Examination of witnesses (Questions 1
- 19)
TUESDAY 28 APRIL 1988
THE RT
HON DR
DAVID CLARK,
MP, MR
GEORGE KIDD
and MR PHILIP
BOVEY
Chairman
1. Good morning. May I welcome you, Chancellor,
to this meeting. I wonder if you could introduce your team for
the record. We thank you for the document that you have sent us.
You may well wish to say a few words about the document before
we go into asking you questions.
(Dr Clark) Thank you, Chair, for that welcome.
I am pleased to be here and obviously we will try and work out
a way of how together we start making some progress or continue
to make progress on doing away with regulations that are unnecessary.
I have two of my officials here: Mr Philip Bovey, who is the Legal
Adviser for the Better Regulation Unit, and Mr George Kidd, who
is the Deputy Director in charge of the Deregulation Orders in
the Better Regulation Unit. As you know, this Government does
take a rather different approach to regulation than its predecessor
did. We support better regulation rather than deregulation. We
are very keen to cut as much red tape as we possibly can, but
we do accept that there is need on occasion in a complicated,
civilised society to have regulations to protect individuals in
particular, and I think of the food and catering industry because
I am pretty sure that if we did not have regulations in that case,
all of us may have died already with food poisoning. That perhaps
makes the point very clearly. One of the first things I did on
becoming Chancellor was to do away with the Deregulation Unit
because I felt that sent out all the wrong signals and indeed
was trying to achieve something that was impossible, and we established
the Better Regulation Unit. The key point as I see it is the reduction
of regulations. Indeed, I would submit that we are part of a very
big scene in the sense that as a country we can only survive in
the global economy. In that global economy the trick that we have
got to perform is how we liberate our people and basically have
light touch government whilst at the same time protecting individuals
and also allowing our industries, which are going to be very largely
SMEs, the potential to grow and succeed. This is the rather larger
vision that I set our work in. I see the Order making process
as an important weapon in addressing unnecessary or over-burdensome
regulation and I would like to touch briefly if I may on the former
programme of Orders both over the next few months and in the longer
term, and indeed on the whole future (and perhaps I may make some
suggestions about this) of your parent Act so to speak, the Deregulation
and Contracting Out Act and the role of my Department in the Deregulation
Order process. Let me say I have been disappointed with the lack
of Orders coming forward for you to deal with. Let me say clearly
that the law of diminishing returns does apply and when the Act
was first on the statute book and your Committee was looking at
various Orders there was clearly much more to do. The more you
go on the more difficult it is to find suitable Orders but I believe
there is still a lot of work for you to do and I want to assist
you in that work and perhaps make some suggestions. Before the
summer, as you know, we hope to bring before you six new Orders,
that is, between now and the summer recess, and to bring back
for their second scrutiny two further Orders. I have to be a little
bit tentative in the programme of the Orders because my Department
is responsible for bringing them forward as you all know. It is
up to other Departments to do all the work originally and we do
find that sometimes we get into technical difficulties as you
have experienced already in the last 12 months, especially over
legal issues when it comes to vires. This does mean we
sometimes have to change the programme. In addition to these eight
measures there are a number of proposals on which Departments
are either consulting or are about to start consulting. For example,
I know the Home Office is considering a number of reforms to charities,
to the Gaming and Licensing Act, and also to the proposal to allow
Sunday dancing in England and Wales. These may well form the basis
of the programme after the summer recess. I am convinced there
is still considerable scope for us to use many of these Orders.
I have asked my deputy, Peter Kilfoyle, to go round talking to
colleagues in other Departments explaining the role of this Committee
and what useful work you can do. He met the Economic Secretary
last week to discuss what can be done within the Treasury and
is planning to meet the DTI and the Home Office Ministers over
the next few weeks. I intend also to write to all my colleagues
in the Cabinet pointing out the work that this Committee does
and how your work can be very valuable in helping the Government
as a whole to try to attain its overall objectives. I did mention
the original parent Act, the Deregulation and Contracting Out
Act, because, as you have pointed out to me in the past, if I
may say so, Mr Chairman, it is a very technical Act and the powers
available to you and your Committee members are very much hedged
in by tight regulation. As you know, it does not allow us to remove
burdens which, although they could benefit the ordinary citizen
or business, are not a direct burden on the business or the citizen
per se. Again we are not able to resolve ambiguities in
the law and we cannot do anything to alter case law or to remove
burdens which happened after the session of the 1994 Act. It does
seem to me that it is a pretty tight Act and perhaps that was
right at the time because we were breaking new ground, but I think
that we have now got a very clearly laid down parliamentary procedure.
It has begun to be known, it has begun to be accepted, and I think
the time is now right for us to look at the original Act. I propose
to explore the scope for the form of the Act itself, and I say
this tentatively, but certainly I would be very pleased to hear
your views as a Committee or as a group of individuals on the
Committee on what we could achieve out of such a re-assessment.
