|
UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1097-v House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE SELECT COMMITTEE ON MODERNISATION OF THE HOUSE OF COMMONS
Wednesday 28 June 2006 MR JOHN CRIDLAND CBE MR RICHARD SCHOFIELD and MS PATRICIA BARRATT Evidence heard in Public Questions 150 - 206
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Select Committee on Modernisation of the House of Commons on Wednesday 28 June 2006 Members present Mr Jack Straw, in the Chair Mr Paul Burstow Ms Dawn Butler Mr Greg Knight Mark Lazarowicz Mr Adrian Sanders Mr Richard Shepherd Paddy Tipping Sir Nicholas Winterton ________________ Witness: Mr John Cridland CBE, Deputy Director-General, Confederation of British Industry, gave evidence. Q150 Chairman: Mr Cridland, thank you very much for coming in. We are grateful to you, not least for the relatively short notice of this request. We have got 25-30 minutes, less if you answer all the questions to total satisfaction. As you will be aware the Modernisation Committee is conducting an investigation into the legislation process. What we are looking at is those parts of the process which we think work okay and, therefore, do not need changing, or cannot be changed because there are certain things that it is not going to be possible to change, although we are open to suggestions, and those, including the committee stage, where there is a developing consensus that there needs to be a change. The CBI plays an important part in the legislative process and intervenes a great deal. What I would like to ask you first off is your overall view about what works, being as brief as you like on that. As one of the participants in this process, indirectly - I think you would be called stakeholders in the current jargon - what do you think needs to be changed about it? Mr Cridland: Thank you for the opportunity, Chairman, to make some remarks. From the CBI's point of view I think I should put on record that we get a very good hearing and we are privileged to have that opportunity and have no real complaints about the opportunity we have. I think it is almost a statement of the obvious that the earlier this House can meet with stakeholders to discuss legislation and potential legislation, the better. Sometimes it is frustrating for us, and I would think frustrating for other interest groups, that we can have a very legitimate debate but the message from the other side of the table is, "Well, it is too late". Clearly a lot of the representations we make are before matters reach the House at all and, frankly, we probably expect to make greater progress on fundamental questions with ministers and departments of state before legislation has been drafted, particularly if we are making a case, as is sometimes but not always the case, where for the CBI regulation is not the right answer. Even when bills have been proposed and drafted there can be quite fundamental questions. I think this would bring me to the merits of draft bills. I think we have seen some very good examples over the years - the Communications Bill, the recent Planning Bill, the current proposals on corporate manslaughter - where the publication of draft bills has enabled very frank debate about some fundamental questions. On the other side of the equation, my own view and the CBI's view would be that the Company Law Reform Bill would have merited from being published as a draft bill. There is a point about early intervention. The second point is slightly tangential, but is of such importance to us that forgive me if I stress it rather strongly, which is that for the business community at least 50 per cent of the statutory interventions which affect business now derive from European legislation, and we have had a separate debate on that, but that is the area that is most urgent for attention because we simply do not feel that this House has the opportunity currently to intervene at an early stage to scrutinise major proposals that affect UK citizens and UK businesses that derive from another place. Q151 Chairman: You are talking when legislation is in draft, and I also assume you are talking about when a directive has been agreed and an issue then arises as to how it is transposed into British law. Mr Cridland: Yes, and both are equally important. As was debated at the time of the Constitutional Treaty deliberations, I think it is vitally important that national parliaments are involved in the initiation, the deliberation on the need for European legislation but, equally, when European legislation is being finalised it seems to me that this House plays only a limited scrutiny role and there are often occasions when business has huge concerns and can only take those to Brussels and Strasbourg because there is not an opportunity here to have that debate in more than a token form, frankly. Q152 Chairman: We are trying to deal with that, as you may know, and I am very keen, not least in my previous incarnation, to reduce so-called gold-plating or transposition in any form other than copping out. It is rare that it serves any purpose because if there is an issue of interpretation the courts do not bother about the British version, they bother about the original text. Before asking colleagues to come in, can I ask you something about the standing committee process. We have not yet reached our final conclusions but it is fair to say there is quite a lot of interest in the special standing committee process. When you say that you are frustrated sometimes when people say it is too late, would you find the special standing committee process helpful in providing you, as a very important national organisation, with an opportunity to put your concerns before a committee in advance of them going through the bill line by line? Mr Cridland: Yes, I think we would. It would make the process from a business point of view more straightforward. Without wishing to sound pompous about it, I think the CBI has a certain expertise in dealing with committees but individual members of the CBI who feel they have points they would want to bring before a committee, or small interest groups, do not find the process straightforward. To me, that would be a key advantage. Somewhat more systematising the issue would be of great benefit. Q153 Sir Nicholas Winterton: Could I ask Mr Cridland, you have indicated certain areas that you would like to see improvements in. You have talked about draft bills, pre-legislation scrutiny and earlier involvement. Our Chairman has ranged on to standing committees and special standing committees. If you had the opportunity to dictate to Parliament two particular changes which you believe would be hugely advantageous, not just to you as the CBI representing British industry, particularly big industry, what two changes would you recommend in the legislative process? Mr Cridland: The first would be the opportunity to give formal evidence when appropriate. Q154 Chairman: Oral evidence? Mr Cridland: Formal and oral evidence, to a standing committee in the way that we currently can to a select committee, the point the Chairman just made. Q155 Sir Nicholas Winterton: So you are here referring particularly to the special standing