Examination of witness (Questions 85 -
99)
TUESDAY 30 MARCH 1999
PROFESSOR DAVID
MIERS
Chairman
85. Good morning, Professor Miers. I formally
welcome you. The first question is, looking at allowing a small
increase in burden on some parties if it removes a greater burden
on others. I would like to fire off by saying by what criteria
can one assess the question of whether a new burden is disproportionate.
(Professor Miers) That is a good question. May
I begin by saying that I am pleased to be invited to speak to
the Committee and I hope that what I have to say will be of some
assistance to it. As your Clerk knows, I sent a copy to him of
quite a long paper which I have written about the deregulation
procedure. I am very happy for that to be circulated in its entirety,
if you wish, within the Committee and it will be published, you
may wish to know, by the Hansard Society for Parliamentary Government
this month. The point I wish to make initially in addressing the
question by what criteria would you judge the application of a
new burden or transfer of a burden is to make a general point
about the procedure, and it is this: that the Committee might
want to, ask itself this question whether, if that were the proposal
in 1994, Parliament would have wanted to see other safeguards
placed either in the Act or in the procedures adopted by this
Committee or in the House of Lords. The kinds of criteria that
could be used in determining the incidence of a burden, or the
creation of a burden, seem to me to revolve around the entity's
capacity to absorb additional costs—to put it at a general
level. That is to say, and to take an example given by the Minister
in his evidence to you a short while ago, if you were to remove
a burden from a supermarket and seek to transfer that burden from
a large entity to a number of smaller entities, you would need
to assess the capacity of those smaller entities to absorb those
small costs which have now been placed upon them as small burdens
both in a short term and in a long term sense, in that every burden
that you place upon a commercial entity to that extent restricts
its capacity for expansion, for redevelopment, for redirection
of its activities. This in turn could have an impact on local
employment, on its own market and on its own viability. Conversely,
the larger entity, which is now released from what for it was
proportionately a small burden but a burden nevertheless, now
by definition has more capacity to do other things. Now those
may be entirely beneficial in terms of the market within which
it operates; equally, though, it could have some eventual harmful
effects. If I pursue the supermarket example for a moment, and
this is a hypothetical, let us suppose that in consequence of
food safety standards there is currently a burden on supermarkets
to test or check for themselves genetically modified contents
of products on their shelves, that is a cost. Suppose that cost
were in its turn transferred to the providers, the suppliers,
of those particular goods which may be a small sector or area.
Clearly, taking those smaller sector areas or those small suppliers,
for them to engage in checking the proportion of, say, GM products
or ingredients in their products would be a cost which the bigger
unit, being released from it, would be able for example to use
to get into that particular market itself, supplanting the existing
small supplier. That is a standard form of behaviour on the part
of large purchasers of goods. They can, if they have enough strength
in the market, drive out or push to the sides smaller people who
just rely on a niche market, a niche supply. Now the difficulty
for the department bringing that proposal forward is presumably
that it has to convince you that it has taken account of those
kinds of possibilities, for example, some kind of regulatory audit
or prediction as to what will happen once a particular burden
has been removed. That may lead you to think that, in your requirements
of the department when laying the proposal, you should require
yet more stringent if that were possible, consultation - a yet
greater degree of requirement from the department of clear statements
of what the law is, how the law will be structured once the change
has taken place and what the impact is going to be in the particular
sector. If I pick up, therefore, on the way in which the Cabinet
Office has presented the matter to you, they present it in terms
of, for you, essentially greater managerial control of the system.
You have the capacity, as does the Committee in the Lords, to
bring the same degree of rigour of examination to the proposals
as you have done to date. If you were presented, therefore, with
a proposal which did, indeed, seek to shift a burden from a large
entity which can absorb it reasonably comfortably to a number
of smaller entities for which it might be difficult and for which
it might have the kinds of consequences to which I referred, then
you might respond to that by saying "Well, we are not satisfied
that you have fully thought through the implications for small
scale providers, suppliers of particular services or of particular
commodities and, in that you have not thought that through, over
a projection of a two year, five year cycle, we do not think this
is an appropriate use of the order making power". In that
sense I can see that the way in which the Cabinet Office has presented
the proposal to you leaves the final say-so clearly here and with
the other Committee. The question then is what further you would
want the department to demonstrate in terms of consultation and
continuation of necessary protection and so on. That is a long
answer, I am afraid, but it is not easy without getting into very
specific examples to address the matter perhaps shortly.
86. But it is quite an important issue?
(Professor Miers) Indeed, very important.
Mr Steen
87. Can I thank you very much for coming
all this way. I hope your train was on time.
(Professor Miers) As a matter of fact it was not.
88. As a regular user of Great Western I
run a campaign on the train times so thank you for letting me
know that yours from Cardiff was not on time—just as it
is not from Plymouth. What I particularly want to ask you about
is what you have been saying in relation to small businesses.
It is all about money, is it not—the financial pressures
on the small business as against the financial pressures on a
large one. Surely the starting point, if you have to start at
all, is to look at the actual costs that a small business has
and say that cost for fire regulations, for testing water quality
or what-have-you reduces the profitability of that company—forgetting
the large one for a moment——
(Professor Miers) Yes.
