Select Committee on Deregulation Minutes of Evidence

Examination of witness (Questions 100 - 119)



Mr Stewart

  100.  On this question of ambiguities, surely the rigour of the consultation process becomes all important if you are seeking to remove unintended vagueness or ambiguity? What you have described to the Committee this morning is the usefulness of vagueness and ambiguity in some instances - mainly vagueness I will accept—but surely the rigour of the consultation process becomes all important, therefore, in getting rid of the unintended elements. Is that your view?
  (Professor Miers)  Yes. I should make it clear I do not regard ambiguity as a benefit BUT I would agree with that suggestion. Clearly the Committees have shown themselves to be quite capable of exerting a very high and exacting degree of rigour over the way in which departments consult to take that particular aspect of the procedure and, to pick up on the way in which the proposals put it, there is no reason to suppose that the Committees would not continue to do so and, to take your point, would be yet more demanding. One can look, for example, at the history where there have been a number of occasions where this Committee and the Committee in the Lords have remarked on the brevity of a consultation process. There was one case where you regarded it as being inadequate but in other cases you have let it by—albeit with some comment like "It was barely adequate" or "just adequate", or words to that effect. If you were faced with a proposal which, at one and the same time, sought to remove an ambiguity so that it relieved a public body of a potential burden and in so doing placed a burden on the commercial sector or the private sector, so that presents serious challenges in terms of the original conception of the Act, you might well take the view that consultation must be completed not just "barely adequately" but, if not with time to spare, with greater attention to that consultation. In other words, you might draw the line at an earlier stage and simply say "Well, that just was not good enough given the significance of the proposal". That, too, is something which the Committee has already done, it seems to me. You looked at the importance, the significance, of the proposal that has been put by the department on corn returns, for example, and you take the view "This is not very significant therefore a 14 day consultation period is quite adequate" but, in another context—a supermarket context, for example, or public body context—you might regard that as wholly inadequate, even if it was a minor change of the kind that the document refers to.


  101.  Moving on to the part where the Government's consultation document looks at the question of dealing with issues of better Government objectives, as you know one of the suggestions is that the powers of the 1994 act should be extended to allow the removal of burdens from state bodies. It does say that burdens removed from the Government are likely to be small but I think you have expressed a view that a future Government may not necessarily see that limitation. What exactly are your views on that? Do you think the principle is right or do you think it opens a door that could lead to dangerous precedents in the future?
  (Professor Miers)  I think it opens the door. The question for future governments is what proposals will they bring before you. The other question is how complaisant or demanding will future committees be. If you have a Committee which takes its responsibilities seriously and examines proposals and is quite prepared to reject them, then the safeguards that already exist I would say meet the task. The difficulty with removing obligations, albeit minor—and the example that is given is the saving of shelf space in Companies' House, not far removed from my office—is that it may be that it would only be small proposals that would be, for the moment, produced and the Committee may feel comfortable in dealing with those, but that is not to say that future governments would be as modest. Given also that this Committee and the Lords Committee have both indicated that they like to see significant proposals being brought forward, the Government might well take the view that they are going to bring some significant proposals forward which relieve public bodies of duties. I then revert to some points I made earlier which are that I would then expect this Committee to examine the audit that the department puts forward perhaps more closely than has been the case—I am not implying any criticism there but simply to look at it much more closely—because of the public sector involvement.

