Examination of Witnesses (Questions 60-81)
MR JIM
MURPHY MP, MS
KATE JENNINGS,
MR ANTHONY
ZACHARZEWSKI AND
MR PAUL
HUGHES
13 DECEMBER 2005
Q60 Chairman: Just by way of an advert,
the Minister is answering questions to the All Party IT Committee
tonight on transformational government.
Mr Murphy: Of which you are in
the chair, Andrew. I am just glad I did not bring the wrong brief.
Chairman: Moving on to the general power
to repeal or amend primary legislation, Stephen Hammond?
Q61 Stephen Hammond: The previous
committee held the view that you need to look at the package of
changes which are being brought forward at the moment. Do the
Government's proposals, when you look at them, not widen the scope
of the RRO procedure and take it a long way to giving ministers
a general power to repeal and amend primary legislation by ministerial
order? I assume you are not going to agree with that. What reassurance
can you give us about the limitations that are going to be placed
on ministers when amending or repealing?
Mr Murphy: First of all, the minister
has got to satisfy Parliament about the suggested course of action.
There are some tests, which certainly if you do not have we can
get you, I do not know if you have it in your paperwork. Certainly
as the Bill goes through it will be much clearer as to what the
tests are. Some of them are inherited tests from the Regulatory
Reform Act 2001 and these are the intentions to move unnecessary
protection cannot prevent any individual from carrying out a freedom
or an act that they might reasonably expect, and that the proposal
has to be proportionate. Again, what is proportionate? As I understand
it, and I am not a lawyer, the phrase "proportionate"
is understood in jurisprudence in domestic UK law, in EU law and
in the European Convention on Human Rights. That is tried and
tested and there has got to be a balance between the public interest
and the rights of the individual. Those sorts of tests are there.
There is also a process test, which I have been through already,
with this Committee and the equivalent committee in the Lords
on statutory public consultation. Those safeguards and tests are
absolutely there.
Q62 Stephen Hammond: Those tests
will be on the face of the Bill?
Mr Murphy: Yes. In terms of the
proportionate target on it, yes.
Q63 Stephen Hammond: In terms of
trying to help the Committee, could you provide some examples
of where you think proposals that are likely to be considered
appropriate under the amended RRO procedure currently would not
work under the present procedure?
Mr Murphy: As we have discussed
a little already, the departmental simplification plans—the
departments are being challenged to come up with comprehensive
simplification plans in time for next year's Pre-Budget Report—once
we get all of those in place we will be able to make an assessment
as to the most likely candidates for the new Bill's powers. Some,
of course, will go through an established bill procedure, possibly
in terms of parliamentary scrutiny. As I mentioned earlier, the
ones that have already come out of Defra and DTI which are possible
candidates—I cannot say certain candidates because we have
not published the Bill and it has not been scrutinised or even
been open to that debate in any sense—from Defra at the
moment would be the Radioactive Substances Act and in DTI the
consumer and energy law, the Construction Act and the employment
law requirements. We can get more information for those for the
Committee if that would be helpful. Those are the types of things
at the moment that we are saying could come under the scope of
this new order within this new Bill. That could not have been
done in the past.
Q64 Chairman: Irrespective of how
Parliament ends up scrutinising the Bill, I think this Committee
would welcome some examples of what would potentially—we
are not holding the government to these as RROs—fit in the
new Bill that would not fit in the existing one.
Mr Murphy: Paul can fill you in
on some of the Law Commission ones as well.
Mr Hughes: Just a couple which
did not reach your Committee last time. The Law Commission did
report on the rules against perpetuity and excessive accumulations
and on the Third Party (Rights Against Insurance) Act 1930, both
of which are very different measures from what the Minister has
been describing but they were unable to come through the present
Act. We just hope they will be able to come through the new one.
