Examination of Witnesses (Questions 20-32)
RT HON
LORD MACDONALD
OF TRADESTON,
MR NICK
MONTAGUE, RT
HON JOHN
SPELLAR AND
MR NIGEL
CAMPBELL
TUESDAY 2 JULY 2002
Mr Steen
20. Reflecting my earlier comments, and in no
way doubting the dedication and good will of your team and yourself,
is there any way—and I am only asking this rhetorically,
because I do not know if there is an answer—in which your
unit can somehow get involved in primary legislation, to say,
"Look, this clause is going to need to be repealed in the
next X number of years and should not be included in the first
place"? Most of your task seems to be in putting right primary
legislation.
(Lord Macdonald of Tradeston) Indeed, and it is seen
as a very important aspect of the earlier reforms that I mentioned
in terms of delivery and the scrutiny of legislation going through.
Again, to generalise, we know that the Civil Service has been
very good at the business of creating policy. That has been its
expertise, with perhaps less focus on the delivery of that policy.
What we are beginning to see now, first under Sir Richard Wilson
and now I believe increasingly under Sir Andrew Turnbull, is a
demand that the Civil Service in the drafting of legislation begins
to look at a policy delivery plan to try and take it through all
the stages to ensure that it has the impact that the ministers
have intended, and now we have a whole number—and I come
from management but I still cannot speak the language very well—of
tool kits created by the Civil Service, the various measures that
they put forward as filters and guidance for their staff, and
you will find much more emphasis now on trying to work out the
policy effect in terms of its delivery, in terms of the resources
that it will demand, in terms of any perverse effects it might
have. There seems to be much more scrutiny going into that area
than previously, and perhaps Mr Montague could amplify on that.
(Mr Montague) I support that. Part of the process
that we in RIU follow to achieve that is through the "Good
Policy Making" guide, which is available to all departments
and which takes departmental policy makers—through the steps
needed to produce effective Regulatory Impact Assessments.
Mr Love
21. You have commented throughout that the regulatory
reform procedure has been recognised or it is increasingly recognised
that there is considerable additional resource that needs to be
put into that in departmental terms for the deregulation process.
Can this Committee be reassured that that resource is being delivered
in order to bring forward Regulatory Reform Orders? Secondly,
you have commented several times on the difficulties in particular
in the area of legal expertise. Everybody recognises it is not
enough to just go out there and get a couple of extra lawyers;
there is a real bottleneck there. What reassurance can you give
us that you will be able to get the expertise in order to be able
to keep the flow of Regulatory Reform Orders coming?
(Mr Campbell) The Regulatory Reform Act did not increase
the size of Whitehall. It did not increase the number of policy
officials, so in some ways there was a fixed cake. So what has
happened since is, you see, some people being keen to do it and
running into legitimate questions where you are exploring the
vires of the Act and the boundary of it. One of the roles of my
unit and the Ministers here is to make sure that we do not just
do the urgent things, the things that we traditionally did like
bills, and to raise the profile and effort going into Regulatory
Reform Orders. So the big message that comes from Mr Spellar and
Lord Falconer seeing us every week and the management board and
the Permanent Secretary giving very strong endorsement is "Yes,
this "matters" seriously, and not just saying, "This
was a problem that we have had for a while so we won't deal with
it." That is not on. There is that sort of lesson. Likewise
with the lawyers, discussions about shifting the focus between
bills and RROs are going on. There is a clear message from the
Chief Lawyer, and that sort of thing.
(Mr Spellar) Also, we do need to look at this constraint
on legal resource and the balance of work between the in-house
departmental lawyers and parliamentary counsel. We have been looking
at one or two of these orders to look at where the constraints
come, and the timescales that are involved as well; in other words,
a draft order coming into the Department to parliamentary counsel,
how long it takes to come out, and then again, as we move through
this process, looking at where the bottlenecks are and looking
at whether we need to increase resource at that bottleneck or
whether we need to be looking at an alternative route for covering
that.
Brian White
22. What inspection do you have of the quality
of the lawyers? Do you review it? Is there an "OFSTED"
of the parliamentary draftsmen?
(Lord Macdonald of Tradeston) What we are seeing is
an increase in resource generally for the number of parliamentary
counsel that we have, because that has proved to be something
of a bottleneck in previous years for primary legislation. So
recruitment is going on in that area. But what we have been trying
to do to tackle this issue of legal drafting is we have had the
Treasury Solicitors put in place arrangements on our behalf between
the departmental lawyers and the parliamentary counsel, and what
that is set up to ensure is that the departments start legal drafting
earlier, and by that we mean preparing the legal instrument at
or around the time the consultation document is drawn up. That
would help produce better consultation documents as a result.
