Examination of Witnesses (Questions 1
- 19)
TUESDAY 9 MAY 2000
MR GRAHAM
STRINGER, MR
NICK MONTAGUE
AND MR
PHILIP BOVEY
Chairman
1. May I welcome you to the meeting of the Deregulation
Committee. Perhaps, Mr Stringer, you would like to introduce your
team; then indicate where you are with the Bill and make a few
comments on that; and then we will go into questions.
(Mr Stringer) On my right is Nick Montague,
who is the Head of the Regulatory Reform Bill Team. On my left
is Philip Bovey, who is the Legal Adviser to the Regulatory Impact
Unit. If I can just thank you for asking me as a witness to the
Committee, Chairman. I realise that you initially asked for the
officials. I am sure they will be able to answer jurisprudential
questions, on technicalities, much better than I can do and I
will defer to them, but there are probably some questions on the
policy background to the draft Bill that it would be more appropriate
for me to answer. Where we are with the Bill, at the moment, as
you know it has been published in draft form. The Lords Delegated
Powers and Deregulation Committee have reported on their consideration
of it this morning, after having Lord Falconer as a witness. I
have not had time to look at that report today and we are here
as witnesses for your consideration today. So, to a certain extent,
where the Bill is up to is dependent on the pressure of the legislative
space. It is also dependent, to a certain extent, on the reports
of this Committee and the Lords Committee. You have been very
supportive of the general principles behind the Bill so far, and
that will be very helpful in dealing with what is a very crowded
legislative programme.
2. May I say that when you indicated that you
could come along, we were more than glad to have you come along,
and it is a sensible way to do it with you and the two Civil Service
people at the same time. However, we were not trying to put pressure
on your diary. That was the only reason we had not originally
intended to invite you, but we accept that there are certain policy
issues where you alone may be the one appropriate to answer those
particular points. It is our intention, I can indicate, that we
would hope to finalise our report on Tuesday of next week, and
publish during the course of next week, so that we will not be
responsible for holding up the Government's legislative programme.
Following on from the point that you have made, could you indicate:
is it, as you see it, the Government's intention to introduce
the Bill at a reasonably early date? And has it been considered
that it might be a Bill that is appropriate for carrying over,
if the timetable meant this was so, because we are obviously into
June very, very soon; and if it meant it would not be possible
to conclude discussions in both Houses on the Bill before the
end of the Parliamentary session?
(Mr Stringer) On the very first point you made, thank
you for the speed with which you have done this, which is an excellent
ideal. We are very keen to report back to the business managers
with the views of the two Committees, so that we can discuss with
them the possibility of early legislative space. As you know,
the announcement of the Bill was in the Queen's Speech, and it
is the intention of the Government to legislate. There are all
sorts of ifs and buts in that obviously because of pressure on
the legislative timetable itself, with new legislation coming
forward, because of the changing situation in Northern Ireland,
to give you one example. It is the Government's intention to legislate
at the earliest possible opportunity. Given that, I suppose it
could be carried over.
Mr Brown
3. In looking at Clause 1, why is the removal
of "inconsistencies and anomalies" an independent objective
of the order making power in Clause 1? If that power which you
have actually drafted is, as you have indicated, broad enough
to enable the root and branch reform of a whole regulatory régime,
would it not enable Ministers to iron out inconsistencies and
anomalies as part of that root and branch reform? Surely you do
not need a specific power to do that?
(Mr Stringer) It is certainly—and I will ask
the legal advisers to deal with some of the law—our view
when, for instance, you consider the whole fire regulation issue,
where there are 120 pieces of primary legislation and 120 pieces
of secondary legislation that deal with fire regulations, that
what you are dealing with in those systems is changing the whole
regulatory process. There may well be inconsistencies and anomalies
which would be more helpful as a power than just the removal of
regulatory burdens. This is because the regulatory burden itself
is actually the inconsistencies within the two systems, so stating
that explicitly is helpful. You might find it difficult if you
were just talking about an absolute burden, comparing it with
a simplified system, to one very complicated system involving
240 pieces of legislation itself. It makes the power clear and
explicit.
