Examination of Witnesses (Questions 1-19)
MR DOUGLAS
ALEXANDER, MR
SIMON VIRLEY
AND MS
KATE JENNINGS
1 JULY 2003
Q1 Chairman: Good morning, Minister.
Welcome to the Committee. I believe you wanted to say a few words
in opening before we move onto questions.
Mr Alexander: Thank you very much,
Mr Chairman. Firstly, can I thank you for this opportunity to
discuss with you issues arising from the second year's operation
of the Regulatory Reform Act. As you will know, I personally am
newly appointed to the role of Minister in the Cabinet Office
with responsibility for this area of work. I have with me this
morning Simon Virley, the Director of the Cabinet Office Regulatory
Impact Unit and Kate Jennings, the Head of the Regulatory Reform
Strategy Team in the Regulatory Impact Unit. With your permission
I will be asking both my colleagues to contribute to our discussions
this morning. Let me begin, if I may, by making it clear that
I value highly the constructive and open approach the Committee
has taken in commenting on the operation of the Regulatory Reform
Act and I very much look forward to working with you closely as
we take forward this agenda in the months to come. Today I would
like to begin by saying a few words about the working of the Regulatory
Reform Act so far and highlighting what I see as the key challenges
both for the programme of Regulatory Reform Orders coming forward
and the wider Better Regulation agenda. The Government views Regulatory
Reform Orders as significant tools for promoting the Regulatory
Reform agenda and overall we believe the Regulatory Reform Act
is working well. RROs are a key part of the Government's Regulatory
Reform Action Plan of measures to reduce burdens across all sectors
of the economy. We have already delivered 14 Orders, all of which
have fixed specific problems and reduced burdens. Some, including
New Year licensing reforms and the removal of the 20 member limit
on partnerships, have delivered substantial financial savings
for business. As the memorandum highlights, these are RROs and
other proposals coming forward have established important precedents
and principles as to how the Act can be used in the future. Although
overall the number of RROs delivered are less than had been anticipated,
this perhaps reflects the ambitious and groundbreaking nature
of the new Act. As the examples I have mentioned indicated, the
Regulatory Reform Act has nevertheless begun to show its true
potential and the Act is working well. We have made real progress
this year with further progress still to be made. I would suggest
that there a number of key challenges for the next year. The first
large reforms—Fire, Patents and Civil Registration—will
be laid this financial year. The Government will need to draw
on the experience of these reforms and use these orders as precedents
to help us identify further substantial new proposals. My officials
will be working closely with Committee staff to ensure the efficient
management of these Orders and I will also be seeking your help
and support in delivering these important Reforms. Turning specifically
to the number of RROs, let me say that we remain committed as
a Government to delivering our PSA target of 60 RROs by 2005.
This target is stretching but achievable. The Cabinet Office has
recently written to departments to ask them to update their entries
in the Regulatory Reform Action Plan and identify new proposals
to be taken forward by RRO and other means. We will ensure that
the Committee is kept informed of the results of this update,
including the number, scope and timetable for new RRO proposals.
I would like to stress that the overall emphasis should be on
outcomes rather then merely on delivery. Incidentally, only one
of the original RRO proposals has been dropped altogether; I recollect
that was one in relation to driving licences. Other proposals
have already been—or will be delivered—by the most
appropriate means. I am aware that the Committee has shown some
concern during the last year about the quality of draft RROs and
their accompanying documents, and also about the flow of Orders
coming through. Both of these issues are covered in the memorandum
and I would be happy to return to these issues during questions.
Of course RROs are just one part of the Government's Better Regulation
agenda. This is clearly an agenda that has strong support from
both the Prime Minister and the Chancellor and, indeed, the Prime
Minister has already made clear to me since my appointment the
importance he attaches to this area of work. We are actively promoting
the Better Regulation agenda in a number of ways, including improving
the quality of Regulatory Impact Assessments, including referring
poor quality RIAs to the National Audit Office, pursuing alternatives
to state regulation and promoting better regulation in Europe.
In the autumn we will be bringing forward an update of the Regulatory
Reform Action Plan covering both existing proposals and new ideas
for RROs and other deregulatory measures. Responsibility for implementation
of reforms rests with the relevant policy departments so the issue
of accountability is key. For the first time this year departments
are being asked to report on their performance on Regulatory Reform
in their departmental annual reports. I will now be working closely
with Cabinet colleagues and Regulatory Reform ministers to help
ensure that departments do in fact deliver on this agenda. Finally,
I would like to thank Committee members for the cooperative and
helpful way in which you have worked with us over the past year.
