing dialogue. We are unable to identify an occasion when a Government Department took the initiative about this. We do not believe, however, that they would see it as their function. (b) Quite often, either from our members (housing associations) or some other outside source (press enquiry, &c).
2. Has your sector had experience of not knowing, until it was too late, that a particular regulation had been passed? Yes.
3. Can you give us any examples of good or bad practice by a sponsoring government department? We are uncomfortable with this question because we do not believe Departments see it as their function to draw our attention to impending SIs, so it is hard to blame them for faiting to do it. However, as SIs become more important, it is more and more of an issue that they are so hard to track compared with full-blown legislation. We believe there would be merit in upgrading the OYce of Public Sector Information (OPSI) website so that it cross-refers between the Acts of Parliament and the various SIs issued under their authority. In particular, we would like the ability to select an Act on the OPSI site and immediately access the SIs that have been issued (even draft Sis proposed) in date order. Also, the section of the HMSO website dealing with SIs (unlike the section on Acts) is hard to browse, as titles are not given until the date of issue is correctly identified. 10 November 2005
Memorandum by the Hansard Society
1. Introduction The Hansard Society is very pleased to be able to contribute to the Merits of Statutory Instruments Committee inquiry into the Management of Secondary Legislation. Over the past two years, we have been undertaking a review of Making the Law, the 1992 report of the Hansard Society Commission on the Legislative Process, chaired by Lord Rippon of Hexham.11 As part of that review, we have looked at specific elements of the legislative process including parliamentary consideration of delegated legislation. We note the Committee’s terms of reference for this inquiry, many of which relate to the formulation, drafting and structure of delegated legislation. Our work on this subject has concentrated on the parliamentary process, rather than the role of government, and our evidence reflects this focus. We draw attention to the numerous proposals for reforming the way that Parliament considers delegated legislation which have been made by the Hansard Society and also by parliamentary committees.
2. The Scope and Functions of Delegated Legislation Perhaps the most noticeable feature relating to delegated legislation is the extent of its growth in volume over the past half-century. For example, in 1970, Statutory Instruments (SIs) filled 4880 pages of legislation; by 1996 that had grown to 10,230 pages.12 In itself, this growth does not necessarily give rise to any concern. Indeed, delegated legislation has an invaluable role to play within the legislative process: crucially it can be used to amend, update or enforce existing legislation without having to go through the elaborate parliamentary process required for primary legislation. Modern government would be virtually unable to function without it. As Making The Law argued: “The main advantages of making greater use of delegated legislation outweigh the very real disadvantages . . . [it] makes Acts easier for the user to follow, helps Parliament to focus on the essential points . . . [and keeps] the legislative process flexible so that statute law can be kept as up to date as possible . . . [and eases] pressure on the parliamentary timetable.” 11 The Report of the Hansard Society Commission on the Legislative Process (1992), Making The Law, chaired by Rt Hon Lord Rippon of Hexham. 12 See Procedure Committee, First Report (1999—2000) Delegated Legislation HC 48 and Tyrie, Andrew MP (2000) Mr Blair’s Poodle, An Agenda for Reviving the House of Commons, Centre for Policy Studies. 3247872090 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
management of secondary legislation: evidence 199
3. Concerns and Criticisms However, given its crucial role within the legislative system, there is widespread criticism of the way that Parliament scrutinises and gives its authority to delegated legislation. The majority of SIs are subject to little, if any, parliamentary scrutiny. This is because most SIs are subject to negative procedures, which means they will become law in the form determined by a Minister unless one or other House of Parliament votes against them, which very rarely happens. Most criticism of the system is concerned with the negative resolution procedure where the initiative lies with the Opposition to table appropriate annulment motions in the form of Early Day Motions (known as “prayers”). Given that the Government controls almost all the available parliamentary time in the Commons, unless the Opposition can persuade the Government to provide time, either on the floor of the House or in Standing Committee, the SI will not be debated. On the other hand, a minority of SIs are subject to aYrmative procedure, which means that they cannot become law unless a draft is first approved by both Houses. The aYrmative procedure, however, is much less common than the negative procedure. For example, in 1998–89, 178 SIs were subject to the aYrmative procedure, compared to 1,266 subject to negative procedures.13 A range of problems with the procedures have been identified, including: — That the unpredictability and rigidity of the parliamentary timetable, and the inevitable time constraints, militate against eVective scrutiny. — That SIs cannot be amended in part or redrafted. — That the length, volume and technical complexity of many SIs can obscure important issues with the result that major changes to law and policy can come into force with little or no parliamentary scrutiny. — That the implications of an SI for other domestic or EU legislation may not be immediately apparent. — The increasing instance of SIs being used to implement core policy decisions rather than fill out the detail of statutes.
4. Proposals for Reform The Hansard Society has identified a number of specific reforms that might improve the functioning and scrutiny of delegated legislation, including: — Departmental select committees should review SIs in their field prior to their being laid before Parliament and then report on matters of particular public importance. By identifying matters that required further clarification or justification, such pre-legislative scrutiny would reduce the heavy workload of the Joint Committee on Statutory Instruments (JCSI). — Debates on SIs (under the aYrmative procedure and those against which prayers had been tabled) should only take place once the JCSI has reported. — A Legislation Steering Committee should be set up to determine which prayers should be debated, thus standardising the procedure and allowing Parliament more input into the allocation of such debates. — The time limit (of an hour and an half) imposed on debates should be removed. — Once an SI had been selected for debate, a Special Standing Committee should undertake more detailed scrutiny. A range of reform proposals were also put forward by the House of Commons Procedure Committee, which produced two reports, in 1996 and 2000.14
5. Alternative Models of Scrutiny A range of other mechanisms and procedures would bring more detailed scrutiny into the process: — The introduction of a sifting (merits) committee in the Commons, equivalent to that established in the House of Lords. (See paragraph 6).
13 Blackburn, R and Kennon, A (2003) GriYth & Ryle on Parliament: Functions, Practice and Procedures, London, Sweet and Maxwell. 14 Procedure Committee (1995–96) Delegated Legislation, HC 152, Procedure Committee (1999–2000) Delegated Legislation, HC 48. 3247872090 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
200 management of secondary legislation: evidence
— Conditional amendments: The Procedure Committee has raised the possibility of conditional amendments to SIs whereby an SI could be rejected but the terms under which it would be acceptable would be indicated. The Commission to Strengthen Parliament described this as an “eminently sensible” solution and argued that this represented the best way to proceed.15 — Use of Ministerial Statements: When SIs are discussed in committees, proceedings should begin with a ministerial statement and questions, as in the case of Commons’ European Standing Committees. — Greater use of pre-legislative scrutiny: Select committee involvement might be a way to raise public and media awareness of certain important proposals and to test the climate of opinion. — Post-legislative scrutiny of SIs: As with primary legislation, it would be open to departmental select committees to commission research on the eVect of particular SIs or to undertake a short inquiry. — Extending the deregulation procedure: Blackburn and Kennon put forward the use of deregulation procedures as a model for better scrutiny of SIs, arguing: “The only substantial improvement in parliamentary scrutiny of [delegated] legislation in recent years has been the introduction of deregulation orders. The deregulation procedure could be used for other SIs amending primary legislation, provided an Act was passed defining the categories other than the deregulation to which it would apply.”16 — External consultation: Most draft social security delegated legislation is referred by the Government to the Social Security Advisory Committee (SSAC) before being presented to Parliament. The SSAC consults with public and interested bodies. The Secretary of State is obliged to take account of the SSAC’s recommendations (although is not bound by them) and when the regulations in question are laid before Parliament, the SSAC’s report and a statement explaining the Government’s responses to the recommendations must also be laid. This model of consultation may be appropriate in other specific areas of legislation. — Lessons from Scotland: The Scottish Parliament’s procedures for dealing with secondary legislation involve a designated role for its committees and a guaranteed level of scrutiny. Westminster could evaluate whether there are lessons from Scotland that could strengthen its own procedures on dealing with delegated legislation. (See Appendix 1)
6. Role of the House of Lords No SIs can be amended by either House. This means that the Lords would have to reject the SI entirely if they identified a problem, a path that they are usually unwilling to take. This is despite the fact that the power to reject delegated legislation is one of the few unilateral powers possessed by the Lords (on which they cannot be overruled by the Commons). With the final shape of reform of the House of Lords still to be determined, it is important that the powers and functions of the Upper House in considering delegated legislation are part of this process. The main theme of any settlement should be to enshrine ways that enhances the mechanisms available to scrutinise delegated legislation. The establishment by the House of Lords of the Merits Committee to identify SIs “which it considers to be of suYcient political importanceto merit debate” has been widely welcomed, including by the Hansard Society, and shows that the Lords has made more progress than the Commons in this area and that this position should be safeguarded as Lords reform is completed.