committee. We have, as it were, tried it a very few times but that does give, as you know, the opportunity of a standing committee to take evidence from witnesses such as yourself. That might be one, would it? Mr Cridland: That would be one. My second, if you will allow me, would come back to my European point. It is our view that select committees should take responsibility for the scrutiny of European legislation as well as legislation from this Parliament because we think it is no longer sensible to have a twin system of select committees primarily concerning themselves with UK legislation and the European Scrutiny Committee and its sub-architecture concerned with European legislation. If you take something of particular concern to myself, like trade and industry, like the environment, frankly those two streams need to be brought together with a structure which is within the select committee, not without the select committee. Q156 Sir Nicholas Winterton: That is rather interesting, but how would you suggest that is done? At the moment we have European Standing Committees A, B and C and yesterday, quite by chance, I happened to be chairing one of those committees on a motion relating to energy and sustainable energy. There was not a vote. There are not very often votes in these committees, and even if votes take place they are almost irrelevant. Therefore, how would you see the UK Parliament more effectively dealing with EU legislation and regulation which, as you have said, accounts for over 50 per cent of regulation introduced in Parliament here in the United Kingdom? Mr Cridland: There is clearly a role for the Scrutiny Committee as a sifting exercise but our own view, given the significance in the way you describe it of these proposals, is we need long-term scrutiny, I would suggest through the select committees with members, with a period of time monitoring particular issues and bringing expertise to bear. If I may just give an example: if you take something like energy policy, my point about bringing the European and the domestic together, there is currently a UK Government Energy Review of great importance to business, which may or may not ultimately lead to matters of legislation, but we have also had a significant change through intergovernmental co-operation in the formulation of a European energy policy. Those are two sides of the same coin and to me one select committee should be looking at the early stages at the merits of fundamental changes of principle to both UK and European energy policy so that it is well-positioned further down the road to look at the legislative consequences of that, whether they be proposals to Parliament from the UK Government or whether they be proposals in the European Council. Q157 Sir Nicholas Winterton: You mentioned a sifting committee. You are aware of the committee in the Lords that particularly looks at secondary legislation. Certainly my committee when I was Chairman of Procedure, and now we have a new Chairman of Procedure on my right, Greg Knight, we very much hoped to have a joint committee between the Lords and the Commons on this matter. Do you think that that would be advantageous? Mr Cridland: Yes, I think it would be advantageous. Often we are able to raise points of considerable importance often of a quite technical nature on behalf of British business with the relevant committees in the House of Lords. For the reasons I have suggested, that could benefit this House, namely that they have a long-term interest in a subject and build up some consistent expertise. Sir Nicholas Winterton: Thank you. Q158 Paddy Tipping: Mr Cridland, I have found the Regulatory Impact Assessments very valuable and they are a relatively new device. Clearly in many cases they will have implications for you and your members. How robust do you think they are and what consultation is there prior to the publication with interested parties? Mr Cridland: I think they have got a lot, lot better in the last two to three years and the effort by government to insist that they are up to standard and the checks and balances that are now in place have encouraged departments to take them far more seriously. Clearly there are occasions on which they only have partial information and it is important that Regulatory Impact Assessments are initiated as early as possible so that they can, in a sense, be a policy impact assessment. Sometimes a Regulatory Impact Assessment only is initiated once ministers have made a decision to propose legislation when interest groups, such as my own, may well be arguing that a more cost-effective approach to deal with a public policy challenge could be a code of practice, some voluntary initiative, some economic instrument or market measure. They need initiating as early as possible in order that they can contrast and compare different ways of achieving the objective, one of which may well be a statutory instrument. Secondly, I think it is also vital, and this does not always happen, that Regulatory Impact Assessments are updated as legislation, if we do end up with legislative proposals, changes. If during the course of deliberations in this House there are quite significant changes to the nature of the proposal, and we have seen that, for example of interest to me, in the last few weeks on the Company Law Reform Bill, then the Regulatory Impact Assessment dates very quickly. I am not suggesting that they should be changed after every amendment but I do think at the moment they are slightly static and they need to be a dynamic tool. Q159 Paddy Tipping: Coming back to the Company Law Reform Bill, and you have mentioned it twice, was there ever any discussion with you whether it should be a draft bill? Did you make representations on that point? Mr Cridland: We did argue it should be a draft bill. The view of the department concerned was given it had resulted from a five year company law reform exercise all stakeholders were entirely bought into this. I do not dissent from that view that there was a lot of stakeholder building prior to the bill being published, but the bill contained some significant deviations from what had been previously agreed, some new and important clauses, for which there were perfectly legitimate reasons why they arose late, that would have benefited greatly from being in draft form and the fact they were not in draft form is why I think the bill has needed such close scrutiny. It has also, in a sense, created a relationship issue because by accepting the principles of the Bill, which the CBI did, and still does, but then needing to make representations to both Houses on the detail of the bill, it raised the question whether we were changing our position. We were not changing our position, we were arguing that some very important clauses did not live up to the intentions of the bill which we were bought into because they were late additions that had not received previous scrutiny, and all of that means a draft bill would still have been a good idea notwithstanding the relationship of stakeholder building which had been very effective previously. Q160 Paddy Tipping: Finally, the Company Law Reform Bill is in committee at the moment. Can you give us an insight, if