Members present:

Mr Peter Pike, Chairman
Brian Cotter
Mr Dai Havard
Mr Mark Lazarowicz
Mr Andrew Love
Chris Mole
Mr Denis Murphy
Dr Doug Naysmith
Mr Anthony Steen
Brian White


Memorandum submitted by Cabinet Office

Examination of Witnesses

RT HON LORD MACDONALD OF TRADESTON, a Member of the House of Lords, Minister for Regulatory Reform, Cabinet Office; MR NICK MONTAGUE, Regulatory Reform Team, Regulatory Impact Unit, Cabinet Office; RT HON JOHN SPELLAR, a Member of the House, Minister of State, Department of Transport; and MR NIGEL CAMPBELL, Department of Transport, examined.


  1. Can I welcome you to the Committee. Perhaps you could introduce your team and make a few brief comments to open the session.
  2. (Lord Macdonald of Tradeston) I am Minister for the Cabinet Office, and I have with me Nicholas Montague, who leads the Regulatory Reform team at the Regulatory Impact Unit, which is part of the Cabinet Office. We have too Nigel Campbell, who was at DTLR but is now amongst other things leading the departmental regulatory impact unit both for the Department of Transport and the Office of the Deputy Prime Minister at present. I am hoping to be joined by the Minister of State for Transport. From my previous incarnation, it gives me great pleasure to say that the Minister of State for Transport is caught in the traffic. He will be here shortly, and I am very pleased that he can join me because at the DTLR he and Lord Falconer played a very significant role in driving forward the whole agenda much harder there than perhaps in any other ministry. I would like to take up your invitation to introduce some of the issues. I should start by saying that we value very highly the constructive and very open relationship that the Government have enjoyed with you and your Committee. It has allowed us to discuss issues and cases and emerging problems in a very constructive fashion. I should say right from the start that I very much regret the article that appeared in the press which had little regard for the facts of the case or the views of those involved. I wrote to you on that, Mr Chairman, and I am sure that we have put that behind us, but let me just re-assert that it certainly did not reflect the government's considered views. The relations between the government and the Committee are on the whole very successful. We do not agree on absolutely everything but we are nonetheless working to improve the statute book. We have been removing unnecessary burdens on business, on people, on charities, on the wider public sector. A key feature of this has been our willingness to engage constructively on the issues, and I think that is witnessed by the Committee's first four special reports and our memoranda in response to these. I am sure you will agree that through these we have managed to narrow down any outstanding issues of concern and for the most part we have agreed on how to handle them. I think it is safe to say that we have now reached a common understanding on most RRO-related issues, and that is very much for the good. As you know, the Government has also made good use of the Committee's very helpful offer to give without-prejudice advice before the formal scrutiny stages on particular issues relating to the use of the RRO procedure. As the memorandum shows, this has been helpful and I understand that the Office of the Deputy Prime Minister and the Department of Transport have recently discussed informally ways in which they might expedite four new but time-critical proposals, and we have also reached an understanding on the issue of appropriateness, agreeing that it is essentially self-policing. To help all concerned to plan their workloads better, the Government has fulfilled the Committee's request for a monthly forward look at our activity and we will continue to do so. We have expressed some concerns about the potential capacity of the Committee to handle this - and I stress it is the potential peak workload that we envisage. At present the Committee do not have a full workload and that is very much down to us and to the departments, and we are doing all that we can to encourage the departments to come forward with proposals, Mr Chairman. We want to look creatively for ways around any real or potential blockages. After all, the Committee's predecessor handled a peak of 26 deregulation orders in the second year after enactment of the Deregulation and Contracting Out Act. We wanted to do better if possible and not to bump against a limit of 18 orders per annum. As we suggest in the memorandum, we would prefer to see a pragmatic effects-based approach that would take account of the difficulty and complexity of proposals rather than any formal one-a-week rule, but I certainly do not want to dwell on that issue to the exclusion of others. The Committee has expressed its view, as has the Government, and it may be that we will not make that much progress while it is still a potential problem and remains in the abstract, but I am confident that when the time comes, we will be able to work together to find ways round any problem in a sensible and mutually acceptable fashion. While the Government has been unable to give a commitment to allow a free vote in the event of disagreement between itself and the Committee on particular recommendations, I must emphasize that it is the Government's intention to do all it can to avoid any such disagreements. I do not envisage the Standing Order procedures being used on anything other than the most exceptional of cases, and I am very happy to repeat the Government's undertaking not to proceed with a draft order in the event of a hostile report. The regulatory Action Plan was a central initiative. It had very strong support from the Prime Minister and the Chancellor. The responsibility for implementation of course rests with the relevant policy departments, and that is the key; it is my job in liaison with Cabinet colleagues and the regulatory reform ministers to help ensure that departments do in fact deliver. We have a variety of mechanisms in place to check progress. We have the Better Regulation Task Force, which considers implementation; the Panel for Regulatory Accountability will check progress too; and the Prime Minister himself periodically pulls together the regulatory reform ministers from each Department to check progress. But there has been very little follow-up, I am sorry to say, from businesses large or small. We had one recent inquiry from a member of the Engineering Federation following a senior official level meeting about support for an item on company share buy-back legislation. We have put a web page up for suggestions, but again, there has been quite a low level of interest, just requests for copies really. We are looking at the regulatory Action Plan. We see it as a success and we have an open mind as to whether there should be a second edition or a publication of some sort of follow-up, Mr Chairman.