  102.  You know that this Committee, right from its inauguration, has, whatever its views on any particular proposal, always set those to one side and has always judged by the criteria that it believes it is expected to do as to whether the Government has dealt with it correctly and gone through a whole number of questions in that process. Indeed, under the last Government, with a Conservative majority on the Committee, the Government was rapped over the knuckles several times for handling things not as well as the Committee would have expected it to.
  (Professor Miers)  Yes, but perhaps I can distinguish two points here for my own clarity. With the exception of one of the criteria, which is the one which concerns whether this is an appropriate use of the order making power, so far as all the other criteria are concerned—consultation, necessary protection, burden and so on, vires—I am sure the Committees are quite capable of exerting those exactingly and, as you have observed, this Committee has taken the Home Office and the DTI to task about the way in which they approached the consultation process in particular cases, or responded to what representatives of the affected interests would say and so on. In that managerialist way, I do not really see any great difficulty in the Committee taking on or looking at proposals of the kind that are suggested in the consultation document. You can always be more demanding of consultation when it is completed more extensively or within a timeframe which gives more people more opportunity to think about what the objections are that they have, for example. The one matter which underlies all of this is the appropriateness of the procedure to particular kinds of change and that is difficult to address, as you know. The Committee has addressed, for example, civil aviation and Sunday dancing and your Committee, Chairman, has taken the view that it is a pragmatic test every time and you look at complexity, significance and the impact on the affected interests. In an important statement you made in one of your reports, what you indicated was that there was nothing inherent in any particular proposal. I think you said there was nothing in the Sunday dancing proposal that made inappropriate use of the power. What you had to look at was the interaction of these three principles, in that sense, the proposals made by the Government are not objectionable given that you would presumably be bringing exactly that same analysis to bear on each and every occasion: "In our judgment do we think that its significance or impact or extent, either singly or in combination, make it an inappropriate use of the power?". That, of course, ultimately is just a matter of judgment for you. I have read all the reports and, as I say, there is no litmus test. You cannot say "This is" or "This is not", as you yourselves have observed. You simply have a feeling about it—that this is the kind of proposal that ought to be debated on the floor of the House—and that is it.

  103.  To sum up, if greater powers are given, are you really saying it underlines the need for this Committee to do the job properly that it is established to do.
  (Professor Miers)  Absolutely and, in agreeing with that, as I say, I make no criticism at all but, yes, it seems to me that is exactly the point.

Mr Steen

  104.  Could I just distinguish between the private and the public sector? You are talking there about the public sector, the state. Are you only talking about Parliament and Government and Whitehall, or are you talking also about town halls and bye-laws? Secondly, are you not talking about transparency and about open Government? Again, is there not a balancing act between producing more and more reports, using more and more paper, employing more and more people to evaluate, monitor and then to provide sufficient information so pressure groups can start campaigning against this and that, and the balance of efficient Government which may require less of that rather than more? I am just wondering whether you have thought that one through.
  (Professor Miers)  Would it extend to local Government? I think so. In making my observations about public sector duties I was using that as a shorthand for the entire proposal that has been made in the document. I do take the point that it is a matter of transparency and making clear to the committees that the department has fully thought through the implications of what it is and proposes. It is a balancing act, yes. Equally I can see that Government—and I suspect Parliament—would want not to impose or continue costly or disproportionately costly regulatory exercises. Yes, I have no difficulty with that. It is a question of whether you feel, again, that the department has presented to you a persuasive case that, say, the removal of this particular cost in this case does not present any threat, to put it shortly.

  105.  You will find that the reason that the Deregulation Committee managed to do so much in the last Parliament was not just so much because of the different administration; it was because of the first wave of getting rid of extra items and nuggets which were really totally irrelevant and did not have much impact. We have now got rid of all that and now we are coming up against actually doing something. That is why it is two or three items in the first six months because we cannot find enough. Your arguments are, it seems to me, along these lines: that you might succeed in the first instance of getting rid of some of the little items which are irrelevant but, once you come on to the meat of an annual report, somebody is bound to get up and say, "This is needed because you have to have transparency and everything else". It strikes me all you are doing is just touching at the edges of the public sector and saying "There must be little bits here and there". I would say that you should leave it; it has not offended or upset anybody and the big stuff you are not going to change anyway. The only way we might make some progress but we do not have the powers to do it and perhaps I could just ask your view on this is this Committee is totally non-proactive in the sense we cannot then do an investigation into the running of Whitehall or whether to get rid of us. Do you see that is as a function that we could exercise? Is that something you have given some thought to?
  (Professor Miers)  I have not given direct thought to that question. Clearly, you could require it of others; you could require it of the department. Whether you yourself would want to commission evidence - is that what you are thinking of?