RROs are a novel and groundbreaking tool for modernisation and
deregulation. The process is a joint endeavour with procedure
and practice developing as cases come forward. We appreciate the
candour and rigour with which the Committee has reported on the
various proposals to date and are particularly grateful for the
arrangements for early without prejudice advice on aspects of
proposals. Our ambition is to make full and effective use of the
power and I believe this is an ambition that we share. I look
forward to hearing your views at this evidence session and working
together with you over the coming months.
Q2 Chairman: Thank you for that positive
statement and for the comments you have made with regard to the
work. As you rightly said, many of these issues are going to come
up during the course of questions so we will move on to the questions
now. You will be aware that I did ask a written question to the
Prime Minister about which Cabinet Minister was responsible for
Regulatory Reform and the Prime Minister indicated that that responsibility
was now within your hands. The Deregulation procedure and now
the Regulatory Reform procedure has always had a Cabinet minister
take responsibility before. Can we take it, in view of what you
have said in your statement, that the fact that it is not within
the Cabinet—no disrespect obviously to you—the way
the Government views the use of Regulatory Reform is in no way
downrated.
Mr Alexander: I can give the Committee
that absolute assurance. Clearly it goes without saying that the
issues of Cabinet appointments are well above my pay grade in
government and I shall leave that particular matter to the side.
However, in terms of my own responsibilities within the Cabinet
Office I would make a couple of points to the Committee. First
of all, the Prime Minister could not have made it clearer to me
personally, since my appointment as Minister for the Cabinet Office,
the personal importance he attaches to the Better Regulation agenda.
That is not just a statement of sentiment on his part, but he
has made it clear that he looks forward to working with me to
take forward this agenda with Regulatory Reform Ministers in the
months to come. I think first of all there is very clear prime
ministerial support for this agenda. Similarly I think the initiative
that was announced by the Chancellor of the Exchequer in the last
budget whereby five hundred measures had been identified from
February 2002, if I recollect correctly, deregulatory measures
across government—speaks to the fact that this is not solely
a matter that is of concern to the Prime Minister, but is shared
by the most senior members of the Government. In that regard I
am absolutely confident that I do not just enjoy their support
but will be able to advance this agenda from where I think is
the appropriate location within government, which is the Cabinet
Office.
Q3 Chairman: You state that the Government
intends to undertake a formal review of the Regulatory Reform
Act once there is a sufficient body of evidence on the effectiveness
of the Act. What do you consider would constitute a sufficient
body of evidence and when do you think that that body of evidence
is likely to be available?
Mr Alexander: We plan to honour
the Government's pre-standing commitment which is to present a
report to the House on the operation of the order-making process
and any associated issues in April 2004 which would mark the third
anniversary of the passing of the Act's enactment. The terms of
this commitment specifically noted that it would not be appropriate
for this report in April 2004 to re-open matters of policy. The
Government agrees that next April will probably be too soon to
start a full review of the workings of the Act. Frankly I believe
our immediate challenge between now and 2004 is to make full use
of the powers that are available within the Act and on that basis
accumulate evidence of how the Act is working. Candidly I feel
it might be something of a distraction if, in the midst of our
efforts to drive forward this agenda, we were simultaneously sending
out a message that every part of the Act—or indeed any part
of the Act—was being reviewed simultaneously. I think the
challenge is to drive forward this agenda. As I say, the Government
is convinced that this is an important Act and offers a significant
tool in the Better Regulation agenda. On that basis I think a
commitment I can give to the Committee is that the report that
we offer to the House will be a review of the operation of the
Act in April 2004, but thereafter if there is the need to look
at more fundamental issues in terms of the workings of the Act
we would then be at a stage consistent with what I have stated
to be our continued goal of ensuring that the RROs are delivered
consistent with our Public Service Agreement. That would be a
point at which we could consider whether there is scope for a
more fundamental review.
Q4 Mr Brown: Would you agree that
the 60 day statutory deadline, provided for in the Regulatory
Reform Act, represents the minimum period in which the Committee
can reasonably scrutinise proposals? Would you also agree that
the majority of the time taken to progress a policy through the
RRO process is actually taken up with Government processes rather
than Parliamentary processes?
Mr Alexander: First of all, I
would like to pay tribute to the work of the Committee because
I am aware that there was at least one occasion in the past year
where I think it was 46 days that was taken rather than 60 days
in order to assist us specifically in relation to an RRO operating
with effect in local government and given the constraints of the
financial year it had the effect of greatly assisting the work
of the Office of the Deputy Prime Minister given the prevalence
of understanding of the Committee. All of that said and notwithstanding
our gratitude, of course we would want to ensure the maximum opportunity
for the Committee to undertake what is its vital work in this
regard. This perhaps offers an opportunity for me to place in
context my thinking about the work of this Committee. What we
are aiming to do through the Regulatory Reform Act is something
pretty fundamental which is to leave behind in this area of our
work what is a very well established pattern of passing legislation—even
secondary legislation—within the Commons which involves
a fairly confrontational approach across the floor of the House
or indeed sometimes in Committee and also where, if it were to
be the case that the Government had found there were areas of
policy work that needed to take place it was possible for that
to emerge during the process of the legislation being passed.