89. ——and then say "Is
it really needed?" My experience is that there is always
somebody somewhere who will say "We cannot get rid of it
because...", and that is the official who is appointed and
responsible for that particular item who says "If it goes
wrong"—and it may be one in a million—"my
job is on the line". The result is, to give an example, in
this building we have fire regulations, fire officers—and
quite rightly so. I think, Mr Chairman, the fire officers have
a special department in the Home Office—I may be wrong—dealing
with this particular building. I have been in the House of Commons
many years and every year, in my office, I have another fire officer.
It is amazing how, every year, they find something else which
the other one had not found, all aimed at protecting their jobs—I
do not mean that unkindly, but protecting their careers. They
believe there is a risk of fire. I do not know how many doors
we now have in one of the outbuildings; I am quite sure if there
was a fire we would never get out of the building because there
are so many doors protecting various units. If you use that example
to extend it to small firms and actually go in on a small manufacturing
plant, you will see endless requirements they have to fulfil.
If you use this concept of the greater good and the Benthamite
approach, you are never going to succeed because the official
somewhere down the line will actually say "You cannot do
it because of the risk". The only way you can ever do it
is by getting rid of the officials and if you actually knocked
out 50 per cent of the health and hygiene people I am sure we
would not get more ill because, if you look at the statistics,
more people are getting food poisoning now year by year, as we
increase the number of health and hygiene people dramatically,
so I am just questioning the whole argument. What is it all about
and really are we ever going to succeed in actually reducing the
pressure to keep on "improving" the facilities or are
we going to find, like most members of Parliament, that our post
bag every month is full of people saying "Will you please
pass a law?". Nobody ever says in my experience "Will
you please repeal a law?". I am just saying in rather a negative
satirical way, having been very involved in deregulation in the
last Government, is there any future in this?
(Professor Miers) When discussing the food poisoning
point one would have to look at the variety, composition and origins
of the different sorts of foods that people nowadays eat compared
to what they ate many years ago and that is, no doubt, one of
the reasons why we have the possibility of food poisoning. You
mentioned the Benthamite approach and if you apply a kind of happiness
principle—a felicific calculus—to the enterprise,
the way in which you might approach it or economists might, would
be by looking at it in terms of risk assessment. Risk assessment
typically falls into two judgments that need to be made: firstly,
the probability of a particular event occurring—this being
an event you do not want to happen or, conversely, maybe one you
do want to happen—and, secondly, the impact of its occurrence.
One must be careful not to mix the two, which is an error, but
one of the ways, to revert to my earlier observations, in which
this Committee could look at proposals from the DTI, from MAFF,
which relate to the kinds of issues to which you have referred
would be by requiring the department to produce that kind of analysis:
"What is the likelihood of the outbreak of fire?" Or,
if one takes the Palace of Westminster, "What is the likelihood
of an outbreak of fire here?". That would require an historic
analysis of the number of fire incidents via the alarms you had
and so on and what would be its impact if it were to happen ——
90. Rather a good impact!
(Professor Miers) ——how quickly, or
easily would you be able to evacuate the building and so on and
so forth. Without getting too detailed, that is in general the
kind of analysis that one could conduct. Again, if the Committee
took the view "On balance...", that is ultimately the
question, is it not? I cannot give a definitive answer to that
because it is a matter of judgment for you and for the other Committee.
"In our judgment, does the removal of this particular burden,
create a small probability of the harm that was being guarded
against occurring and, even if it did occur, would the costs that
would flow from that harm occurring be, to put it another way,
acceptable to us? Are they things we are prepared to tolerate
in the name of the greater good?", which is the way the paper
puts it. I do not have any litmus test for that.
91. May I follow that one up with two thoughts?
One concerns whether it is a public organisation or private. If
it is public, my experience is the elected representatives, whether
they be councillors or members of Parliament, will tend to say
"We ought to spend it" because it is not their money.
If it is a private organisation the employer will say "I
cannot afford to spend it", so you may need two parallel
sets of rules—one for the public sector and one for the
private, which is quite wrong. The other point is the cost compliance
assertion and the fiche d'impact in Europe surely deals with the
problems about financial costs and assessments already. I was
not quite clear from the paper or what you were saying whether
there is something else we should have other than that because
I think John Major's Government had the cost compliance assessment
on regulations and rules and the fiched impact is supposed to
happen in Europe and does not, often. I wonder if that is already
taking place?
(Professor Miers) I believe that to be so. What
more could this Committee expect from a department is the issue.
92. That is right.
(Professor Miers) You might ask a department to
produce reports on a periodic basis following on from a successful
laying of a deregulation order that meets your requirements for
the moment so that the department has to report back to this Committee.
93. But what would they report on?
(Professor Miers) An evaluation of the outcome
of the removal of the burden.
94. But we do not do that about new laws.
We are passing laws through here at the rate of knots. Europe
is pouring stuff through here. You are suggesting quite an elaborate
process and probably a very correct one, once you have passed
the law, to try and get rid of it but not the same process when
you are passing the law.