7. Conclusion The current parliamentary procedures for scrutinising delegated legislation are not working eVectively. A wide range of bodies has reported on this subject in the last ten years and all have proposed substantial reforms. While Making The Law acknowledged that the increasing use of delegated legislation over recent decades was inevitable, and indeed necessary, given the complexity of modern Government and the constraints on parliamentary time, it warned that the mechanisms for achieving eVective parliamentary scrutiny were absent and needed to be implemented. The recommendations outlined in Making The Law, and by others, particularly the Procedure Committee, would, if adopted, improve a system that has attracted criticism from across the political spectrum, both inside and outside Parliament. Given the widespread nature of the criticisms of the system, and the range of 15 Strengthening Parliament, The Report of the Conservative Party Commission to Strengthen Parliament, chaired by Professor the Lord Norton of Louth, (2000). 16 Ibid. 3247872090 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
management of secondary legislation: evidence 201 proposals for reform put forward, the Hansard Society welcomes the Merits Committee inquiry and hopes that it provides further weight to the calls for reform. 12 December 2005
Appendix 1
PROCEDURES IN THE SCOTTISH PARLIAMENT — The Scotland Act 1998 gave Ministers and the Scottish Executive the power to make subordinate legislation (delegated legislation) in any area in which the Scottish Parliament had devolved legislative powers. After a Scottish Statutory Instrument (SSI) is laid, it is passed to and scrutinised by two committees. — SSIs are considered by the Subordinate Legislation Committee (SLC). Using specific criteria the SLC determines whether or not the SSI should be drawn to the attention of Parliament; for example, whether the SSI is ultra vires or has retrospective eVects beyond the authority of the parent Act. The SLC must report to Parliament within 20 days. — The SSI is also scrutinised by at least one subject committee, under whose remit the instrument falls. If it falls under the jurisdiction of multiple committees, one committee is designated the “lead committee” and the other committees pass their recommendations to it. — Instruments are subject to either negative or aYrmative procedure, depending on the stipulation in the parent Act. The parent Act may sometimes indicate that an SSI can be made without parliamentary approval. As in Westminster, instruments cannot be amended. — Negative Procedure (Motion for Annulment)“ An MSP must move for annulment within 40 days of the SSI being laid down, otherwise it is passed into law. The MSP must propose the motion for annulment to the lead committee, where the issue can be debated for no more than 90 minutes. The lead committee must report to Parliament within the 40-day deadline with its recommendations. The SSI may be debated and then voted on by the full House, and if necessary the SSI is annulled. —AYrmative Procedure (Motion for Approval)“ The lead Committee must decide whether the SSI should be recommended for parliamentary approval, and report to Parliament within 40 days of the SSI being laid. A member of the executive can propose to the lead committee that the SSI be approved. The issue can be debated for up to 90 minutes in the committee. Once the committee reports back to Parliament, a debate may take place in the House after which the issue is voted on. Between 1999 and 2000, 39 SSIs were subject to aYrmative procedure and 100 to negative procedure.17
Memorandum by the Law Commission
Introduction 1. The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and recommend reform where it is needed. 2. Following discussions with the Deputy Leader of the House of Commons, we agreed in our Ninth Programme of work to carry out a scoping study to assess the purpose and value of post-legislative scrutiny and to make suggestions as to how it might be carried out in a more systematic way. 3. Work began on the post-legislative scrutiny project in July 2005. Our consultation paper will be published at the end of January 2006. An open invitation for input on the early thinking on the scope of the project has been on our website since mid-September 2005. We have targeted and received valuable suggestions from Parliamentarians, Parliamentary counsel, Parliamentary clerks, Government departments, academics and others, all of whom have been able to oVer expertise and insights into diVerent aspects of legislative scrutiny and the Parliamentary process. 4. During the course of this early consultation, we met with Lord Filkin to discuss post-legislative scrutiny in relation to delegated legislation. We shared with him some of the comparative findings our research had revealed with regard to the management of delegated legislation. Lord Filkin considered our findings, particularly in relation to Australia, to be relevant to the Committee’s current inquiry and we are pleased to respond now to a formal invitation to give evidence by submitting those findings in writing. 17 Winetrobe, Barry K (2001) Realising the Vision of a Parliament with a purpose: an audit of the first year of Scottish Parliament, Constitution Unit, UCL, Table 6.3, p 95. 3247872088 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
202 management of secondary legislation: evidence
5. In our consultation paper, we will be inviting views on the post-legislative scrutiny of delegated legislation and on whether there may be advantages in making greater use of sunset clauses in secondary legislation. We do not express a Law Commission view on these points at this stage. Similarly, the following paragraphs should be read as a factual input into the Committee’s inquiry and not as the Law Commission advocating similar systems in the UK for the management of delegated legislation.
6. The Australian experience is relevant to the Committee’s inquiry in two diVerent ways. Firstly, it provides a comparative view of best practice relating to the repeal of statutory instruments and therefore addresses in part the Committee’s question 4. Secondly, the Australians have formulated guidance on matters suitable for inclusion in secondary legislation. This is relevant to the Committee’s questions 2 and 4 on drafting policy and guidelines.
7. We have enclosed for ease of reference the Administrative Review Council Report on Rule Making by Commonwealth Agencies (which unfortunately is not available electronically) and the Legislative Instruments Act 2003.
The Management of Delegated Legislation:The Australian Experience
(1) Best practice: repeal of statutory instruments
8. In 1992, the Administrative Review Council18 (ARC) published its report Rule-making by Commonwealth Agencies (ARC 35, 1992). The Report observed that in recent years there had been a vast growth in the volume and diversity of delegated legislative instruments. The ARC raised a number of concerns in relation to these instruments including inaccessibility and quality of drafting, and made 31 recommendations, including the sunsetting of rules on a 10-year, rotating basis.
9. Sunsetting of delegated legislation had already been established in New South Wales, Victoria, Queensland and South Australia. In Victoria, the provision for sunsetting was introduced in 1984 after the Legal and Constitutional Committee of the Victorian Parliament found that many statutory rules were no longer operative, mainly through the passage of time. The Committee therefore recommended a staged repeal of all existing statutory rules, subject to some limited exceptions, and an ongoing 10-year sunsetting period for all other statutory rules.19
10. In 2003, the Federal Parliament passed the Legislative Instruments Act 2003 (Cth), which is significantly based on recommendations made by the ARC. One of the objects of the Act is “to provide a comprehensive regime for the management of Commonwealth legislative instruments by establishing mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed.”
11. The Act sets out a procedure for registering “legislative instruments” (which include all regulations, statutory rules currently in force, other instruments that are disallowable under the current system, and proclamations) on an online database (FRLI) that is maintained by the federal Attorney-General’s Department.
12. The Act provides that legislative instruments are to be kept up-to-date and only remain in force for so long as they are needed. The basic rule is that such instruments should reach their sunset approximately 10 years after the date that they commence or are required to be lodged for registration. There are listed exceptions to this general rule and a procedure in place for the Attorney-General to defer sunsetting in certain circumstances and a procedure for Parliament to resolve that instruments continue in force.
13. It is too early to comment on the eVects of the Legislative Instruments Act. However, the Act itself provides, at sections 59 and 60 that it will be reviewed generally after three years and that the operation of the sunsetting provisions will be reviewed after 12 years. 18 The Administrative Review Council is responsible for overseeing and monitoring the Australian system of administrative review. It was established to provide advice to the Attorney-General on strategic and operational matters relating to that system. For more information see: http://www.ag.gov.au/agd/WWW/arcHome.nsf/Page/Home 19 Administrative Review Council Rule-making by Commonwealth Agencies (ARC 35, 1992), p58. 3247872088 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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(2) Drafting policy and guidelines 14. In the UK, there is no set of rules for deciding what matters are suitable for secondary legislation or should be included in the Act itself. There is a perception among Parliamentarians and Parliamentary Counsel that there is a greater tendency to use secondary legislation than in the past. The Australian Administrative Review Council20 noted a similar problem in Australia regarding the lack of clarity in the division of content between primary and secondary legislation. The Council recommended that criteria should be incorporated into the Legislation Handbook which is prepared by the Department of the Prime Minister and Cabinet. The Handbook was updated in 2000 and now contains the following guidance21: Primary or subordinate legislation 1.12 While it is not possible or desirable to provide a prescriptive list of matters that should be included in primary legislation and matters that should be included in subordinate legislation, it is possible to provide some guidance. Matters of the following kinds should be implemented only through Acts of Parliament: (a) appropriations of money; (b) significant questions of policy including significant new policy or fundamental changes to existing policy; (c) rules which have a significant impact on individual rights and liberties; (d) provisions imposing obligations on citizens or organisations to undertake certain activities (for example, to provide information or submit documentation, noting that the detail of the information or documents required should be included in subordinate legislation) or desist from activities (for example, to prohibit an activity and impose penalties or sanctions for engaging in an activity); (e) provisions conferring enforceable rights on citizens or organisations; (f) provisions creating oVences which impose significant criminal penalties (imprisonment or fines equal to more than 50 penalty units for individuals or more than 250 penalty units for corporations)22; (g) provisions imposing administrative penalties for regulatory oVences (administrative penalties enable the executive to receive payment of a monetary sum without determination of the issues by a court); (h) provisions imposing taxes or levies; (i) provisions imposing significant fees and charges (equal to more than 50 penalty units consistent with (f) above); (j) provisions authorising the borrowing of funds; (k) procedural matters that go to the essence of the legislative scheme; (l) provisions creating statutory authorities (noting that some details of the operations of a statutory authority would be appropriately dealt with in subordinate legislation); and (m) amendments to Acts of Parliament (noting that the continued inclusion of a measure in an Act should be examined against these criteria when an amendment is required). 15. The acknowledgement in the introductory paragraph of this guidance that it is not possible to provide a prescriptive list is important because literal adherence to (m) would not be desirable in all cases and would risk holding up law reform where an existing Act is not working satisfactorily. The Cabinet OYce has recently consulted on a new Bill for better regulation. This would allow Regulatory Reform Orders to amend or repeal primary legislation in order to simplify legislation and/or implement uncontroversial Law Commission recommendations, as well as remove, reduce, re-enact or impose burdens (as now). In our consultation paper on post-legislative scrutiny, we will be considering whether such a mechanism might be used as part of post- legislative scrutiny. 16. At the Law Commission, we are well used to producing reports recommending legislation to reform the present law. Government often accepts our recommendations but responds that it will only legislate when time permits. Therefore we would welcome a procedure which enabled properly considered law reform which has been subject to public consultation to proceed on a fast-track route. This illustrates the need for flexibility in any formulation of guidelines for statutory instruments. 17. We hope that this information is helpful. We are happy for the Committee to contact us for any further assistance that we may be able to provide for this inquiry. 21 December 2005 20 Administrative Review Council Report, “Rule-making by Commonwealth Agencies” Report No 35, 1992. 21 http://www.pmc.gov.au/guidelines/docs/legislation—handbook.pdf 22 A penalty unit is defined in section 4AA of the Crimes Act 1914; at July 1999 a penalty unit was equivalent to $110. 3247872089 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Memorandum by the Law Society
Summary
The Law Society welcomes this inquiry and in the enclosed submission makes points on some of the questions raised in the call for evidence. Secondary legislation is of ever-growing significance but there are increasing concerns about the level of scrutiny it receives. We broadly endorse the points made most recently by the Hansard Society23 and support their recommendations for change, including allowing statutory instruments (Sls) to be “conditionally amended” and extending consultation processes to mirror those of the Social Security Advisory Committee. In our evidence, we comment on the need: for extensive consultation with stakeholders and users at an early stage; — for thorough preparation of Regulatory Impact Assessments (RIAs), improvements in their scope and for their subsequent evaluation; — for careful, clear drafting and timely laying and publication of Sls.
