Examination of Witnesses (Questions 20-37)
MR DOUGLAS
ALEXANDER, MR
SIMON VIRLEY
AND MS
KATE JENNINGS
1 JULY 2003
Q20 Mr Havard: As distinct from the
draft order being scrutinised by lawyers are the explanatory statements
going to have the same scrutiny by lawyers?
Ms Jennings: Yes, both the consultation
documents and the explanatory documents are looked at both by
our dedicated lawyer and by official staff in the unit.
Q21 Chairman: If there is new guidance
would it be considered helpful to float that past this Committee
before things are moved on just for us to look at it in an informal
way?
Mr Alexander: I do not see that
there is any difficulty with that except in terms of timing. What
is the present timing in terms of the new guidance?
Ms Jennings: I think the new guidance
has been with Committee staff and is nearly ready to issue but
we can share it with the Committee.
Q22 Mr Brown: I want to look at what
this Committee has dealt with in the recent past and look to the
future. I do know this Committee did have concerns about the amount
of work that was coming before us. Would you agree that it is
helpful both to Government and to Parliamentary Scrutiny Committees
to establish a steady regular flow of RROs rather than a pattern
which has been described by some as "feast or famine"?
Would you agree that the flow of RROs over the past year has been
rather less than steady and regular?
Mr Alexander: Yes to both of your
questions. If I recollect it was Mr Lazarowicz who was asking
my predecessor Lord Macdonald almost a year ago whether he concurred
with that view, and he did. Given the commitment that Lord Macdonald
made to the Committee that this was an issue of concern, I took
some trouble to go back and look at the flow that we have achieved.
I understand that we had six Orders laid before the Easter recess
but only one Order has been laid since. Indeed, after the summer
up to twelve Orders may be laid before the Christmas recess. I
think in terms of assisting the Committee in its work, of course
we will endeavour to ensure that there is a steady flow. That
being said, we rely on departments in terms of bringing forward
that work. There has been one specific thing that I identified
which was the work that we have been undertaking since last year
to produce a forward look whereby there is clarity both for the
Committee and within Government in terms of what is the likely
work flow that is coming through. I am aware that there have been
specific examples where the Committee has been asked to work to
a much tighter timescale, in terms of compensation payments and
local authorities and we are grateful for the forbearance of the
Committee in that regard. Looking ahead I will of course endeavour
to ensure that working with officials we try to make sure that
the Committee is able to manage the workload, but I do not see
this as being an issue either for the Committee or for Government.
It is an on-going issue which we will continue to look at.
Q23 Mr Brown: Why do you think it
has proved so difficult to establish a regular flow of work this
year? Do you think that the problems lie in any particular area
of Government? How far do the solutions to these problems lie
within your control? Do delays in preparing and laying proposals
suggest to you that RROs are not a priority for departmental resources
or Ministerial action?
Mr Alexander: Taking the last
point first, I would not accept that it is neither a Ministerial
priority nor has adequate resources. As I said, the Prime Minister
could not make clearer his own commitment to this area of policy
work. I think, given the constraints and the legislative programme
of the Government, even were it not the case that there was a
strong focus at senior levels of the Government on this agenda—and
indeed from officials—ministers would be inclined to look
to RROs as a means of ensuring that policy changes can be achieved
given what is necessarily a very packed legislative schedule.
We work closely with departments to try to avoid the kind of bunching
that you have described. There have been specific examples in
the past, for example where there were, as I understand, financial
consequentials in terms of the timing of the ODPM proposals and
the operation of the financial year. That was a specific issue.
We are also keen to ensure—for example for substantive proposals
that are coming forward on Fire and Patents that given the very
scale of what we are undertaking and the fact that in some ways
these will be the first RROs that fully represent the scale of
the potential of RROs in terms of taking a whole area of policy,
bringing clarity, retaining necessary burdens but on the other
hand removing a whole number of unnecessary burdens—that
the Committee and others have time to ensure that they are able
to go into it in sufficient detail. We have everything to gain
by the Committee coming to recognise the good faith of the Government
in saying certainly we want large proposals but we have already
made clear we do not want large and controversial proposals taking
this particular route. On the other hand, we have everything to
gain from making sure that the Committee is able to discharge
its functions at the same time as we are pushing departments to
try to drive forward a more steady flow of RROs that have been
emerging.
