Examination of Witnesses (Questions 20-39)
MR JIM
MURPHY MP, MS
KATE JENNINGS,
MR ANTHONY
ZACHARZEWSKI AND
MR PAUL
HUGHES
13 DECEMBER 2005
Q20 Chairman: That is the latest
commitment. There have been previous commitments earlier than
that.
Mr Murphy: In the time that I
have been in the Cabinet Office—and I will seek guidance
if this is wrong, of course—whether by myself or whether
there have been two of us—and it is a very big building,
incidentally, to wander around by yourself!—we have been
working to this agenda of getting it done early in the New Year.
But, historically, if there have been earlier commitments—
Q21 Dr Naysmith: I think it is to
do with the review and the review did not arrive early enough.
Mr Murphy: Yes.
Dr Naysmith: Before the review people
were saying it was going to be sooner than this.
Q22 Chairman: Finally, before we
move on, Minister, which House will the Bill be introduced?
Mr Murphy: When it is introduced
shortly, it will be done in the Commons.
Chairman: Thank you. Perhaps we could
move on now to the purposes for which the RRO procedures may be
used and I am going to ask Alison Seabeck to come in.
Q23 Alison Seabeck: Jim, Minister,
in relation to the current RRO process there is no statement on
the face of the 2001 Act that the RRO procedure will not be used
for large controversial measures. There were further assurances
given through the course of the debate by ministers to that fact,
but, given you are now proposing to widen ministerial powers,
what consideration has been given to putting something explicit
on the face of the new Bill to prevent it from being used for
"large and controversial" measures? Many of the submissions
we received (for example, from the T&G and from the Scottish
Law Society) did express concern about the definition of uncontroversial
and I would welcome your comments.
Mr Murphy: The sense is again
to give that public assurance that the RRO process will not be
used for highly controversial proposals. It is not our intention
to put it on the face of the Bill but to give a similar commitment
as we did in the passage of the 2001 Act. It is my sense—but
I stand to be corrected—that that seems to have worked well
in terms of that assurance. being understood and accepted and
there has been a good sort of framework within which Regulatory
Reform Orders are proposed. We would seek to give that same assurance.
In reading, before coming to the Committee, I was struck by a
quote in the Lords about this nature of what is highly controversial
and what is not.—and you may have read this yourself. It
is like describing an elephant: you do not know how to define
it but you know it when you see it. It will be the same in some
of these highly controversial proposals. There are safeguards
already through this Committee and the Delegated Powers and Regulatory
Reform Committee in the Lords. Those safeguards have stayed. It
is a very easy argument to make that some of the safeguards are
being enhanced. Obviously this Committee will retain its current
powers as a minimum and I know through the Liaison Committee that
there was a suggestion that the power of this Committee should
be enhanced. In principle, that is something to which the Government
is attracted, enhancing the role of this Committee to have a wider
remit on the better regulation agenda as a whole. This morning
I do not have a set of words to deliver to you on that, except
an acknowledgment that we agree with the principle and we are
happy to work with you and the Clerk of the Committee in conjunction
with Cabinet Office officials to try to enable in a form of words
that principle of an enhanced role for this Committee. But there
is a whole series of safeguards, Alison, some of which we inherit
and some of which we are going to be adding to.
Chairman: Do we read anything into your
use, Minister, of the word "highly"? This seems to have
crept into the dialogue. We had "controversial" and
now we have "highly controversial".
Stephen Hammond: The difference between
a small and big elephant, I guess.
Q24 Chairman: Is it just usage of
English north of the Border, or should we read anything into that?
Mr Murphy: It is the words I chose
to use. It is the words I have been using in discussion of the
Bill. Whether my definition of highly controversial is the same
as my predecessor's definition of controversial . . . As you know,
this Committee will ultimately make a decision as to how the various
proposals are dealt with. In terms of how I have been describing
it, it has been about highly controversial. In terms of the difference
between controversial with a previous minister and highly controversial
with this minister, I guess, as we progress with suggested Orders,
you will make your own decisions as to what is controversial and
what is highly controversial.