I think the operation of the RRA places two requirements upon
Government which is perhaps distinctive from a more traditional
way of legislating. The first is that it places a greater and
more burdensome responsibility on the department in question to
get the policy making right at the outset. Essentially we need
to front load the process of policy making. That is a challenge
for many departments more familiar with a means of being able
to correct errors or deal with issues that had not been anticipated
later on in the process. First of all we have to front load the
process within Government. I think that reflects your second point
which is that much of the requirement for that work has to be
taken forward in Government, notwithstanding the appropriate checks
and scrutiny that this and the other Committee are able to provide.
The second point that I would make is that not only does it require
us to front load the process of policy development, but secondly
the essence of the way that we work together on an agenda like
this is consensual rather than confrontational. Actually, I would
pay tribute again to the Committee and the collaborative way in
which we have been able to work together, not least in relation
to the without prejudice advice which has been offered by the
Committee on specific matters over the last year. In that sense
I am fully aware—not least from reading the evidence of
my predecessor before this Committee almost exactly a year ago—that
there had been some concerns expressed in this Committee and there
had been some discussions in the media with regard to the appropriate
balance between Government and the work of parliamentary committees
in this area of work. All I can offer you is my view coming to
this area of responsibility afresh within the last weeks. From
speaking both to Simon and to Kate and to other members of the
RIU staff they could not have been more fulsome in their praise
for the work of the Committee, could not have been keener in their
determination to ensure that that issue be fundamentally laid
to rest in terms of whether there was an issue between Parliamentary
time and Governmental time, and a genuine willingness to work
together. I do not know whether Simon or Kate wish to add from
an official point of view, but that is the message that I have
received from officials and one that I have endorsed at ministerial
level.
Mr Virley: I very much agree with
the Minister's comments in all regards.
Q5 Mr Brown: One of the things that
seems to be clear from some of the departmental submissions is
that they do not view the RRO as something that would be legislation
that was not in the Government's Queen's Speech but is additional
to it. Now they view it as a quick fix to try to get something
through Parliament quickly. Would you be prepared to remind departments
of Lord McIntosh's statement during Second Reading that this powerful
new tool for reforming primary legislation, rather than by means
of secondary legislation, was warranted because the super-affirmative
procedure proposed would provide a uniquely high level of Parliamentary
scrutiny. It is not a quick fix, it is a different way of actually
making legislation rather than the simple traditional Bill approach.
Mr Alexander: I think that point
is very well taken and we are in constant touch and dialogue with
departments in terms of the utility of RROs. I think the point
you make specifically in terms of Parliamentary scrutiny—in
the words of Lord McIntosh—is certainly true. Candidly my
sense is that that is perhaps not the principal anxiety of departments
in terms of using RROs as a potential tool in the Better Regulation
agenda, rather I think it is partly inexperience and the extent
to which we have been developing both principles and precedents
as we have gone along over the last couple of years is genuine
and real and departments have learned from that experience that
everybody is on a learning curve together. The second point I
would make is that I think there is additional scope for sending
out messages to departments about thinking creatively about the
potential use of RROs where otherwise they might not. For example,
in discussions that are now taking place with the Law Commission
I was heartened to see that they have recognised the potential
scope for RROs as being a means by which their own proposals—in
terms of Commission reports—could potentially be implemented
where appropriate. I think also there is an extent to which—unlike
the previous deregulation orders—the potential flexibility
of RROs is a message that is still being understood fully within
departments in the sense that it is a far more comprehensive means
by which a whole area of policy can potentially be cleared away
and clarity be given to what are remaining burdens. I think in
that sense both the Patents and the Fire Safety RROs that are
coming through will again be a significant step on that learning
process for departments because if you look, for example, at the
Fire Safety RRO the number of pieces of legislation that that
will do away with and bring a degree of clarity to the regime
of fire safety in this country is very significant and will speak
to the fact that large areas of policy are amenable to being dealt
with by an RRO where there is proper Parliamentary scrutiny but
also the means by which in policy terms we can get the right outcome
for external stakeholders.
