House of Commons - Regulatory Reform

Select Committee on Regulatory Reform First Special Report

4 Identifying future regulatory reform orders

32. We discussed with the Minister a number of ideas and initiatives for identifying areas of reform that could constitute future regulatory reform orders. Some of these ideas and initiatives are examined in greater detail below.

Raising awareness of Regulatory Reform Act within Government departments

Progress to date

33. The Minister was at pains to emphasise to us the importance that the Government places on departments using the regulatory reform procedure, as one means of progressing the Government's wider better regulation agenda: he told us that, since his appointment, "the Prime Minister has already made clear to me … the importance he attaches to this area of work."[36] As evidence of the degree of priority that the Government is seeking to give to the regulatory reform agenda, the Minister told us that, for the first time this year, departments are being asked to include information in their annual reports about their performance on regulatory reform matters.[37] In addition, the Cabinet Office wrote to departments shortly before we took oral evidence from the Minister, asking them to update their entries in the RRAP and identify new proposals to be taken forward by way of regulatory reform order, amongst other means.[38]

34. The Cabinet Office is intending to issue guidance for departments seeking to make use of the regulatory reform procedure. These publications are:

a general guidance manual, updated to reflect experience to date in using the Act[39]
guidance on drafting explanatory statements, including a new template[40]
a guidance note on the meaning of "burden" in the context of the Regulatory Reform Act.[41]

Guidance notes on including regulation-making powers in regulatory reform orders and implementing EU directives in regulatory reform orders are planned for the future.[42]

Committee staff were consulted on the content of the general guidance manual and the note on the meaning of "burden". We expect the Cabinet Office to continue this practice in respect of the other forthcoming guidance described above.

Levels of awareness in departments

35. Despite the efforts of the Minister and his officials, it seems to us that the benefits of the regulatory reform procedure are yet to be widely understood across Whitehall. We note, for example, that many departments are yet to make use of the procedure. The Minister himself appeared to acknowledge that there is still much work to be done:

… 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.[

36. We commend the Minister and his officials on the progress they have made to date in raising awareness of the regulatory reform procedure across Government, and we urge them to continue their efforts. We look forward to seeing evidence of departments' increasing awareness of the benefits of the regulatory reform procedure in the updated RRAP, when it is re-issued in November 2003.

37. We are particularly pleased to hear that a broad range of guidance for departments is planned. As a step towards effecting the culture change to which the Minister referred, we suggested to the Minister that it might prove worthwhile to prepare a leaflet or something similar for Ministers, providing a "quick guide" to regulatory reform orders and setting out three or four examples of draft orders that have successfully passed through the parliamentary scrutiny procedure.[44] Cabinet Office officials told us that they are currently considering the utility of such a project: we commend the proposal to them, and would welcome the opportunity to comment on a future draft.

Identifying appropriate reforms in proposed Bills and Acts of Parliament

38. The RIU currently assesses departmental bids for proposed Bills in order to identify any proposed reforms that could instead be achieved by way of a regulatory reform order. The memorandum indicates that, in general, if a reform can be achieved by way of either primary legislation or the regulatory reform procedure, the Government's position is that the latter method is to be preferred.[45] The RIU also has a commitment to reviewing major items of legislation after they are enacted, in order to identify proposals for reducing regulatory burdens, including by way of regulatory reform order.[46]

39. We commend the RIU for taking the initiative in assessing both Bill bids and enacted legislation. We consider that this work should not prevent the RIU from continuing to focus its energies on raising awareness of the regulatory reform procedure across Government. Clearly, it is preferable that measures suitable for enactment by way of the regulatory reform procedure should be identified early in the policy-making process, rather than at the stage where they have already progressed to inclusion in Bill bids.