you want to make changes in company law, how are you doing that? Who are you asking to put amendments down? How are you lobbying for changes through the standing committee process? Mr Cridland: Given the current standing committee process, we rely upon making our position apparent to all members of the committee through written representations. We help interested members of any political party propose amendments, we give assistance with that if they wish it. We seek to circulate amendments that we think have particular merit and associate ourselves with them. Inevitably, we work particularly with the front bench spokesmen of all the major parties. The CBI quite clearly is a non-party political organisation, so we always seek to be open, transparent and equal in the attention we give to the different parties represented on the committee. Q161 Ms Butler: I am just wondering, obviously if we had a special standing committee then we would not see the need for more post-legislative work, which we do not use currently to its greatest effect, I do not think. How do you think it works at the moment and what improvements would you suggest in post-legislative work? Secondly, on the information that accompanies bills and how bills are presented, you have already mentioned the RIA as seeming quite static, where do you see the role of technology? How do you see technology playing a part? The information that is available has improved greatly over the years, and on the internet, but where would you see any further improvements? Mr Cridland: On the first question, inevitably we all have to be more concerned with what is happening than what has happened when the major decisions have been taken. That is the law of human nature, I guess. However, it is important that we review how things have progressed, the impact. I think there are merits in the case for sunset clauses in some cases so that we build into the process a chance to stop and see whether something has achieved the public policy objective or whether it needs amending. We have not yet touched on the issue of statutory instruments and secondary legislation but, inevitably, given the volume of statutory instruments it becomes much more difficult even for an organisation with the CBI's modest resources to follow everything that is going on and there is a much patchier performance - I am not being critical - by departments of state in consulting with stakeholders, in involving the CBI with secondary legislation than with primary legislation. On the second point, looking at the Coroners Bill - I had not seen it before - the bill was presented on one side of the page and the guidance on the other side of the page. I felt that was a very helpful innovation because often for those who are not as expert in the deliberations of this House the bill itself is quite inscrutable and the guidance appears quite disconnected. I think that is an attractive proposition. Having read the deliberations of this Committee thus far, I know that there has been discussion of updating bills with amendments so that they are presented together so people can see what amendments have been made and I think that would be very helpful. When you have a complex piece of legislation with government amendments and opposition amendments and discussions as to which of those amendments will be accepted it is very difficult for outside bodies such as ours to make sure we are working on the most up-to-date text. I think in those ways things could be much advanced. On technology, clearly we would want to take full advantage of the opportunities of modern technology but, forgive me, I do not have any specific ideas that I would want to put to you. Chairman: Sorry, time is sadly passing so if colleagues could be reasonably brief and responses ditto. Q162 Mr Sanders: Do you think there are enough opportunities to question whether, in fact, a piece of legislation is needed at all? If there are not, can you think of any mechanism that ought to be available in order that an outside body could seriously question the need for the proposal? Mr Cridland: We undertake that process prior to legislation being proposed. In our representational work our view would be if there is a challenge on whether something is necessary we need to conduct that with ministers during the Green Paper stage, sometimes even at the White Paper stage. When matters come to this House we are dealing with the implications and the technical detail and I think it will always be thus. I would revert to my comment about Regulatory Impact Assessments. I think at the time when ministers are commissioning civil servants to look at options, that is the stage when we will encourage government to be clearer in demonstrating that it has looked at alternatives to regulation if they can achieve the legitimate public policy purpose. If that is not resolved at the beginning, the further we move down the process it becomes too late to completely go into reverse gear. Q163 Sir Nicholas Winterton: Could I just ask one very quick question relating to the last question. We have raised the concerns that many people have about the fact that so much primary legislation includes secondary legislation powers and, of course, that means at the primary stage there are important areas that are not open to debate because ultimately they are subject to secondary legislation statutory instruments. Statutory instruments cannot be amended. To all intents and purposes statutory instruments cannot be rejected. What is your view, therefore, on the increasing use by successive governments of secondary legislation and how would you amend the current procedure? Should secondary legislation be subject to amendment? Mr Cridland: That is a very complex area and, forgive me, probably at the limits of the CBI's competence given we would not claim to be experts on parliamentary procedure. Let me say this: the business community does like clarity on the face of the bill. Frequently in our representations during the course of legislation we are saying that companies want the government of the day to make clear its intent. We are uncomfortable when powers are taken without government having made clear how those powers would be used. Our problem is at the beginning because, as you say, it is too late when the secondary legislation comes through and if it is then addressing a matter of quite fundamental substance our ability to influence that is very, very limited. Our objective, therefore, is to avoid situations where government ministers are given powers without it being explicit how those powers would be used. On the second question, yes, I think there are merits in the House being able to amend secondary legislation but I come back to my comment that I am at the limits of my expertise and I would not want to go further. Chairman: Mr Cridland, thank you. You have shown great expertise and we are extremely grateful to you. Thank you very much indeed. Witness: Mr Nigel Stanley, Head of Campaigns and Communications, Trades Union Congress, gave evidence. Q164 Chairman: Mr Stanley, you have had the benefit of hearing our line of questions to Mr Cridland from the CBI. The questions are the same basically because