Ms Jennings: In terms of the delays
in RROs coming forward and how this has impacted on the flow of
orders, I think some of those delays will be avoided in the future
by things like the fact that we are giving legal advice at a very
early stage when proposals are identified and we now have the
new guidance on things like the definition of burdens which means
that lawyers will find it much easier to clarify exactly what
can and cannot be done by RRO. I think it is also probably true
that we will continue to have unexpected delays where consultation,
for example, throws up issues which have not been anticipated
and departments then have to go away and maybe do further research.
Indeed, in terms of laying orders for second stage scrutiny sometimes
suggestions from the Committee involve the departments then going
away and doing further research and further consultation. This
can take time. This has been true with the two Orders that we
hope will be possible to lay before the summer on gaming machines
and business tenancies. The departments have been gathering further
data and evidence to support the final stages of scrutiny.
Mr Alexander: The other point
I would make in terms of the two major pieces of work that I identified
on Patents and Fire is that we are already determined to work
to ensure that the consultation materials are passed as early
as possible to the clerks of the Committee to ensure, given the
scale of the work underway, that the Committee is given every
opportunity to gets its teeth into those particular proposals.
Q24 Mr Brown: You actually mentioned
the intentions to lay a further 12 proposals for RROs before the
end of the year. Three of these are quite complex. How confident
can you be that all these proposals will be laid, given that consultations
on four of them have not started as yet, and also keeping in mind
that we only have 16 sitting weeks remaining before the end of
the year?
Mr Alexander: That is certainly
our intention. I suppose the general point I would make—and
then I will ask my colleagues to speak about some of the details
of the specific proposals because they have been involved in the
preparation particularly of the Fire and Patents area—is
that when I said in my introductory remarks that we wanted to
focus on outcomes rather than delivery I tried to express what
is a culture that we have developed within the RIU and are seeking
to spread across Government. Notwithstanding the PSA target we
have for 60 RROs—of which I am acutely aware and will continue
to work hard to achieve—what actually matters out there
in the business community and the voluntary sector and amongst
the public is that we advance the Better Regulation agenda and
in that sense I am sanguine if particular proposals when consultation
takes place or when discussions take place with departments it
emerges that rather than being amenable to the RRO there is another
means by which the same objective can be achieved. There is work
being taken forward in terms of alternatives to regulation at
the moment and there are a number of different options within
the Better Regulation toolkit which are available to Government.
In that sense I have a very specific job in terms of making sure
that we drive forward the PSA target, but on the other hand we
should not lose sight of the fact that there will be occasions—for
example the issue with the driving licences—where RROs turn
out not to be the specific vehicle that can be used and there
are other tools that can be used.
Q25 Dr Naysmith: Whilst we are on
the subject of creating work for this Committee I was intrigued
to see at the end of your memorandum—June 2003—the
very last paragraph says "Ideas from MPs" and it mentions
the fact that in the previous memorandum the Government invited
MPs to identify proposals for reform by RRO. It goes on to say,
"No such proposals have been forthcoming". I find that
amazing and I wonder whether this proposal has not received any
publicity other than being published in one of their memoranda
which are not the most widely read documents.
Mr Alexander: I spoke to officials
prior to this hearing today in relation to the involvement of
the business community as well. There is a great deal of public
discussion about the deregulation agenda and Better Regulation
more generally. I believe that one of the challenges that we face
in Government is to raise the quality of that debate so that we
can have a serious conversation about what is a very serious issue.