Q6 Brian White: I am glad to hear
you say that because in paragraph 3.11 of the Cabinet Office memorandum
there is a suggestion that the system is inflexible; in the review
there is a disproportionate degree of scrutiny and inexperienced
staff are doing the RROs. That raises a number of concerns. How
are you addressing that?
Mr Alexander: Let me take those
in turn. First of all the issue of proportionality. I was cautious
in my remarks at the outset with regard to having a fundamental
review of the operation of the Regulatory Reform Act at this juncture.
I feel that we have everything to gain by putting a foot on the
accelerator and driving forward our work in this area. Notwithstanding
that, if I were to even suggest one area where I think there might
be scope in the future for us to look at the issue of review,
one might be whether the full process of scrutiny—which
is available for very minor RROs—being identical to that
for very major RROs like the Patent and Fire RROs that will be
coming to you. That is one area which I think may merit consideration.
All of that said, on the second point in terms of the calibre
of personnel responsible, let me make a couple of specific points.
First of all, again we are trying to undertake significant culture
change within Whitehall departments. You made the point yourself
when Lord Macdonald gave evidence on 2 July. We have decades of
experience in Whitehall of legislating and drawing up regulation.
The culture of Whitehall reflects that experience and that legacy.
On the other hand, I think to try to push the Better Regulation
agenda requires people to think in innovative and novel ways as
I said in my introductory statement. One of the ways that legacy
finds expression is in Bill teams. I have had some experience
of Bill teams in the DTI and I think it is one of the things that
the British Civil Service does outstandingly. Some of the Bill
teams that I have worked with are amongst the best officials that
I have seen. It is a good example of where some of the hierarchy—which
sometimes bedevils the Civil Service with Whitehall—is completely
stripped away and there is a task based approach. There is a team
assembled specifically for the task of seeing through the Bill.
That expertise and knowledge reflects the fact that over decades
departments have gleaned the expertise as to how to put together
a team of civil servants to work effectively on a Bill. We are
at a much earlier stage with departments in terms of their understanding
as to where the appropriate level of staff reside with the department
to put together RROs. Again, I think that partly reflects some
uncertainty within Whitehall departments as to the applicability
of RROs. I feel, for example with Patents and Fire, a very strong
lesson will be learned not just by those departments but by other
departments across Whitehall that major areas of policy can be
dealt with by RROs and therefore it is appropriate for the right
level of staff to be committed. The final point I would make would
be that I work closely with Sir Andrew Turnbull, the Cabinet Secretary,
on this agenda. I want to make clear to the Committee that not
only is this agenda taken very seriously at senior ministerial
levels, but also Andrew, through his chairmanship of the Permanent
Secretaries, as the Cabinet secretary he takes seriously this
agenda. He is fully aware of the importance of ensuring that at
official level there is a clear understanding as well as at ministerial
level of the importance that the Prime Minister attaches to this
work. In that sense I would not claim that every civil servant
in Whitehall is fully aware of the operations of RROs, but there
is an important learning process under way. We have messages flowing
into the machine both from ministers and from senior officials
across Whitehall.
Q7 Brian White: So the criticisms
we made of the licensing proposals have been put through to other
departments, have they?
Mr Virley: We have certainly been
working with other departments in terms of the quality of drafting
and we now have a dedicated resource in terms of the Treasury
Solicitor's Office lawyer to help us and help work with departments
to improve the quality of the drafts coming forward, and have
been working with Parliamentary Counsel in terms of their resources
to make sure that we programme the flow effectively.
Mr Alexander: Perhaps I could
just add a point about Parliamentary Counsel. Although I did not
hold responsibility for the Better Regulation brief within the
Cabinet Office as Minister of State within the Cabinet Office
last year, I was involved in the Comprehensive Spending Review
negotiations that took place. I think it would be worth noting
that one of the areas where there was significant investment was
in the Office of Parliamentary Counsel. It did seem to me anomalous
that notwithstanding the importance of proper legislation being
passed and proper scrutiny taking place, we effectively had a
bottleneck at the level of Parliamentary Counsel where, although
they were outstandingly talented individuals, we did not have
enough of them and that was potentially causing backlogs not just
within the Better Regulation agenda but across a wider legislative
agenda for Government. I am pleased in that sense that that found
favour with the Treasury and there has been a significant commitment
of resource to the Parliamentary Counsel Office. However, the
caveat that I would need to add would be that given the expertise
of Parliamentary Counsel, it will take time for that expertise
to grow into capacity. One of the things we are doing is working
closely with the Treasury Solicitor's lawyers attached to the
Regulatory Impact Unit and also working directly with the in-house
counsel of the departments in question to make sure that when
Regulatory Reform Orders come to Parliamentary Counsel they have
actually been strengthened and improved from some of the experiences
that may have happened in the past.