Introduction
The Law Society is the professional body for solicitors in England and Wales. The Society regulates and represents the profession and in its public interest role works for reform of the law and improving access to justice.
Preliminary Points The Law Society is very pleased to respond to the Committee’s enquiry. Secondary legislation is a major part of this country’s regulatory and legislative framework and is of ever- growing significance. A thorough and systematic review of its operation is now necessary and most welcome, not least because of increasing concerns about the growing amount of secondary legislation and the inadequate scrutiny much of it receives. Shortcomings in these respects have been drawn to public attention in numerous reports over the years, most lately perhaps by the Hansard Society24, and little purpose would be served by repeating them once more. We broadly endorse the points made by the Hansard Society and support their recommendations for change, including allowing Sls to be “conditionally amended” ie rejecting the measure by saying how it should be changed, and extending consultation processes to mirror those of the Social Security Advisory Committee, which consults widely with the public and interested parties in advance. In this paper we will answer where we think we can be helpful the questions raised in the Call for Evidence. These are repeated in italics for ease of reference.
Responses to Questions
Coordination
1. How is secondary legislation managed across and within Government departments? Who has overall responsibility within each department? Who has coordinating responsibility across Government?
Consultation and timetabling
1. Clearly where there is a measure which aVects more than one department, or the devolved administrations, a timetable and programme for its management within each, and careful co-ordination, will be necessary. Consultation will need to take place with stakeholders in the usual way but more time for consideration of responses may be needed. 23 Parliament, Politics and Law Making, edited by Alex Brazier, the Hansard Society, 2004. 24 ibid Chapter 5. 3247872089 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Titles of SIs 2. An apparent change in practice in relation to SI titles has caused uncertainty for those working within both England and Wales. We are grateful to Marie Navarro at CardiV Law School for this information, drawn from her current PhD research. 3. The problem is that it is now no longer always clear from the title of measures made in London whether they apply to England alone or to both England and Wales. Previously the preamble to any SI made would state that it was made in respect of England alone or of both England and Wales. Lately, however, this has not always been the case. 4. For example, an Act may give powers to Wales in respect of one group of issues, to the Secretary of State in relation to England and Wales on a second group and power in relation to England only in relation to a third. Unless any SI made in exercise of the retained powers states in which jurisdictions it applies, in order to identify which powers relate to England alone and which to both England and Wales, it is necessary to refer to the original Act25. This is time-consuming and troublesome, and easily avoidable by clearly identifying the extent of powers in secondary measures made.
Drafting 5. If SIs are to be drafted by policy staV rather than lawyers, Parliamentary Counsel or other government legal advisers might be given a co-ordinating or overseeing role to ensure that the measures will dovetail with each other and what is already on the statute book.
Drafting—policy
2. How do departments take decisions on the revision, laying and commencement of linked groups of statutory instruments? How is the scope of any individual instrument within a group decided? How is the user’s convenience taken into account? Is the existing regulatory impact assessment process an effective way to ensure that secondary legislation is made in the least burdensome way?
Plain language and easy-to-use structure— helping the user 6. Often, the statutory instrument will contain the practical detail which regulates the day to day operation of a new Act. Thus it should be a priority to draft regulations so as to make them accessible and helpful to the anticipated users. Using plain language to draft the SI, and structuring and ordering it so as to make its purpose and operation as clear as possible, would be of great help to users. 25 Marie Navarro at CardiV Law School has identified the following examples (in the first two instances below discrepancies between the title and the area of operation are shown in bold): Regulatory Reform (Schemes under Section 129 of the Housing Act 1988) (England) Order 2003, SI 986, s 1 1 Citation, commencement and extent (1) . . . (2) . . . (3) This Order extends only to England and Wales and conversely Health (Wales) Act 2003 (Commencement No 2) Order 2003, SI 3064 2 Appointed days for provisions relating to the Community Health Councils in England (1) . . . (2) The provisions referred to in paragraph (1) are brought into force only in relation to England. Further Marie Navarro points out that “the territorial extent of the provisions of Sls made by central government are becoming very complicated. An example is the following: National Health Service Reform and Health Care Professions Act 2002 (Supplementary, Consequential etc Provisions) Regulations 2002, SI 2469. 2 Application and extent (1) Regulations 3 and 15 to 17 apply only in relation to England. (2) Subject to paragraphs (3), (4) and (5), the extent of any amendment made under regulations 4 to 14 is the same as that of the provision amended. (3) Where before the coming into force of these Regulations, a provision of a statutory instrument has been amended and that amendment applies only in relation to England, any further amendment of that provision made by these Regulations shall similarly apply only in relation to England. (4) Nothing in these Regulations shall be taken as amending any provision of a statutory instrument, or part of such a provision, which applies in relation to Wales only. (5) The amendments made by paragraphs 33, 56 and 76(3) and (4) of Schedule 1 apply only in relation to England. (6) Regulation 18 extends to England and Wales and to Scotland but not to Northern Ireland. (7) The extent of any repeal or revocation of any enactment under regulation 19 is the same as that of the enactment repealed or revoked.” 3247872089 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Planning for SIs 7. Our experience, with some exceptions, is that departments do not always work eVectively on linked Sls and the user’s convenience tends to be a low priority. This may be because of pressure of time, but, however good the reason, one outcome at least may be to limit the usefulness of responses from stakeholders, and indeed their ability to comment. 8. For example, we welcome the fact that the OYce of the Deputy Prime Minister (ODPM) has now responded to pressure to consult on the regulations in respect of the contents of home information packs under the Housing Act. However, it was at first decided that the regulations should be released in three tranches, despite the fact that the regulations needed to be read together. This made it diYcult for stakeholders to comment, and this diYculty was compounded by the fact that the second tranche amended the first, thus wasting some of the work done already. 9. We think the quality of responses would have been improved if consultation had been planned and systematically undertaken from the outset, to say nothing of saving time and eVort. 10. On other matters, such as planning, our experience has been that the ODPM has worked well on linked Sls.
Statutory Instruments, RlAs and the legal aid impact test 11. Regulatory Impact Assessments (RIAs) will have an increasingly important role to play, partly as a result of the adoption by the Government of reports such as “Regulation—less is more”26. In addition, it is often the statutory instruments associated with an Act that carry the essential detail for users. Thus it is vital that RlAs are carried out in respect of all potential aspects of a measure. 12. RIAs should also highlight concerns expressed by stakeholders and potential users, at consultation stage, about proposed measures, whether these relate to principle or practicability. For example, concerns were expressed about the workability of parts of the Charities Act 1992 concerning street collections27. The sections dealing with this have never been brought into eVect. Similarly, during its passage, the Law Society expressed concern about aspects of the Domestic Violence, Crime & Victims Act 2004. These sections28 are not yet in force and we fear this may also be because our concerns about workability were not recognised earlier. 13. The Law Society’s particular concerns are of course access to and the administration of justice, and the operation of the legal system more generally. So far, we consider that RIAs have not assessed suYciently thoroughly possible impacts on these areas. For example, creation of a new oVence (and many hundreds of new oVences have been created since 199729) has significant cost and other impacts for the public sector, in particular for the legal aid fund. The eVect bears most heavily on the availability of civil legal aid, as criminal cases in eVect have first call on the limited fund. 14. In this connection we therefore welcome the introduction by the Department for Constitutional AVairs (DCA) of the new legal aid impact test. This will be undertaken “[w]henever consideration is being given to the introduction of new criminal sanctions or civil penalties . . . at an early stage in the development of the proposal . . . The results of the test and any impact identified should be reflected in the enforcement and sanctions section of the regulatory impact assessment (RIA)”30. 15. The test will also apply to the availability of preliminary advice under civil legal aid as well as any possible impact flowing from the proposal on the courts: “In civil and family matters in particular, help and assistance is available to advise people of their rights and obligations, and entitlement. For example, to explain how new legislation impacts on them individually or to advise on the entitlement and amount of state benefits payable”31. 16. The eVectiveness of the test is to be reviewed in a year’s time. We hope it will improve the way resources are allocated, but in the meantime note that it does not refer specifically to the possible impact of legislative change on tribunals, which consider large numbers of cases every year. Nor is the legal aid fund the only source of state-funded information, advice and representation—for example the equality commissions may be aVected by measure creating new rights and obligations. 26 http://www.brtf.qov.uk/reports/les’sismoreentry.asp 27 Part III Charities Act 1992. 28 s12 of the Domestic Violence, Crime & Victims Act (which inserts new para 5A into the Protection from Harassment Act 1997) concerning restraining orders after acquittal (s13 applying to Northern Ireland). 29 According to a press release from the Liberal Democrats on 8 February 2005, the number is 1000, including 367 from the Home OYce. 30 http://www.dca.gov.uk/laid/impact-test.htm 31 ibid. 3247872089 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Inadequate RIAs
17. At present there appears to be no means of submitting complaints about inadequate RlAs, challenging them, or ways of seeking more information on points raised in them. While the National Audit OYce does consider a sample of RIAs subsequently referred to them by the Better Regulation Task Force, this is not a fully satisfactory solution to the problem. A new mechanism is needed. 18. A recent example is the partial RIA in respect of the smokefree aspects of the Health BiIl32. This does not appear to mention legal aid. Enforcement is to be primarily the responsibility of local authority environmental health oYcers33, and costs under the preferred Option 4 are estimated at £7–20 million per year. There appears to be no indication of how this sum is to be raised, nor of whether existing environmental health oYcers can take on this additional burden, nor of any assessment of the possible number of cases which may go to court (although the paper does refer to the experience in Ireland). Reference is made to costs estimates obtained by ASH but these are not shown in detail and there appear to be no detailed estimates from local authorities and relevant departments. 19. There are of course other costs than legal aid involved in creating new criminal sanctions and civil legal rights and obligations. New oVences may add to the costs of the police, prosecution or other enforcement authorities, probation, prison, aftercare, victim support and social services. These should all be covered in the RIA.