The parliamentary counsel currently check the drafting by departments,
and their workload would be easier to manage if they were involved
earlier and given better notice. So the departmental lawyer will
agree with the Treasury Solicitors when a draft is ready to go
to the parliamentary counsel for checking, and that should help
drive up the quality too. The other thing is we are piloting a
mechanism for agreeing the priorities within government for RROs
that currently compete for legal resources based on their complexity,
their readiness, their time-criticality, and that will mean that
the RRO work in future will be prioritised according to need.
We have increased the legal resources available also to the Regulatory
Impact Unit. They can now call on a full-time lawyer as part of
a senior team inside Treasury Solicitors. This is all part of
the bedding in of what is a very ambitious and promising part
of the parliamentary process.
(Mr Spellar) From a departmental point of view that
will only be of value if that actually reduces the bottleneck
at a particular stage. If it is merely another layer and the bottleneck
does not reduce, then there will not be advantage out of that.
We will be monitoring these to ensure they are achieving the objective,
otherwise we will have to have a further look at that procedure.
23. Is that at a departmental or Cabinet Office
level?
(Mr Spellar) From our point of view, as we will be
tracking through the particular Orders, we will obviously be tracking
that through at departmental level, and obviously liaising with
our colleagues in Cabinet Office who will be drawing on wider
experience.
(Lord Macdonald of Tradeston) We will be prioritising
it at the Regulatory Impact Unit.
Brian Cotter
24. It was said earlier that this is not seen
as fast-track procedure, the new Regulatory Orders, but some issues
have come forward on the regulatory impact aspect of it, the gold
plating. I would just like to urge that we do look at these aspects.
It has been said in the Committee that there is great difficulty
in coping with the workload with the reform business we are dealing
with. If the impact of the Bills in the first place, as my colleague
has rightly said, could really be addressed at the beginning and
also the gold plating—and I do not want to trot out something
I do not know the truth or otherwise on, but they say that in
following certain procedures they produce four pages of regulation
(the Working Time Directive, or something such as that), whereas
we produce 40—I would urge that the Government could be
concentrating on the initial impact assessment and not gold plating,
then this would surely help officials available; rather than adding
more officials to a procedure where we are trying to reduce the
work.
(Mr Spellar) It is a worthwhile point, but at the
same time we also have to look at the different actions of courts
in different countries. If some courts are taking a more prescriptive
approach and, therefore, insisting that everything has to be written
in, that can have an impact obviously on our actions. We therefore
have to get that balance right as well. The general thrust of
your argument is very much taken on board.
25. The concerns coming through the Committee—people
are saying that some departments are going to be put off using
RROs because of the amount of work to take on, but also because
of the bureaucracy involved in dealing with all these things—we
have got lots of different aspects of trying to get this work
done.
(Lord Macdonald of Tradeston) I agree. As I touched
on earlier, we have done a lot of work in trying to improve the
way in which we handle European legislation in particular, which
is where the main complaints about gold plating come in. There
was a pilot quality assurance study that was set up by Lord Falconer
when he was in the Cabinet Office, and that was out of the concerns
over criticisms expressed by business and others about how the
UK handles the European legislation. I chaired a very useful conference
in London in October of last year for business and officials from
various levels of government. We have also produced a transposition
checklist and transposition notes. It looks as though Europe has
picked up on a UK agenda there; and through the Mandelkern Report,
which we were instrumental in shaping, the word is going out at
every level across Europe that they have to have much greater
concern for the impact of legislation. At our end we will ensure
that nothing is disproportionate to the way we implement.
Mr Steen
26. Following on that point of Mr Cotter, I
was under the impression that gold plating went out in about 1996.
I have not heard the phrase used for at least five or six years.
Perhaps, as Mr White said, I have not been here, but I have been
on the European Select Scrutiny Committee where we have not heard
the phrase "gold plating". I was under the impression
that we just did not gold plate anymore, and instructions to the
departments was to introduce European regulations at the minimum
level rather than the maximum level. The second point following
on from that is enforcement. It does not matter what you pass
in law if you cannot actually enforce it. I am wondering what
your instructions are on enforcement of rules and regulations.