what we are looking at is whether, and in what way, the legislative process should be improved, in this case from the perspective of the TUC. Mr Stanley: I think it is quite hard for outsiders to answer all the lines of question to date. To some extent our job is to understand the system as it is and then work out the best ways of influencing it. The more the system changes, the more we will look for different ways to influence it. The answers to all of your questions are we are going to want more points of access, more opportunities to influence the decisions that we do not like and we do not want to see the people who disagree with us having points of access to decisions we do like. To some extent, we judge the legislative process by its outcome rather than by the procedures it goes through. In general, I associate the TUC with the views of the CBI that the more pre-legislative scrutiny there is, the more debate, the more opportunity there is to put our point of view, the better we like it. Q165 Chairman: I understand the point you are making but the issue is, is the current system a wholly rational one, has it reached a state of grace that does not require any further amendment, and I think the answer to both those questions is no, in which case how do we improve it so Parliament can do its job better, and the Commons can, so we are scrutinising legislation more effectively. As part of that, what opportunity is there for members of the public and for important national organisations, in this case the TUC, to make an input which has better effect than it does at the moment. On issues like special standing committee Mr Cridland was pretty clear that he would like something approaching that process. Is that also your view? Mr Stanley: Yes, on the kind of bills where it is suitable. One has to talk about the politics of different bills. There are some bills where there is really a lot of debate about the technical detail, they are very, very complicated, and others where there are much more flagship political decisions where I suspect that all will be reverting to some of the political arguments about it. Bills like the Company Law Reform Bill, which is hugely complicated, hugely technical, lots of room for debate about how best to do things, are an ideal opportunity to do things, but if you take something like the minimum wage, which was highly controversial but of great interest to the TUC, it may not have been quite so appropriate, it was a relatively simply procedure, a debate about whether it was a good thing or not. There have to be some horses for courses. The more complicated, the more technical, the more there is a desire by everyone to get some degree of stakeholder consensus about the legislation, the more appropriate those kinds of procedures become. Q166 Sir Nicholas Winterton: Can I ask you, Mr Stanley, the same question I asked Mr Cridland, the first question. If you had the opportunity of dictating changes to our legislative process, and I know you have associated yourself very much with a great deal of what Mr Cridland said on behalf of the CBI, what would those two changes be to our legislative process to make it more relevant, to make it more transparent, to make it easier - to use the Chairman's word - for stakeholders to influence legislation? Mr Stanley: I think the first change would be exactly the same as Mr Cridland's: more pre-legislative scrutiny, more special standing committees, more opportunities to present evidence to parliamentarians before they start getting into the detail of the Bill. The second change is almost more of a cultural change. The impression we get is that very many standing committees on bills are very ritualised, there is not very much in the way of real debate or real change. We do not put a lot of resources into influencing things at the standing committee stage because it is very much the government wants to get its business through, and I understand that, and I have seen it operate in governments of different parties. Sir Nicholas Winterton: Can I just interrupt for a moment. One of the sadnesses, and I witness it because I chair standing committees, is that the government of the day, and I am not levelling any greater accusation against the present government than I would a previous conservative and unionist government ---- Chairman: You can if you want! Q167 Sir Nicholas Winterton: Do you feel it is unfortunate that governments seem to believe that the bill is presented to the house as a virility symbol and that it must not be changed and, therefore, even if excellent amendments are tabled, sometimes by their own members let alone opposition parties, they are reluctant to accept them? Mr Stanley: I would agree with that but I would also add the caveat that perhaps oppositions need to resist the temptation to shout "u-turn" every time such a change gets made in standing committee. Chairman: That is a very good answer. Sir Nicholas Winterton: One which I did not expect! Thank you. Q168 Mr Burstow: Can I just pick up on the point you were making about standing committees not being an area where you would invest a great deal of your effort in terms of trying to influence the outcome of the process. Could you talk us through, from your perspective, where you generally regard the best points of influence to be, where the best points of leverage are from your point of view in experiencing the process. Mr Stanley: I would say they tend to be directly with government because it is government that draws up the bills, it is government that wants to get them through. We are a big international organisation but we have limited resources and the sheer quantity of legislation, and that is not a criticism, it is just an observation, means that we cannot follow every bill through every process. It is easier to have a structured conversation with government and with ministers about what they want to get through the bill so, on the whole, that is where we put our efforts and where we hope to make the most difference. There are some issues which become live issues amongst MPs where you sense that there is some point in doing that. To give an example from recent deliberations, I would say in the debate about smoking in the workplace, where we had a very clear point of view, there was clearly disagreement amongst MPs, it was not much of a party issue. We argued all along it should be a free vote, and eventually it became one, so we did put quite a lot of effort into that, but that was not so much in the formal processes, it was more raising it as an issue and getting the sense that something must be done which is usually the prerequisite before there being any legislation. Q169 Mr Burstow: Just to follow that up one step further, I assume your remarks are primarily addressed to procedures in the Commons and the process in the Commons? Mr Stanley: Yes. Q170 Mr Burstow: Obviously that is what we are focusing on. But do you take any different view about attempting to take part in and influence the process when it reaches the Lords' stages? Mr Stanley: The Lords has a different atmosphere, there is less strength of party whipping. It is sometimes easier for the Executive to change things in the