Scope of RIAs
20. We are also concerned about the scope of RIAs. At present we are concerned that they do not suYciently assess the value of intangible benefits, such as rights and freedoms. Neither do they cover such intangible costs as serious delay in obtaining resolution of a case. This may involve practical diYculties, with measurable costs. 21. The National Audit OYce (NAO) in a review of RIAs34 noted the diYculty experienced in quantifying costs and in particular benefits “for which”, as their report puts it, “there is no market”35. In some cases there will be less quantifiable costs: “justice delayed is justice denied” and although this is not a measurable loss, there will be a loss nonetheless. 22. Current RIA guidance refers policy makers to the Green Book36, which oVers some guidance on this point37. If there is no “market data” policy makers are advised to try and assess people’s “willingness to pay for a particular benefit” or “the amount of compensation consumers would demand in order to accept” a cost38. 23. However this is of very limited help. Inevitably there is a particular problem with assessing the cash value of the legal system, or elements of it, by and to people who have not had contact with it (or whose perception of their contact with it has been negative). Most individuals will have no realistic way of comparing and expressing the value of the right of access to the court, say, with the value of any other constitutional principle, or any other intangible good in their lives, and of then converting it to monetary amounts. 24. Other countries have grappled with this issue. For instance, the guidance from New Zealand is as follows: “Tangible and intangible “66. . . . The term “intangible” is often applied to those impacts to which it is diYcult to attribute a dollar value. Examples might include time, health, comfort, environmental, and cultural impacts. “67. It is both possible and necessary to integrate the two types of impact . . . intangible factors (either dealt with in a descriptive or qualitative manner) should be presented alongside quantitative analysis. The analysis should indicate the relative importance that has been assigned to the values, and the assumptions that have been made in making those judgements. It is also critical to recognise the use of a formal [cost/benefit analysis] approach does not imply ignoring non-quantifiable factors. 32 http://www.dh.qov.uk/assetRoot/04/12/19/31/04121931.pdf 33 The BBC reported on 7 November a shortage of Environmental Health OYcers across the country—see http://news.bbc.co.uk/l/hi/programmes/real story/4407710.stm. This may have an impact on the enforcement of the new measure but is not referred to in the RIA. 34 first Evaluation of Regulatory Impact Assessments Compendium Report http://www.nao.orq.uk/pn/03-04/0304358.htm 35 para 2.53 p37. 36 Green Book, Appraisal and evaluation in central government’, Y http://www.cabineto ce.gov.uk/requlation/ria/ria–guidance/costs–and–benefits/cost–and–benefits checklist.asp 37 http://qreenbook.treasury.gov.uk/ 38 “Valuing costs and benefits where there is no market value” para 5.30V http://greenbook.treasury.gov.uk/chapter05.htm; and Annex 2: http://qreenbook.treasurv.qov.uk/annex02.htm 3247872089 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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In fact, it may be more important to focus on the qualitative factors, especially where those factors are expected to be larger than the quantitative impacts”39.
25. We recognise that this is a diYcult matter. One solution might be to allot a notional amount in the cost/ benefit analysis for (for example) constitutional rights (this amount would have to be agreed and applied across government and be regularly reviewed to take account of inflation).
26. However we tend to think that attempts to create equivalent cash values for something like the right to seek the adjudication or assistance of the court may be to miss the point. These rights cannot be regarded as “having a market” but are of inestimable worth nonetheless.
27. Finding a means of incorporating a non-price weighting—a worth factor—for legal and constitutional intangibles might assist, as suggested in the extract above, with other RIAs as well, such as rural impacts. A worth factor could for instance be attached to “rural peace and quiet” in a similar way to “the right of access to justice”. Agreeing a common way of dealing with worth factors across government would also increase transparency and enable consultees to respond more fully to proposals, or even challenge the worth factor attributed.
28. Whatever method is adopted, legal and constitutional rights cannot simply be ignored in the impact assessment process. To leave them out, in eVect allotting a nil amount, is to risk distorting the balancing of costs, benefits and interests which is part of the policy making process. It is essential therefore that the RIA should include some means of recognising the importance of these factors. Omitting them from the equation risks valuing only what is measurable, and damagingly warping the resultant assessment.
Other factors
29. We think it would also be useful if RIAs considered whether there were any proposals for further change in the law in the pipeline in the same or related fields. This would draw attention for instance to any Law Commission proposals which might have a bearing, and to any forthcoming measures, EU or otherwise, the impact of which will need to be taken into account.
30. In addition of course RIAs should address the question of rationalisation, simplification and codification of the legal and regulatory context in which the new measure will operate.
Evaluation
31. Issues aVecting access to justice and other aspects of the legal system must not be regarded as tangential or as afterthoughts, but as integral to assessing the impact and eVectiveness of new measures. As in other fields, the eVectiveness and accuracy of all aspects of the RIA, including legal impacts, must be systematically reviewed once the measure has been in operation for an appropriate period of time. This will ensure that lessons can be learnt and applied in the future.
Correction
5. Why are so many correcting instruments required? What are the repercussions in a department if a correction is required? Is there a process of inquiry about why a correction was needed?
32. Fuller consultation, with suYcient time for consideration on the part of stakeholders, along with more use of draft instruments, is likely to lead to a reduction in the need for corrections. In addition, as the Hansard Society suggest, a full narrative setting out the policy proposals which are to be enacted should be made available as soon as possible if the final text of a measure is not to be published at an early stage40. 39 http://www.med.govt.nz/busit/compliance/regimpact/regimpact-01. html£P 149 30015 40 Parliament, Politics and Law Making, edited by Alex Brazier, the Hansard Society, 2004, p 36. 3247872089 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Commencement—common dates
8. We are keen to avoid the bulk laying of statutory instruments in the run up to each common commencement date. How will departments plan the laying of Sls before each common commencement date in a way that facilitates scrutiny? Are departments developing annual statements on proposed regulation? 33. Common commencement dates need not lead to a rush in the run up to the day. Sls may be introduced in an orderly fashion throughout the year with an implementation date some months ahead. This would help compliance with, for instance, the Government’s guidance issued through the Small Business Service, which states on p141, “you should issue guidance on new legislation at least 12 weeks before the legislation comes into force”— although our experience is that frequently this requirement is not complied with. The website emphasises the need to allow business suYcient time by adding, “when planning to introduce new legislation, allow enough time for a 12-week implementation period”42.
Commencement—21 day rule
9. How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comes into force? Should the period be lengthened? 34. Our first comment is that Sls should always be published before they are laid. This is not always the case. 35. As far as the 21 day rule is concerned, unfortunately this principle is not well observed. For example, in relation to the Planning and Compulsory Purchases Act 2004: — the Planning and Compulsory Purchase Act 2004 (Commencement No. 3 and Consequential and Transitional Provisions) (Wales) Order—SI 2005/1229 was made on 26 April 2005 and came into force on 30 April 2005; — the Planning and Compulsory Purchase Act 2004 (Commencement No. 4 and Consequential, Transitional and Savings Provisions) (Wales) Order—SI 2005/2722 was made on 4 October 2005 and came into force on 5 October 2005. — the Town and Country Planning (Local Development Plan) (Wales) Regulations—SI 2005/2839 was made on 11 October 2005 and came into force on 15 October 2005. 36. In this connection, it is worth pointing out that the Small Business Service website carries the Government’s guidance to departments on implementation periods: “Business and particularly small firms should be allowed suYcient time to prepare for the implementation of new legislation. You should issue guidance on new legislation at least 12 weeks before the legislation comes into force”, it says43. It is important that requirement is also complied with. 37. Further, when a measure with regulation-making power is introduced, departments from time to time agree to make an SI available in draft, to give an indication of the likely use of the powers. The anticipated SI is not always forthcoming but is of value when it is made available. It would be helpful if this became standard practice.