If you are to enforce the regulations to the minimum, and the
regulations are minimal anyway, they do not have the same impact
as if you gold plate them and say they must be in force. The last
point is the fiche d'impact. I understood, and I do not
know whether it is happening because one only gets this information
from other countries, before any rule and regulation is passed
in Europe they were obliged to do a risk assessment and a cost
assessment of small firms, and the fiche d'impact was rather
like the impact assessment in this country. I do not know whether
it is happening. I also do not know whether this country has done
anything to ensure, before any rule or regulation is passed within
the Council of Ministers, a fiche d'impact is embarked
upon and the decision as to whether to go ahead is affected by
the result of that fiche d'impact enquiry?
(Lord Macdonald of Tradeston) I am sure it is the
case that the British Government over many years have tried to
reduce the effect of any gold plating of EU legislation. I think
it is equally true that there still is a general perception in
business and in other quarters, such as the media, that we in
Britain are somehow overzealous in that regard. That is why, for
instance, in 2001 there was a requirement set up that Government
and departments must produce transposition notes setting out how
each element of the European Directive has been transposed into
domestic law. There will also be a report issued on improving
the UK handling of European legislation, where one of the recommendations
is that policymakers think about the transposition issues at a
very early stage of policy development and negotiation phases
of European legislation. We are also considering taking part in
a study with other Member States on the transposition of European
Directives which will focus on whether different transposition
practice used in different countries leads to greater administrative
burdens on business. That study would highlight best practice
in avoiding over-implementation. I should also say that there
is an enforcement concordat which was launched in 1998.
It is a non-statutory code but it provides protection for business
against overzealous, unreasonable application of regulation by
enforcement officers. The code includes a mechanism for complaints
about enforcement to be addressed. Initiatives such as that concordat
I hope are promoting a business-friendly and more consistent approach
to enforcement. The adoption of that concordat by central
and local government organisations is voluntary, but 96 per cent
of organisations have signed up for it. I do not know whether
any of my colleagues can address any detail that I cannot on your
questions about the European dimension.
(Mr Spellar) It is not universal that regulatory impact
assessments are undertaken before policy decisions are taken.
This is a matter of some concern to us.
Chairman
27. You made a suggestion in the document that
Government would "keep under review whether this rigorous
and protracted scrutiny is appropriate for all proposals".
If you do see a problem, how would you view the procedure to change
this? Should we not be careful that the problem is not really
perceived to be the Government wishing to avoid troublesome parliamentary
scrutiny; or would that be an unfair comment to make?
(Mr Spellar) Unfair on whom?
28. On the Government!
(Lord Macdonald of Tradeston) That certainly would
not be the way I would represent it, Chairman. If we go back to
the comments that I made about the idea of members perhaps being
discomforted by any thought they would be whipped into voting
against their own recommendations—is that an issue you wish
me to pick up on here in this context, because I would just like
to say I believe it to be a very remote prospect, and we would
obviously do everything to avoid that. We certainly do not have
anything in mind. As our memorandum has said, it is our hope that
a debate on a motion to disagree with the Committee's report would
never happen, as any disagreement should have been sorted out
long before we got to that stage. I have repeated the Government's
undertaking that we would not proceed with a draft Order in the
event of a hostile report. There has been some debate within Government
as to whether the adjournment type debate might be of use, where
the Government was minded to disagree with a recommendation made
in a Committee report; but the firm conclusion was that it would
serve no useful purpose and, indeed, would waste scarce parliamentary
time to have an intermediate debate before the House was to debate
a substantive motion under the Standing Order procedures to disagree
with a Committee's report. It is worth noting in this context
that the Standing Order procedures are robust, even if they have
been untried since 1994. The real value, I suppose, is the deterrent
of sorts, and as long as that continues if it encourages early
dialogue, while we might appear to agree to disagree, my anticipation
is that it would never happen. If it looks remotely possible that
these procedures might be triggered then we would want to be in
very close and very early contact with the Committee to seek ways
round that.
29. I think that is helpful. You would seek
our views at that stage if you saw a problem?
(Lord Macdonald of Tradeston) Indeed.
Mr Lazarowicz
30. Just one technical point, the Government
in its memorandum makes a comment that, "The Standing Orders
do not appear to make provision for what should happen if, as
a result of its 2nd stage scrutiny, the Committee were minded
to report approving a draft order, but subject to the Department
making certain changes or to some other recommendation".