Seeking proposals for regulatory reform orders from Members of Parliament

40. In our October 2002 report, we urged other Members of Parliament to come forward with suggestions for potential regulatory reform orders:

We would strongly encourage any of our colleagues who thinks that he or she has identified a reform which might be suitable for implementation by means of a regulatory reform order to act as the Government has suggested [in its May 2002 memorandum], in gathering the initial evidence and lobbying the responsible Minister for action. As the regulatory reform procedure becomes established, we look forward to seeing many more proposals generated, not only by the Government and Members of Parliament (including select committees) but also by those outside interest groups who so often criticise the effect of overly burdensome legislation.[

At the same time, we emphasised our belief that the primary responsibility for identifying potential regulatory reform orders must remain with the Government.[48]

41. The Government told us that no such proposals have been forthcoming from Members.[49] The Minister stated that the Government has "a number of different forums in which we ask not just individual MPs but actually a wide range of interest groups to participate in the [better regulation] agenda. I have been somewhat disappointed to discover the level of uptake."[50] The memorandum notes that the Government initially anticipated Members coming forward with proposals for how the law might be reformed. The Government now considers that it is better to expect Members to identify areas where Government intervention is creating unnecessary burdens, and for the Government to decide on the most appropriate means to remove the burdens.

42. From our own knowledge and experience as Members, we conclude that many of our colleagues remain unaware of the purpose of the regulatory reform procedure. Cabinet Office officials acknowledged in oral evidence that the Government has "… not found quite the right mechanism for spreading this message amongst MPs and making sure that they understand how they might engage on this."[51]

43. Despite the fact that work remains to be done in raising awareness amongst Members, we are disappointed that our colleagues appear not to have informed themselves of the opportunities offered by the regulatory reform procedure. The procedure gives Members the opportunity to put to the Government a proposal to reform a particular regulatory burden in primary legislation, where that reform would probably not otherwise merit a place in the Government's legislative programme. At present, Members have a range of methods at their disposal for raising awareness of a regulatory burden in legislation and pressing for action to remove it: presentation bills, Ten Minute Rule bills, early day motions and oral and written questions. If Members are serious in their wish to remove a regulatory burden, they ought to be aware that the regulatory reform procedure exists and press for the relevant Minister to use it. We urge Members to consider making greater use of the potentially powerful tool for legislative reform created by the Regulatory Reform Act.

44. We also draw to Members' attention the possibility that the Government could be asked to consider taking forward an unsuccessful proposal for a Private Members' Bill in the form of a regulatory reform order, where appropriate. The Cabinet Office has stated that it also examines bids for 'hand-out' bills[52] in order to identify clauses which might be delivered by regulatory reform order, and will then discuss with Departments whether the provisions might be delivered by regulatory reform order.[53] We are pleased to note that systematic scrutiny of 'hand-out' bills for clauses which might be delivered by RRO is taking place. We nevertheless consider that Departments should be further encouraged to develop bids to reform regulation in legislation as RROs in the first instance.

Including draft regulatory reform orders in Law Commission proposals

45. The Minister drew to our attention the work of the Law Commission, the statutory body charged with keeping the law under review and making recommendations for law reform, in promoting regulatory reform orders.[54] Where appropriate, the Commission is increasingly opting to include draft regulatory reform orders in its proposals for law reform, rather than draft Bills. According to the latest bulletin from the Commission, 29 Commission reports await implementation by the Government.[55] At least four of these are presently being taken forward, or are intended to be taken forward, by means of regulatory reform order.[56]

46. We are encouraged to hear of the Law Commission's work in promoting regulatory reform orders. We expect the Government to acknowledge the Commission's initiative in this field by acting to implement more of the Commission's recommendations, an area in which it is generally acknowledged that the Government has lagged behind.

36 Q 1 Back

37 Q 1 Back

38 Q 1 Back

39 Appendix 1, para 2.3 Back

40 Appendix 1, para 2.3; see paragraph 46 below for a more detailed discussion of this guidance. Back

41 Appendix 3: issued in July 2003 and now available on the Government's Knowledge Network (KN). Back

42 Appendix 1, para 3.10 Back

43 Q 32 Back

44 Q 33 Back

45 Appendix 1, para 3.4 Back

46 Appendix 1, para 4.6 Back

47 HC (2001-02) 1272, para 41 Back