Q25 Alison Seabeck: I am sure that
in the course of the Bill this definition will be teased out a
little bit more.
Mr Murphy: Of course.
Q26 Alison Seabeck: Thank you for
that. I was also interested to hear your assurance that there
will be a sort of parallel assurance for this amended procedure
as happened with the first one—but, again, I suspect we
will be pressing you again in the course of the Bill.
Mr Murphy: I am sure.
Q27 Alison Seabeck: Will you therefore
continue the undertaking that is currently there that any proposed
Order which this Committee—and I was interested to hear
your comments about the possible strengthening of this Committee—found
to be inappropriate would be withdrawn?
Mr Murphy: Yes. I am sorry for
being so direct.
Alison Seabeck: That is what I like:
short, sweet and to the point.
Q28 Stewart Jackson: Good morning,
Minister. Following on from Alison's questions, do you expect
the proposed amendments to the Act would increase the scope for
"very controversial"—which is a bit like very
pregnant, really—legislation, such as fire safety and civil
registration, being enacted using the RRO process?
Mr Murphy: There is no point in
doing all of this and going through the consultation and putting
a bill through Parliament and engaging with stakeholders unless
we are going to deliver in a much more effective way on this agenda.
I cannot this morning say that the new Bill, which has not yet
been published, has not yet been through any scrutiny and has
not yet been through any amendments process either in the Commons
or the Lords, is fit for purpose in the specific, but the anticipation
is that, because it is a more flexible power in terms of the definition
of burden, there will be much more traffic, there will be more
Orders than there have been previously in Regulatory Reform Orders.
Some of those will be very straightforward admin-burden reductions,
but I guess this Committee and the equivalent Committee in the
Lords will test where the boundary is, as to what is acceptable
through this process. If that is the framework and if that is
the accepted framework, I think that is the established accepted
framework that the Government and this Committee and the equivalent
Committee in the Lords will come to through trial. Basically a
process of experience under the new Act will decide where the
acceptable outer limit of highly controversial is. But there is
a wider issue, I think, which is whether scale is a factor as
well to decide the size of the proposed Order? If it is an Order
which is sizeable in terms of what it delivers and sizeable in
terms of the simplification on current legislation, does that
in itself mean it is not suitable for this procedure? My instinct
is that that is not the case. If it is widely accepted by this
Committee and the Delegated Powers Committee in the Lords and
by stakeholders, if it is a commonsense but nevertheless sizeable
reform, my instinct says that it should go through the proposed
legislative Regulatory Reform Bill or Act. I guess this Committee
and the equivalent Committee in the Lords will test that thinking
and that logic. Instinctively, the size of the proposal I think
should not disbar us bringing this through this reform procedure.
Chairman: Could we move on, but on the
same theme, and I will invite Stephen Hammond to ask the next
question.
Q29 Stephen Hammond: Good morning,
Minister. The consultation document refers to a power to "restate"
the law to "improve transparency, coherence and accessibility".
We are interested to know from you what the scope of that power
is. You also make reference to "rationalisation". The
phrase to "restate" suggests the power to make the legislation
clear in its meaning and perhaps not to alter it in substance;
whereas "rationalisation" could really imply something
rather more, in terms of loss of elements of previous Bills or
loss of elements that may no longer be deemed effective. Is the
purpose to restate or are you using it to do something more radical?
Mr Murphy: I will ask Kate to
say a few words on this as well, but, in terms of being able to
restate, regardless of the Government in power, regardless of
the source of the legislation, we know that on occasion there
is a lack of clarity as to what the legislation intends and at
least a confusion in the wider world. This Bill would intend to
create with parliamentary scrutiny a relatively quick way of simplifying,
restating or correcting errors or anomalies. I know there is some
discussion about this, as to whether that can happen under the
existing Act, but it is our assessment that it cannot in a meaningful
enough way, so, yes, this proposed Bill will allow the Government
to restate, to overcome inconsistencies, drafting errors and complexity
where there is no need for complexity. I will ask Kate to add
a few words.