Consultation
10. How well observed is the code of practice on consultation? How can the results be best presented in Explanatory Memoranda? How do the Government coordinate consultations with shared stakeholders, so that they are not overburdened? What changes could be made to the consultation process so as to lead to better secondary legislation? 38. By and large government departments appear to try to comply with the Code. The most obvious improvements which could be made include always consulting on significant proposals, allowing more time for consultation, and issuing draft regulations for comment in good time. Feedback on consultation responses, saying why a point has not been adopted, for example, would also be welcome. 39. Extending the super-aYrmative resolution procedure44, normally applicable to Regulatory Reform Orders, would also be desirable. 41 http://www.sbs.gov.uk/SBS Gov files/requlations/REG implementationguideline s.pdf 42 http://www.sbs.gov.uk/sbsgov/action/laver?r.12%7000013212&r.11%7000000211 &r s%tl&topicld%7000013225 43 http://www.sbs.qov.uk/SBS Gov files/requlations/REG implementationguideline s Of 44 This special procedure allows (broadly) debate on, and amendment of, statutory instruments—see Statutory Instruments, Fact Sheet 7, Legislative Series, House of Commons Information OYce for a helpful outline; at http://www.parliament. u k/docu me nts/upload/L07. pdf 3247872089 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Users and impact 11. What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone in Government (or in the sectors affected) monitor the collective impact of regulations on e.g. small businesses or local authorities? 40. To answer the final point first, we are not aware of anyone monitoring the cumulative eVect of the Government’s legislative output on a systematic basis. Indeed Professor the Lord Norton of Louth commented on this at a debate at the Law Society in 200345. 41. With regard to the first point, users’ most pressing concerns, we would cite the following: — Too much secondary legislation is made too late, and comes as too much of a surprise. There should always be full consultation on significant measures, and feedback on the consultation. As indicated, this should make it clear for example why a particular suggestion was not adopted, so that the thinking is as clear as possible. — Ideally a draft instrument would be available from an early stage, but, as the Hansard Society suggest, if this is not possible there should at least be a full narrative setting out the policy proposals which are to be enacted46. Most of the problems with secondary legislation are to do with the practical eVects of policy, not the drafting. It may be more helpful to stakeholders and users to know the nature of the policy the government is proposing than to see its final legal form—although this is not of course to discount the need for careful drafting. However if it was at least clear what it was intended to bring into eVect, users would generally be in a better position than at present. They could then more clearly assess whether the legal text did eVectively carry this into eVect. — Other steps which could be taken include reviewing the whole process by which a measure enters law. As much detail as possible should be provided in advance, to enable better and more thorough discussion, and so as to avoid rushed consideration at a late stage when essential detail emerges. Carry-over may help in this respect, perhaps allowing more measured consideration of major and non-urgent proposals. 42. It may be worth adding that more attention should perhaps be paid to secondary legislation implementing European measures. Estimates indicate that 40–60 per cent of secondary legislation comes from Europe. Much of this does not receive publicity until it is put before Parliament. More information and consultation, even before proposals are formally put forward in Europe, would help identify salient issues early on and may obviate problems arising in the first place. 43. A prior question even to this whether it is always appropriate to use the regulation-making power conferred by section 2(2) of the European Communities Act 1972 as the route for transposing European Directives, given the significance of many of these measures. December 2005
Letter from the National Consumer Council I am pleased to enclose a copy of Consumers and regulation, a paper recently completed by the NCC Deputy Chief Executive, Philip Cullum, regarding the consumer interest in regulation. This paper details how inappropriate regulation has a negative eVect on both the consumer, and on business. Regulation can at times be vital, providing essential safeguards for vulnerable people and helping to make markets work. Common technical standards, safeguards on misleading claims and rules about anti-competitive behaviour all promote consumer choice and ultimately, enhance business competitiveness. There are three reasons for our caution. The first is that consumers foot the bill (although policy-makers have fallen for the line that unnecessary regulation is a cost for business). Next, incumbents often use regulation to restrict or prevent competition. Business leaders talk tough about regulation, but too many companies—and indeed entire sectors—are willing to embrace and even lobby for rules and restrictions when they think it will further their own position. Finally, regulation, often via statutory instruments, can have a deadening eVect, inhibiting business creativity and innovation. Current debates about the quantity of regulation miss the point, and rhetoric is still more in evidence than hard facts. There must be a change in our regulatory culture. The way forward is to place the consumer at the heart of regulatory decision-making, using the consumer interest as a framework for assessing what is working and what isn’t. 13 January 2006 45 Report of the Better Law-making Debate, 2003, the Law Society. 46 see note 17. 3247872092 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Consumers and regulation, by Philip Cullum The NCC’s mission is to help everyone get a better deal by making the consumer voice heard. To achieve this, we have four strategic objectives: — to put users at the heart of public services; — to ensure that disadvantaged and vulnerable consumers get a fair deal; — to achieve more sustainable consumption; and — to make markets work for consumers. Our work in this last programme area—Open Markets—aims to improve market outcomes for consumers by promoting eVective policies on competition, law and soft law. We also want to advance policy on innovation, technology and information use that promotes consumers’ interests. This is the second in a series of Open Markets pamphlets that challenges the status quo in consumer policy, drawing on the NCC’s unique insights to advocate new ways of thinking.
Summary It is time to rescue the debate on regulation from the vested interests of business leaders and bureaucrats. At the National Consumer Council (NCC), our instinct is against knee-jerk calls for regulation, and we have a long and distinguished track record in calling for greater competition when others were concerned with protectionism and the promotion of so-called national champions. There are three reasons for our caution about regulation. The first is that consumers foot the bill (although policy-makers have fallen for the line that unnecessary regulation is a cost for business). Next, incumbents often use regulation to restrict or prevent competition. Business leaders talk tough about regulation, but too many companies—and indeed entire sectors—are willing to embrace and even lobby for rules and restrictions when they think it will further their own position. Finally, regulation can have a deadening eVect, inhibiting business creativity and innovation. Regulation can at times be vital, providing essential safeguards for vulnerable people and helping to make markets work. Common technical standards, safeguards on misleading claims and rules about anti- competitive behaviour all promote consumer choice and, ultimately, enhance business competitiveness. But regulation needs to be used sparingly and with a sense of purpose. Current debates about the quantity of regulation miss the point, and rhetoric is still more in evidence than hard facts. There must be a fundamental change in our regulatory culture. The way forward is to place the consumer at the heart of regulatory decision-making, using the consumer interest as a framework for assessing what is working and what isn’t. The NCC supports proposals for a super-complaint process, in which business organisations, consumer groups and other stakeholders can refer failing regulations for oYcial review. In this pamphlet, we identify a number of very diVerent instances in which regulation restricts competition, limits choice and raises prices. These include the rules that make it hard for law-abiding citizens to open a bank account, the regulations that mean people in many towns have to wait longer for a taxi, and the red tape that wraps itself around couples who want to tie the knot.
Our Bias Towards Markets These are boom times for deregulators. The Queen’s Speech—ironically, one of the longest lists of proposed legislation on record—promised a Better Regulation Bill. This will implement the recommendations of the Better Regulation Taskforce to reduce the administrative burden of regulatory compliance, as well as facilitate a “one in, one out” approach to new regulation. A Better Regulation Executive is being established, and action is being taken to implement the report of the Hampton review on regulatory inspections and enforcement. This isn’t just a UK issue: the European Commission is pushing for less red tape, as part of the Lisbon agenda to enhance European competitiveness; and the global management consultancy McKinsey says “governments everywhere struggle to get regulation right.” The prime minister argues that “It seems to be part of the DNA of regulatory bodies that they acquire their own interests and begin to grow”. But government departments are hardly blameless when it comes to creating new rules and greater bureaucracy. 3247872092 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Campaigning groups are often in the firing line too. Their role is to identify problems that need to be tackled, and government intervention often appears to be the best way of achieving this. It can be all too tempting to call for regulation as a quick fix.
“Our starting point is that competition works, with well-informed consumers exercising real choice” But at the National Consumer Council, our instinct is against knee-jerk calls for regulation. We are in favour of properly functioning markets, and our starting point is that competition works, with well-informed consumers exercising real choice. This is our prejudice, one that we have articulated constantly since the mid- 1970s, including over many years when the benefits of competition and choice were not so widely accepted and the prevailing political philosophy was all about protectionism and national champions. We do not support regulation unless and until there is a powerful case for intervention to make markets work or provide essential safeguards for consumers.
Three reasons for caution The first reason for our caution about regulation is that consumers foot the bill. Time and again, unnecessary regulation is presented as a cost for business. The British Chambers of Commerce even publishes what it calls its business “Burdens Barometer”. This line has been asserted so many times that policy-makers and politicians from all parties have fallen for it. The Department of Trade and Industry (DTI) recently published a leaflet tellingly entitled Better regulation in DTI: less red tape for business. In fact, the real burden is on consumers, who pick up the tab. But we are rarely mentioned. Indeed, when the appointment of the Better Regulation Executive’s new chair was announced, cabinet minister John Hutton said “William Sargent will drive through the major change programme for business and public sector stakeholders.” The second basis for our sceptical approach is that incumbents often use regulation to prevent or restrict competition, for example, by setting unnecessarily high entry standards. Business may talk tough when it comes to regulation, but all too many companies—and indeed entire sectors—are willing to embrace (and sometimes lobby for) rules and restrictions when they think it will help further their own position. Third, regulation can inhibit business creativity and innovation. This can be a particular issue for small businesses, so often a driver of new ideas in our economy. It has been estimated that regulation has five times as much impact on them. Last year, one of the UK’s leading regulators required companies trying to win the right to bid for some small market research projects to answer numerous questions such as “How do you ensure your organisation and its people have a dialogue?” Few people would feel at their most entrepreneurial after a few hours spent on this kind of pointless form-filling.
“Unnecessary bureaucracy increases costs. As a result consumers pay more” A survey of members of the Federation of Small Businesses found that the longer someone has been in business, the more likely they are to be dissatisfied with the rules aVecting companies. This is the deadening eVect of regulation. Unnecessary bureaucracy like this also increases costs, and, as a result, consumers and taxpayers pay more.
Benefits of Deregulation The reality is that consumers have benefited hugely from much deregulation over the years. In markets as diverse as optical services, conveyancing and air travel, consumers now have greater choice and lower prices thanks to the opening up of markets—moves supported at the time by the NCC. In each case, scare stories put around in advance were unfounded, and quality standards have been maintained.