This is something you may want to consider. I will finish the
point, that one of the difficulties I find with my role as a Department
is that we have actually discovered that, as the previous Government,
quite rightly, tried to drive up standards within public service,
we have created these huge silos of Departments and of course
one of the problems has been that they are very vertical and there
is very little horizontal movement across Government Departments.
I have a responsibility for drawing up the draft Orders and trying
to bring them to this Committee but I am absolutely dependent
on other Departments initially bringing forward their Orders,
and of course we are in a position that we are constantly trying
to persuade Departments to act in a coherent fashion. That is
really all I want to say by way of introduction. I apologise for
being so long but I think it was right and proper to set out those
three basic points.
2. Thank you for that, Chancellor. You have
made a number of very interesting points which we will come back
to as we go through this morning's session and certainly your
invitation to the Committee to help find a positive way forward
I think is something we will want to respond to. Obviously the
Government, when they changed the name to the Better Regulation
Task Force from the Deregulation Unit, was spelling out a significant
message of difference of emphasis. I think it would be true to
say that even under the Deregulation Unit as it had been, it had
been found that you cannot abolish regulation. You have got to
have sensible regulation. How do you think the new Unit is working
out? How is it getting on with its job?
(Dr Clark) I have been delighted with the response
to the change because it did send a new message out and of course
perhaps each idea has its own age and then that age passes by.
I think it was the right thing to do at the right time. We also
established as you know the Task Force under Mr Chris Haskins,
the Chief Executive of Northern Food, and he has pulled together
a panel of 16 individuals including himself, half of whom were
drawn from small business. They have met regularly. They have
met the Prime Minister for a session at which they were most impressive
and I think made a very deep impression on the Prime Minister,
and indeed in the letter to which I referred that I am going to
write round to my Cabinet colleagues asking for further co-operation
I shall allude to that meeting with the Prime Minister and he
made it quite clear that he does want much more progress to be
made in the better regulation field and certainly in the work
of this Committee. He was specifically asking how this Committee
worked and what the formats were. The Task Force has set itself
up in sub-groups. They are producing reports. What they have done
initially is to produce—and I should have brought these
along; I will certainly make sure they are available to the Committee—a
brief description of the basic guidelines for good regulations,
things like transparency, but it does seem to me that one of the
problems about regulations in the past is that they have not been
focused enough, they have not been clear enough, they have not
been meaningful enough. We have drawn up these basic principles
of transparency, accountability, consistency, about five basic
principles, producing a very small document. I took it across
to the European Parliament and launched it over there and as the
response was so positive from over there we then had it translated
into French and German because it was the first time anyone had
set out the possibility of defining what the principles were.
In fact, later today I am going out to Spain at the invitation
of their Ministry to give a lecture on better regulations and
a lot of it is based on the work we have done in the past year
and on the work of the Task Force.
Mr Steen
3. I do welcome you here, Chancellor, and
I liked what you said; I like your vision, I liked your introduction,
and I suppose I am the only member of this Committee who was on
the Standing Committee of Deregulation and Contracting Out and
I also chaired our own party's Deregulation Committee and was
very close to the Government on deregulation, and so I was particularly
interested in what you had to say. I have to make one or two comments
which I hope will be helpful. First of all, when the Bill went
through there was much discussion about appeals. The problem at
the local level is that when there is a dispute between the official
and the local business, what happens? The official usually wins.
I introduced an amendment which would have given the Magistrates
Court power to make a decision, but they would not have it and
it went to the Lords and the Lords agreed to a very complicated
procedure of appeal which I do not think has ever been used. It
is so complicated that nobody ever pursues it. When you ask what
area could the amendment of the Bill be, it is in that area of
appeals at a local level where there is a dispute about the interpretation
of the regulation. The second point I wanted to make was the message
of a better regulation. The message surely is about new regulations,
that is, the word "better", rather than upon past ones,
and the Deregulation Unit of the last Government was about getting
rid of regulation. I think you need to clarify in your mind whether
the aim of your unit is to get rid of as much regulation as you
can, which I think you have touched on, or whether you are going
to have (which you also touched on) new regulations which are
going to be better and more focused. The last point I would like
to make is, when you really get down to it, the reason you have
not introduced more regulations or more deregulations or better
regulations to this Committee, and that is, the three areas where
regulations exist in the fields of hygiene, safety and security.