How do we achieve a regulatory environment in Britain that makes
us competitive, that makes us easily stand in comparison with
the best in the world as has recently emerged in both an OECD
and an Economist Intelligence Unit Report, but on the other hand
reflects the fact that as a civilised society we need appropriate
regulations. For example, I would not suggest to this Committee
or anywhere else that you should revoke the Minimum Wage Act and
I think we need to get the quality of discussion about the Better
Regulation agenda higher. One of the ways that I think we can
do that is to ask people who make criticisms of the Government
in terms of deregulation or the need for further deregulation
to engage constructively in that dialogue. There are a number
of forums which exist for that to happen. There is not just the
Better Regulation Task Force working with David Arculus, there
is also William Sargent's work with the Small Business Council
(there is the Small Business Service which takes forward a lot
of this work). We have a number of different forums in which we
ask not just individual MPs but actually a wide range of interest
groups to participate in this Agenda. I have been somewhat disappointed
to discover the level of uptake. There are two ways to read that,
one is—as you have suggested—we need to work harder
at making sure that we make real that invitation by ensuring that
people are fully aware of it. On the other hand, perhaps a more
cynical view is that there are certain people who are keen to
exploit for political advantage the suggestion that regulations
be introduced, but when you ask them to engage constructively
on a process of identifying what burdens and regulations could
be removed they are less forthcoming. So I would reflect on the
point you have made in terms of the involvement of MPs. Many of
you know from your attendance at Cabinet Office questions, this
is a regular issue which is raised on the floor of the House and
in that sense it is not as if this is not an issue that is of
concern to MPs; it clearly is. That being said, whether MPs carry
around in their head the 120 or so pieces of legislation that
relate to Fire Safety is another matter.
Q26 Dr Naysmith: It may be that some
of them do not know about this procedure.
Mr Alexander: Yes, that is right.
Q27 Brian White: In conjunction with
that, there are a lot of Ten Minute Rule Bills that come forward.
How many of those are actually looked at in terms of: is an RRO
an appropriate way of dealing with the issue? All of us who have
done Private Members' Bills know that if you come up in the ballot
you get inundated with lobbying groups. Again, how much discussion
has gone on with those lobbying groups who put forward a lot of
ideas for Private Members' Bills, some of which may be appropriate
for RROs? Has any thought at the White Paper stage been given
as to whether RROs are appropriate?
Ms Jennings: Certainly in terms
of both Bill bids coming forward for major legislation and hand-out
Bills, we scrutinise those quite carefully to flag up any clauses
within Bills or hand-out Bills which might be delivered by RRO
and we then engage with departments to decide on the best way
forward. We encourage departments to engage closely with their
stakeholders on specific issues including when they are consulting
on White Papers and also to consider Better Regulation for any
policy proposals that they are putting forward. I think you may
be right, we have maybe not found quite the right mechanisms for
spreading the message amongst MPs and making sure that they understand
how they might engage on this.
Mr Alexander: You are preaching
to the converted with us three on this side of the table, but
it may well be that we need to do more work with Parliamentary
colleagues or across Whitehall to make sure that we continue to
send out that message.
Q28 Chairman: I have been on the
Deregulation Committee—as it was—since it was established,
and now the Regulatory Reform Committee. On this issue of scheduling
so that the Committee is able to ensure that it gives proper scrutiny,
I have to say for the past few weeks that the Committee has been
concerned because we have actually had nothing to do, and then
we suddenly get spells when we go to the reverse with too much
to do. Do you see any way of better scheduling of the way things
are laid by your Department? You have indicated that a couple
of the proposals you have coming are big and complex, would you
accept that it is not unreasonable to say that if you do have
that there should be a couple of weeks before laying anything
else if this Committee is to get its teeth into the complex issues
that you want us to look at?
Mr Alexander: I suppose my first
observation would be that I see it as a sign of progress if we
are moving towards a situation where there are concerns expressed
by the Committee in terms of our capacity to get through together
the workload that we face. I am keen to make sure that the Committee
is well-provided with the time and scope necessary to scrutinise
these measures properly. But on the other hand we need to make
sure there is a constant flow coming through. I think this is
a matter which would merit continued discussion between officials
of the Committee and my own officials because we have no agenda
other than to ensure that proper scrutiny takes place. The very
foundation of the way we see RROs working is on a collaborative
basis with an absolutely central role for this Committee in ensuring
proper Parliamentary scrutiny takes place. On the other hand,
the reality is—not least given my PSA commitment to try
to work towards what is a very stretching target—I will
continue to be driving departments and to push forward RRO proposals
in the months to come by holding this brief. In that sense we
need to make sure that there is the correct balance struck between
making sure that there is a constant flow of RROs emerging from
Government, ensuring that this Committee has adequate time to
scrutinise the proposals as they emerge and, on the other hand,
making sure that internally within Government that flow increases
to allow us to come to a point where we can meet the PSA target.
Q29 Chairman: Both sides have the
same aim, so we are really saying that if our officials indicate
to your Department that we see a problem you would not be unsympathetic
although, at the end of the day, both you and we would want to
see more items going through the process.