Regu-Waffle Many business people routinely denounce all regulation in the strongest terms. The Confederation of British Industry talks regularly about “a red tape tide”, while the British Retail Consortium says that “excessive regulation and red tape are damaging business.” The British Chambers of Commerce goes even further, declaring that “monitoring and measuring the cost to business of compliance with regulation and red tape is one of [our] top priorities.” 3247872092 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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“Businesses benefit from much regulation, and they support it when it suits them” Earlier this year, a PricewaterhouseCoopers survey found that the world’s top chief executives think over- regulation is the biggest potential threat to business growth. This seems unlikely to be true. Can it really be correct that regulation is more important than competition from China and India, issues about human performance and skills, or the state of the wider economic environment? The reality is that businesses benefit from much regulation, and they support it when it suits them—often justifying this as the need for a “level playing field”, when in fact they want quite the opposite. John Sunderland, executive chairman of Cadbury Schweppes, is a fierce critic of much food regulation, denouncing “traYc light” nutritional labelling as “extreme”. But he refers approvingly to the Merchant Shipping Act of 1867, which once required all ships to carry a daily ration of lime juice (and which coincidentally benefited his company, owners of Rose’s Lime Juice). And, as president of a body representing British advertisers, he has called for increased regulation of the BBC and for a proposed merger of two TV companies to be investigated by the Competition Commission. When they talk about the detail, business leaders often have pretty nuanced views about regulation, recognising the pluses and minuses—yet such subtlety tends to be lost when the anti-regulation rhetoric starts.
Principles and Focus We consider that there are two key types of regulation. In both instances, critics are simply wrong to characterise regulation as a problem. The first is lifeline regulation, which safeguards consumers. The CORGI rules about gas safety save lives— around 47,000 businesses employing 98,000 gas fitting operatives are now registered, ensuring that UK households benefit from a well-trained workforce. Set up 35 years ago, CORGI commands wide support, and no-one today seriously argues that it has been anything other than a good thing for consumers and business alike. And the regulation governing access to aVordable energy and water safeguards vulnerable consumers. The second is market-making regulation, which enables proper competition and choice. The Building Societies Association says that there is too much regulation and “an inadequate recognition of the long-term benefits of competition in delivering consumer value.” But let’s not ignore all those instances where regulatory intervention is needed to make markets work. Common technical standards can help establish competitive product markets; and ensuring that advertisers are not allowed to make misleading claims helps promote choice. The current Competition Commission inquiry into doorstep lending, prompted by the NCC’s super-complaint, should sort out a market that is failing low-income customers; and standards on food labelling can help consumers make informed decisions and promote new ranges of healthy food. The point is that making markets work for consumers is so important that we should never allow it to be sabotaged by the lazy rhetoric of lobby groups, whether for or against regulation. We will soon be publishing new NCC thinking on how and why markets sometimes fail, the benefits of correcting such market imperfections, and how to identify and apply the right potential solutions. Regulators can play an important role in making markets work. This can be about cracking down on anti- competitive practices. But it can also mean more positive steps, such as sweeping away barriers to switching between companies and promoting informed choice, or enabling consumers to share their experiences of diVerent companies, so that those who deliver good products and high service standards benefit and those who do not lose out.
Self-Regulation Sometimes the best option can be self-regulation, allowing an industry to take responsibility for any necessary rules. The premium rate telephone regulator, ICSTIS—which covers information and entertainment services—is one example. Self-regulation has built the consumer trust needed to make this £1 billion market work. However, in a failing market, self-regulation is a privilege, not a right. Our research suggests that it works less well in fragmented markets where the range of providers is wide and diverse. The car servicing and repair sector provides a prime case study of this. There is overwhelming evidence of massive consumer detriment—estimated to be as much as £4 billion a year in a £6 billion market. Over the last 30 years, 11 diVerent self-regulatory schemes have been tried and all have failed, the result of a lack of will on 3247872093 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
214 management of secondary legislation: evidence the part of the industry and the apparent reluctance of policy-makers to get to grips with the unglamorous job of enforcement. The NCC has now set the industry a deadline to make self-regulation work; this is its last chance. In the absence of real action, and in the face of high and sustained levels of detriment, the only option may be some form of licensing or regulation. We would demand such action reluctantly. But we are conscious that scepticism about regulation, and support for the better regulation agenda, should not mean leaving consumers defenceless when traders are intent on ripping them oV time and again.
Principled Regulation One paradox is that, while most in business say they do not like detailed regulation, many (not least those working in companies’ compliance departments) can be uncomfortable with a principles-based approach and prefer being given direct instructions by a regulator. This is apparently known in some circles as “Nike regulation”, after the sports firm’s advertising slogan “Just do it!” The Unfair Commercial Practices Directive, which the NCC has championed, sets out a general duty on businesses across the EU to trade fairly. This welcome reform represents an attempt to change culture and underlying attitudes rather than being highly prescriptive. Indeed, it should provide an opportunity to sweep away some detailed rules. The directive has, however, met some resistance from business organisations, which expressed concerns about a possible lack of certainty. But support for greater focus on cultural change is growing. Tim Ambler and Keith Boyfield of the Adam Smith Institute say that what we need is “a few general rules of good conduct and the marketplace, [rather than] thousands of pages of detailed prescriptions.” This of course depends on companies demonstrating that they are willing and able to change their ways. One of the challenges of principle-based regulation is how to measure and monitor compliance; it can also be hard to measure overall regulatory impact.
“Many businesses prefer being given direct instructions by a regulator” The Financial Services Authority has led the way with its Treating Customers Fairly initiative. It is remarkable that a major industry such as financial services still needs to be told that it should treat its customers fairly— in almost all markets this would be taken as read—but it reflects the extent to which standards in the sector have declined, with the result that consumer trust has ebbed away. Rather than setting detailed rules, the regulator has rightly tried to tackle the cultural problem head on. It insists that companies’ senior management demonstrate that they are taking responsibility for driving change throughout their business—then the detail is down to these leaders, not the regulator. Only time will tell whether the industry is able to rise to the challenge. Then the test for the regulator will be to ensure that it achieves genuine reductions in regulatory burdens for those companies that can demonstrate they are treating their customers fairly.
AFocused Approach The Better Regulation Taskforce has famously declared that “less is more”, though without producing much to back up this assertion. Certainly, there needs to be a fundamental shift in our regulatory culture—not just here in the UK, but in Brussels and international organisations. This is not a matter of weighing regulations, but is instead about focus and principles. The Better Regulation Taskforce has set out five principles of regulation: proportionality, accountability, consistency, transparency and targeting. These all serve as a useful test when detailed regulation is being drafted. But they do not really get to grips with the philosophy underpinning regulation. Why do we want to regulate, and how can we tell if it is working? We believe that the way forward is to place the consumer at the heart of regulatory decision-making. Although regulation is usually framed as a business issue, in many instances, companies will not see genuine competition as being in their interests and will therefore be quite happy with regulation that restricts it; while the consumer interest is usually much more firmly with well-functioning markets, innovation and choice. So a consumer-focused approach to regulation oVers a way past vested interests and can act as a real driver of UK competitiveness. Many sectoral regulators have statutory duties focused in some way on consumer interests, although the diVerent pieces of legislation tend to be inconsistent and of rather variable quality. For example, Ofwat’s role in protecting the interests of water customers is currently subsidiary to other objectives, and the regulator has 3247872093 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
management of secondary legislation: evidence 215 itself called for this to be made a primary duty, so “putting customers’ interests clearly at the heart of water regulation”. A much more recent piece of legislation declares that the “principal duty” of the communications regulator, Ofcom, is to further the interests of citizens and consumers. Of course, much depends on how such objectives are put into practice—but, even so, they represent an extremely useful framework for decisions about regulation. Government departments are not similarly guided—and often it shows. This is an area in which the new Better Regulation Executive and the Cabinet OYce could usefully take the lead, making it clear to civil servants that, when they are regulating, consumer interests should be centre-stage. The performance of each department in achieving the right level and focus of regulation could then be regularly and independently assessed. The Audit Commission uses its Comprehensive Performance Assessment to measure how well local councils are delivering services, distilling a range of assessments into one easily understood rating to help focus future improvements. The same kind of approach could perhaps be used to encourage best practice in how departments regulate. The proposed Bill for Better Regulation might provide an ideal opportunity to create greater consistency across sector-specific regulators, for example, upgrading the statutory duties governing utilities regulators to the standard of the best.
The NCC Hit-list Much of the debate about regulation is framed in generalities, with rhetoric and assertions far more in evidence than hard facts. It is important that we move the focus onto tangible examples of what is working and what isn’t. This is why we support proposals for a super-complaint process in which business organisations, consumer groups and other stakeholders can refer failing regulations for oYcial review. To get this much-needed debate started, the National Consumer Council has identified a number of very diVerent instances in which regulation restricts competition, limits choice and raises prices. This is our hit-list of rules that should be reduced, simplified or abolished. These go beyond the proposals of the Better Regulation Taskforce, in that they relate not only to administrative elements of regulation but also regulatory policy failures.
The regulations intended to stop criminals laundering cash The banking industry and the regulator both admit that there has been “over-enthusiastic” application of the rules. This has caused real harm to consumers who have been prevented from opening a bank account. Earlier this year, and not before time, the industry proposed some changes, saying “we have taken a radical approach. The new guidance reflects the reality, that most customers are neither money launderers nor terrorists.” Even more recently, the Financial Services Authority has proposed removing all detailed rules in this area and replacing them with some brief high-level provisions. We want to see tangible action before the end of the year, to introduce some common sense in place of what has proved to be an outstanding example of misjudged and ineVective regulation.
Restrictions on the number of taxis in towns and cities The OYce of Fair Trading has exposed how these rules act against the consumer interest, and the government has strongly encouraged local councils to scrap the controls on numbers. Some local councils have acted, but almost one-third currently still maintain such restrictions, protecting incumbent operators at the expense of competition and choice.
