Regulatory Reform Bill [Lords]

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Mr. Lansley: I beg to move amendment No. 18, in page 5, line 3, at end insert


    (f) in relation to the consultation described in sub-paragraphs (a), (b), (c), (d) and (e) above send to each person consulted a draft copy of the document the Minister intends to lay before Parliament as described in section 6 below.'.

The amendment would require the Minister to provide those persons whom he consults in the preliminary consultation—my hon. Friend the Member for South-West Hertfordshire would say those whom the Minister in his wisdom and at his discretion chooses to consult—with a draft copy of the document that he is required to lay before Parliament under clause 6. We shall go on to discuss what should be in such a document, so you will not expect me to dwell on that at any length, Mr. Cook. Suffice it to say that it will be a substantive document. Subject to what we go on to decide, it will set out many of the issues on which the consultees in the preliminary consultation want to know the Government's views, because we are dealing with a relatively complex set of orders compared with what occurred previously under deregulation and contracting out provisions.

We are dealing with a series of tests. As we have learned, we are talking not just about whether there is the necessary protection, but about whether there are reasonable expectations that need to be retained, whether a public interest will have to be balanced against the interests of persons affected and what the Government think that public interest might be. We will need to know whether the Government propose to impose burdens and whether it is desirable to proceed with an order that balances those additional burdens with the benefits that might flow from them.

On the basis of the Bill as drafted, we shall have estimates of the savings or increases in costs that will result from proposals. Obviously, those who are consulted will focus on that quantitatively. If we have our way, we might also end up with a process that is more akin to a genuine, comprehensive regulatory impact assessment.

6.15 pm

All those questions would be of interest to preliminary consultees, but which comes first, the chicken or the egg? Will we have the document that is to be laid before Parliament, with all the details that must be presented in it, before the preliminary consultation, or will we have all the details only after the preliminary consultation? We should not expect Government to have answers to all the questions before the end of the preliminary consultation. Many facts and views—particularly concerning impacts, effects on persons and increases in savings and costs—will be derived from responses to the consultation.

The purpose of the amendment is not to pretend that the Government would know, before the preliminary consultation, all the facts necessary to complete the document referred to in clause 6. It is to suggest that it would be helpful to the preliminary consultation if the Government were to structure the consultation not simply around a presentation of the proposals but around the document that is subsequently to be laid before Parliament. That would help to focus the minds of consultees, especially in the early stages when regulatory reform orders are to be presented, on the considerations that must be decided by Ministers and on the issues that must be judged by the Deregulation Committees and the House. It is especially important in the early stages that the preliminary consultation should be structured around a draft copy of the document that will subsequently be laid before Parliament.

Ministers should not allow the consultation under clause 6 to carry too great a burden for the interests outside Parliament. In my experience, by the time Ministers lay a document before Parliament, they have become progressively more attached to it. Therefore, the earlier that we can expose the document to the outside world, the better. Consultation is free and open if Ministers have not committed themselves. The draft document might include various formulations or caveats and leave empty brackets, as it were, in which to fill in the precise detail. The consultation would be real in the sense that those bodies that are making representations would feel that they are feeding their material directly into the document that is to be presented to the Deregulation Committees and to Parliament. It is important that Ministers do not become too fixed on the document that is to be laid before Parliament, as if it were the final word. If Ministers and officials are relatively open to consultation at an early stage, it will be more effective.

If we were to adopt the amendment, we would forestall the risk that Ministers, in presenting their proposals, might tend to present the benefits of the regulatory reform rather than focusing on the costs. I hope that one specific purpose of the document to be laid before Parliament under clause 6 is to force Ministers to disclose their cost estimates. Therefore, by extension, those who are consulted under clause 5 would be clear about the costs that Ministers anticipate will be associated with the proposals. I hope that the Minister will not only continue to be constructive in his response, but be positive about the amendment.

Mr. Stringer: I thank the hon. Gentleman for tabling the amendment; I understand what he is trying to do. However, some of the information that will be required for the document and under clause 6(2) will come from the consultation, and some of the costs will be elicited from the people affected by the measure. The hon. Gentleman is suggesting that, as the process develops, the Minister will become increasingly firm in his views and that it will be easier for him to place the structure of the document in the context of clause 6(2).

The process is open. The consultees can state their costs, an issue to which the hon. Gentleman referred repeatedly. To pretend to know at the start things that are not known would be to put the cart before the horse. It would be more sensible to have open consultation, find the information and present it to the Committee. That process would show how one complied with the conditions in the Bill. Attempting that before consultation would lay one open to the accusation that one had decided what to do before consulting people thoroughly.

Mr. Lansley: I regret that the Minister had precisely the answer to my points that I feared he would.

The Minister is unwilling to contemplate the creation of structures under clause 6. If we want the parliamentary process to be constructed around such issues—I can see that much care has gone into the structure of the Bill—it is unhelpful to those who are the subject of preliminary consultation to receive something that is less specific than the document. It will be helpful to have that document structure even if, as the Minister said, there are omissions and gaps in knowledge when trying to complete the document later.

If consultation is to be open, Ministers should acknowledge that it will be open from the beginning, even when all the information is not available. That may highlight something that Ministers find embarrassing, but they should take it on the chin. They propose to go down the path of regulatory change, but they are unaware of the burdens—their impacts and costs, and where they fall. It would be more honest to present that information and make it clear that the balances have not yet been struck, and show consultees the initial proposals and how they can be justified in the document.

The proposals should not be presented as if a hidden agenda of knowledge existed; otherwise, there is a risk that the document put out for consultation would rehearse the criteria for a regulatory reform order and the tests that had to be applied in the legislation, which would suggest that Ministers had undertaken those tests before they had done so. In truth, the preliminary consultation should often state, ``These tests must be passed, but in some respects we do not yet know whether we have passed them.''

We therefore need the various forms of information. As someone who has been both the originator and, in a former life, the recipient of such documents, I know that it is helpful to have a clear steer on information held by the Government about which they feel confident, as opposed to information that they do not hold and on which they need advice. The Minister should at least contemplate allowing the form of consultation to follow some of the precise tests laid out in clause 6(2), even if such a provision is not to be included in the Bill.

Mr. Stringer: I have tried to be helpful. The precise wording of the amendment puts the cart before the horse, but good consultation and the essence of the Cabinet Office's consultation policy document are precisely as the hon. Gentleman described. Consultees should know what information the Government want, and what it is possible and impossible to do under the proposals. That is the nature of good consultation, so I can give the hon. Gentleman some comfort in that regard without pretending that we can draw up a document under clause 6(2) before the appropriate point. That would be a confusing process, but I am happy to accept the principle behind what he is saying—in fact, it is Government policy.

It is worth emphasising that consultation does not stop when the statement under clause 6(2) reaches the Committee. The Committee itself may take extra information, deem the consultation inadequate and ask the Government to reconsider. That is very different from the normal Government consultation process that precedes primary legislation. In fact, the Committee's relationship with the Government differs greatly from that which normally applies in a straightforward consultation exercise preceding primary legislation. On that basis, I ask the hon. Gentleman to withdraw his amendment.

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