I think there was a concern that if the Committee were to report
adversely at a 2nd stage procedure to make recommendations as
to how objections could be overcome, then the Government's view
was that the Department concerned might need to re-start the entire
scrutiny process from the beginning. From the Committee's point
of view I think we fail to see why that should be a problem, because
it is quite possible, for example, for a draft Order to be withdrawn
and one re-laid which meets the Committee's objections. Why is
it the Government feels it would be necessary to start the entire
procedure again in that eventuality?
(Lord Macdonald of Tradeston) Chairman, I would be
very grateful for the Committee's views on this, but I would hope
the circumstances simply do not arise. I suppose the Committee
might write to the Minister warning of the likelihood that an
Order could be withdrawn, revised or re-laid. Our feeling is that
there will be a way round this with close consultation between
us. I do not know whether Mr Spellar, or any of my other colleagues,
have a view on it.
(Mr Montague) If I could just expand slightly. It
is a question that has been put to us by departments which, because
it was very hypothetical, we found it hard to answer. The presumption
is that we start from the view that these circumstances would
not arise, since there would be close communication between departments
and the two Committees. I think the worry stems from the fact
that large and complex proposals were going to come before the
Committee, and that the 1st stage report might conceivably make
very substantial recommendations which the Department would wish
to accept and implement; but it does so in a way when it tables
the draft Order for 2nd stage scrutiny that does not quite hit
the spot so far as the Committee is concerned. The question then
would be: what options were open to the Committee, and then for
the Government? It may be that the Committee would report adversely
against the proposal, or want to make substantive recommendations
for further change. It was just to what extent would we need to
go around the loop again.
Mr Lazarowicz: I think the point was to ensure
it was clear within the Government, that it was only in extreme
circumstances it would be envisaged that the entire process needed
to be started again. In most cases there are much more simple
ways of dealing with any objections. That was the point I wanted
to pursue.
Mr Havard
31. You have really covered my question about
this business of conflict resolution, as opposed to potential
conflict creation and problems with Members being whipped and
so on. The Chairman obviously thought that the remarks you made
earlier on were very positive in that regard. I am just concerned
myself that those moves are got right; because potentially there
is a conflict there if that close co-operation or consultation
you have discussed does not actually take place, if you are not
going to use the procedures that may have been suggested by the
Committee in the past. I think what you have said was probably
positive as well; the Chairman probably understood it better than
I did, but I think that was an important statement for you to
make given the background as to why we need it in the first place.
(Lord Macdonald of Tradeston) Chairman, in my final
remarks I would just like to say how pleased I am to have been
here and to have met the Committee for the first time. It is very
much in the spirit of what Mr Havard says, that we come here in
a very co-operative spirit. We are obviously in pursuit of what
was seen as a very benign piece of legislation when it went through
Parliament. With the maximum co-operation of Government and members
of the Committee then I think we can play a very positive role
in advancing the whole legislative process. I am excited by that
and have spoken to Lord Dahrendorf in another Place and he has
a very high regard for the work that has been done here and, indeed,
of the potential of the processes we are all involved in. I would
certainly go forward in a very confident spirit with the realities
of departmental life being whispered in my right ear by my colleague
Mr Spellar, who may have a grittier view of the world.
(Mr Spellar) I think we look forward to working with
the Committee to deal with the problems of success.
Chairman
32. Can I just put in the important point about
the laying of one item per week. The issue, as far as the Committee
is concerned, is if we see in the forward look (or whatever we
now call it) identifying what is a problem, it is not so much
the laying of a rigid number, or anything like that; what we would
be concerned about, and what we hope the Government will accept,
is that we cannot have periods when nothing is coming before us
and then have periods when a whole number of things are coming
forward which involve a lot of work jumping from one item to another—remembering
that within that period we can have a large number of items still
before us at varying stages, some needing evidence-taking, some
needing correspondence with ministers, with other organisations
and everything. Are we reasonably happy that it is not necessarily
one a week, but that the Government gives us an assurance that
it is not suddenly going to put masses that make it impossible
for us to cope? That is what we are saying, and that is our concern.
(Lord Macdonald of Tradeston) Chairman, what I will
try to do as relentlessly as possible is accelerate the flow of
work but, at the same time, work very hard indeed to try and smooth
the flow of that work as well.
Chairman: If we see some problem in the forward
look that is going to be produced, if we let you know as soon
as we see a problem hopefully we will resolve that problem in
an amicable way to make sure we are able to do the job laid on
us by Parliament, and that reform can go forward. Can I thank
you and your team for coming before us, and thank my Committee
members. Thank you very much.
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