Mr Murphy: I do not know to what
extent this Committee has sight of these draft simplification
proposals. Certainly if it is within the scope of the Cabinet
Sub-Committee discussing them, and if it is appropriate for this
Committee to have early sight of those, I will make sure that
happens. If it is within the etiquette of the process, I am happy
to make sure that as these simplification proposals get agreed,
the Committee gets an early sight of them.
Q65 Stephen Hammond: We would appreciate
that, that would be very useful. You mentioned in your answer
to my first question about the process test that would go through
on RRO. Do you still see the new revised procedure providing less
scope for scrutiny than that capable of being given to Bills?
Mr Murphy: The truth is that is
up to this Committee. All the safeguards from the 2001 Act will
remain, some will be strengthened and that is important. This
Committee may have a wider role, as I said at the start. Ultimately,
this Committee will decide whether the proposed orders go through
the same 60 days, the same process of consideration. One of the
assessments we have made is that the current 60, the one-size-fits-all
parliamentary scrutiny through this Committee, we do not think
is proportionate. The Committee either individually or collectively
have had frustrations about this. I think the most common example
is the Museum of London Regulatory Reform Order which was ordering
the Museum of London to take some of its exhibits outside of Central
London and go out to Greater London, 60 days on that, is that
really necessary? On some of the fire safety issues, there is
an equivalent degree of scrutiny by this Committee in terms of
the length of the scrutiny of this Committee. Ultimately, the
Government is saying, "We would like to see that parliamentary
scrutiny to be more proportionate to allow this Committee to focus
its time much more on the more important sort of highly controversial
issues". When there is a general acceptance, notwithstanding
Doug's point about unintended consequences, but when it is so
minor as the Museum of London one was—I think it was two
lines—there is no need for a 60-day consultation on that.
Ultimately, it will be up to this Committee to decide. Ultimately,
the relevant minister will say, "Make a recommendation to
this Committee". This Committee will then decide what it
wants to do with that recommendation. The Minister will have to
say the nature of scrutiny the minister feels most appropriate
and why. This Committee I assume will disagree and will still
want to do the 60 days, and this Committee will have an absolute
right to do that in every instance if it so wishes.
Chairman: You almost gave us an insight
into the Bill there!
Q66 Stephen Hammond: The Minister
is doing exceptionally well today anticipating questions I have
not even asked yet! I want to explore a little bit about the 60-day
period. You have just answered one of the main ones, how the decision
is going to be made about whether we should have the full procedure
or a shortened one. The reason I ask it is what is the evidence
that getting rid of the 60-days or shortening it would add anything
to the procedure? Is there any real evidence? All our knowledge
of the whole process is that much longer and, if I can say so,
much more time is wasted outside of that in the pre-Parliament
stage of getting things ready to be brought to this Committee
than in the 60-days. The 60-days is the least important part of
the procedure in terms of losing time.
Mr Murphy: When we talk with business
we talk about a risk-based regulatory regime which is proportionate.
There is no sense that a one-size-fits-all parliamentary scrutiny
of 60-days is either risk-based or proportionate.
Q67 Stephen Hammond: I am sure it
is being done in the sense if you want to speed things through,
but this 60-days bit is the least restrictive part of the whole
procedure.
Mr Murphy: If there are suggestions
about how you think we should speed up the more cumbersome aspects?
Q68 Stephen Hammond: I think we have
made lots of suggestions in the past: get departments to get the
stuff together and put them into Committee much more quickly than
they do, or have been doing. Educating departments in how to prepare
for getting stuff through this Committee in my view, and many
other views, is much the most important thing in speeding this
procedure up, not the actual procedure.
Mr Murphy: I will have a look,
I am sure I should have done so before coming here today. I will
have a look at suggestions.
Q69 Stephen Hammond: The reason the
60-day procedure is important is, apart from departments going
around and discussing with people they think should be interested
in sending out consultations, it is only when it gets to this
stage that members of the public get to hear about it in a way
where they can submit evidence to us about the actual piece of
legislation being proposed.