The CAP The European Commission says that the aim of the Common Agricultural Policy (CAP) is to “provide farmers with a reasonable standard of living and consumers with quality food at fair prices.” In fact, it has long meant that European consumers pay more than they should do for food. A series of welcome if long-overdue reforms has reduced the scale of this, but European consumers still pay too much. Despite price reductions, food is still more expensive in the EU than the United States, and EU consumers spend a larger share of their income on food and drink. The CAP is at least partly to blame. 3247872093 Page Type [E] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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The regulation of legal services The Government and Sir David Clementi (who has led a major review of the sector) have described these variously as outdated, inflexible, over-complex, lacking in accountability, insuYciently transparent, flawed, inappropriate, inconsistent and having “insuYcient regard to the interests of consumers.” The good news is that change is on the way, with firms being enabled to provide legal services under alternative business structures. By removing restrictions that currently prevent lawyers working with non-lawyers and permitting external investment supported by proper safeguards, consumers are set to benefit from more competition, greater innovation and reduced costs. At the same time, a modern, light-touch regulatory framework regulation will be introduced, including the creation of a single independent complaints-handling body.
Constraints on Sunday shopping The NCC was one of the leading lights in the original campaign to end the ban on Sunday shopping in the early to mid 1990s. Now it is time to look at further relaxation of the rules. Large stores can currently only open for six hours on a Sunday, even though evidence suggests that many millions of people would like to have greater freedom to shop when it suits them. This restriction has the important objective of protecting workers from being exploited—but it is not at all clear that it is the most eYcient way of achieving this aim.
Tying the knot There are some moves to relax rules on the type of music and readings that can be used at civil weddings. But many rules and restrictions remain, some of which go well beyond what is needed to safeguard the institution of marriage. Civil wedding venues must be “seemly and dignified” and “regularly available to the public for use for the solemnisation of marriages”, which in eVect has meant that you cannot use your house unless you live in a stately home and are happy to allow other people to be married there too. No food can be eaten within the premises less than an hour before the wedding. Local councils can set additional rules—Essex County Council insists on two free car parking spaces for registration staV, “as near to the main entrance of the premises as possible.”
Enabling choice, harnessing consumer power The process of regulation can all too often itself be bound up in red tape. Those premises selling foods which are considered by environmental health oYcers to pose a higher risk to the general public are visited more frequently and can face firmer enforcement action; yet, as the Scottish Consumer Council has noted, the public is denied information about these risk assessments. There is a pressing need to cut through such bureaucracy and open up regulatory processes. Last year, the DTI did propose a scheme to shed some light on traders’ regulatory track records—but then dropped this plan from the final version of its Consumer Strategy, leaving consumers in the dark. Equally, many regulators could do more to open up to feedback from consumers on compliance. For example, the major regulatory emphasis concerning medicines is on pre-licensing data, based on the results of clinical trials, with limited formal mechanisms after medicines are launched. Yet it is only in the real world that some problems emerge. By seeking direct feedback from consumers on their own experiences, the Medicines and Health Products Regulatory Agency could amass a rich source of data, so facilitating more eYcient and eVective use of scarce regulatory resources.
Trade mark rules and international competition The law on trade marks ensures that goods really are what they seem to be, so protecting both companies and consumers from piracy and fraud. And when a trade mark owner places a product in a defined market, they lose the ability to restrict trade in the product within that market, so enabling competition. But the flip-side of this is that manufacturers can prevent trade outside that defined market. Such regulation might sound technical and dull, but for EU consumers it means higher prices and less competition. Manufacturers can segment the global marketplace, hiking up prices in the EU for products such as clothing and toiletries, secure in the knowledge that other companies are not allowed to import cheaper supplies from elsewhere. Research by the Swedish and UK governments demonstrates that consumers would benefit from reform of the rules, but the European Commission remains complacent about this anti-competitive piece of regulation. 3247872093 Page Type [O] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7
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Complaints made simple The welcome recognition of the importance of dealing with consumer complaints has had one unfortunate side-eVect: complexity. In England, there is a Parliamentary Ombudsman; and a Health Service Ombudsman (who is actually the same person as the Parliamentary Ombudsman); and three Local Government Ombudsmen; and a Housing Association Ombudsman. Complaints to the Parliamentary Ombudsman need to be made via an MP. The government is reviewing this area, but its proposals are limited to closer working between the diVerent ombudsmen. Meanwhile there is already a Scottish Public Services Ombudsman, which drew together the parliamentary, health service, local government and housing association ombudsmen, and a similar merger is underway in Wales. It’s time for the same kind of simplification to take place in England, along with the removal of the pointlessly bureaucratic requirement about complaining to the Parliamentary Ombudsman via an MP.
Conclusion It is time to rescue the debate on regulation from the vested interests of business leaders and bureaucrats. Decisions about whether and how to regulate have a huge impact on consumers—yet all too often we are excluded from the discussion and our interests are ignored. The government’s commitment to better regulation provides a real opportunity for a fresh start. Regulation can provide essential safeguards for vulnerable people; and it can help markets work. But it needs to be used sparingly and with a sense of purpose. This is the case for a consumer-centred approach to regulation.
Memorandum by Edward C Page FBA, Sidney and Beatrice Webb Professor of Public Policy, Department of Government, London School of Economics
Introduction 1. My evidence to you is based on two studies I have conducted on secondary legislation and the people who write it47.
The Character of SIs 2. A very large volume of secondary legislation is of a character that would not in many other countries usually be considered as the subject of such forms of law making. Many Statutory Instruments (SIs) are local orders, and most of these make provisions for specific stretches of road such as The A7 Trunk Road (Carlisle City Boundary to The Scottish Border) (De-Trunking) Order 2005 (SI No. 60, 2005). Figures which point to the apparently alarming growth of red tape based on the number of SIs are generally inflated (by a factor of approximately two) by the inclusion of these and similar regulations. 3. SIs are tools routinely used to manage policy delivery alongside other instruments such as circulars, codes of practice, court rules, guidance and instructions to staV delivering services. “Doing regs” is generally a part of a wider portfolio of “policy work” that occupies “policy” oYcials in Whitehall ministries. Unlike primary legislation, where teams are set up to develop legislation, and slots in the legislative timetable have to be fought for, secondary legislation is often incidental to managing and delivering policies already in place. For example, under Mental Health Acts, the forms that have to be filled to cover patient consent and such like have to be set out in an SI, so any changes in the design of the form will require a new SI. Certainly some significant and sensitive initiatives can be handled by SI, such as the reclassification of cannabis under the Misuse of Drugs Act 1971, but for the most part there is nothing like a “legislative programme” for SIs as there is for primary legislation. 4. SIs are often produced at rather short notice, with oYcials below Senior Civil Service rank (Grade 7, Senior Executive OYcers and Higher Executive OYcers in the old common grading scheme) taking the lead in supervising their drafting by departmental solicitors. It should, however, be noted that oYcials at these grades also play a leading role in developing primary legislation. 5. Any scheme for the “management” of SIs seeking to establish additional department-wide or government- wide checks on their issue needs to discriminate between the great variety of uses which such regulations are put and the diverse circumstances under which they are developed. A catch-all management scheme that adds extra layers of approval to all SIs could create serious diYculties and lead to a deterioration in the quality of administration, with little or no additional benefit. 47 See Edward C Page Governing by Numbers. Delegated Legislation and Everyday Policy Making (Oxford“ Hart 2001); Edward C Page and Bill Jenkins Policy Bureaucracy: Government with a Cast of Thousands (Oxford: Oxford University Press, 2005). 3247872094 Page Type [E] 22-03-06 00:00:33 Pag Table: LOENEW PPSysB Unit: PAG7
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Controls Over the Use of SIs 6. There is no body coordinating the development of all SIs, either within a department, still less across the whole of government. The parliamentary branches of government departments and the Better Regulation Executive do not tend to exercise such a control function. 7. Within each Department the authority to produce SIs lies with ministers, usually junior ministers, who a) have to give their approval before any significant time is devoted to developing a regulation and b) have to sign it before it is laid. Cabinet rank ministers may be involved in SIs that involve sensitive or strategic policy issues. A minister can initiate and halt the development of an SI and, should he or she wish, take a close interest in its development at any stage. 8. Ministers do not generally ask for regulations to be passed; they seek changes in policy which require secondary legislation, or they agree that an SI should be drafted to ensure eVective administration or delivery of services. In practice it is usually civil servants—“administrators” rather than lawyers—who make the specific proposal that an SI is needed. SIs are usually proposed after oYcials have consulted with departmental solicitors to see if there are other ways of doing things without an SI. 9. Civil servants developing regulations make considerable eVort to ensure that their minister will approve of the content of SIs. Ministers often give only very broad indications, if any, of the type of measures they are likely to favour. Civil servants have to fill in the detail as best they can. In so doing they tend to look for as many clues as they can about the minister’s thinking. They do not want to have to scrap their work and start again when the minister comes to look at it. 10. The hard work of drafting an SI is (except with the longest and most complex of them) the work of a departmental solicitor working to instructions from a civil service administrator. Lawyers and administrators can turn for guidance to the SI Practice handbook compiled and updated by HMSO. They can also seek advice of colleagues and superiors. Drafts of simple SIs (eg ones that simply alter a few words of older SIs) are not usually shown to colleagues. Complex and new SIs are usually shown around the oYce and senior lawyers and administrators in the department frequently look at them. In the case of more complex SIs it is very common for the lawyers, and the administrators who instruct them to discuss the SI in draft, and the draft may go back and forth between administrator and solicitor several times before both are happy with them and they can be shown to the minister. 11. The guidance sent round by your committee asks why there are so many corrections. I did not find evidence of many corrections in my analysis over the ten year period to 1997—under one per cent of SIs were issued explicitly to correct other SIs. Even accepting that there are SIs that are not clearly labelled “correction” but nevertheless address earlier errors, the evidence does not suggest this is a major problem. The corrections I came across in my study were of diVerent kinds—adding a form of wording more acceptable in EU law, correcting a timetable entry missed in proof reading, addressing an anomaly only unearthed later, closing a loophole that only became apparent after several months. The most common underlying cause was the pressure of time allowing mistakes or infelicities to slip through unnoticed. To have to correct errors in SIs was usually understood by administrators and lawyers as a very occasional occupational hazard and seemed to attract no blame.