(Mr Bovey) I think very much, as the Minister has
just said, the previous three objects are all expressed in terms
of burdens, and although it may be possible to squeeze the particular
points which the Minister has just mentioned into that analysis,
it is the wrong way of doing it. What is objectionable about these
things is not that they are burdensome or not burdensome, but
that they are simply inconsistent or anomalous. So the Minister
is given the power of making the legislation consistent and organised
separately from the others. These are objectives rather than powers.
He must exercise his powers with a view to these objectives.
4. You did almost hint at something that I was
going to ask. Do you intend to produce regulatory reform orders
that do nothing but tackle inconsistencies and anomalies? Can
you give me some examples of those?
(Mr Stringer) I think we have already talked about
one example, which is the fire regulations, where there are inconsistencies
and anomalies. It may well be possible to find other examples
along those lines. May I take this opportunity to step back a
bit and look at the regulatory issues as a whole. I think we have
come through a period, in the late 1980s and 1990s, when people
thought that the economic efficiency of the country would be better
and healthier if a lot of regulations were swept away. That was
not just in this country but in the United States and in many
other countries. That was seen to be the way forward to making
the economy more competitive and efficient. As various studies
have shown, what is making economies more efficient and effective
is the quality of the regulation and getting rid of bad regulations
that are not entirely burdensome. I can give you an example I
have recently heard, which does not apply to this country but
could well do so. This is about inconsistencies more than anomalies.
The Japanese had the best regulations in the world for replacing
hips and prosthetic limbs ten years ago. That regulation was very
good. It has now become out-of-date. What that regulation being
out-of-date means is that the Japanese get the worst replacement
body parts, limbs, hips and knees, in the world. The major companies
in the world have to comply with these out-of-date regulations
and keep production lines going that comply with them. The Japanese
obviously have legislative problems like we do. If they change
their regulations on those parts, then they would be able to insist
that they got better replacement hips. I use that as an example
because it illustrates the whole point of the way that regulations
are changing. It is not just about the idea that there was one
single regulation that would be burdensome on people. It is not
a British example but it does illustrate the direction that we
are trying to go in.
Mr Ross
5. Could I ask the Minister how he is going
to set about identifying inconsistencies and anomalies which he
referred to. He did say earlier that there was a very large amount
of legislation. From my own experience in this place we often
find that a new piece of legislation, which is introduced, has
an unexpected impact on existing legislation. How on earth are
you going to keep track of it all?
(Mr Stringer) It would probably be an impossible aspiration
to keep track of it all, Mr Ross. I think, again, it might be
helpful if I describe how we are looking at the whole process
of regulation. As I have said, we have moved from believing that
just deregulating, just being able to cross out regulation, was
the way forward. This Government is committed to better regulation.
We have set up a number of processes to stimulate the discussion
on future regulation and on improving that regulation which is
in place. The Prime Minister and Cabinet set up a Panel of Regulatory
Accountability, which is chaired by my colleague in the Cabinet
Office, Dr Mowlam. She chairs that with the Secretary of State
of the DTI, and the Treasury Minister, myself, Lord Falconer and
representatives of the Small Business Service and the Better Regulation
Task Force. The purpose of that Panel is to bring forward Ministers
from the Departments that have regulations, which is most Departments,
although the larger regulations are in a relatively small number
of Departments, and to ask them to account for what they intend
to do in the future in regulations; and to ask them, where there
have been problems, where they are going to improve their regulation.
Those problems might be that the regulation is out-dated, burdensome,
or inconsistent and anomalous. As a function of that process,
because every Department now has a Minister responsible for regulatory
reform, I sit down and have one-to-one discussions with those
people, and then make reports on those discussions before the
Panel meets. Then, that is the basis of questions. It is via that
process that inconsistencies and anomalies would be set forward.
We are not attempting, in any sense, to replace the Law Commission
process.
6. I understand what you are saying, and since
I have been a long-time member of the Statutory Instruments Committee,
I am aware that some Departments seem to go and look at the technical
aspects of the regulation—for instance, ship safety, air
safety, things like that, every so often, that may be two or three
or four years—and the technical aspects can be updated and
seem to be updated on a fairly regular basis. What I am concerned
about—and I think this Committee is concerned about—is
that there other regulations which are there, which simply have
been caught in the past and have had time to become obsolete.