Mr Murphy: Specifically on that,
I welcome any suggestions of how you think we should go bolder,
quicker, faster on some of this stuff. On 60-days this Committee
will make an assessment as to whether there should be a curtailed
period of parliamentary scrutiny and this Committee, and its equivalent
committee in the Lords, has a final say on that. One of the things
about it is that the proposals will come forward which in themselves
will be extraordinarily minor, lifting the admin burden, and there
is a general acceptance in business that we should lift that admin
burden. In itself there is no controversy and, in fact, it is
hard to create a discussion about it at all. Individually we think
there is a good sense in not spending 60 days on it. Cumulatively
we think each of these small wins could add up to something quite
significant for business and the UK economy. Is this a question
about is it proportionate? I accept your point that we could do
more elsewhere in Government to speed up the process but here
is a defined target of 60-days and the question is, is it always
necessary to have 60 days? In reading the previous transcripts
it is my understanding that there is a sense of is it necessary?
Q70 Stephen Hammond: It gives people
a chance to put evidence in and people to hear about things. The
other point relating to what you have been saying is that it is
not necessarily the complexity of a proposal that can make controversy.
If you put the word "not" before something it can completely
change whether something is controversial or not, and it is not
loads and loads of paper restating the same thing.
Mr Murphy: Absolutely. It can
be a word which can create enormous controversy. Ultimately, this
Committee will decide, however, we are attracted to the idea of
fast-track for non-controversial proposals where there is no public
opinion on it because it seems like such a straight-forward admin
burden and an exercise that everyone would be in favour of, cutting
out some of the bureaucracy. Ultimately, this Committee will decide.
Q71 Stephen Hammond: The final point
I want to ask you in this section is about Hybrid Bills and what
proposals the Government might have to protect private interests
in this procedure?
Mr Murphy: I want to ask Kate
to say a few words about that.
Ms Jennings: We included hybrid
and private legislation in the consultation document because the
departments have specific proposals which they thought might otherwise
be suitable for RRO and they were not because they were hybrid.
We were waiting for consultation responses on this one. We were
very open-minded as to whether or not we would include it in the
final proposals. The responses from consultation where people
did comment were positive and encouraged the idea of reform of
private and hybrid legislation by this route. That is why we are
taking those proposals forward. At the moment our view is that
a lot of the extra requirements to consult the right parties and
the powers to give evidence are already there in the current RRO
route. We have statutory consultation, and that consultation must
include all individuals affected by a proposal or likely to be
affected by proposals. With the Committee structure, as you mentioned,
there is time to give evidence to the committees. It is on that
basis that we have been developing our proposals and our thoughts.
Obviously we are conscious that this is something novel and we
will be listening very carefully to the responses we get to these
proposals when the Bill is taken forward.
Q72 Chairman: Were any examples given
in the consultation of areas of private legalisation that can
be done?
Ms Jennings: I do not think there
were specific examples. For example, the City of London response
was very positive saying that they thought it might be useful.
We are aware with the Department for Transport that a lot of railway
legislation is in the power of local acts. Historically, there
was an example of a port authority wanting to make things simpler
and they would have liked to pursue their ideas by a regulatory
reform order because otherwise it would have been unlikely they
would get parliamentary time. At the time we had to say to them
it was not possible because we did not have the powers.
Chairman: Can we move on to things inside
government. I do not want to put words into your mouth but there
may be a cultural problem throughout the system. Can I ask Alison
to ask a few questions.
Q73 Alison Seabeck: You have touched
on the cultural bias towards Bills and, Jim, in the course of
today's session you have acknowledged that ministers like Bills
in preference to orders for reasons we can only guess at. Equally,
the culture within the Civil Service too seems to reflect a cultural
bias where Bills have a higher profile than RROs. Just looking
at the Fire Safety Order, which seemed to get tangled up not only
between departments but between primary legislation and RROs,
it was stuck because it was not responding to the current situation,
we had the fire strike and various things coming through at the
same time. How do you avoid this type of confusion in future and
get the Civil Service and ministers focusing their attention on
how to best push forward appropriate legislation as speedily as
possible?