As soon as you mention anything about reducing the regulations
around hygiene, everybody shouts. You can never in fact reduce
regulations around hygiene. You can only improve them or put more
in and so you will find an awful lot of regulations around MAFF
are about hygiene and you cannot touch them. I do not quite know
how you deal with that. Again on security: every time you try
and deregulate around security people say there will be an attack
or a fire or a bomb or what have you, so you can never do much
around that area either. On the safety side, air transport or
trains or buses or roads, you cannot do much there either, so
I do not think the reason you have got only so few things coming
to this Committee is by accident. It is because you cannot do
very much unless you really take a very dramatic and robust stand
which will mean you probably will not be the Chancellor very much
longer because you will be touching on hygiene, safety or security.
I believe all you can do is tinker round the edges of the past,
but you might be able to do something for the future.
(Dr Clark) Thank you, Mr Steen. You have put forward
some very interesting ideas and I am aware of your work in the
various successive committees of which we are now a member. This
point about appeals I must admit I was not aware of. It is obviously
far too complex even for the Chancellor to be alerted to this,
but I do take the point and will certainly look into that. You
have raised something that is very important and this is the philosophy
of enforcing the regulations. One of the things which we did almost
as an add-on (but I am glad we did it) is that we have put an
enforcer on the Task Force, somebody from a local authority, because
it is very important to get their point of view as well. I think
that has been with very encouraging results. It has brought home
very clearly to me the sorts of problems there are. I was talking
to some owners of residential homes for the elderly in my constituency
and they were telling me about some of the difficulties about
regulations, if I may use this to illustrate my point. They were
making the point that when people are putting their elderly parents
into one of these residential homes they want to be reassured
that it is comfortable and one of the questions they often ask
is can they have a look at the kitchens. Of course they show them
the kitchens. They were telling me the story that this had happened
to one individual home and the very next day the environmental
health officers came round and said, "Do you allow people
in your kitchens?" and they said, "Yes, of course",
and they said, "If you do that we will close you down."
It does make the point that we really have got to do something
about this and change the approach. I chair a working party of
various ministers plus representatives of local authorities looking
at this very thing because it is all very well we at the centre
taking decisions, but if they are not implemented well on the
ground this can destroy all our work. I very much take that point.
On your point about old and new, I think we can do both although
I note the very interesting and apposite description and analysis
you make of it, and we do require every Department to bring forward
a regulatory appraisal when they are bringing forward new legislation
so we can make an assessment of whether the pros and cons of any
piece of legislation and to see whether it adds to or diminishes
the greater good which we are trying to do. That is something
again we need to drive forward. I do take your last point about
hygiene, security and safety. With hygiene we are hoping that
working through the Food Standards Agency we will be able to make
a lot of headway as regards food safety anyhow and we have done
a lot of work in bringing that forward and we will hopefully have
a draft Bill this session on the Food Standards Agency and you
have all clearly seen the White Paper. I still think there is
a lot of work for us to do. I think of other things affecting
people's lives, things such as, perhaps there is too much licensing
going on, too much use of permits. We ought to be able to give
people much more freedom without giving them a permit to do so.
4. There are 250 licences in the Home Office
alone.
(Dr Clark) You make my point. I still think there
is work to be done and even if you say it is at the fringes it
is still very worthwhile work to do.
Mr Lewis
5. May I ask about the change of emphasis
from deregulation to better regulation, which is important. You
define that that represents a change of objective in some ways
although not throwing out many of the good things that there have
been in the past but building on those. It would seem to me that
the Committee's focus could possibly change as well to mirror
the change in terms of the role of the Unit. It does not seem
sensible to have the Committee still functioning not necessarily
just with a different title but in a sense with a different emphasis,
a different basis to its work. I appreciate that that would possibly
require a change in legislation but it may well be desirable to
change legislation in those circumstances. The second point would
be about the awareness through Government Departments of the existence
of this Committee and the role it can fulfil. I suspect one of
the difficulties is that it depends very much on civil servants
and others being proactive about fishing for situations where
deregulation would be appropriate. We all know when people have
heavy workloads and busy legislative programmes to deliver, this
is not exactly top of their list of priorities and you have mentioned
that you have asked your deputy to go round and talk to Departments,
but I still think that that would be an initial step but we would
need in a way to keep the pressure going in terms of reminding
people that this Committee is here and what it has the capacity
to do. You mentioned one or two examples of on the ground reality
for people where regulation is affecting their lives, usually
in a detrimental way. If you spoke to people on the ground more
often, whether it be constituents, whether it be people running
elderly persons' homes, they would be able to come up with a whole
range of situations, and I suspect some of our case work provides
examples where there seems to be an unjustifiable set of legislative
barriers to sensible decision making if you like which sometimes
is difficult to explain or justify. I am wondering whether you
could consider any mechanism in the future where we could do a
very significant public consultation exercise asking people beyond
Parliament to come forward with suggestions and proposals where
deregulation or better regulation would seem logical and sensible
and may achieve a good amount of consensus for example on this
Committee.