  106.  Yes.
  (Professor Miers)  That is to say like a select Committee saying "We will conduct an investigation into how this particular proposal has in fact worked out two years later".

  107.  That is right, or how we could reduce the amount of paper being produced by Whitehall; what running of central Government you could reduce in order to make it more streamlined.
  (Professor Miers)  I had not really given that any thought, Chairman.

Mr Stewart

  108.  This morning what we are doing is looking at the existing scope of this Committee and then some potential changes that are fed in by the Cabinet Office in the consultation process. What you were just asked about was a more proactive approach of this Committee under its current scope.
  (Professor Miers)  Yes.

  109.  In the consultation document, it proposes that the order making power could be used to remove burdens that had been imposed by the evolution of case law where no relevant statute is applicable. That is quite a jump from us as the Deregulation Committee, the secondary legislative Committee that we might be, to the effect on evolution of case law.
  (Professor Miers)  Yes.

  110.  Do you believe that it is constitutionally questionable to have this power to alter case law through secondary legislation? Could you also say whether you believe that this provision, if it is implemented, could propagate more anomalies in the law than it resolves?
  (Professor Miers)  You are quite right——

  111.  I have not given an opinion, by the way. It is a rhetorical question.
  (Professor Miers)  —— it certainly would be a very substantial shift in the activities of the Committee if it went forward. It is, of course, the case that Parliament reverses common law decisions or case law decisions but traditionally it has done so by primary legislation. A recent example is the Theft Act 1996 which reversed a decision of the House of Lords and there are many others. That is effected by primary legislation and, typically, flows from a decision in which the courts themselves have indicated they are not very happy with the result which they have achieved, perhaps because the legislation is itself inadequate to the task and the legislation itself not being capable, for the purposes of this Committee, of being amended by deregulation order because there is no power to the Secretary of State so to do. There is a constitutional point and there is a managerial point. The obvious body for dealing with defects in the common law is the Law Commission and it spends a very great deal of its time looking at defects in the common law which have been produced by case law. I would think initially that it would—not look askance—but might wonder at this alternative method of piecemeal change to case law difficulties. You raise the question of anomalies: it seems to me that one of the difficulties with amending case law rules or seeking to reverse case law decisions as stand-alone pieces of subordinate legislation is you are doing that against a backdrop which is not statutory, so you are not fitting this new rule into an anchored, linguistic text. It is not going into an existing set of rules but a common law context where the rest of the rules may themselves be unclear, to some extent, in the sense of their formulation—not unclear in terms necessarily of their interpretation; they fall to be interpreted as much as statutory rules do. Trying to identify, however, a particular defect in the common law, then devising a statutory instrument that is neither over-inclusive nor under-inclusive in terms of stating what that rule is and reversing it, then enacting that against a backdrop of other common law rules seems to me to be generative anomaly. Typically what you would expect from the Law Commission or another reform body like the Criminal Law Revision Committee or the Law Reform Committee in those circumstances is a review of the whole area and the enactment of primary legislation which looks at the area and tries to provide—not a framework Act but tries to frame the particular point within a broader common law context. In other words, you are not just picking something off but you are setting it within the area of which it is a part. That too is fairly common. There are dangers, though, in the sense of the creation of anomalies. Is it constitutionally improper? I would think that the judges might well look with concern at their decisions being amended by subordinate legislation enacted under, presumably, the 1994 Act—possibly amended. The long title refers to "rules of law" so presumably that would include common law rules. I tried to tie this in when I was thinking about this in terms of amending judicial decisions reached by way of judicial review. If you start straying into the duties on a public body which have just been confirmed by the High Court on a judicial review application and the Government comes along shortly thereafter and says "Well, we had better change this", I can see the courts not going for that.

