Explanatory statements accompanying
proposals
48. Our concerns have arisen from the failure of
explanatory statements to explain properly how the proposal would
satisfy the grounds specified in section 6(2) of the Regulatory
Reform Act (from which the criteria set out in the Committee's
Standing Order are drawn).[57]
Our key concern has been to emphasise that, in future, explanatory
statements should address the question of how the proposal would
satisfy the section 6(2) grounds with greater rigour.[58]
49. The Government memorandum responded to our concerns
as follows:
The Government will continue to update guidance,
and offer training and advice to improve drafts, but the final
responsibility for quality remains with individual departments
… The Government also hopes that the Committee will remain
flexible and helpful, for example in its approach to the use of
evidence sessions to seek reassurance on areas not fully covered
in documentation.[59]
50. During the 2000-01 and 2001-02 Sessions, we had
cause to comment adversely on the quality of some draft orders
(as distinct from the explanatory statements accompanying draft
orders). We are pleased to be able to report that the quality
of draft orders has subsequently improved, and that we have had
little cause for adverse comment during the current session. The
probable reason for this improvement is referred to in the Government
memorandum, which notes that all draft orders are now checked
by the Cabinet Office's legal advisers at the Treasury Solicitor's
office before they go to Parliamentary Counsel to ensure "consistency
of quality".[60]
51. We invited the Minister to comment on whether
a similar process is employed, or could be employed, in respect
of explanatory statements. The Minister's officials told us that,
currently, all explanatory statements are looked at by staff in
the RIU and by the responsible legal advisers at the Treasury
Solicitor's office.[61]
However, the Minister emphasised to us that, while he considers
that the RIU has a very important continuing role to play in the
regulatory reform procedure, responsibility for the quality of
documentation must remain with individual departments.[62]
52. As noted in paragraph 34 above, some action is
being taken in an attempt to provide a "benchmark" for
explanatory statements: the Government is preparing new guidance
for departments on drafting explanatory statements, including
a template, which will draw attention to the grounds set out in
section 6(2).[63] Cabinet
Office officials told us that they hope to issue this guidance
"just before or immediately after the [summer] recess".[64]
53. We look forward to the forthcoming guidance
to Departments on the drafting of explanatory statements, and
expect it to provide a sufficient basis to enable departments
to address the section 6(2) grounds with greater rigour. We would
appreciate receiving a draft version of this guidance, before
it is formally issued, and we would be happy to provide feedback
on the draft document, should the Government consider that helpful.
54. As regards the failure of some explanatory statements
to address the section 6(2) grounds with sufficient rigour, it
is not for us to determine the allocation of responsibilities
as between the Cabinet Office and individual departments. However,
we were somewhat surprised to hear that a similar centralised
checking process is applied to both draft orders and explanatory
statements, given the consistently good quality of the former
as compared with the variable quality of the latter. We suggest
that the Government should examine the reasons for the discrepancy
between the overall quality of draft orders and that of explanatory
statements.
Explanatory statements accompanying
draft orders
55. We also take this opportunity to draw attention
to our comments in a recent report we made to the House on a draft
order. Our report on the Draft Regulatory Reform (Sugar Beet Research
and Education) Order 2003 discussed the nature and extent of information
and analysis that we expect to see in explanatory statements accompanying
draft orders.[65] We
were concerned that the explanatory statement accompanying the
draft order, prepared by the Department for Environment, Food
and Rural Affairs, did not specifically respond to certain findings
we had made in our earlier report on the proposal for this particular
draft order.[66] Although
we were satisfied that the draft order should be approved, we
were not satisfied that the explanatory statement elucidated the
object of the draft order in terms of section 1(1) of the Regulatory
Reform Act. We therefore stated:
We take this opportunity to indicate to government
departments that we find it helpful if the explanatory statement
accompanying the draft order positively demonstrates that the
department concerned has considered the points raised in our earlier
report, if any. In such cases, we would welcome the inclusion
in the explanatory statement of some comment additional to a summary
of the findings of our previous report.
56. We draw this report to the attention of all
departments responsible for preparing regulatory reform orders.
57 Standing Order No. 141(6) Back
58
First Report of Session 2002-03, Proposal for the Regulatory
Reform (Credit Unions) Order 2002, HC (2002-03) 82, para 19;
Fifth Report of Session 2002-03, Proposal for the Regulatory
Reform (Housing Management Agreements) Order 2003, HC (2002-03)
328, para 33; Seventh Report of Session 2002-03, Proposal for
the Regulatory Reform (Schemes under Section 129 of the Housing
Act 1988) Order 2003, HC (2002-03) 436, para 15 Back
59
Appendix 1, para 2.5 Back
60
Appendix 1, para 2.3 Back
61
Q 20 Back
62
Qq 18, 19 Back
63
Appendix 1, para 2.3 Back
64
Q 19. The guidance is still to be issued. Back
65
Eleventh Report of Session 2002-03, Draft Regulatory Reform
(Sugar Beet Research and Education) Order 2003, HC (2002-03)
591, paras 13-15 Back
66
Thirteenth Report of Session 2001-02, Proposal for the Regulatory
Reform (Sugar Beet Research and Education) Order 2003, HC
(2001-02) 1247 Back