(Dr Clark) That is interesting. In preparation
for my appearance before yourselves I did talk to my officials
about what we could actually do. We trawled through some of these
ideas. The previous Government did make a great effort to contact
businesses and charities, almost every organisation in the country,
to ask if they had any good ideas in terms of regulation. I am
advised that it was not a great success, that they were disappointed
with it to be quite honest, and whilst I do not rule it out, I
will certainly have to look at it again, I am not sure it is the
way because you tend to come up with people's pet hobbies and
they do not quite understand the very tight regulations and requirements
which currently—I emphasise "currently"—restrict
you. Certainly I could look at that. Equally I am very much aware
that you are neutral people, that you are taking judgements about
what should remain on the statute books and what should not remain
on the statute books and therefore I personally have no difficulty
but you may well want to look at it yourselves. I have no problems
with this Committee coming up with ideas and I will happily take
them back to the Department, but you must yourselves be absolutely
convinced that it would not affect your later neutrality in carrying
out a statutory function. I think it is very important you take
that on board. If you felt it would be useful, and I have to be
a little careful about this, I am pretty confident that Chris
Haskins would be very keen to talk to you about the work of his
Task Force. Whether you want to do it formally or informally is
really a matter for the Committee itself. That is an offer which
I am sure Chris Haskins would be happy to make, to come and talk
to you, and perhaps you can think about it. In a sense I was thinking
about your very first comment about the name of the Committee,
but in a sense when we are talking about better regulation, as
Mr Steen has pointed out, we are talking about how we make sure
new regulations are more focused and more in keeping with the
demands of a modern world and what our citizens want, but we are
also looking at old regulations which are basically redundant
and therefore it is probably right to say that your role is in
the deregulation field and you are taking off the statute books
pieces of legislation which have no use in a modern society basically.
We are all part of the same game so to speak and you may feel
the same about deregulation as I do, the word, but nevertheless
it probably is the right description of the Committee.
Chairman: The Committee's
name of course arises from the Act and the reality is, if one
looks at what the Committee did in the last Parliament, it could
not totally deregulate without, in cases, having to leave what
we would have considered better regulation in the place of getting
rid of out of date, nonsensical regulation.
Mrs Lait
6. Chancellor, you refer to redundant regulation.
If I can relate that also to the exercise the previous Government
carried out with outside bodies, obviously if legislation is redundant
it is not going to spring to their minds as to what they want
to see deregulated, so I would have thought that if legislation
regulations are not being used it should be quite easy for Government
Departments to bring forward redundant legislation under the Order
that we looked at, to be part of that. Therefore, is there perhaps
not a change of emphasis to get suggestions from outside bodies?
I thought your reference to pet hates and care homes was enlightening
because of course somebody's pet hate is another person's bit
of redundant legislation, and that in the pet hates you would
find good ideas for deregulation. May I as a second point ask
you to put on your better regulation hat and ask what input the
Better Regulation Unit is having on some of the current legislation?
Without wishing to be controversial I am talking about national
minimum wage, Social Chapter, the Finance Bill that is currently
going through. What input is the Better Regulation Unit having
on ensuring that any regulations that come out of those bits of
legislation are in fact better and will they include things like
sunset clauses?
(Dr Clark) As you know, the Treasury operates
in an ambience of its own in many cases and has its own power
of making its own regulations in the Finance Bill and has tended
to be almost alone in that. I do take your point about sunsetting
because I am very keen that we ought to be moving (we have not
moved anywhere near it) to a position where not only sometimes
regulations but things like quangoes are time limited so that
every so often, unless a Government takes a positive step (or
Parliament or whatever it is) to resuscitate a body to continue,
it ought automatically to die. That is something which I am very
keen to take forward as a philosophy. I must admit it is the sort
of thing which is quite specific and quite difficult to get Ministers
to concentrate their minds on and we all understand why. On your
point on outside bodies, I am not averse to consulting and trying
to get ideas from a wider area than Government, but I think I
would like to go back to my officials and examine what the previous
Government did because I do think they did set this up with the
best will in the world and I think they were very disappointed.
Mr Steen I think may have been involved in this and indicates
it was not very successful. It is no use re-inventing the wheel.
Again, if the Committee has got any strong views on this, it would
certainly affect my decision to go ahead. If you felt it was very
worthwhile it would tilt me one way and add to my views but perhaps
you would like to discuss that and come back to me.
Chairman: I am sure
we would. There are one or two issues that are going to arise
from today's session that we would like to look at and come back
to you.
Mrs Lait
7. Chancellor, would you please go on to
my question about better regulation and current legislation?
(Dr Clark) What is happening is that whenever
a formal piece of legislation is put forward, or even a Statutory
Instrument, the Department brings forward with it a regulatory
appraisal on the financial implications, the employment implications
and the benefits and costs.
Chairman
8. In your introductory comments you referred
to some of the items that are going to be coming along in the
next six months and the way ahead. May I raise two particular
issues that you very lightly touch on in those comments? Both
of them were dealt with in the last Parliament to some degree.