Q8 Brian White: So when are Parliamentary
Counsel going to benefit from competition and market testing like
the rest of the public sector?
Mr Alexander: That is an interesting
question which I shall reflect upon. I would merely comment that
some previous prime ministers from other administrations who were
deeply committed to market contestability never managed to introduce
it to the extent that she might have wanted within the legal profession.
Q9 Dr Naysmith: Some of this has
been covered in your very comprehensive remarks, but the May 2002
Cabinet Office Memorandum clearly stated that the Government clearly
considered their Regulatory Reform Act inappropriately burdensome.
I quote from the memorandum, "It is our experience that some
departments are put off using RROs because of the time-scales
and bureaucracy involved". You have already touched on some
of that, but can you give us some examples of past proposals which
you consider could have been scrutinised under a more speedy procedure
than we currently employ?
Mr Alexander: I will look to officials
in terms of RROs that predated my arrival. The general point I
would make by way of introduction is that having looked through
all of the papers and preparing not least for this appearance
before the Committee, I was struck by the fact that you can have
fairly minor areas of policy—and indeed very major areas
of policy—which at the moment are scrutinised in an identical
fashion. On a common sense view there could be scope for looking
at that very issue. If I were to anticipate one area where I think
there is scope for consideration then it would be that. I am aware
of the agreements that have been reached whereby, for example,
RROs would not been brought forward which are both large and controversial.
I am aware that it is vital, given our determination to ensure
that this is a consensual process which involves a deeper degree
of Parliamentary scrutiny in a different way from that which has
been done historically, that we need to be sensitive to the need
for full scrutiny of any proposals that are brought forward. On
the other hand, one does have to recognise that there have been
some RROs which have been very detailed and specific and others
which are far larger. That seems to be something that may merit
consideration in the future.
Q10 Dr Naysmith: It is amazing how
something that seems very small when it is first produced for
the Committee can sometimes, once we start asking questions about
it, we discover there are all sorts of things that have not been
considered in the consultation phase. That happens with some relatively
minor matters. What I want to know is how you would intend to
separate out, who would make the decision and what is a more complex
piece of legislation compared with a simple one?
Ms Jennings: I think, as the Minister
has indicated, it is too early to make that sort of decision.
I would agree with you entirely that often consultation has thrown
up issues which at the moment have not always been properly reflected
in the explanatory documents. Certainly one of the things that
we are doing when working with officials in departments is trying
to make sure that they do, in their consultation documents, flesh
out all the issues surrounding the proposal and then in the explanatory
documents they reflect all the responses to that consultation.
In particular we now emphasise the legal vires of the Act and
the need to refer to things like proportionality and fair balance.
I think it is right that in the first instance what we do is work
with the current system so that departments get more used to the
standard of documentation required and instead of seeing that
as excessively burdensome actually recognise that it is a very
necessary part of the process, as you say.
Mr Alexander: I suppose the assurance
I would offer the Committee is that there is no hidden agenda
with regard to the issue. I think we need to get the sequencing
right whereby we drive forward the process of better regulation
ensuring all the time that we, in Government, are working hard
to communicate and remove whatever anxieties exist within departments
in terms of the capacity of the Regulatory Reform Act to be used
effectively. On the other hand we have to recognise that once
we have a body of evidence—as the Chairman identified in
his opening question—that would then be an appropriate point
at which to look at how the process is working. It does not, in
any way, bear on the quality of scrutiny that has been offered
by this Committee—or indeed by any agenda within Government—but
rather I think a very common-sense approach to say let us push
this process forward, we have a clear target that we are working
towards; in order to achieve that target, to take forward a better
understanding within Whitehall of the applicability of RROs, but
thereafter, when we have that body of evidence, let us look at
what the experience together has been, both for this Committee
and for Government, of the operation of the Act in practice.
Q11 Dr Naysmith: Can you not give
any kind of first thoughts of what you are thinking of? There
are obviously various layers in the process where the decision
could be made about whether this is going to be a complex piece
of legislation or a simple one. It could be at the consultation
stage, or it could be us who make that decision whether we want
to go through a full procedure or a shortened one. You are really
saying you have not considered that?
Mr Alexander: I would be cautious
of being drawn into making suggestions at this juncture. I feel
personally that it would be appropriate for me to have had a longer
experience in terms of the operation of RROs on my watch, effectively.
Also because I think that shows the good faith in saying that
this is something we need to talk about together over the years
to come and in that sense if I was to suggest at this point, off
the top of my head, a particular point at which that judgment
would be it would suggest a degree of planning and anticipation
which simply is not there.