Lords because it does not get into this macho, u-turn type stuff. I do not want to give the impression that I do not buy into the idea that everything in the Lords is superior to the Commons and everyone is a great expert, there are many debates that do not always bear out that view in the Lords, but sometimes there is definite expertise and you can get a real debate amongst people who have a lot to say about something with some deep personal knowledge and that can make some difference at the margin. Again, they tend to be about the more technical aspects of bills rather than the more political ideological elements of bills. There is something that can be learned from that. The Moses Room procedure is rather interesting where you have perhaps got time on less controversial issues with people with real expertise to spend quite a bit of time looking at something in a rather constructive way than the ritualistic way you get sometimes in standing committees. Q171 Mr Knight: Is what you are saying this, in effect, that the publication of a draft bill and the pre-legislative scrutiny process should become the norm rather than the exception because ministers are willing to be more flexible and there can be no accusations of a u-turn because nothing is set in stone? Mr Stanley: I am not sure I am going to say the majority. I am going to say that I think there are bills where it is particularly appropriate and it is useful when the government does that because they are almost signalling, "This is a bill over which perhaps we are prepared to make adjustments, we do not necessarily have fixed ways of doing it. Perhaps the objectives are clear and rather consensual but there is lot of room to debate about mechanisms". There are some bills, short ones, highly controversial ones, where that would be less appropriate. There has to be some judgment. My worry would be that if it was a rule that applied to all of them that the rather ritualistic nature of standing committees might then start to apply to some of these other procedures as well and there would not be the signal there is at the moment, which organisations like the TUC find really useful, that this is somewhere we can make a difference, this is somewhere it is really worth putting some of our resources into. Q172 Mark Lazarowicz: It strikes me that if we were to end up with a much more open system where organisations like your own could get involved in the consultative processes and put a lot of their views to us, there would be a panic amongst your organisation and others as to how they would respond to those offers of consultation and involvement. Presumably you would have to prioritise how you got involved and you would have to make changes. To do that you would require good information about what is going on. I would be interested in knowing first of all what kind of information you would find particularly useful, if there is more than we provide at the moment, to allow you to decide where best to get yourself involved in the process of consultation and, in that context, what is your opinion of the current information that accompanies bills, Explanatory Memoranda and all the rest of it, do you find that useful and what else could be provided? Mr Stanley: I think there are a number of questions bundled up there. First of all, you are right, it is very hard even for organisations like the TUC, and I would guess the CBI, to really understand everything that is going on that might have some implications for our concerns. To some extent, asking for more information to be published is possibly not the right thing. It is making it useful, making it easy to find, easy to search. The ability to search is so much more powerful than the ability to just order an enormous number of documents and have to go through them. In general, we find Explanatory Notes helpful. Legislation can be very hard to follow, particularly when it refers to changes in previous legislation and you have to try and find that, and that is not always easy to do. The more things that are in plain English, the better. The easier it is to trace the changes in bills as they go through the parliamentary procedure, the better that is. All of these things are very helpful to us. Q173 Paddy Tipping: Could I ask about RIAs. Clearly they have got implications for your membership. I find them helpful. Do you think they are evidence-based and are you involved in the formulation of the RIAs? Mr Stanley: We are. I think we would agree they are getting better but we have had some severe problems with them in the past. The classic one that we always cite is the original Regulatory Impact Assessment around the European Working Time Directive and the limitation to 48 hours as the average working week. The Regulatory Impact Assessment worked out the cost of this by assuming that employers would continue to have exactly the same numbers of hours of labour and would employ extra people and pay them exactly the same, which we thought was an extremely pessimistic view of the ingenuity of British management that they could not think of some way of increasing their productivity. That figure is out there, it is regularly quoted as a "This is the cost of red tape in Britain" figure when actually the evidence base for that was very hard. A lot of these things are very hard to assess. Clearly there are some cost implications in a measure like that but what they will be and how ingenious people will be in responding to them is very hard to capture. We are not against RIAs but we are sometimes a bit sceptical about them. Often it is much harder to quantify the benefits that regulations have as well and to put a monetary figure on those, so they do not tend to get put into the equation. Sometimes there is also confusion between the cost of implementation and the cost of the policy. If we take the minimum wage, there is clearly a cost in paying people more money but the actual cost of implementing it is not very bureaucratic, it is just a simple wage you have to pay, compared with, say, the working time rules where there are records to be kept, it is really rather complicated, it is quite difficult for unions to understand and for managers to understand because it is not a straightforward, simple rule. Differentiating between those two costs, the cost of actually implementing and the cost of administering, is often a missed opportunity in RIAs. Q174 Paddy Tipping: But you think they are improving? Mr Stanley: We think they are getting better. We are not certain they have got it yet. Chairman: Mr Stanley, I am one of the people who quoted the cost of implementing the Working Time Directive in that form so I think it is a pretty pukka figure but, anyway, we will not go down that route. Q175 Sir Nicholas Winterton: Could I just ask Mr Stanley whether he would support the CBI - I am not sure he has indicated - in their view that secondary legislation could and should be subject to amendment but increasingly secondary legislation forms part of primary legislation and when secondary legislation is introduced it can add considerable burdens and regulation to existing legislation. Do you think it should be subject to amendment? Mr Stanley: I think we have