Examination of witness (Questions 100
- 119)
TUESDAY 30 MARCH 1999
PROFESSOR DAVID
MIERS
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.
Chairman
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?
Chairman
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.
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