(Professor Miers) I entirely accept that and,
if one goes back to the origins of the Act, then, of course, the
kinds of matters to which we have been referring would have been
presumably discussed in Committee on any particular proposal in
the shape of the clause in primary legislation and assurances
would have been given by the Minister that the department had
looked at the likely impact of what was being proposed and that
it had concluded that it would be benign or neutral. You are quite
right that Parliament does not necessarily subsequently require
a routine reporting. It might, of course, come up through other
Select Committee inquiries or post bags or in some other form.
The reason why you might suggest some add-on is precisely because,
when the procedure was set up in 1994/5, it was unprecedented
in peace time. Parliament's attitude at the time was that Henry
VIII clauses in these particular circumstances needed to be hedged
about with substantial safeguards. Had we known then that the
Government would now wish to extend this to this balancing act;
had we known that the Government was intending or that a change
of Government might have intended to extend the procedure to relieve
public bodies or amend the common law or remove ambiguities, to
take the other proposals mentioned, then we might have wanted
yet more rigorous procedures adopted.
Chairman
95. You have just mentioned the question
of removing ambiguities in the law. Do you think there could be
provision for clarification, if ambiguities were effectively allowed,
for the procedure to impose regulations which, up till now, have
been thought to be either obsolete or so unclear as to be effectively
unenforceable?
(Professor Miers) There are two separate issues
which are raised by the proposals. There is the question of making
laws clear, where it seems that the affected interests do, notwithstanding
some ambiguity, understand what the law means or operate in compliance
with what they believe the law to be. There, it seems to me, clarifying
the law in the sense of producing new sections in the governing
legislation would be desirable. I will make another point in a
moment about relations or contact with the Law Commission on that.
Where the law is unclear, and by removing an ambiguity you reveal
a burden, that raises a slightly different question which is the
one that the Cabinet Office addresses, which is that you then
need to look at the balance between the benefit and the burden.
If there is an ambiguity then arguably there are two potentially
correct interpretations. Where the department picks on one of
them then presumably you would expect the department also to address
the alternative which might not impose a burden. If that is the
case, then you would expect the department to be clear that it
actually wanted to impose a burden out of this ambiguity. Am I
making myself clear? If a clause is genuinely ambiguous and capable
of two different interpretations, it is a matter of choice as
to which interpretation you prefer, so if the department picks
on that interpretation which is going to impose a burden, the
question must arise why it is doing that as opposed to the alternative.
That is not a foregone conclusion, whereas simply clarifying an
ambiguity where, as it were, everybody understands what the law
is, or at least claims to understand what the law is and is working
to a single interpretation, is perhaps just a technocratic or
a rather more limited excise.
96. How many cases would you think there
are where the law is unclear and, therefore, is unenforceable?
Do you think there are cases where that is clearly the position?
(Professor Miers) It is difficult to hazard a
guess at that, Chairman. One of the areas which was given in the
Minister's reply was to do with the provision of alcoholic prizes,
bottles of whisky and so on at small scale raffles. I am conscious
of that kind of thing myself having been a member of the school
PTA where the question has arisen! No doubt there are many others;
I cannot cite chapter and verse on them. It may be that those
affected and those charged with the responsibility for enforcing
the law have come to an agreement, as it were, as to what the
law means and it is as much a burden for the enforcing agency—the
Food Standards Agency or environmental health officers or whoever—to
clarify the law as it would be for those immediately affected,
such as the consumer group. I could not hazard a guess, however,
as to the number that fall into that category.
Mr Steen
97. The whole question of ambiguity surely
is just saying the law is not perfect and never will be?
(Professor Miers) With respect that is not quite
so. Law can have a variety of defects. Generally speaking ambiguity
is a defect. Vagueness, which is often picked out as a defect
in law, on the contrary is not necessarily defective and, indeed,
is resorted to constantly by draftsmen—sometimes deliberately
and sometimes because it is not possible to draft with precision,
general standards, for example in exercising a power of arrest,
policemen shall act on reasonable grounds. "Reasonable"
is a vague word but most of us have a reasonably good idea of
what would be excluded from that—albeit borderline cases
will arise. But that is a different case from ambiguity which
is almost always defective because you have two alternative interpretations.
98. I might suggest to you that, in fact,
there is not that much difference between reasonableness and ambiguity.
It is just a question of definition because both require a judge
to interpret in the circumstances whether (a) the force was reasonable
or (b) the matter is ambiguous.
(Professor Miers) If I may give you an example
used by the then Professor of Jurisprudence at Oxford, Herbert
Hart, who remarked about a very rich testator who was a ship owner
and also a collector of vases who left "all his vessels"
to his son or daughter. "Vessels" is a word which is
ambiguous: it can clearly mean vases or ships but "vessel"
even in the maritime context is a vague word. Does it include
a small dinghy and so on?, so there are conceptually different
notions.
Mr King
99. What was the outcome?
(Professor Miers) It was purely hypothetical,
as all good academic discussions are.
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