  3. Thank you. I welcome John Spellar, the Minister for Transport. Your opening comments, Minister, have been very good because you have touched on a number of important issues. Most of them will be touched on during this session. The thing I would like to emphasize is that this Committee would certainly wish to work together with the Government in ensuring that regulatory reform does proceed at a satisfactory pace. It is now over a year since the General Election and the Act under which we are now completely working was passed before the General Election. Are you satisfied with progress so far in bringing forward proposals and publishing consultation papers?
  4. (Lord Macdonald of Tradeston) We have made steady progress, Mr Chairman, but it could be better. There are five RROs made, one to be shortly, one under scrutiny, one consultation finished and three under way with eight more to go before recess. There is certainly no blockage at present with the Committee. As I said earlier, the workload is currently low. It is very much down to the departments to come forward with more and better RRO proposals, and there has been some slippage there, and I think that is probably inevitable given that the RRO process is a demanding one, where all the policy loose ends have to be tied up and then justified in the light of the tests of the 2001 Act. So there is quite a way to go but the burden of work for us is inside the departments.

  5. On the items where there has been consultation, there seem to be some items where consultation was now some time ago, yet we have not seen any proposals. I know there are two shown in the Forward Looks expected very soon with regard to business tenancies and credit unions but on gaming machines, method of payment, and Landlord and Tenants Act, where in both cases the consultation ended in June last year, we have not yet seen any proposal forthcoming. Are we to expect proposals as a result of the consultation, or have the ideas now been dropped?
  6. (Lord Macdonald of Tradeston) Mr Montague would probably be able to give you better detail on the individual proposals, but what I should say is that it has become very clear to departments that the RROs are not a quick fix in any way. They can be used to deliver reform fairly quickly in the context of perhaps waiting in a very long queue for primary legislation. They are more streamlined routes than bills, but the legal and procedural requirements are heavy, they are front-loaded and indeed, it has become clear to departments that an RRO often requires broadly the same order of resources as would be needed if the proposal were to be implemented by a bill. So we are finding right across departments that there have been capacity constraints, particularly in the legal areas, and I know that my colleague Mr Spellar has given particular attention to this in his Department and through his efforts has been most successful in trying to align its resources and expertise with the needs of this new route.

    (Mr Campbell) Can I speak to the Landlord and Tenants Act? There is a policy issue and a capacity issue here. The capacity issue is it is the same people doing the Landlord and Tenants Act, section 57 reform, as doing the Business Tenancies one, and the Business Tenancies was regarded as a better runner, for reasons I will explain in a moment, and took priority. That is the first reason.

    Brian White

  7. So you have not organised your workload properly?
  8. (Mr Campbell) It is the same people responsible for both reforms. The second reason was the policy reason, which is there have been two consultations, one by the Government and one by the National Assembly for Wales, and it is fair to say that it did not receive rapturous response and therefore people are reconsidering the correct way to proceed. So the policy issues may mean it comes back in a different form. That is why there has been a second delay.