One was the Sunday dancing proposal, which was not proceeded with
because of a failure on the consultation exercise and nothing
to do with the principle at issue, and the other was where the
previous Committee quite clearly indicated that it saw opportunities
of some rationalisation, certainly in regard to licensing and
gambling legislation with regard to certainly at least the soft
forms of gambling. It may be that at the end of the day legislation
is needed to tidy up gambling altogether, but as that may not
be able to come forward for two or three years because of the
Government's programme, is it not better to improve things at
the present time by means of deregulation? Perhaps I may just
give the example of the nonsense that you can play a one-arm bandit
at one age in one place and at another age in another place. You
can buy a Lottery ticket at one age, you can do the pools at another
age. All these things tend to be a little bit of a nonsense.
(Dr Clark) I wonder if I could ask Mr Kidd to
deal with the Sunday dancing because it overlaps both Governments
and one of the difficulties I have found is that I do not have
access to the papers of the previous Government that Ministers
were involved in. It is one of the quirks of our constitution
but it does put me at somewhat of a disadvantage.
(Mr Kidd) Sunday dancing is still an issue which
the Home Office Ministers I believe are keen to advance. We go
back to the Sunday Observance Act of I think 1780—I stand
to be corrected—which relates to what one can and cannot
do on a Sunday and there are a number of amendments that have
been made to that and just about any activity one can think of
is permitted barring charging for admission to music and dancing.
Linked to that there is provision in the licensing law regarding
the time constraints on the liquor licence for activity on a Sunday.
The Home Office have retained this interest in reform. They have
had bilateral discussions with the Chairs of the respective committees
and what we need to do is satisfy ourselves that we can bring
forward a measure which addresses this and at the same time the
concerns that have been expressed previously by committees and
outside regarding necessary protection, that is, protection for
people living in the environment close to nightclubs which may
then be open till one o'clock on what would be a Monday morning,
and people who are working in the industry who might otherwise
have previously not expected to work on Sunday evening. What we
need to do is look at the extent to which those protections exist
or whether they need to be brought forward.
9. I do not want to go into the detail of
the thing. All I really want to say is can we expect it to come
back at some stage? On gambling, do you think that some of these
issues could be tidied up in a more sensible way? One of the problems
is that those who have to enforce the law find it very difficult
knowing exactly what it is. There are so many different ages of
different things it is a little bit silly at the present time.
(Mr Kidd) Yes.
(Dr Clark) I have taken the opportunity whilst
Mr Kidd was addressing you to have a very quick look. This is
obviously something which concerned the previous Committee as
well. I have just very roughly gone through some of the Deregulation
Orders put forward by the previous administration, no less than
eight of them were concerned with gaming and gambling. Another
four were concerned with licensing, so it is obviously something
that we have touched upon; your predecessors were concerned with
it as well. I also note that in the possible future Orders I found
from the Home Office the Betting, Gaming and Lotteries Act, printing
pools and so on. We think it is probable that they will be bringing
forward legislation in that respect. Another one which allows
limited advertising, postal and group membership of consumers,
again we think it is probable that the Home Office will ask to
bring forward proposals in those two items which are related to
what you are saying, and of then of course there are other aspects
concerning charity proposals which partly affect this and we are
expecting some work from the Home Office and the Charities Commission
in this respect and we think that is certainly possible at this
stage.
Mr Steen: May I make
one quick point, Chairman. I was very critical of the previous
administration that they spent so much time in the Deregulation
Committee in dealing with gambling because there are more important
deregulatory measures than gambling and it got distorted. I would
urge you to concentrate on the amount of bureaucracy and regulation
around the charitable world and perhaps soft pedal the gaming
side until you have actually got a better reputation on the charities
and you are doing something which everybody would like rather
than just looking at casinos and licences, important though they
may be. It is just a throw-away line.
Mr Chaytor
10. Can I pursue the point about the comparatively
restrictive nature of the Orders that have been passed certainly
in these last few months and to a certain extent under the previous
Government. Do you think, Chancellor, that this is the result
of limitations within the legislation itself, or is it as a result
of a particularly narrow definition and interpretation of the
legislation? I was interested in the point which has just arisen
about charities which have been largely excluded from discussions
previously. We had a brief discussion in the Committee concerning
whether charities were eligible for Deregulation Orders and it
looks as if they are. I would agree with Mr Steen that there is
considerable scope here for reviewing the regulatory regime of
other charities. Is there an argument for further looking at the
way in which the legislation has been defined, to broaden it out
and thereby widen the scope, or do you think little will change
unless there is an amendment to the legislation?