Q12 Dr Naysmith: I was seeking to
get an assurance from you that it would be something that you
would welcome our opinions as a Committee on and how it should
be done.
Mr Alexander: Yes.
Q13 Dr Naysmith: The next question
has also been touched upon, but it would be nice to have a strengthened
view. How well do you think that ministerial colleagues and departments
understand the scope of the power in the Act and understand what
it can do and what it cannot do, specifically referring to the
reducing of burdens which is basically what the Act is about?
Mr Alexander: In terms of the
specific issue of burdens, of course there was a discrete issue
in terms of some proposals from what was then LCD. I suppose I
should say at the outset that when I identified principles and
precedents emerging I am by training a Scottish lawyer so I am
very comfortable with principles, but given that I am practising
at Westminster I have to be familiar with common law precedents
of English law. Both principles and precedents are emerging. In
that sense, the sense of understanding is growing across the ministerial
cadre. There are a couple of points I would make, though. First
of all the Prime Minister is a fairly persuasive advocate to ministers
of the importance of this agenda and in that sense the fact that
he has already given a commitment that he wants to consult with
me and have a meeting in months to come with ministers to push
forward the Better Regulation agenda—of which RROs form
a central part—I think will be an immediate and welcome
opportunity to drive home that message with ministers. Secondly
I would also identify the Regulatory Reform Ministers as being
another key network in this area of work. Again, I have already
been in touch with them and will meet with them shortly to emphasise
the importance of RROs as a potential means of identifying this
work. Again, in preparation for today's hearing, I spoke with
official colleagues and with candour they identified that where
there have been particular ministers—one they identified
was Lord Falconer—who had a particular area of focus on
this area of work, that had made a difference in terms of the
implementation process from the point of view of officials within
RIU. If I had to identify one minister who, in terms of the way
within their departments officials have told me that they made
a material difference to the drive forward on this agenda, Lord
Falconer would probably be the person I would identify.
Mr Virley: That is right. Where
we have Regulatory Reform Ministers pushing hard within the Department
we have seen proposals coming forward and the message coming from
the centre has been to spread that message across the other departments
as well. I think we are getting there but it is a long process,
as the Minister has indicated.
Q14 Dr Naysmith: As we have touched
on already, it is quite clear that as we have seen orders coming
through there has been a clear feeling of re-inventing the wheel
and finding people who are discovering bits of the process that
they had not known before they got to us. It reminds me a little
bit of what happened with PFI which is controversial too.
Mr Alexander: I think you are
right, but I also think that this is a challenge which we need
to address from a number of different angles. First of all, we
need to make sure that Regulatory Reform Ministers fully understand
and share with ministerial colleagues within departments an understanding
of this area of work and the importance that the Government corporately
attaches to it. Secondly, we need to ensure that within departments
the process whereby officials identify areas that are suitable
for RRO actually functions and works well. That is why, as I say,
the work that Andrew Turnbull is taking forward with the Permanent
Secretaries is very important. Notwithstanding the excellence
of my ministerial colleagues, it is unlikely that an individual
minister, will, sitting in their office one day, think that we
should suddenly look at the hundred-and-something pieces of legislation
for fire safety and pull it together. It will be official advice
that will come to the minister and then they need to offer leadership
in driving it forward. In that sense, we need to get ministerial
commitment to this agenda and I believe we are well on the way
to doing that. At the same time, we need the official machine
to be reflecting the importance that officials and ministers attach
to it as well. In that sense, ministers have a role to play, but
I would also argue that so do policy officials with departments.
The third piece of that jigsaw is to make sure that in terms of
legal and technical expertise within departments, within the Treasury
Solicitor's Office and within the Parliamentary Counsel Office,
where you have policy officials and ministers identifying that
this is an area which is amenable to an RRO there do not turn
out to be legal blockages just because they are not familiar with
the processes and procedures that need to be followed.
Q15 Dr Naysmith: Do you think that
"quick fixes" is a proper way to think about this sort
of regulation, the idea that it is a "quick fix"?
Ms Jennings: I think we used "quick
fix" in two different ways in the memorandum. One way is
to say very much that they are not a quick fix, that they need
thorough scrutiny and full consultation and that that is to be
expected and is right and proper. The other way is to recognise
that they are a means of bringing forward proposals that otherwise
would not have found Parliamentary time. Therefore you can introduce
reforms that would not have otherwise happened. In particular
you can sometimes achieve what you might term a "quick fix"
by meeting a specific financial year deadline or other deadline.
I think it is in that sense that we see it as a quick fix, a way
of achieving a reform by a specific deadline.