    (Mr Montague) None of the proposals that have been consulted on will be dropped. I understand that we are aiming to lay in about a fortnight's time the proposed RRO on credit unions and shortly afterwards, we hope, on business tenancies. As you know, DTMS have just recently finished consulting on the RRO for relaxing licensing laws for all future New Year's Eves, and they again hope to be in a position to lay that one very shortly, certainly before the end of this session, before the recess. On DTMS's proposals for a gaming machines RRO, I checked yesterday with the officials, and that one is likely to slip through to just after the recess. The reason there is work going ahead on the Flood Report.

    (Mr Spellar) Certainly this new procedure took some time for officials of the departments to get up to speed on, and there has been a move, and one which the management board at the old Department, but reinforced by the new Department, of ensuring that this work has priority. There has been a danger of officials being diverted off on to other work. In some cases that was fully understandable, for example, on some traffic work dealing with the problems of the Jubilee, but beyond that, we do need to ensure that there is that flow of work through. I do have regular meetings with the individuals who are responsible for regulatory reform precisely in order to track where the bottlenecks are, and as we deal with the administrative ones, I am absolutely certain that we will be coming up against bottlenecks on the legal side, which is the next body of work which we are going to have to handle, but you may want to deal with that later.


  9. Is not the advantage to the various departments that whilst I would accept that the same amount of work and resources, and indeed we would hope equal scrutiny is carried out, that this process does provide departments with a second opportunity, where they do not necessarily have to have a bill? We all know that the Queen's Speech must be being prepared now for the next session of parliament and that ministers will be bidding for slots within that programme of legislation, and this does give the opportunity, if a bill is not there, to be able on a second channel to get something that is seen as a benefit.
  10. (Mr Spellar) Very much so. It is not only that a bill may not be there in the next session of parliament, but there will be an indeterminate amount of time before a slot may become available, and therefore there may be issues which are important to departments, and indeed for the groups that they are dealing with, but which are never of sufficiently high order to merit priority and which are always therefore liable to fall back in the queue. The RROs, precisely as you say, Chairman, are a mechanism for dealing with these pressing matters. That then leads to the need to focus and get a proper critical path. That is incumbent on all parts of the process, at this end but also at our end.

    Mr Steen

  11. This really is a question for Lord Macdonald but for John Spellar as well. Having been critical of the last administration on deregulation, and being somewhat equally critical of this administration on deregulation, would you agree with me that the problem is not the intention or the bona fides of government to deregulate, but the very machinery of parliament, which is dedicated to passing new legislation? The problem of parliament is that it is passing legislation the whole time, and good intentions cannot defy - rather like King Canute - the power of parliament in passing new laws the whole time. Would you agree that the problem could only be dealt with by not deregulation but by putting in sunset clauses into new legislation, or finding a machinery whereby you only pass a new law if you actually take one off the statute book? Otherwise, it is bound to lose, because parliament is bigger than a small unit which is trying to stop the course of the waves and pushing forward new legislation.
  12. (Lord Macdonald of Tradeston) Obviously I would not look for any solution which was overly bureaucratic in the sense of insisting on sunset clauses there they were inappropriate. I do accept that every administration is sincere and committed to this. When I was in business before coming into politics I remember Michael Heseltine summoning us in and it was quite clear that his intentions and those of the Government were very sincere. I should stress that there is a very powerful commitment from the top to try and stop over-regulation and to clear out bad regulation, and the combined effort which I described earlier that we are involved in I hope will aid that process. For instance, the regulatory impact assessment procedures are now built into every Department through special units and through ministers who are responsible for them, and indeed, all legislation must now go through that filter. The way we have conducted our business in this country is now seen as a model for the rest of Europe, and we have been pressing the EC to try to take action to refine the legislation coming out of Europe, and we have had some success in that recently, and we are seen as one of the leaders in that field. So in general, yes, I accept that this is in one sense a great factory for creating laws, and therefore if you have a product going through your factory, you had better make sure you have the key workers in at every stage to handle the products going through. It may be that there are bottlenecks, particularly in the legal areas, with the parliamentary counsel or the legal support inside departments and those are the kind of issues that my friend Mr Spellar was referring to.