Ms Jennings: I think the Minister
has explained it very clearly but, on the specific point of restatement,
the idea is that we should have a power that is capable of restating,
consolidating and clarifying but which is basically much more
outcome focused. We are looking at a power that will enable us
to reduce administrative burdens, make legislation lighter touch.
If, in order to achieve that outcome, you need to make some substantial
change to legislation, then our view is that you should have the
power to make that substantive change. I think we use rationalisation
in the consultation document to indicate that sort of reform.
For example, if you had requirements for data collection in different
bits of government and, in order to reduce your administrative
burden, you needed to rationalise those, that might involve some
substantial policy decision, but, if you lost one specific question
on your form, that would be a substantial change, but, in terms
of giving government the information it needed and in terms of
making the net result lighter touch for businesses or those you
are gathering data from, we think that would be justifiable. It
is that sort of substantive change that we are expecting. We need
the flexibility to be able to do whatever is sensible to give
us the best regulation outcome that we are looking for.
Q30 Stephen Hammond: In your answer,
Minister, you restated what was previously the position of your
predecessor—
Mr Murphy: That is handy.
Q31 Stephen Hammond: Yes—it
is nice to have some consistency across Government!
Mr Murphy: I can reassure you
that is a coincidence!
Q32 Stephen Hammond: As I understand
it, your predecessor or you have stated that you want something
you can use to correct errors and omissions—and you have
just said that. The previous Committee were obviously concerned
about that on the basis that they were worried that that might
just bring forward more poor quality legislation. Can you give
us a view on how you think this new power will not simply bring
forward more poor quality legislation? I think you also said in
your answer that the new power would allow you to do things that
were not possible under existing legislation. Can you give us
an example of something that you see where this new power is necessary?
Mr Murphy: In terms of the capability
of the previous Act, the 2001 Act does give you the power to correct
errors and provide clarification, but only if you also lift a
burden, as I understand it—so you would have to lift a burden
and simultaneously carry out correction of an error or provide
clarification. In terms of a specific, I wonder whether Kate could
offer a specific as to some of these error corrections.
Ms Jennings: In terms of correction
of errors, I cannot.
Mr Murphy: Departments are currently
producing simplification proposals and I think people genuinely
will be surprised by how ambitious they are when published, because
there has been a real dialogue with stakeholders throughout the
country. DTI and Defra I think have now published theirs. There
is a specific list within those proposals. In terms of the specifics,
within DTI, it is Consumer and Energy Law, the Construction Act,
the Employment Law Requirements. Under Defra, the Environment
Agency is proposing an Order which would reform the Radioactive
Substances Act which would save £1 million a year. It would
be anticipated that a lot of the Law Commission recommendations
could be delivered under this Bill, but I do not know if we are
going to talk about the Law Commission report separately.
Q33 Chairman: Yes.
Mr Murphy: I will leave some details
for that. Generally, the simplification proposals from every department
will have to be ready in time for next year's pre-Budget report.
That is a driver there. However, in terms of the delivery of that
driver, we do not have a legislative tool to implement what departments
are going to come up with and we have to deliver on that agenda,
partly because we have said we have and partly because the world
out there expects us to.
Q34 Chairman: Because Ms Jennings
could not provide us with an example, perhaps the Department could
drop us a note. [2]
Mr Murphy: Yes. No problem.
Ms Jennings: If you wanted further
reassurances on the quality of the legislation, then I can certainly
give those. The BRE, as regulation executive, where the Bill is
being developed, is the same part of government which is responsible
for the regulatory impact assessment, and part of the impact assessment
process is to make sure that policy is thought through in terms
of anticipating unintended consequences, that impacts have been
properly considered, that proposals are brought forward when they
have been fully thought through. Our colleagues in other areas
of the Cabinet Office are responsible for the legislative programme
and their work involves ensuring that the quality of legislation
is high and remains high. But I think we all know that sometimes
mistakes will be made. The 1994 Act assumed that from the point
that it was made onwards, the legislation would be perfect and
you would only need those de-regulation powers for legislation
that came before 1994. In our proposals we are more honest. We
know that no matter how hard we try to set up mechanisms to make
sure that everything is as good as it can be, there will be errors
and omissions and that therefore we will need the power to correct
them when appropriate.