(Dr Clark) On charities, we want to take the charitable
issues forward and we are expecting a report from the Charities
Commission; we think work can be done in that field. I will not
tell you more at this stage. On the bigger issue, I think one
has got to realise that one is talking about legislation that
is almost 5 years old and of course the climate was very different
in those days and in a sense there was a lot of suspicion about
using secondary procedures to remove primary legislation from
the Houses of Parliament. I think the Government of the day was
perhaps hesitant and restrictive and clearly did not go as far
as Mr Steen for example wanted to go. I know a lot of good work
has been done since then. What is the position today? That is
why I welcome views from you. We have identified about eight areas
where there could be improvements, for example, permit changes
to post-1994 legislation. That is an obvious one; permit restrictions
to be removed from regulators as well as those who are being regulated;
permit statutory changes to remove restrictions imposed by common
law; to resolve ambiguities. This is quite an interesting one.
For example, there is a dispute as to whether it is legal to hold
a raffle for a bottle of wine in Britain but nobody dare test
it. That is the sort of ambiguity which I thought this Committee
ought to be able to look at. Perhaps we ought to be looking at
the overall reduction in the regulatory regime in terms of process,
the length of public consultation. Should we reduce the length
of the initial parliamentary scrutiny from 60 days? Should we
change the final scrutiny? There are all sorts of aspects related
to process. Those are eight examples I throw out to you that you
may want to look at and they are not exhaustive. We would very
much welcome your views on those issues. I agree. My own instinct
is that it was a piece of legislation of its time. I would like
to see the powers under the Act and what is possible for this
Committee to do to be widened.
Mr Letwin
11. You touched on this when you mentioned
regulating the regulators. There is a phrase in your admirable
memorandum to us where you say: "You cannot use it to address
legislation resolved from case law." Just before that you
say, "You cannot use it to reduce a burden which falls on
the State." Can you expand on that?
(Dr Clark) Yes. The parent Act is very careful
in what it defines as the citizen and actually business. I can
perhaps best describe it with an example. There could be a situation
where the cost of Government is increased by outdated requirements
on central and local Government in various aspects. A good example
is the DETR proposal to allow the vehicle inspectorate to sell
anonymised data from the proposed new MOT database to offset the
costs of running the database and so avoid the need to increase
the MOT test fee by up to a pound. At present that seems eminently
sensible, but it would be ultra vires in terms of the work
of this Committee and the Act because such a change could probably
not be done by Order because the only statutory burden is actually
on the vehicle inspectorate. That is a fairly technical example,
but particularly irritating and actually quite costly to every
citizen who has a car going for the MOT. That is an example of
where apparently we should take a wider view of burdens on the
citizen, but it is not a direct burden.
12. That is helpful. You do not presumably
envisage using this procedure as a way of removing constraints
on the state that prevent the state from abusing individual rights?
(Dr Clark) No. I have not actually got that far
ahead. I was thinking really in the more technical aspect at this
moment in time, yes.
(Mr Kidd) I think part of the answer to that would
be that necessary protections have to be maintained and it would
be for us to reflect whether anything like that did maintain the
necessary protections and for you to challenge any case that you
felt did not.
Mr Chaytor
13. May I pursue this point about the possible
extension of the scope of the legislation, particularly in view
of the concept of the state? Many of the Orders that have been
passed or have been proposed, whether it is to do with raffling
off a bottle of wine or the cost of the MOT, are not exactly at
the cutting edge of social policy. What intrigues me is whether
a wider definition of the legislation or amendment to the legislation
to include regulatory bodies or different agencies of the state
might actually enable the Committee to get to grips with areas
of both deregulation and better regulation but that had a more
wide ranging effect. I suppose the specific question is if, Chancellor,
you are now actively canvassing the option of including regulatory
bodies, does that include for example local authorities or Government
agencies that were previously part of the central state but as
a result of the next steps initiative have now been put in a slightly
different relationship with central Government? Could you just
elaborate on the regulatory organisations you think could be included
in future legislation?
(Dr Clark) I think clearly the whole thing is
a question of balance. I am very conscious that you have been
delegated and I am very conscious that it is you as the legislators
acting on this Committee who still take the decisions. It is not
Government, and it is right and proper that it is you who as legislators
remove pieces of legislation from the statute books, but I am
very conscious that there are eight or nine of you on a decision
which was taken by 650 individuals in the sovereign Parliament.
I would not want to go too wide and say that you should have overall
power. At the end of the day your protection of our individual
right, which is the point that you are making and which I think
is paramount, the more I have been in Parliament the more important
I think that this particular role is, hence my great insistence
on freedom of information. It is very much a question of balance.
I see it really as including the regulators only where it actually
really does affect businesses and individuals and the example
I gave clearly has a cost to the individual if in fact we are
not able to do this particular piece of action. I see it really
that the regulators would be included as a consequence of the
original proposal, which is to lift the burden on the individual
and the citizen. I do not see it much wider than that although
I would argue that it is a major step forward.