  13. Can I move on to the Action Plan and the things that you have listed in the Action Plan. Do you have any idea how many more potential proposals you intend to add to that list? Ae you reasonably confident when things are added to the list over the next three years that these proposals will be translated into Regulatory Reform Orders?
  14. (Lord Macdonald of Tradeston) Mr Montague has mentioned a few of the issues that are coming up. We believe that we have got the credit unions due to be laid very shortly. The draft statutory instrument is with the parliamentary counsel for checking, after which it should be laid for scrutiny. We have the business tenancies procedural reform, which needs further limited consultation.

  15. I am sorry to cut across you, but I am more interested in things that are not on the list now. Do you have anything you are looking at which you think might go on to the published list?
  16. (Lord Macdonald of Tradeston) Yes, indeed. I think that has been particularly true in the area of the DTLR. They have been very busy in that way, but we believe that we will have perhaps 30 RROs that come out of the regulatory reform Action Plan scheduled for completion in 2003, and there are four recent new entrants from what is now the Office of the Deputy Prime Minister on housing, delegated management; housing tenure; rent increases for assured periodic tenancies; local government finance, forms of return; and housing cash incentive schemes. So obviously in the coming year we see great growth in the volume.

    Mr Lazarowicz

  17. I was interested in the comments from Lord Macdonald and Mr Spellar, both pointing to the difficulties in the departments in perhaps getting people to realise the opportunities of the RROs. I wonder if you can tell us a bit more about what the Cabinet Office has been doing to encourage the departments to make use of the regulatory Reform Order procedure.
  18. (Lord Macdonald of Tradeston) As I say, we have been trying to lead through the regulatory impact unit in explaining to departments the opportunities that are available here. I think in the end the best advertisement for the new process is the number of successful orders that are made. There is no doubt at all that as the word has gone out around departments there has been a shift in mind-set, with departments previously of course often rather fixated on the need for that contest for legislation in the Queen's Speech but now beginning to see that there is another avenue opening up here. Through the Regulatory Impact Unit and Mr Montague's hard work in that field, we have got round the departments. We have now got departmental regulatory impact units that we can talk to directly about any problems in their areas. We have regulatory ministers now called together periodically by the Prime Minister, who again we can go to if we feel there is any problem or tardiness in a departmental response. We also have a Cabinet Committee which I chair and on which the Treasury and other ministers are represented, and again, we have tried to highlight the importance and the opportunities afforded by RROs. So it is building up. I would not personally be too disconsolate about the performance of the first year. We are a bit ahead of where we would have been in 1995 in the number of deregulation orders, and I would look to next year carrying that trend forward.

    Mr Love

  19. Recently I met representatives of my local Chamber of Commerce, and almost the first subject that came up for discussion was regulation, so I mentioned the plan, the 64 possible regulatory reform Orders, and this was pooh-poohed by them. My response to them was, "If these are not what you are looking for, what would you like to see in the form of deregulation?" and they did not have any idea. I noticed, Lord Macdonald, that you commented on the almighty silence from business in relation to what sort of issues they would like to see regulatory reform on. Have we thought about trying to more formalise those procedures to try to draw business in to see whether we can get a useful dialogue to lead to the sorts of things that they would like to see deregulated?
  20. (Mr Spellar) We are doing that, and it also needs them to shift their internal focus in order to be able to undertake that. Like you, with the road hauliers who I meet both locally and nationally, there is a regular grievance from them regarding regulation, and I put it very clearly back to them to point out the regulations they think are particularly onerous with minimal or marginal benefit to either other members of the public or the environment or whatever, that we would examine that and see whether a Regulatory Reform Order would be the appropriate mechanism for dealing with these differences. In some cases you do not actually have to go that far; it is about administrative implementation of existing legislation. To be fair to them, a lot of businesses have got into the mind-set of just generally complaining about red tape and bureaucracy. I think this is quite a salutary and useful exercise. I do think in a number of areas that they are right, that there are areas of excessive regulation, certainly compared with those businesses that operate in any international environment, and certainly compared with their international competitors. But I think this is going to be a useful exercise, not only for our departments, but also for business in terms of focussing on what their grievance really is and also on suggested mechanisms for improving that. They are working their way slowly through that, but I think they will get to that position and actually give assistance to us in this process.