Is there a process in place which will identify those?
(Mr Stringer) This is part of the process. I do not
doubt your experience, Mr Ross, in going round. Partly to inform
the debates I am having with my colleague Ministers, I have seen
the representatives of British commerce and industry. I have talked
to the CBI, the British Chambers of Commerce, and the Institute
of Directors. I have been around and discussed with several Chambers
of Commerce and small groups of businessmen exactly the point
you have been making. You have only got to get together with a
small group of business people at any time for them to complain
bitterly about regulation. I have to tell you that when you say,
"Right, will you give me the instances of the obsolete regulation
that is causing you serious problems and I will put that back
to the Ministers who are responsible for it," there is often
a deafening silence at that point. I am not saying that those
obsolete regulations do not exist. Some of them have been dealt
with by the 1994 Deregulation and Contracting Out Act, but there
is not this huge bundle of regulations. More of the problems that
I am coming across are related to the discussion we have just
had, of over-lapping regulations, or the sheer size of the forms
that people have to fill in, or the time-tabling of the regulations.
People can say, "We are now happy with regulations X,Y,Z
but why do they all have to come out on 1 April?" That is
the real response I get rather than these antiquated obsolete
regulations. But if they are there, and they are causing problems,
then we would certainly be happy to feed them into the system.
That is the system we should generate.
7. You talked earlier about bad regulations.
Our experience in this Committee and in ordinary constituency
work is that what may appear to be to one person a burdensome
or bad regulation, may be seen by another individual as their
protection. It is always a balancing act. Having said that, you
would be given certain powers. Could not the use of this power
amount to an exercise in redrafting the law without necessarily
removing or reducing burdens? In other words, our old friend of
"unexpected use of a power", which is given to you,
one which has caused many of us concern down the years.
(Mr Stringer) I agree with the point you make, that
regulation is about balancing of people's rights and the protection
of individuals after giving freedoms to people. That is the balance
in nearly all regulations. The worry you have, that somehow this
Bill would be used for purposes which were not about regulatory
reform and improving the quality of regulation, can be answered
relatively simply by the very detailed process that the Secretary
of State, the Government Minister, who wants to make the order,
has to go through. First of all, that Minister has to go out and
consult. Those consultations have to be made open to the Committee
for analysis and debate. The Committee can make a report that
asks for amendments to that—both this Committee and the
Lords Committee. There is a whole series of safeguards in the
Bill itself. It states that the public interest has to be taken
into account. Basically, it is a balancing-up Bill. Quite simply,
if you had a Secretary of State who represented a Government with
a majority in both Houses and who wanted to rush inappropriate
legislation through, this would be the last method they would
use. This is because, quite simply, if you did not follow those
checks and balances, if you did not look to the protection of
the necessary freedoms that are in the Act, unlike primary legislation
the process and the order that came out would be judicially reviewable.
So it would only be under those considerations. If a Secretary
of State wanted to override all those balances set up of consultation
and consideration of the different interests that are in the Bill
by the Committee, then it would be judicially reviewable, unlike
primary legislation. So I understand the worry but I think it
is unfounded.
8. I fear I cannot agree with you on that because
I have been on the Statutory Instruments Committee for many years;
and we are constantly astonished that every year we find things
coming before us that have been through all the procedures which
you are describing, (or in one form or another of those procedures),
and yet our advisers will tell us that this is an unexpected use
being made by the Minister of the power that he has been given.
It is for that reason that I have voiced the concern that I and
others who are aware of these things have at this time, in order
that you will be aware of those concerns and take them on board
before you proceed.
(Mr Stringer) I understand what you are saying but
I would be surprised if there were any of those concerns on the
advice that you have been given. The procedure within this Bill
is the procedure that was essentially in the 1994 Act, which has
become known as the "super affirmative procedure". I
do not believe of the 46 orders that have been passed in there,
that there has ever been any final disagreement on those orders
between the Minister making the order and the Committee's debate,
which has resulted in some of those orders being withdrawn. So,
in a sense, that is an answer to you. I am not saying again that
what you have observed and witnessed in other Committees is not
the case, but the whole point about this super affirmative process
is that it guards against that, and this Committee and the Lords
Delegated Powers and Deregulation Committee is part of that protection.