some strong sympathy with the idea that a lot of secondary legislation, as I think you said in your earlier question, is becoming a bigger feature of bills and has been for some time, it is not associated with this government in particular, and it does not often get enough scrutiny. I would be a bit worried about having a simple amendment stage because you could end up with some political dissatisfaction being expressed through an amendment to a set of regulations which then become very hard to implement because they would be technically unsound in some way. I think we should have a simple, let us have a debate where we can have amendments to it without getting an uprise, but if you have a full parliamentary procedure with further chances to scrutinise then you may end up with simply having the legislation again and bottlenecks and all kinds of things. I am not sure there is a simple solution to this problem but there is a problem. It may be that you should borrow something from the trade union movement which is to refer things back sometimes if you think the government has got it wrong and say to the government, "You need to redraft this, it does not meet our desires". Q176 Sir Nicholas Winterton: That could be achieved by our sunset clause which, again, the CBI did mention. That means that after, say, two years, three years, five years, the particular aspect of a piece of legislation could automatically end and be reviewed. Mr Stanley: Again, the general support for this is from those who are generally opposed to regulations in the first place, which I am not sure I want to associate the TUC with. I think it is a horses for courses issue. There may well be a case for some regulations to have reviews, just as in the way there is a case often for putting positive agreement so there has to be a formal vote on regulatory changes as well. I would not want to generalise too much. If you had a sunset clause on everything, after a few years there would be so many reviews of, frankly, very uncontroversial sunset clauses you would end up with another bottleneck, another huge amount of monitoring for people trying to following parliamentary business and you may end up clogging your arteries with sunset clauses after a while. Chairman: Just on this point about reference back. The problem with reference back is at the moment you have got a procedure which is either yes or no, and if it is no then the thing has to start again. Just to tease out what you are saying, Mr Stanley, it might be possible to have a halfway house where it is not that the Commons has rejected a piece of legislation but it could, for example, delay it and that may be something we need to look at. Personally, I think there are some quite serious problems in the way of amending regulations just in practice, being responsible for volumes of these things. That is a matter to be discussed. Q177 Sir Nicholas Winterton: 1,500 statutory instruments in the course of a year. We are already faced with that. Mr Stanley: Yes. Q178 Paddy Tipping: Could I ask about European legislation. How do you think we can deal with that? How can that be improved? Mr Stanley: In general I think we take the view if it is European legislation we expect it to be implemented and on very much of it, in some sense, having a long debate is something I can see the point of but it is not something that we would choose to deploy our resources or be involved in because the outcome of it is still going to be whether it follows the European requirements or not. The idea of having the same MPs gaining expertise on the domestic and the European implications of things, which was discussed earlier, is one that inherently makes sense to me. Giving MPs a chance to build up expertise so that any measures are going to people who do know something about what they are scrutinising must be a good thing. We do not put very much effort into following the path of European legislation. Again, we might talk to government about how they intend to do it but it is not somewhere where there is much opportunity for people who are not parliamentarians to have much of an impact on what will happen, so it is not something where we put much of our resources. Q179 Mr Sanders: At the European level do you not try and influence questioning, either the need or desirability for a certain course of action or, indeed, to propose a certain set of regulations given the amount of European legislation that relates to employment issues that would impact on your members? Mr Stanley: Absolutely, yes. We do put a lot of resources into work in Brussels, and to a lesser extent in Strasbourg. That is where the key decisions are taken about European legislation, so that is where we put our limited resources. I would agree with your evaluation that we are quite good at it and we have made some significant differences to people at work from the kind of work we have done at the European level. Chairman: Thank you very much indeed. We are very grateful to you. Memoranda submitted by The Law Society Examination of Witnesses Witnesses: Mr Richard Schofield, Policy Manager, Business & Property Law, Law Reform Team, and Ms Patricia Barratt, Solicitor, Clifford Chance, and Member of Law Reform Board, The Law Society, gave evidence. Q180 Chairman: Mr Schofield, Ms Barratt, thank you very much for coming. My notes say that you are the Policy Manager, Business & Property Law for the Law Reform Team at the Law Society. Mr Schofield: Yes. Q181 Chairman: Ms Barratt, you are a solicitor at Clifford Chance and a member of the Law Reform Board of the Law Society. Ms Barratt: That is right. Q182 Chairman: You are both very welcome. We are very grateful to you for coming here. You have been listening to the line of questions. In the written evidence you put before this Committee back in March, at paragraph 3.4 you set out the basic questions which have always been asked and quote the Hansard Society questions which should always be asked and say: "However a standing committee in its present form may not be the best way to answer such questions. At a minimum, evidence from potential users is likely to be necessary". As I said to earlier respondents, we are interested in making special standing committees the norm, and calling them something different by the way, they will be called bill committees, because it is completely non-descriptive, they are not standing committees, they are temporary committees. Personally, at the Home Office I had experience of a special standing committee on a very controversial bill, the Immigration and Asylum Bill 1999, and the process worked well and it did give the government, it gave me, an opportunity to change the legislation, and in one case to get off the hook without it being too embarrassing, it made it a more rational process. Can I ask you first whether you think that is a sensible way forward. Mr Schofield: Yes, absolutely. We are quite happy to stand behind the Hansard Society's quite detailed critique of current standing committee processes in certain situations and to advocate the greater use of special standing committees as being the norm. There are a number of advantages to that. First of all, the wider evidence gathering