    Brian Cotter

  21. If we keep on the business area, I would like to ask Lord Macdonald whether the Department of Trade & Industry are being encouraged to lead in looking at business areas which need to be addressed. I agree that when you go to business organisations, as Mr Love said, you find that you often do not get much in the way of feedback from them in terms of tangible examples. There was a notable occasion on the floor of the House just recently when a Member of the Conservative Party spent 55 minutes talking about regulation and attacking the Government, but there was precious little substance to it, and I am sure you have been looking at that speech carefully to see if there is any detail there. It is a further example of people who talk an awful lot on certain benches about regulation and have no solution to put forward. I hope the Government are looking, particularly Trade & Industry, to more tangibly addressing these issues.
  22. (Lord Macdonald of Tradeston) Indeed, the Minister for Small Business, Nigel Griffiths, at the DTI, is a member of our Cabinet Committee, and we stay in very close touch with the small business service, whose Chairman is also on the same committee. I was pleased that the Regulatory Reform Action Plan was so well received by the CBI and by other business groupings. I do not think they are in any doubt that the RROs can be a way forward. I have tried to encourage them further because we have had generally good relationships with them, by saying this is a very good opportunity for trade associations to go there and take their concerns, particularly to local MPs, if it is to do with local business concerns in any way, and work with the MPs so that the MPs can run these issues at ministers and try to get these adopted. It could be a very important alternative to Private Members' Bills in that way, and business has said that it understands that there is an opportunity there. As far as Mr Love's point about the Chambers of Commerce, I too was a little bit disappointed that their general approach seemed to be demanding very sweeping reforms of fundamental issues rather than looking at the particulars that might be addressed through the RROs, but I do not think that response has been true of the generality of business, and I do see a very important new role for business, its trade associations and for MPs in particular to use this route. I just have a feeling, seeing the way that the interest is growing inside departments as people become more aware of the opportunities, that there will indeed be an awakening of awareness and interest from business.

    Brian White

  23. One of the things that civil servants are criticised for is that they gold-plate regulations. When we have had them here before us we have asked civil servants what experience they have had of being on the receiving end of regulation, and they have said they had no such experience. What are you doing to provide training for people in the RRO framework? Do they have the experience of being on the receiving end so that they are not gold-plating the regulations, and what training are you giving to the people in the departments and in the Cabinet Office?
  24. (Lord Macdonald of Tradeston) We are certainly committed to tackling what is seen as a problem of gold-plating. We want to ensure that departments do not add any unnecessary measures when, in particular, transposing EC legislation into UK domestic law. We have introduced a number of initiatives and pieces of guidance and we are ensuring that the objectives of any new European law are achieved in a way that is most beneficial to business and citizens. Where I would look to for the solution to the problem that you identify is through the greater emphasis that we have put in government in recent times on reform and delivery, and you will have seen that the new Cabinet Secretary, Sir Andrew Turnbull's remit did particularly focus on those areas. I would argue that better regulation is an essential part of good delivery, and plainly very important to the reform of public services in particular. We have set up teams inside the Regulatory Impact Unit both to deal with business and with the public sector and to work with people in the front line to let them begin to act increasingly as gate-keepers before any legislation goes through in regulatory impact assessments or indeed in a policy effect framework document that we are drawing up. Going back to your question about training, you will find, I believe, in the new structures being set up by Andrew Turnbull much greater emphasis on training for the civil service on how to expedite delivery and reform, and that again by definition would include better regulation.

  25. One of the criticisms that you often get is if people come up with ideas, it goes into the Civil Service black hole and disappears. One of your aims in the Plan is to open up other routes for sponsoring RROs. How exactly are you going about opening up those gateways?
  26. (Lord Macdonald of Tradeston) At every opportunity, Mr Chairman, myself and fellow ministers with a particular interest try to remind our listeners in any speeches we are giving and to remind parliament of this opportunity. I know that in talking to MPs the response has generally been positive. I think there is still clearly an unfamiliarity with the work that we are all engaged in but I believe, as I said earlier, that once we see a body of very useful RROs stacking up with all the precedencies attached to them, MPs, civil servants, ministers, people outside in business and in the public sector will begin to see this as a very promising new route to expedite change.