Chairman
9. I would like to ask one question on inconsistencies
and anomalies. How often will an identification of an inconsistency
or an anomaly be done on a matter of interpretation? I am sure
you will recognise that reading in one way two or more measures,
it will be a view that they are inconsistent or anomalous, but
reading them in another way they will be coherent. Who will decide
that the interpretation, which produces the anomalies, is the
right one? Do you not think it might be the situation where the
courts might tend to go in the opposite direction?
(Mr Stringer) I would not like to predict what the
courts would do. Again, it is part of the discussion I have just
been having with Mr Ross. I am sure that you can read things in
different ways. That is how lawyers make their living, if my colleagues
will forgive me for saying that. Again, going through the procedures
that are within the Bill, then it is possible to have that debate
and it is possible for this Committee and the Lords Committee
to say, "This is not anomalous. This is not inconsistent.
These are wholly consistent. This is a wrong view of it."
But I think it is quite difficult to take that speculation on
a hypothetical question much farther. Obviously there can be a
great debate about whether one person's inconsistency and anomaly
can be another person's clear objectives.
Dr Naysmith
10. According to the Explanatory Notes accompanying
this version of the draft Bill, the power you are seeking is particularly
relevant (or may be particularly relevant) where there is a burdensome
situation caused by the interaction of common law and statutory
régimes. There may be a common law element, which you think
could be dealt with within the context of the reform of the legislation.
I am sure you will remember from our first report that we doubted
the constitutional appropriateness of a proposal such as this:
to remove burdens imposed by the evolution of case law. That would
be an enlargement of power, we said, of the executive at the expense
of judicial independence. We also doubted the feasibility of making
this proposal work when there was no text to work on and change.
In the light of all of that, can you give examples of regulatory
régime which is comprised of common law and statutory strands,
(presumably at the same time), and explain how the common law
strands could be affected by a regulatory reform order?
(Mr Stringer) The recommendations of the Committee
on common law were taken on board. We dropped that clause from
the Bill. What we are looking at is where there is statutory law,
that can be anomalous and burdensome and which can be changed,
but which may well interact with the common law. That seems reasonable.
There is often an interaction between the statutory law and the
common law. I think the example that was given—my advisers
will correct me if I am wrong—is the provision to provide
schooling in schools but not to be able to do anything else. If
I am grappling after the wrong example Mr Bovey can perhaps give
a better example than that. That is the principle that we are
looking for. Where there is a statutory basis, not to have that
restricted because it would also affect the common law.
11. That example is the one where you talk about
providing nursery education and that sort of thing?
(Mr Stringer) Child minding.
12. Child minding in schools, yes. What is the
statutory bit? What is the interaction between the statutory bit
and the case law there?
(Mr Bovey) It is a common law case law principle that
somebody who is provided with statutory powers, who is set up
by statute, may not go beyond these powers. Whereas a Minister,
who is a natural person, can do anything that any other natural
person can. He cannot obviously compel people but he is not bound
so he can start initiatives. The Minister could run a play group
if he wanted to. So there is a quite good example, as the Minister
has just said, of the interaction between statute and common law.
They are not two separate issues. If we look again at fire, there
is a basic common law obligation on any person who occupies properties,
or has employees, to look after their safety. That is inextricably
linked in with the statutory obligations, which the proposals
on fire are aimed at. There is no way in which you can alter statutory
provisions without affecting the common law which exists around
them and within them.
13. So, Minister, you do not feel there would
be a temptation to reverse judgments that have proved inconvenient
for the Government?
(Mr Stringer) That is not the intention. I do not
think the power is in there. The power is rooted in basically
altering the regulatory régime from primary legislation.
14. That is not seen as any possible danger
at all?
(Mr Stringer) No. It is not seen by me certainly as
a danger but I suspect I will repeat it again after today. There
are so many safeguards in this Bill for not just the Minister
to take a judgment, but the two Committees and indeed the two
Houses to take a judgment, that in all cases, because this process
was considered a huge change when it was brought forward in 1994:
the Labour Party on three-line whip opposed it vigorously precisely
because it was a Henry VIII Power. What the practice has turned
out to be is that, (although it has not proved to get rid of as
much bad regulation or poor quality or out-of-date regulation
as was originally envisaged), the worries that the Labour Party
had in 1994, that this was a power that would enable Ministers
to go swash-buckling about the place to do anything they wanted,
have not proved to be the case; mainly because the work of this
Committee and the Lords Committee, working with the Ministers,
has meant that there has been some very good deregulation coming
out of it.