Mr Alexander: Yes, of course.
Mr Virley: And I think that has
already been the case. For example, back in March 2003 we had
three proposals coming forward at the same time. I think consultation
with yourselves led to the laying of one of them being delayed
to make sure that we achieved a steady flow. I would imagine we
would be able to do something similar in the future.
Q30 Chairman: The memorandum says
in paragraph 4.3 that the Cabinet Office is encouraging departments
to identify and deliver more reforms. What indications do you
have that departments are responding to this approach, and is
there a danger that if we become target-driven departments might
come up with hastily prepared RROs or proposals which may make
an inappropriate use of the procedure?
Mr Alexander: Let me try to set
out for the Committee where I see we are in terms of future programmes.
We have two proposals which are now awaiting final scrutiny which
will be laid before the recess, that is Gaming Machines and Business
Tenancies. We have already delivered 14 RROs. There are then a
further seven proposals that have already finished their consultation
periods and are due to be laid after the summer. As I mentioned,
these include the two major reforms of Fire Safety and Patents.
In the Cabinet Office working through the RIU we take a pro-active
role in working with both the Legislative Planning Committee secretariat
and departmental officials co-ordinating Bill bids to ensure that
Parliamentary time is used to the best effect. We believe it will
enable us to identify potential measures within Bill proposals
that could then be delivered by RROs. So we have a number of feelers
out simultaneously, be that in terms of what is emerging from
White Papers, what is coming to LP, what else is happening in
terms of hand-out Bills, constantly looking to try to grow the
number of RROs that can be taken forward. As I say, we also are
heartened by the fact that people like the Law Commission who
have at times in the past expressed disappointment about the fact
that major areas of reform they have identified in the reports
have not found slots in legislative programme are now increasingly
looking to RROs as being a potential vehicle for taking forward
their own reform agenda. In that sense I think there are grounds
for optimism that while the target is stretching we still genuinely
believe it to be achievable and are working with that in mind.
Q31 Chairman: Do you think enough
has been done through bodies like chambers of commerce and trade
federations to say that if business and industry sees unnecessary
new regulation—and there is this argument of where regulation
is needed and unnecessary—that if they feed them in this
might be a way to tackle some of the points. If there really is
a burden and the regulation is totally outdated do you think there
could be more done to encourage bodies like that who might see
the problems?
Mr Alexander: Again I think the
key challenge is how, working with organisations such as chambers
of commerce and the CBI, we can ensure that there is a constructive
dialogue between the business community and Government. I personally
felt some disappointment at some of the press coverage that took
place around the last British Chambers of Commerce Conference
given the lack of sophistication in some of the press commentary
in relation to the Better Regulation agenda. In that sense I think
that in Government we have a responsibility to engage in that
dialogue and make sure that the business community is involved.
Frankly, there is also a responsibility on the business community.
If there is an earnest and genuine desire to work together—as
I believe we are expressing from Government—to avoid the
easy headline and to undertake the hard work of making sure we
identify where those areas are. I think you could characterise
the position as the Government is a willing partner in ensuring
that we take forward this agenda not just on RROs but on better
regulation more generally. The challenge also rests with the business
community and there are occasions where organisations such as
the CBI—there was a statement by Digby Jones last year where
he stated that Britain was clearly ahead of European competitors
in terms of an environment in which to start a business—and
the business community has been clear, through its organisations,
that we have made progress on this agenda. Other organisations,
like the OECD in its two reports and the Economist Intelligence
Unit have been very clear that Britain leads in Europe in much
of this Better Regulation agenda but nonetheless we need to continue
to work hard to make sure that the debate that takes place is
not on the basis of misplaced statistics but actually a collaborative
approach not just within Parliament but beyond Parliament to make
sure we advance this agenda.
Q32 Dr Naysmith: We have talked a
lot about the sort of things that are obstacles to the promotion
of RROs in departments and so on. We have mentioned culture change
and the way departments tend to focus on Bills because that is
the way they have already done it. Presumably you would see that
as the major obstacle, the culture. Then I was going to ask you
if there are any departments—and I cannot really remember
whether we have had anything from Education or Health—which
seem to you to be reluctant to use this procedure even though
we know there are things which could probably be reformed fairly
quickly. One answer that immediately springs to mind in answer
to my own question is that the departments I mentioned both had
major Bills recently so they probably tacked everything onto those.