Q35 Stephen Hammond: The consultation
paper implies the possibility of simplification being able to
deliver some substantive changes; for example, where data and
information sharing might be necessary. While there is no specification
given, that appears to call for the additional power to amend
primary legislation by Order for the sole purpose of allowing
the disclosure of data and information. Where it has been done
before, Acts have included gateway provisions, so that information
and data sharing can be permitted in a way that Parliament has
approved following normal Bill processes. Given the suitability
of normal Bill processes in this area, why is it thought that
you need to use the RRO procedure here?
Mr Murphy: On controversial data-sharing
and initiatives the Government obviously will be minded to continue
with current parliamentary processes, but where it just makes
good commonsense that data is shared . . . There are all sorts
of safeguards in place for these proposals, including the need
for statutory consultation. Not only does the Minister have to
be assured and assure Parliament, but this Committee and the equivalent
Committee in the Lords have to be assured, and there is a statutory
consultation in the country in terms of proposed Orders, all of
which, we would anticipate from what we know, would be able to
distinguish between highly controversial and commonsense. Where
it is commonsense for business, for example, to reduce paperwork,
to reduce bureaucracy—which we all hear from our own constituencies—where
that can only be delivered through data sharing between government
departments and it is done in a sensible way, then this Order
would enable us to do that. However, where it is controversial—and
there are areas of data sharing which are controversial—that
would not be considered through these sorts of orders, where it
is highly controversial.
Stephen Hammond: I guess, as you said
earlier, Minister, one person's highly controversial is another
person's controversial is another person's controversial against
another person's common good sense—and I guess that is an
area we will tease out more from you later on.
Q36 Chairman: Perhaps we will find
that with our increased powers—
Mr Murphy: You are right to want
more information on this. As I sense, the established procedure,
through experience of deciding through this Committee and elsewhere
what is highly controversial . . . If I am wrong about this, I
welcome being told, but there seems to be a good working relationship
as to where these barriers are for this Committee and I do not
see any reason for that relationship changing as a consequence
of this proposed Bill.
Q37 Chairman: Finally, before we
move on from this section, you will have seen in our letter to
John Hutton that we were expressing a view that it is not Parliament
that slows down regulatory reform but it is Government. The previous
committee saw merit in requiring departments to publish annual
results of their efforts in this respect. Do you think that would
be an effective way of encouraging departments to remove redundant
legislation?
Mr Murphy: For the next year we
will have a version of that, on the basis that all departments
will have to publish these simplification proposals. Those will
not only be tested through this Committee, by ourselves in the
Cabinet Office, but by public, by stakeholders and the media and
elsewhere in terms of those departments properly engaging. They
will also be challenged by the Chancellor, of course, in the pre-Budget
report next year. So there will be a very, very quick system of
assessing which departments are engaging more meaningfully than
others. I think in a general sense your point is a fair one. I
think it would be a reasonable suggestion, if we can come up with
a way that does not set up an additional set of bureaucracies.
If we can find a sensible way of ensuring annual reporting on
which departments are engaging more meaningfully and proactively
on this agenda, it would be a good idea.
Q38 Chairman: They could report to
us and we could publish comments on it.
Mr Murphy: There are various ways
of doing it.
Chairman: Could we move on to the issues
around the Law Commission proposals and I will ask Doug Naysmith
to come in.
Q39 Dr Naysmith: May I quote from
the report, the recommendations of the review. One of the things
it says is ". . . that it should be possible by Order to
implement uncontroversial Law Commission recommendations, including
recommendations for the reform of common law, providing that the
usual safeguards are maintained." That brings us back to
something we have been discussing already this morning—and
you can produce your elephant analogy again, if you like.
Mr Murphy: I will try a giraffe
this time!
2 No examples could be found. See Ev 15
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