Mr Alexander: I think it partly
depends on who you are talking to. I would never consciously suggest
to this Committee that it was a quick fix in terms of Parliamentary
scrutiny. On the other hand, were I talking to Regulatory Reform
Ministers—trying to encourage them to use RROs if it was
unlikely that they were able to secure legislative time, Legislative
Programme Committee or, indeed, speaking to ministerial colleagues
about the potential for RROs—that phrase might pass my lips.
Q16 Brian White: You talked about
passing information through Whitehall to other departments. I
understand that there is a guidance note on burden requirements
coming from the RRO that is being drafted at the moment. How are
you actually proposing to disseminate that through government
departments and is there going to be a role for Parliament in
that?
Mr Alexander: The guidance note
has been cleared with law officers and the Committee's legal advisors
as well and I am grateful for the work that has been provided
by your own legal advisors in this regard. This will be issued
to departmental lawyers before the recess. I can also tell the
Committee that that will be done very quickly. Principally this
bears on some of the issues that emerged from proposals with LCD
clarifying various issues, particularly the definition of burdens,
and where we are conscious that it has slowed down the process
of reforms in the past, that legal definition of burdens, we wanted
to ensure that it is effectively spreading best practice, that
we dealt with that issue pro-actively and made sure that across
Whitehall people were made fully aware of the issue. Basically
it will be a process by which it is communicated to lawyers before
recess.
Q17 Brian White: Will that include
things like implementing EU directives and things like that, where
appropriate?
Mr Alexander: Of course RROs are
capable of being used in terms of implementing EU directives.
I am conscious that there has been a concern expressed in this
Committee previously about the gold plating of directives coming
from the EU, but that again is an issue which has been addressed
at official level ensuring that part of the message that is communicated
from the RIU directly to departments is that there is scope for
using RROs for implementing and transposing EU directives. On
the other hand, it should categorically not been seen as an opportunity
for gold plating.
Ms Jennings: On the specific issue
of the guidance note that we will issue before recess, it will
cover burdens but it will not cover EU directives at this stage.
We hope to issue further guidance on that in the autumn.
Q18 Mr Havard: I want to go back
to some of issues about explanatory statements and the way in
which things are expressed not only to this Committee but to people
outside who are consulted about the process. You know we have
made comments in the past about the quality of several of them,
both how it affects the Act—partial analysis—because
people would not understand the effects of the proposal and so
on. One of them in particular was time sensitive in a particular
priority and had a political dimension to it. A number of things
have been said both about the preparation of the consultation
documents and the explanatory statements, but I would like to
get to the business of how it is done. You talked about putting
resources into team working, you have talked about cultural change,
you have talked about ways in which better co-ordination is likely
to take place, all of which are particularly welcome. I think
there are some issues that you might want to address in relation
to observance—or what I would call policing—and how
that is maintained once the process is established. We were particularly
concerned that with the explanatory statements, for example does
the Regulatory Impact Unit—do the government departments
as well as the Cabinet Office—actually scrutinise them in
some fashion in a co-ordinated way in order to ensure both the
rigour of the process and the quality of the explanation. I am
particularly interested as well in what you say about the co-ordination
processes and the maintenance processes that would be put in place
if those changes are to be made.
Mr Alexander: Let me say a few
points and then I will pass over to officials to discuss some
of the details of how, from their point of view, the system works.
First of all, there was perhaps a sense when the Regulatory Reform
Act was introduced that the role of the Cabinet Office—and
in particular the RIU in this area of work—would fade very
quickly. I would respectfully suggest that actually the evidence
that has emerged already suggests that there is a very important
continuing role for the RIU in the Cabinet Office. Partly the
general process of education across Whitehall is important, but
some of the points that you have raised in your question I think
also merit the continuing involvement of the RIU. A new model
consultation document and forthcoming template for RRO explanatory
documents produced within the Cabinet Office both emphasise the
level of legal analysis that is required. Of course the Cabinet
Office provides guidance and advice to individual departments.