powers and the ability also, to tie into some of the comments made by other commentators this morning, to use the information evidence contained in RIAs to the very best effect because they can then get a critique of that information evidence from experts. It also perhaps facilitates the division between what we might call political differences within a committee and technical areas which need improvement. With the greater ability to call on expert advice, and perhaps even with some very complex bills to consider secondment of expert advisers to advise a committee on an ongoing basis throughout their deliberations, it might take some of the heat out of the battle so that you can differentiate the political from the technical to greater effect and end up even with legislation which the business and professional community would see as robust and workable whether or not they agree with it in principle. Q183 Chairman: Could I ask you each generally the key question. You have talked there but generally how do you think in other ways we should improve the legislative process? Mr Schofield: Leaving aside special standing committees for a moment, from our perspective there have been a number of improvements in the last few years: greater use of draft bills, greater willingness to use carry-over, although we think that could be extended for certain types of bill but we would not see it as a panacea that it should be seen as the norm necessarily, it should be used for certain types of bill. A running theme from this morning seems to be the Company Law Reform Bill and my organisation has been working on it for about nine years and already it is an extremely complex bill, very long. It is a generational bill, once every 20 or 25 years we do it, and everybody thinks it is a good idea. It would be a shame if that bill turned into a less good act than it might otherwise have been for the sake of an extra period of deliberation on the technical issues. That would seem to me to be the kind of bill which you could say almost as a norm should be subject to carry-over but other bills we would be less convinced about. There are a number of other areas, and I am just trying to pick up on some of the points that have already been debated to save some time. For instance, in relation to secondary legislation, again we would see distinctions between types of bill and different types of secondary legislation. There are some bills which give governments the power to do things but it is clear that the government would only do that thing in response to some contingency which has not yet arisen, in which case it would seem perfectly legitimate to defer the publication of the secondary legislation. However, there are other types of bill where the government definitely intends to do something and the means by which it is going to do it will be contained in some later secondary legislation but that is imminent. An example, for instance, that is currently being debated in terms of secondary legislation would be something like the implementation of Home Information Packs contained in a Housing Bill that was passed in November 2004 and the regulations have just been tabled. It seems to us that the bill cannot work without the regulation. It was always intending to do it within a fairly strict timetable. To have the draft regulations available at the time of the bill, or at least a fairly detailed outline of what those regulations were likely to contain in terms of the content of the pack, the legal status of the pack and the training of inspectors, it seemed to us would not have been beyond government and should have been envisaged at the time and would have allowed better scrutiny of the bill itself in terms of its desirability, but also allowed at least some scrutiny of the kinds of regulations which are going to be needed to implement that bill. The point about secondary legislation is more use of either draft or detailed outline at the time of publication of the bill would be very useful for everybody. We do take the point that for regulations which do need to be published in the future then some mechanism by which they can be more adequately scrutinised and amended is needed. Q184 Sir Nicholas Winterton: And amended? Mr Schofield: Yes, if necessary. That would probably be desirable from both sides in certain situations. Just to touch on sunset clauses, where legislation has been passed on the basis that government might wish to do so if certain contingencies arise, and that is implicit in the bill, if those contingencies have not arisen within a certain period of time then it is right and proper to review whether or not that legislation is still needed and that power is still needed. To that limited extent I think sunset clauses could then be fairly useful. Ms Barratt: I would agree with Richard and previous speakers that more emphasis on the draft bill and pre-legislative scrutiny is very useful and very beneficial for the development of the bill itself. Obviously it enables people who are going to be affected by the bill to give their input, not just on the policy, et cetera, but on the actual wording of the bill, which is much more difficult for them to do at a later stage. Again, it is not such a great political issue at that stage. I have also got a couple of practical points which I think with very minimal action could have quite a good effect. A small point is about notice of amendments. Notice of amendments are published in the Order Paper but that is only available to us in written form, it is not really very ---- Q185 Chairman: Friendly? Ms Barratt: Yes. It is difficult to obtain. They are not put on the internet until the day before. They are very late in being put on. It is very difficult if you do not know what amendments are going to be discussed. Yes, they are not presented in a very user-friendly way. It would not be very difficult to do a comparator which would show "This is what it would look like if these changes were brought in". It is the click of a button really. Q186 Chairman: Can I just say to you, Ms Barratt, we absolutely agree with you, which is the reason why everybody around the table is nodding vigorously. We are very pleased to hear that because we will quote your evidence in support of what we believe in any event. You are right, everybody is very frustrated by this and it is doubly frustrating because internally, both within government departments and in the Clerk's Department here, the amendments are in electronic and intelligible form but they are then transcribed into archaic and unintelligible form to ensure that members of the public do not get too excited. We agree with you about that. Thank you for raising that. Ms Barratt: Also, secondary legislation, it would be really good if it could be published on the date when it was laid before Parliament. We have had some instances where it has been available to the public after it comes into effect. Q187 Chairman: Could you give us an example of that? Not now, but if you write to us. Ms Barratt: The Public Sector Regulations, which implemented some EU Public Procurement Directives, and have quite major effects on all business, they kept saying were going to be published