Select Committee on Regulatory Reform Minutes of Evidence


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.


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2003
Prepared 5 November 2003