Mrs Lait
14. We have talked about some very interesting
and wide ranging ideas which are very clearly at the beginning
of the thinking process but equally will probably need primary
legislation. Knowing the problems about parliamentary timetables,
are we talking about this Parliament for a Bill?
(Dr Clark) We are at the first step today. Let
me say it is largely the result of this Committee's decision to
ask me to come before you that made us stop and think what we
could do and this is one of the things that have been gnawed away
at partly as a response to your invitation, we have come up with
this proposal, so really it is stage one. I note you said "this
Parliament" and not "this session", which makes
life much easier. It does seem to me that one is in a situation
and I think there are a number of issues where there is a consensus
right across Parliament of what is right. If we can get Bills
which are non-controversial there is much more chance of getting
them into the parliamentary timetable. It is as simple as that.
The real problem is that we can handle them more easily in our
House than you can in the other House. That is one of the difficulties
we have. I would be seeking, as I do in so much of my work, to
get a consensus on this issue, and if we could get a consensus
I believe there is a chance we could make progress in this Parliament.
I do not want to over-exaggerate it but if you can get consensus
it makes it much easier.
Chairman
15. Would that perhaps mean, as the Modernisation
Committee has suggested, more draft bills? The Government is moving
in the line of draft bills. Would it be appropriate if a draft
rule were to come along at some stage, that it were submitted
to this Committee for consideration and help in seeing whether
it met the changes needed?
(Dr Clark) I have no problems with that. I chaired
the Food Standards Agency; that is coming out in a draft Bill,
and also the Freedom of Information Bill has come out in a draft
Bill, which in that case the Select Committee on Public Administration
will be having a look at it. I have no problems with it but that
locks us into almost a formal procedure. I am quite happy to go
along with that with this Committee but it may well be if we can
reach a consensus that we do not need to enter that sort of rigmarole.
Mr Letwin
16. Do you mean that you envisage that the
terms in which an amendment to the original Act would be couched
would be that this procedure or whatever modified version of it
gets adopted could be used to lift a burden on a regulator quite
specifically where it could be established that that burden had
as its consequence a burden or disadvantage for individuals other
than the regulator?
(Dr Clark) Yes. What I would like to do is read
out the sentence in my notes. I tell you why. What I find is that
one says things in the vernacular which make sense when one is
before the Committee. When you actually see them written down
in the report it does not quite convey the same message, although
everyone has read it here. What I am saying is that there may
be a case—I think there is a case—for extending the
power to allow burdens to be removed from local and possibly central
Government, perhaps limited to circumstances where this would
also indirectly reduce a burden on businesses or individuals.
That is really what I am saying.
Mr Letwin: Maybe I
am just speaking for myself but I must say, if it were so limited,
it would be purely advantageous. I would have thought, judging
by the discussion, that there would be consensus on that. It is
when it moves beyond that to the point where this procedure gets
used (even with the protection that you are suggesting) to lift
burdens on the state which might lead the Committee into having
to spend a lot of time worrying about whether an individual right
was being abused, that we might find our time entirely taken up
with preventing such abuses from occurring.
Chairman
17. May I just address one other point that
is in your memorandum. You suggest the possibility of addressing
legislation resulting from case law. I wonder if you could elaborate
a little bit on that. Has it not perhaps got a number of problems
where a Committee of this type could be used to interpret that
item and would that be a difficult line to go along?
(Dr Clark) Before I make a political comment perhaps
I could ask Mr Bovey, who is our legal adviser, to say a few words
on this.
(Mr Bovey) The legislation does already allow
you to address case law where that case law is an interpretation
of existing statute because then the case law tells you that the
statute means something which may or may not have been intended.
The difficulty arises where it is a matter of purely common law
where a case has decided that something can or cannot be done.
There was an example which I think was public under a previous
administration of Scots law, so do not expect me to be too expert,
but it was something to do with the fact that when you sign a
cheque in Scotland that designates part of your account and, even
though you can subsequently put money in before the cheque is
cleared, in some way that has adverse consequences. That is purely
case law and there is no way in which it can be dealt with. On
reflection yes, it was public, because the Scottish bankers pressed
your predecessor Committee extremely hard to deal with this in
relation to the Order on the truncation of cheques and your predecessor
Committee concluded that it would like to have done it but could
not because it was just dealing with case law.
(Dr Clark) I think that makes the case, Mr Pike.
We are talking about something very limited but something which
seems to be very meaningful.