Mr Murphy: As I mentioned a little
bit earlier, there is a culture. I have read previous transcripts
which said there is a culture within the Civil Service, I am not
going to question it, that is only part of the issue. There is
a culture in politicians of all parties that something must be
done. It is very rare that people say less must be done, maybe
we should not do it. It is not a good slogan, it does not want
a stick, it does not want a placard and it rarely appears in the
manifesto. It is a big challenge and it is not going to change
overnight. This Bill will shift it a bit but it is a culture change
across Whitehall both amongst the Civil Service, Ministers and
Members of Parliament. It is also the case in local authorities
and local government where, within the councillors, there is the
view that something must be done, I want to make my mark by implementing
something. There is not an equal value, or anything approaching
an equal value, for taking something off the Statute Book or putting
something on it. That will change a bit by this Bill, it will
change a bit through the Prime Minister chairing the Panel for
Regulatory Accountability. That will send a signal through Whitehall,
that is the intention. It is a cultural shift that will take a
considerable amount of time. My sense, based on nothing more than
a series of anecdotes, is that it is great for a civil servant
to be a Bill team leader, not in terms of pressure but in terms
of a CV, it is great. In the same way, "What did you do as
a Minister?" "I implemented this, I implemented that".
There is never "What unnecessary things did you take off
the Statute Books?"
Q74 Alison Seabeck: Picking up the
point Andrew made earlier about putting it in the annual reports:
"How have you helped streamline legislation and what changes
have you made", in a positive way it might help in some way.
Then they can be answerable for why they have not and then make
that point to all those individual select committees.
Mr Murphy: Yes.
Q75 Alison Seabeck: One major distinction
between Bills and RROs is that RROs require departments to finalise
their work on policy before the proposal is laid whereas with
a bill, as it goes through the processes in Parliament, there
are numerous opportunities to make amendments and changes. To
what extent does that difference explain some of the difficulties
that some departments may have with RROs?
Mr Murphy: It does go some way
to explaining it on the basis of you have got to have everything
together and that is it, whereas with a bill you can go through
various stages. You can say, "We will sort that out in three
months' time". I am not saying that is what happens, it is
not going to happen with this Bill. I was a Government Whip for
three years.
Q76 Bob Russell: That is on your
CV?
Mr Murphy: Yes. I did not whip
anything off the Statute Books. The fact is that I have been involved
in conversations and that is unresolved at the moment but we can
resolve it. We have got space to resolve it which is neither the
culture nor the process in terms of RROs or as we envisage orders.
I would rather get to a situation where all the bills are ready
rather than we allow the order structure and the culture around
orders to reflect the culture around some bills. That is a challenge
for more than just this Committee.
Q77 Chairman: Let us apply that to
this Bill. We have a Bill that is to be published shortly. We
presume that you have analysed the evidence collected before producing
the Bill. When are we going to get a summary of responses? Is
it going to be published at the same time as the Bill or are we
going to get a summary in advance?
Mr Murphy: In this case, I will
say again, we will publish the summary of the consultation shortly,
that means tomorrow, but not the Bill.
Q78 Chairman: The summary will be
provided when?
Mr Murphy: We will provide that
for the Committee tomorrow, yes.
Q79 Chairman: You are not committing
the Bill to tomorrow?
Mr Murphy: I am neither committing
nor not committing.
Bob Russell: Do we understand that "shortly"
can mean different things at different times?
Q80 Chairman: I think it is "highly
shortly". Minister, thank you very much for responding to
us in, I think, a fairly frank and open manner.
Mr Murphy: It was all off the
record, was it not!
Q81 Chairman: There is a little irony
that this could go down in the history books as being called Murphy's
Law. Thank you very much to you and your team for coming this
morning.
Mr Murphy: Thank you.
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