    Mr Lazarowicz

  27. You will be aware that there have been concerns expressed within the Government about the Committee's wish to have one order laid per week so as to ensure a regular flow of orders. I think that has certainly been an issue which the Government has had concerns about in the past. Is there still a concern within Government about the wish to have that regular timetabling, or is there perhaps now an acceptance that the Committee wants to see full use of the RRO procedure? It is just that we are concerned to have a regular flow rather than have a "feast and famine" of orders coming to us.
  28. (Lord Macdonald of Tradeston) Indeed, Mr Chairman, Mr Lazarowicz puts it very astutely there. We are clear, and let me repeat, the Committee in no sense represents any kind of blockage. The fact that the work flow is low is down to departments, and we are doing what we can to stimulate that flow. Let me say that your reports are always on time, they have always been clear and they have always been helpful. Our concern is that if we get up to running at full speed, if one were to be formalistic about procedure, the maximum would be 18 orders made in any year, but as our memorandum pointed out, we may be looking at 40 RROs completed next year. That is therefore an area where we might look at the opportunities. I know that in the House of Lords, for instance, they have looked at refinements such as an interim report in the middle of the 60-day period and inviting people to come back on it.


  29. Can I interrupt you? It is this 18 a year limit. You mentioned it in your opening comments. We sit for 38 weeks a year, and as far as I see, what we are talking about was a potential for 38. We are not saying that there should only be one issue before us at a time, but it is a question of how many new ones are introduced a week.
  30. (Lord Macdonald of Tradeston) It may be a very simple but fundamental problem of long division. What we have done is taken 36 weeks and decided that you would have to introduce each order twice, so we divided 36 by 2 and came up with 18.

    Chairman: I understand the point, but in the second stage, in most cases, if the Government has responded in a positive way to what the Committee said, we do not see great difficulty with that. So in the main, I would think we are talking of new proposals. I cannot think of an instance when the second stage procedure has been difficult.

    Mr Murphy

  31. From a personal point of view, one of the frustrations of serving on this Committee is that we have for six or seven weeks at a time a very interesting opportunity to discuss and debate the issues in front of us. My concern also is for the amount of business, but also for the staff requirements. From the Member's point of view, we are very well served. We receive not just some of the complex orders, but also a very comprehensive briefing from the staff. So from our point of view it would be quite simple to deal with many more orders. My concern is whether we have sufficient staff to enable us to actually deal with those orders.
  32. (Lord Macdonald of Tradeston) I know Mr Spellar has taken a particular interest in a much more hands-on fashion than I have been able to do. It might be useful for him to give his view on this, Chairman.

    (Mr Spellar) I suppose my underlying concern would be that as both departments but also external bodies, as we were discussing earlier, start to realise the potential for RROs and that the work starts to come through - and I fully take on board your point of the need for government to try and get that into some orderly flow of work coming in to the Committee rather than, as was described, feast and famine. Once there is a wider understanding of the potential, it could well be - and I am already seeing greater interest within our Department in a number of possible orders on road haulage, shipping, driving standards and aviation just to name a few, and other departments are responding similarly - it would be unfortunate if we then had a procedural blockage. It would of course be attractive if we got there, because it would mean that we were using the procedure to its full potential - not that we perceive one at the moment, not that we do not understand the need to try and phase the work coming through, but at the same time, if departments collectively then become seized of the opportunities and start to put work through, that could provide a considerable volume of work for the Committee.

    Mr Lazarowicz

  33. That is a problem that should be addressed when we come to it. We appear to have doubled the capacity of the flow in the last few minutes.
  34. (Mr Spellar) From the discussions that I understand have taken place with the Committee, it is showing a positive and flexible approach. I just would not want inflexibilities of procedure to mitigate against what I hope will be the good work done between the Government and the Committee on this.

    Chairman: I am reminded that the births and deaths proposal did at the second stage take time. To us, if we can see a problem with needing evidence and other sessions, then I am sure we can highlight that we have a problem, because at the end of the day, if we were having a number of proposals at first stage and a number at second stage which might need evidence, might need lot of work, that then becomes a problem. As you know, we have a system when it has been necessary to have two laid in a week, and I am sure that that type of discussion and liaison with this Committee will always receive a positive response. I hope that helps to clarify, and if it becomes impossible - not just for the Members but for those who service us - then we would have to point out that there is a problem.