Are there any obstacles which prevent departments from participating
more fully?
Mr Alexander: I think there are
instances where individual ministers have understood clearly the
potential of this legislation. Simon mentioned Lord Falconer in
terms of some of the work he was driving forward as Regulatory
Reform Minister in a previous portfolio. Individual ministers
can made a significant difference in the working of departments.
On the basis of our experience to date I would be cautious of
identifying particular departments in terms of the RROs that have
been produced for exactly the point that you make, that there
could be a number of factors, not least whether the department
has secured legislative time in Government programme which would
dictate whether RROs have been the chosen vehicle or not. To answer
your substantive point, I think probably if I were to identify
a challenge that we face it is that of culture change which requires
a co-ordinated response in a number of different directions at
official level and at ministerial level, and making sure that
we embed within departments in Whitehall an understanding not
just of the importance that we attach to this agenda but also
a better understanding of the durability of the agenda and the
confidence that this is the right vehicle to take forward this
agenda.
Q33 Dr Naysmith: Would it be worthwhile
preparing a leaflet or something for Ministers with some kind
of information giving examples of three or four really successful
things that have gone through this Committee. I really do not
believe that every single minister that I know understands Regulatory
Reform and it sounds like a fairly simple thing to do to try to
make sure they are on board.
Mr Virley: We have exactly that
in mind, actually, to produce a quick guide to RROs.
Q34 Brian White: One of the things
that comes through in Regulatory Reform is an emphasis which is
still not strong enough on being able to understand what the legislation
actually means; being written in plain English or in simpler English
than sometimes is the case, whilst being consistent with being
legally correct. How much emphasis is actually being put on that
in the guidance going to departments, given that it is a requirement
of this Committee to look at plain English?
Mr Alexander: That is a very important
question. I suppose I should declare a vested interest having
been a lawyer before becoming a Government minister. There is
a balance that needs to be struck between the determination to
make sure that the consultation document is real and that people
are able to understand what it is talking about, whilst on the
other hand—Kate mentioned the involvement of lawyers even
in terms of the consultation document—ensuring that adequate
degree of rigour that early in the process. If ever you want rigour
then speak to a lawyer, but if ever you want clarity a lawyer
is probably not the first person you should call on. In that sense
I would not say that we always get it right, but it is an important
balance to try to strike because on the one hand both in the consultation
and then in legislation—be it primary or secondary legislation
that is drafted—the outcome of the legislation often turns
on the statutory interpretation of individual words. In that sense
what may appear clumsy statutory constructions are necessary in
order to ensure that the will of Parliament is given proper expression
on the legislation. I say that with humility; I am sure that we
endeavour to get it right all the time but I am sure we do not
always get it right in terms of understandability but nonetheless
it is an issue that we are constantly aware of and seek to get
that balance right between the rigour early in the process—particularly
for RROs—with a need for understandability from the general
public.
Q35 Chairman: Are you able to give
any examples of an RRO proposal that has been stripped out of
a Bill that is in preparation?
Ms Jennings: I think the obvious
examples of that are the local government proposals, the three
end of financial year ones on cash incentive schemes and housing
where all three came out of the Local Government Bill and basically
failed to find space in the Bill. In addition the Welsh Ombudsman
proposal which should be laid before the Committee before the
end of the year, the initial intention was for that to be in the
Local Government Bill but there was not time for it.
Q36 Chairman: Are there any other
points you wish to make before you go? Can I just indicate that
there will be one or two items we will be writing to you about
because they are more appropriate dealt with in a written format
than taken as oral issues today.
Mr Alexander: I look forward to
seeing that correspondence. I would just emphasise the point that
I stated at the outset which is that I am clearly new to this
brief. It is an area which I am both excited and challenged to
be asked to take forward on behalf of the Prime Minister, but
it is one which I will look forward to working with the Committee
on in the year ahead because I believe it is one in which—as
one of your Committee members said—we have everything to
gain by working collaboratively and I think it provides us with
an ideal opportunity to drive forward this agenda.
Q37 Chairman: Thank you for coming
along. It has been a useful session for us and I hope it has been
useful to you, Minister, and to your officials.
Mr Alexander: It has indeed, thank
you.
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