Consultation document and responses
27. The consultation document, which was published
alongside the review, invited comments on a number of Government
proposals. Part 1 of the document focussed on proposals to widen
the scope of the RRA and to make the procedure easier to remove
or amend legislation that the Government considers outdated, unnecessary
or too complicated. Part two contained the separate proposals
relating to the regulatory framework that were based on the Hampton
Review - Less is more.[13]
The consultation document listed a number of consultees, the
vast majority being business or industry interests. The two parliamentary
committees, ourselves and our sister Committee in the Lords (Delegated
Powers and Regulatory Reform and the Regulatory Reform Committee)
were listed as consultees to the consultation document. The consultation
period, which officially ended on Wednesday 12 October, lasted
for the duration of the summer recess. At our meeting on 12 October,
we agreed to decline the invitation to respond to the public consultation,
preferring to wait until we had seen the Bill, but decided to
request early sight of the responses to the consultation. The
Lords' Committee also decided not to respond with a substantive
response to the consultation.
28. The Government helpfully supplied us with copies
of some 70 individual responses to the consultation document on
I November. However, we were concerned at initial reports that
the Department's own analysis and summary of the responses would
not be prepared for some three months after the closing date of
the consultation period, during which time the Bill itself could
have been presented. In the event, we were pleased to see the
Department bring its publication date forward. The summary of
responses was duly published on 14 December, the day after the
Minister appeared in front of our Committee.
29. Overall, the responses to the consultation document
helped the Government to identify general support for many of
its proposals, especially those flowing from the Hampton Review.
Unfortunately, the consultation exercise had a number of weaknesses.
30. First, a number of the questions were leading
questions. The commentary often provided no context that might
inform consultees about the potential downside of some of the
proposals. For example, consultees were asked: "Do you think
it is appropriate that the Regulatory Reform Orders (RRO) should
be extended to allow the implementation of simplification measures
and uncontroversial Law Commission reports?" It would have
been helpful if accompanying this question some information had
been set out outlining not only the potential benefits but also
the potential costs or adverse effects of this proposal. "Is
it desirable that all RROs should receive the same level of scrutiny,
regardless of size or complexity?" was criticised by the
Professional Contractors Group (PCG) in its submission as a leading
question. The PCG made the point that all RROs should be thoroughly
scrutinised and that it was unacceptable for RROs to be "nodded
through". It also suggested that simple RROs should be subjected
to thorough scrutiny and the more complex ones should be subjected
to even greater scrutiny. A comment that we endorse.
31. Secondly, the document was very short on specifics.
For example, the document did not identify any specific regulations
that would be repealed or amended under the revised procedure
that could not already be amended under the existing provisions.
32. Thirdly, the consultation document contained
an ambiguity about the Government's proposals for RIAs. The text
was unclear as to whether the Government was consulting on a proposal
to replace the current requirement for detailed analysis of costs
and savings with some general assessment of the wider benefits,
which would have been be in line with the position that it was
promoting last year, or whether it was actually consulting on
a proposal to add a more general assessment of the wider effects
to the current detailed analysis. When we questioned the Minister
about this, he said he too was surprised when he saw this and
had also misread the proposal in the same way. He added that "we
are not doing it instead of, I think we have plans to do it as
well as."[14] We
welcome this clarification. We also note that a number of the
consultees underlined the case for the Government providing detailed
costs and benefits of various options.[15]
33. Fourthly, a number of the responses, especially
those from businesses and trading associations, focused on the
Hampton report proposals almost exclusively and supplied little
if any detailed comment on the Government's specific proposals
to widen the scope and power of the 2001 Act. This is not to criticise
the individual submissions, but to simply point out that by requesting
responses on specific proposals covering law reform and separate
proposals relating to regulators the responses were always likely
to be skewed one way or the other. In its submission, the Institute
of Chartered Accountants (England and Wales) (ICAEW) made the
compelling point that the consultation should have been presented
as a major Law Reform Bill, not a Regulatory Reform Bill, and
that the Department for Constitutional Affairs (DCA) and not BRE
should have undertaken the consultation. ICAEW expressed concern
that DCA would have produced a different list of consultees, those
more familiar with law reform. ICAEW concluded that the Government
should either restrict the powers to regulatory reform or pursue
its wide law making powers, but only through the DCA following
a major consultation and a Law Reform Bill. We believe that the
ICA also makes a compelling point.
34. Finally, the consultation document did not make
clear how the provisions of the Bill would fit in with the similar
provisions in Part 31 of the Company Law Reform Bill [HL] which
provides for a general power to reform company law by order.
35. As regards the summary, although we welcomed
its publication, we were surprised that the Cabinet Office did
not deal point by point with the various points made by consultees,
especially those that raised clear concerns. Instead of what would
have been a more forensic approach, the Cabinet Office produced
a general outline summary. While we recognise that the Government's
brief summary could not cover all arguments, we nevertheless noted
that the summary seemed disproportionately to highlight those
submissions that provided strong support for the Department's
proposals while giving much less attention to the reservations
and concerns found in less favourable submissions. For example,
the BRE's summary found space to even include quoted extracts
from the highly supportive submission from the BR Taskforce, which
has links with BRE, but seemed to find no space for the important
concerns raised by the Law Society, ICA and the Advertising Authority.
We are concerned that the BRE has published only its summary
of the responses, but has not published the individual responses.
Given the range of views expressed in the consultation submissions,
and in the interests of completeness, we consider that the individual
submissions be published on the BRE website alongside its brief
summary. We recommend accordingly.
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