General 12. Since SIs are part of the general toolbox of government, criticisms surrounding how they are used tend to reflect common criticisms of government in general—government does too much, it tries to do things too quickly, does not listen to expert advice and does not pay enough attention to people outside. Insofar as such things are true, they are no more true for SIs than any other type of policy instrument (arguably less so—I was surprised by the positive evaluation of the SI consultation process in a survey I conducted among interest groups). There are, however, some specific features of SIs that lead to shortcomings in how they are controlled and scrutinised. 13. As regards ministerial control over the delegated legislative process, a significant problem results from the fact that SIs typically deal with relatively narrow issues. The incentives for ministers to pay close attention to such detail are not strong and oYcials interviewed for my studies occasionally mentioned how hard it is to get ministers to engage with such narrow but potentially important issues. Thus one cannot always be sure that regulations reflect considered political judgement. Once a regulation is on the statute books it is also likely to be hard to get ministers or oYcials to contemplate reversing or revoking it. Politicians are not unique in their reluctance to devote attention to such important detail. With the notable exception of Christopher Booker’s Sunday Telegraph column, the mass media only rarely take up such issues and this in turn probably reflects small public appetite for such things. 3247872094 Page Type [O] 22-03-06 00:00:33 Pag Table: LOENEW PPSysB Unit: PAG7
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14. The wider parliamentary and public scrutiny of SIs is especially diYcult since they are such a diverse group of laws—some give eVect to important policy changes, possibly also involving the imposition of extra costs on businesses and individuals, others are consequential, routine, mundane or uncontroversial. All are treated under the single regime provided by the 1946 Statutory Instruments Act. 15. Separating out the routine from the non-routine, possibly by giving departments rule making powers to be exercised under supervision of courts or tribunals, would result in fewer SIs and allow those that remain to be subjected to closer scrutiny. While this proposal might at first glance imply substantial constitutional change, it would, in fact, primarily formalise the de facto position of government departments as the makers of most rules. 16. The Social Security Advisory Committee’s role in scrutinising certain kinds of SIs also provides a possible model that could be adapted to fit other circumstances. 17. If one is interested specifically in securing greater awareness of the costs of SIs to business among those who write them, it may be worth exploring the possibility of making regulatory impact analyses a legal requirement of SIs that can be used as a basis for challenging the SI under judicial review. Just as inadequate consultation can, in some circumstances, be used to challenge SIs in the courts, those who draft regulations will devote more attention to impact analyses if they know that their SI could be challenged on the basis of an inadequate regulatory impact assessment. The same principle could be extended to environmental impact assessments. November 2005
Memorandum by Linda Weeks, NDipM, Learning Support Centre Manager, Kent Police College
1. Witness Profile:Mrs Linda Weeks 1.1 I am employed by Kent Police as a civilian Police support employee. I joined the Kent Police College in June 1973, and since April/May 1994 I have been the Force Librarian/Learning Support Centre Manager. Part of my role includes scanning the legal environment for changes to legislation and case law, and I circulate monthly update bulletins to the Kent Force and other Forces throughout the UK. 1.2 For the last two years I have been a member of both the Northern and Southern Regional Police Environmental Scanning (ES) Groups. Both Groups meet three times a year; I attend two Southern and one Northern Group each year when possible. I keep in regular contact with all delegates, and we share information and update bulletins. 1.3 In August 2001 I set up and am the Moderator for a Legislation Enquiries Forum on our Kent Police Intranet, and recently I have asked for and been given space on the Criminal Justice website (www.cjxonline.pnn.police.uk) for a National Legislation Enquiries Forum; I am the Moderator for this as well. There is also a Futures Scanning Group Forum on this website, and I load my monthly updates and LawTrack onto the system for all to see.
2. Submission of Evidence 2.1 I have compiled my response as an individual but consulted with an Assistant Chief Constable and other senior oYcers in the Kent Police, who are happy for me to submit it as a corporate response. 2.2 My response is to Questions 9, 10 and 11, as all or most of these are within my experience.
3. Commencement—21 Day Rule
Question 9: How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comes into force? Should the period be lengthened? 3.1 I have only answered the second part of this Question, as the first part is outside my experience. 3.2 In the ES part of my role I produce monthly updates on new legislation. I subscribe to e-mail updates from Parliament and other sources, and these are very useful. However, it would be a great help to have more notice of Instruments coming into force, particularly before notification is given to the media. 3.3 At Kent Police College (KPC) I have set up an ES Forum which meets once a month to discuss my updates with a view to deciding which legislation is likely to have an impact on our Force training. Some types of law will be covered by Centrex (the National Police Training Centre) but all other legislation will need to be 3247872095 Page Type [E] 22-03-06 00:00:33 Pag Table: LOENEW PPSysB Unit: PAG7
220 management of secondary legislation: evidence assessed. If the Group feel that there is a training need, they will pass the information on to the Force Training Board (FTB). 3.4 On some occasions an Instrument will bring in only part of a subsection, and this can be confusing when oYcers who have been waiting for a particular part of a new Act to come into force then hear on the news that they suddenly have new powers as of that day. My colleagues in other Forces and I therefore receive many enquiries asking whether or not it relates to the Section for which they have been waiting. Sometimes it does but often it does not. 3.5 At times, parts of new Statutes with the same name but a diVerent date are brought into force before parts of the old Statutes take eVect. For example, Criminal Justice Acts 1972, 1982, 1988 and 1991 all have parts in force and parts not yet in force. Those who have joined the Police since 1972 could be forgiven for not realising that there are provisions in a 33-year-old Act that might suddenly be brought into eVect in 21 days’ time or less. 3.6 It is not too diYcult to keep track of Instruments which relate to new and “big” Statutes, for example those for the Clean Neighbourhoods and Environment, Domestic Violence, Crime and Victims, Drugs, Gangmasters and Licensing Acts, but as more Bills progress and receive Royal Assent the above Statutes will become “old” and forgotten. If I miss sight of an Instrument some years from now which brings in one of those “Not In Force” (NIF) Sections our oYcers might miss vital information on new oVences and powers. 3.7 An example of this is the Fireworks Act 2003. When this was new, our oYcers eagerly awaited its introduction. To date there are still many Sections—including part of S11 (OVences) and the whole of S14 (Prohibition and Supply etc. of Other Explosives)—which are still listed on websites as NIF and, although I know that they’re still pending, I have to be ever-vigilant to make sure that I catch the Instrument(s) that will bring them into force.
3.8 Section Summary Because the KPC ES Forum only meets monthly to discuss new legislation, we might easily miss an Instrument that is laid only 21 days before coming into eVect. This means that we are discussing it after it is already in force, then submitting it to the FTB for their consideration. If the Board decide that there are training implications for the Force, this will take time to implement. It could be several weeks after an Instrument brings part of an Act into eVect before our oYcers are able to use the powers contained within it.
4. Consultation
Question 10: How well observed is the code of practice on consultation? How can the results be best presented in Explanatory Memoranda? How do the Government coordinate consultations with shared stakeholders, so that they are not overburdened? What changes could be made to the consultation process so as to lead to better secondary legislation? 4.1 I have only responded to the third and fourth part of this Question, as I am unable to answer the first two parts from my experience. 4.2 I do not know and therefore cannot comment on whether or not the Government already do consult with Police Forces when it makes laws, but feel that it should do so, particularly when it involves the use of new powers. 4.3 In many cases the information needs to be written into our Force Policy and Standard Operating Procedures and, as outlined above, our monthly ES Meetings need to discuss the training implications. It would be better if these procedures were in place before the powers and oVences etc. are in force.
5. Users and Impact
Question 11: What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone in Government (or in the sectors affected) monitor the collective impact of regulations on eg small businesses or local authorities? 5.1 Information passed to ES oYcers within Police Forces would be of great benefit—and again, especially if we had the information before it was broadcast to the general public by the media. 5.2 This would help us to maintain a strategic overview of forthcoming changes to policing. 5.3 Forces should have the time to undertake an impact/risk assessment of new legislation in order to ensure that oYcers are adequately equipped and trained in advance of the changes taking place. 3247872095 Page Type [O] 22-03-06 00:00:33 Pag Table: LOENEW PPSysB Unit: PAG7
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6. Recommendation 6.1 I believe that I can oVer a solution to the above questions, and recommend as follows: 6.2 That a person be appointed in Parliament (AP) to liaise with all Forces—preferably with a nominated Department or Scanner who is responsible for broadcasting new legislation to their Force. 6.3 That the AP send a daily (or weekly) e-mail to all on the ES list detailing: — the introduction of all legislation into Parliament — each Bill’s scheduled reading date in both Houses — when the Bill is about to receive Royal Assent — commencement date(s) where specified — all associated secondary legislation details and commencement date(s) 6.4 I could liaise with the AP to suggest a straightforward, uncomplicated format which would simplify the work of the AP and which would be of benefit to Scanners and their Forces. 6.5 At present most Forces employ someone to undertake the role of ES in addition to other roles. In some cases this person is a Police OYcer. Some of us share our information with those in other Forces. All these individuals are currently spending hours each week finding out information for their Forces—but it is the same information, and we are all interrogating the same websites and media sources. 6.6 Having one person centrally in Parliament giving everyone the same message would be of great benefit: it would not only save much duplication of work and therefore many “man” hours in Forces across the UK but will also ensure that our oYcers are properly equipped with the knowledge and skills necessary to implement the new laws. 30 November 2005
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