A number of training seminars provide detailed advice on how RROs
can be used. That is offered both to dedicated legal advisors
within individual departments and works closely with Parliamentary
Counsel. Parliamentary Counsel have already been given additional
resources. I do think, however, the point that you raise is also
important in terms of what is the balance of responsibility between
the Cabinet Office and individual departments. Again, I tread
a fine line here because on one hand I have every interest in
the process working effectively and I, as a departmental minister,
hold responsibility for achievement of the PSA target. On the
other hand, constitutionally the ultimate responsibility for the
documentation that is produced from individual Whitehall departments
rests with the Secretary of State of that department. In that
sense I think it is to the credit of the RIU and the team working
within the RIU that I sense there is a growing awareness within
departments that we are not just people enforcing or calling when
problems emerge but actually are pro-actively seeking to help
departments get up that learning curve. Historically the in-house
legal services of departments have traditionally not drafted legislation
themselves; that has been principally the task of Parliamentary
Counsel. Given the fact that more of the emphasis consistent with
this being a front-loaded process now rests with departmental
lawyers rather than Parliamentary Counsel, I think that is an
area which has merited both work over the last few months—and
continuing work—to make sure that there is a process whereby
the quality of legal work that is emerging in terms of draft legislation
from individual departments is strong enough. The second, more
general point that I would make is again about the front loading
of policy work. It is easier for an official to draft an effective
Green Paper—or even White Paper—than it is to produce
comprehensive policy guidance on RROs in some ways, in that you
can highlight difficult issues in a Green Paper or a White Paper
but not necessary the answer and then say we are out for consultation
on it. The process of the implementation of RROs requires the
fact that not only furnishing this Committee but actually furnishing
the general public with a clear understanding of what is anticipated
through the RRO process demands a very high degree of rigour from
officials in terms of what is actually their initial public offering,
the consultation document that emerges. In that sense that is
a process that we are very keen to emphasise to officials and
drive through the seminars we are running and the work of the
RIU to make clear to people that it is not akin to a White Paper
or a Green Paper where it may be that you identify difficult issues,
but there will be several occasions on which the clarity and rigour
can be brought to the Government's view of this. It actually requires
a very high degree of rigour very much at the outset.
Mr Virley: On the specific point
you mentioned about our role in checking, yes we do check and
Treasury Solicitors help us with the supporting documentation
and the draft RROs that come forward from departments.
Q19 Mr Havard: You talk about coming
up with the guidance and the template and so on, which is helpful.
I am still not quite clear what you have said, whether there is
then going to be a central authority that will act a bit like
the Treasury Solicitors do in relation to a Bill process or whatever.
I am also interested to know when all this guidance is coming
out and how it is going to happen and whether or not, for example,
this Committee is going to be involved in seeing drafts of it
and perhaps helping to make comments about it. I get the sense
from what you say that there are processes to make this incremental
change. What I am concerned about is that we also have the immediate
to deal with so we need some immediate change or step change in
order to deal with the next Order that is coming here, as well
as making this incremental change over time, over the next two
or three years or whatever. Perhaps you would like to comment
on those questions.
Mr Alexander: I will try to deal
with the first and the last of your questions and then I will
ask officials to comment on the detail of the second. In terms
of a central authority, I think this is not an area or a question
unique to either the RIU or the implementation of RROs. I think
the Cabinet Office has a careful balance to strike between recognising
that we have, as a Government, a shared interest in ensuring that
the quality of documentation and legislation that is produced
is of a high standard. It is entirely appropriate that we drive
forward that process working collaboratively with departments.
On the other hand, we should not denude departments of their principal
responsibility for the quality of the documentation that it is
producing. One of the phrases of the last six months has been
"embedded journalists" and I think to have an embedded
culture within departments where they take responsibility for
ensuring the highest quality of documentation is actually what
we are working towards. There is certainly a process of change
under way, but deeply embedded within the culture of departments
is a recognition that RROs are distinctive in their requirements
and demands, but the responsibility for providing that quality
is provided directly by departments. Let me ask officials to comment
on the second part of your question and then I will come back.
Ms Jennings: On the question of
guidance and Committee input to guidance, I think we have shared
both the draft guidance on burdens and also the full updated guidance
with Committee staff and asked them for their comments. The improvements
on consultation documentation and template were issued just after
Easter and hopefully we will begin to see the improvements coming
through based on that. I think the improved guidance was very
much based on comments from the Committees in response to the
problems that you had found. We are working on improvements of
explanatory documentation now and we would hope to issue it just
before or immediately after the recess. I think that you are right
to flag this as an issue, but we will continue to look at guidance
and update it as appropriate.
Mr Alexander: In relation to your
third point in terms of looking for a step change, probably no-one
is more acutely aware of that than I am in terms of what is a
stretching but achievable target in terms of the number of RROs
we are working towards. That is why there is not a single silver
bullet that addresses this challenge. We need an approach which
draws in officials and, as I say, I am working with Andrew Turnbull
and others to take that forward. We need an understanding at ministerial
level and I am heartened by the explicit support of the Prime
Minister for the agenda. I am also grateful for what has been
a genuinely collaborative approach between not just members of
this Committee but also the clerks of this Committee as we learn
together—notwithstanding the fact that we are driving forward
the agenda—issues that emerge both in terms of principles
and precedents.
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