Mr Marsden
18. Chancellor, if we can look at the issue
of the parliamentary scrutiny process, of course this does relate
to what was said earlier about the timescale and how many things
have actually come through the process. Speaking for myself, I
do not know whether all my colleagues on the Committee would share
this view, but my view is that the current timetable, the period
of scrutiny allowed, the 60-day scrutiny, of a proposal for Deregulation
Orders, is sufficient. I do not think we have run yet into problems
here in that respect. To that extent, purely from a time point
of view, I do not think the thoroughness procedure is proving
to be an obstacle to proposals coming forward, although obviously
I would appreciate the feedback from your end. One thing however
that perhaps ought to be looked at, and this is particularly true
if you are going to go round to Departments on a systematic basis
and ask them to put forward more proposals, is the nature and
the range of the consultation that takes place before things come
to this Committee because we have had one example, and ironically
the measure lapsed because it was decided that it was not appropriate
for it to come to us in the form that it did in the first place,
and that of course was the minicabs issue, but one thrust of the
criticism from this Committee at the beginning and certainly one
of the things that prolonged the process of discussion on this
Committee was the fact that the Committee did not believe that
a wider range or indeed any range of disability organisations
had been properly consulted by the DETR in advance of laying the
Order. I put that as a point that might be reflected on by other
Departments in bringing things forward but I also wonder again
in talking about the role of this Committee whether in fact there
might be some role for this Committee in having some input to
the range of consultation with Departments before things come
to us and as it were the parliamentary clock begins to tick. Whether
that could be done formally or informally is a matter for further
discussion but I do think that that is one of the things that
is being thrown up as we are examining Orders here and if we were
able perhaps to have more of an input at an earlier stage then
it might be that some of the questioning and some of the letters
going back and forward, and indeed some of the criticism that
we addressed on the minicabs proposal, would be prevented in future.
(Dr Clark) I thought that was a very positive
point and it is the sort of thing I would like to hold to and
will respond to. We currently do issue guidance to departments.
Clearly it has not been as effective as it should have been. I
will now revise my guidance to departments and I wonder if I could
ask you to help, and if you would like to take this on board fairly
early as a Committee, we will perhaps have informal consultations
on how to do it, but I would be very happy to hear your opinions
on this and I am certain, unless there were very good reasons
not to do so, I would want to incorporate the benefit of your
experiences in the revised guidelines which are issued. The other
thing which we are conscious of is that we have to go out and
do some training of other departments to get them to take this
on board. It has just been whispered to me that there is the other
point, of course, that every time you actually make it more formal
it does make other departments much more reluctant to come forward.
So we have to get the balance right but clearly the minicab order
is a good example where we did not get it right in Government
and we have to try and learn from that. So I will make the offer
to you. I am going to revise the guidelines, we will work out
a way to involve this Committee and I would like your opinions
and experience on it.
Chairman: Is that
all right, Mr Marsden?
Mr Marsden: Yes, that
is very helpful.
Mr Chaytor
19. Mr Chairman, can I follow up with something
which has not, as far as I know, been discussed at all previously
but it picks up the theme of extending the scope for legislation
and the responsibilities of the Committee and that of improving
the quality of parliamentary scrutiny. It concerns private member's
legislation and this is not something that I have had the opportunity
to discuss with my colleagues on the Committee but it does strike
me that a considerable amount of private member's legislation
is to do with either minor forms of deregulation or minor forms
of better regulation, and the system we have at the moment, of
course, is that all these small private member's bills stack up
behind one or two more contentious ones and work their way laboriously
through the parliamentary year and finally fall, and even though
there may be considerable consensus within the political parties
and, as far as one can see, amongst the public at large, in favour
of a particular minor change, the process we have will block that,
and it is not just a question of the system of one individual
member being allowed to jump up and shout, "Object".
I think it goes far wider than that. I am not suggesting that
the fox-hunting legislation should have come before the Deregulation
Committee, but my question is, has any consideration been given
to the ways in which the legislation could be used to work with
the sorts of issues that come up through private member's bills
and is this a legitimate subject of debate when we are considering
broadening the scope for legislation and the work of the Committee?
(Dr Clark) There are two things. Let me start
off with the detail. We look at every proposal for a private member's
bill and if we feel that there is an alternative, which is often
the better alternative, of using this Committee, we will advise
the Department of that, because you may or may not know that departments
take a view of every private members' bill. It would not be a
great surprise to learn, but we actually do at the centre look
at every bill and try to make an assessment of whether it would
be easier to deal with within this Committee and try and direct
it. That is one thing. Secondly, I happen still to believe, having
managed to get two private member's acts on the statute books,
one through the draw and the other from behind the Speaker's chair,
there is more opportunity to do this. I know there are certain
bills going through at this stage. But on your main substantive
point I have to say I am going to have to duck this one because
this is something for the Modernisation Committee and I think
if, in your deliberations—you say you have not discussed
it with your colleagues—you are going to discuss it in the
future in this Committee and this is one of the things it came
up with, I would suggest you pass them on to the Leader of the
House and the Modernisation Committee because it is something
which may or may not be considered there.
|