  112.  You are talking about bodies like LEAs, DHSS and Child Support Agency, I presume?
  (Professor Miers)  Yes.

  113.  Let's take an example where there has been a judicial review relating to a Child Support Agency situation? Are you saying then that you would be concerned—or certainly judges may be concerned—that the use of a statutory instrument to remove burdens imposed on a body such as the Child Support Agency by judicial review would cause concern?
  (Professor Miers)  I think it would, because of the nature of the political difficulties that have been associated with the Child Support Agency. It would depend certainly on the nature of the duty that the instrument sought to remove. If one looks at it in terms of the constitutionality of it and the accepted practices, the accepted practice is that you amend judicial decisions by primary legislation. Now you might say, "Yes, but it was until 1994 the accepted practice that you did not amend primary legislation by subordinate legislation at all except in very rare cases and now we can, so what is the difference?"

  114.  Is this again not a matter of balance? Let me pose another scenario to you. If judges acknowledge an anomalous situation that had been brought about by the evolution of case law and if Government acknowledge that, would in those circumstances the use of a statutory instrument to correct that be acceptable?
  (Professor Miers)  Yes, I think it would be. The question would then arise whether you can, as a matter of law, achieve the amendment and no more than the amendment that you wish to achieve. That is the crucial managerial task, assuming you have got past, if you like, the constitutional issue. I draw attention in the paper to another point which I think is worth bearing in mind in this connection and that is the courts' now assumed capacity to read Hansard for the purposes of resolving ambiguity in primary legislation and in secondary legislation. They have certainly been doing this already for some time with regard to EU implementation. I would envisage that what will happen is that, if there were in due course, let us say, a challenge to an instrument that had been made as a consequence of this procedure—that instrument seeking to amend a decision of the court which, at the time was unpopular with the Government but maybe as a matter of law did not create any real difficulty, I can certainly see a court looking very carefully at the deliberations of the Committee in the Lords and this one in asking itself the question "Is this what Parliament intended in this instance?"

  115.  In those circumstances, am I right in saying that what you are really saying is that, if we go down that line, not only is the scope of this Committee enhanced but the responsibility of the Committee becomes all the more serious?
  (Professor Miers)  Absolutely.

Mr Steen:  We were just having a little aside about whether it would be appropriate to ask the Professor whether he had any plans to produce a short paper on whether he feels there would be an advantage to include in the role of this Committee the more traditional Select Committee areas of investigation into areas where deregulation might be an advantage or not. I do not know whether that would be an appropriate question, or whether it would be a question which you think would be valuable?


  116.  I am quite prepared for you to answer the question. If you want to give some thought to that I would indicate that if you want to respond to that our timetable is extremely tight. So you know what the position is, we intend to meet on 20 April and I would hope we will be able to prepare a report, either that week or the following week, to take into account all our evidence sessions that we have had to date, which would be our response to the Government's consultation document which concludes, as you know, on 30 April. So we do have a tight timetable. I do not know whether you want to think about that one but if you want to come back, you know where to.
  (Professor Miers)  Thank you, Chairman. Perhaps I could say that in the longer term I am thinking about that because what I wish to do is write some more about this, but after you, Chairman and the Committee, have produced your report—and no doubt the Lords Committee will be responding—with a view to writing another article in another journal. I could not, I am afraid, comply with the 20 April deadline because I have other commitments to which I have to give attention.

  117.  That is fine.
  (Professor Miers)  Thank you for the thought.

Mr Stewart

  118.  Following on from the discussion we have just had and the answers you have given, do you think that it would be acceptable for legislation passed in one session to be amended by a Deregulation Order in the following session, conceivably following a general election?
  (Professor Miers)  Yes.

  119.  Thank you.
  (Professor Miers)  I have given a lot of lengthy answers. I think yes with the various caveats I have already indicated, namely I would expect the Committee would wish to examine such a proposal carefully and assure itself that the reason why the proposal was being made was not simply because of a change in political complexion but because what is sought to be removed from an affected interest is a burden which is disproportionately onerous and so on. In other words, I would expect the Committee to apply its same criteria.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1999
Prepared 22 April 1999