    Brian Cotter

  35. We have been talking about throughput and timetabling, and these two points that I want to raise have an impact. Could the ministers confirm that they accept the reform of primary legislation should also receive parliamentary scrutiny at the required level? The Minister has been quoted as saying, "We must protect the rights of the legislature in the face of increasing efforts of all executives to diminish those rights." So we are talking about parliamentary scrutiny when required. Secondly, following on the points made by other colleagues, Mr Murphy in particular mentioned about staffing of the Committee and the need to get through the required number in the year, but also under the new procedure we are going to get possibly some more complicated proposals involving wider range of reforms which may need more specialised knowledge from the Committee or at least better presentation to us. I am not saying we have not had good presentations in the past, but good presentations of issues some Members may not necessarily have the expertise to address.
  36. (Mr Spellar) Staffing of committees is surely a matter for the authorities of the House rather than for the Government and is covered by the overall finances of the House, and the block grant there. On the question of a broader issue, parliamentary legislation, I think you will have to ask the Leader of the House to come down to speak on behalf of the Government.

    (Lord Macdonald of Tradeston) I always defer to my colleague.


  37. The recent report of the Modernisation Committee, which followed the Liaison Committee report of the last parliament, has addressed the need for statutory resources for committees, and indeed, I have met the Chairman of the Liaison Committee, and whilst we do not see an immediate problem, I am sure if there were a problem, the House would address it within reasonable limitations. But as you rightly say, the resources with which we are provided are not a matte r for the Government, but a matter for the House, and I am sure you would accept that.
  38. (Lord Macdonald of Tradeston) If I may stress, Mr Chairman, this is something you have reported in the past, but this fact which takes so many people by surprise, and that includes ministerial colleagues, that the RRO is a new and more accessible track, but it is not a fast, easy track, which is I think what the anticipation had sometimes been. It is worth emphasizing that the RRO process sometimes needs more rigorous scrutiny at an earlier stage and therefore more resources than would primary legislation going through a Department. That is something that maybe Mr Campbell could emphasize on the difficulties of trying to handle some of these issues from the point of view of the DTLR, which as I said earlier, has been the exemplary Department for us to date.

    (Mr Campbell) We have certainly found that. For a bill, you get a delegated team of officials working on it, and you have a scrutiny process. For secondary legislation, it is regarded as part of your day job, and you get departmental lawyers rather than parliamentary counsel to draft it. RROs feel like a mixture of the two. We have found with some of the more complex RROs effectively or de facto, we have had something that looked like a bill team, a dedicated resource. It did not always start out that way, but suddenly the amount of work needed was realised to be larger, and that is why that happened. The other difference between an RRO and primary legislation is that an RRO needs much more work up front. So while the total is about the same, more work is needed before parliamentary scrutiny.

    Chairman: It is the extra track that I referred to earlier. But if we are getting more efficient and better scrutiny of legislation, that is what we should all want. We should not want a quick track that misses problems that should have been seen en route.

    Mr Steen

  39. 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.
  40. (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 our IU follow to achieve that is through the good policy making guide, which is available to all departments and which takes departments, policy makers, through steps to produce effective regulatory impact assessments.


    Mr Love

  41. 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?
  42. (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 that 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 going round saying, "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 bill and RRO is 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

  43. What inspection do you have of the quality of the lawyers? Do you review it? Is there an "OFSTED" of the parliamentary draftsmen?
  44. (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.

  45. Is that at a departmental or Cabinet Office level?
  46. (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

  47. 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.
  48. (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.

  49. 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.
  50. (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 as 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

  51. 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?
  52. (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.


  53. 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?
  54. (Mr Spellar) Unfair on whom?

  55. On the Government!
  56. (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 determinant 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.

  57. I think that is helpful. You would seek our views at that stage if you saw a problem?
  58. (Lord Macdonald of Tradeston) Indeed.

    Mr Lazarowicz

  59. 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?
  60. (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 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 wishes to accept and implement; but it does so in a way when it tables the Order for 2nd stage scrutiny it 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 go around and do it again.

    Mr Lazarowicz: I think the point was 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

  61. 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.
  62. (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.


  63. 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.