Mr Cryer
15. Minister, one of your stated objectives
in including this provision is to assist in putting Law Commission
proposals on the statute book. Would you be prepared to limit
reliance on it solely to proposals which have been approved by
the Law Commission?
(Mr Stringer) I am sorry. Could you repeat that.
16. The new power on the removal of inconsistencies
and anomalies. One of your stated objectives is to get proposals
from the Law Commission on to the statute book.
(Mr Stringer) That is right.
17. Would you be prepared to say that you would
use it purely with regard to proposals emanating from the Law
Commission, or from proposals that have met with the approval
of the Law Commission?
(Mr Stringer) There was a view from the Lords Committee
that we should put into this Bill a clause that dealt with all
Law Commission proposals. The purpose of this Bill is to deal
with regulatory reform. We rejected that idea. However, some proposals
from the Law Commission would involve regulation and burdensome
regulations, and they involve dealing with anomalous and inconsistent
law. So, in those cases, then we would take proposals from the
Law Commission if they fitted the purpose of this Bill, but in
preparing this Bill we would not be preparing a Law Commission
Bill. We were preparing a Bill which is about improving the quality
of regulation in this country. Does that answer your point?
18. How I understand it is that you are saying
that you are going to use the provision in order to bring about
proposals that do not necessarily meet with the approval of the
Law Commission. Is that what you are saying?
(Mr Stringer) No, no, I am not saying that. I am saying
there are a large number of reports from the Law Commission, which
are essentially about improving legislation, which are finding
it very difficult to find legislative space. If those proposals
from the Law Commission deal with regulatory matters, then we
would be happy to see this process used for them—I think
there are 25 or 27—but not for the bulk of them because
that is not the purpose of this Bill. Then they would have to
go before this Committee for scrutiny. In that sense they are
amendable. It is not our view to take Law Commission proposals
and change them willy-nilly and present them here. Rather it would
be that most of the Law Commission proposals make good sense but
they are not just high priority for legislative space.
Chairman
19. Can we turn to Clause 4, which is subordinate
powers. Under that it does provide that certain items could be
dealt with avoiding the stringent procedures of coming before
the scrutiny in the way of the Deregulation Act. Could you give
any examples, drawn from deregulation orders or any made, as to
the type of provision which you want to designate as subordinate
and thus in due course include in subordinate provision orders.
(Mr Stringer) I thought of the question beforehand
but I thought it was in the future tense and not the past tense
so, if I may, I will try and alter it to include the general sense
as well. The power lies with the Committee to talk about the breadth
and principle lying behind that subordinate legislation. So the
Committee could say, "No, this is not suitable for subordinate
legislation," or, "It is." The kind of examples—and
I am not saying it is policy to deal with the whole reform of
weights and measures via regulatory reform, although it could
be in that ambit—but you might want to reserve the power
for the number of cornflakes in a packet down to the detail, which
is an issue in weights and measures, to the Minister for subordinate
legislation; or you might, in another régime, which is
about form filling, leave to the Minister the responsibility for
drafting a form. I cannot believe that in a changing world it
is sensible, in every piece of legislation, to describe the forms,
although often the forms become a very important part of implementation
of legislation. That is a general example and a potential example
for the future. Most of the regulations that went through were
before my time so if Mr Bovey or Mr Montague can think of examples
from the past I would be grateful for their help.
(Mr Bovey) The subordinate proposals are new and there
is no direct equivalent. There have been orders in the past which
have been sub-delegated, which is even going further than the
proposals in Clause 4. Not in any important respect, but the Corn
Returns Order took a power to prescribe the manner in which notices
were to be given, for example. The subordinate provisions proposal
is that it should, in fact, appear on the face of the document
which is put before the Committee, but that it should be capable
of subsequent changes to reflect developments and experience.
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