on the OGC website and they were not being published. Q188 Chairman: What was the reason offered for that? Ms Barratt: I do not know. They just kept saying they were going to be published and then they were not. Q189 Chairman: This was after the Directives had come into force? Ms Barratt: They had to be brought into force by 31 January. I think they were laid before Parliament, as I remember, on something like 6 January. I cannot remember exactly when but we did not get to see them until certainly weeks and weeks after they had been laid before Parliament. Q190 Chairman: Could you let us have some supplementary evidence on that in written form and I will ensure that we ask the OGC about that. Ms Barratt: It is not an isolated incident. Chairman: No, but it is a good example. We will ask them what happened and why because it seems to me to be unacceptable. Q191 Sir Nicholas Winterton: This is directed to Richard Schofield. In your evidence in 4.1 under "Report Stage and Lords' Amendments", you say: "For example, if a substantial amendment" or I presume a substantial number of amendments, "are introduced by government at report stage there could be a requirement to reconvene the standing committee to consider [that important amendment or series of amendments] and in appropriate cases to receive evidence from outside bodies." Is that something you feel very strongly about because, of course, it would have quite an impact upon the way we legislate? I believe there has been one occasion when a bill has been referred back to a standing committee, is that not right, but it certainly is not a very common practice. Do you feel strongly about it? I personally believe it would make the government in producing legislation think more deeply about that legislation before they publish it if they then need to introduce very important amendments or tranches of amendments. Would you like to explain your position on that? Mr Schofield: Yes. The point we are trying to get to there is if governments are going to substantially amend a bill to the point where the effect of the bill would be very considerably different from the effect that it would have had had it remained as it had been seen by the standing committee in the first place then it seems to us that there is a strong case to refer it back for detailed scrutiny, including the taking of further expert evidence from people outside Parliament who are going to be affected by that legislation, because in effect the initial scrutiny of the legislation has taken place on a completely different basis from what the legislation is going to look like if enacted. In terms of the legitimacy of the scrutiny process as perceived by people outside Parliament, to go through a lot of time and effort and deploying quite significant resources often to giving detailed evidence to a committee, for the legislation to then change its very basis without the opportunity for further input from outside bodies does question the legitimacy of the scrutiny process. Q192 Sir Nicholas Winterton: Earlier in your paper although you are somewhat critical of the standing committee stage, you still believe that there is a good purpose in the standing committee stage of a bill? Mr Schofield: This goes back to the point I made a little bit earlier. We would prefer to see something more like the special standing committee process become routine. There are deficiencies in the current standing committee process. We do make detailed representations often but it is seldom with the expectation that it is going to generate significant amendment even on very technical points for all the reasons outlined by the TUC. It is very difficult, or certainly governments feel it very difficult, to give ground at the standing committee stage even on very technical points. For the reasons I described earlier, perhaps introducing new mechanisms through special standing committee, which might make that a little bit easier for governments to bear, is probably a reasonable way. Q193 Sir Nicholas Winterton: Mr Schofield, while I accept what you have just said, that a special standing committee can play a very important role and there is a less political macho stance at that particular stage, I put again to you is there not also good reason to continue to have the line by line, almost word by word, scrutiny of legislation to ensure that it is actually going to achieve precisely what it says it is going to achieve? Sometimes in standing committee these debates can reveal that the actual current text is not going to achieve what the government is seeking to achieve. Mr Schofield: I completely accept that. The work done by standing committees in detailed debate and analysis line by line is extremely valuable. If it has the outcome of actually changing the bill for the better as a technical piece of legislation, which our experience is that it does not even after you have had a robust debate of the issue in committee, it already is a good element of the process, and it could be an exceptionally useful element of the process, but there is a gap and that gap is created by the political stand-off in the committee. Q194 Mark Lazarowicz: Your paper is very helpful indeed. I was interested particularly in some of your comments in your preliminary points in relation to the reform of legislation, the difficulty accessing legislation and the various stages in the process. If your organisation and your members cannot find their way round then it does strike me that this is a problem to a much greater extent for other organisations and the general public. How important do you think tackling some of these issues is before we start opening up some of our other procedures in the way that has been suggested? Mr Schofield: In some senses I think they are parallel projects rather than things that you need to do one before the other. Some of the debate we are having here about how do you improve processes through do you continue standing committees, do you have more select committees, in the short to medium-term are going to be issues more for parliamentarians themselves and, if I might use the phrase, fairly sophisticated organisations like our own. Those changes could be made now to very good effect for all concerned. In terms of the presentation of information and material with the ambition of increasing participation by people who are not normally participants in the parliamentary process and to remove some of those barriers is a complementary project but not one which needs to take place before the other changes. It is important that those two issues are not conflated as being exactly the same issue. The increasing participation of people not normally involved is an important separate project, but in the short-term there are very simple things, some of which Patricia has already described, that could be done which would assist our deliberations very quickly and very easily, and those actions should be taken straight away. Ms Barratt: I was just going to say about accessing legislation. It is relatively easy for lawyers to access amended legislation because we have databases which factor in all the changes and keep it nicely up-to-date, but for the general public that is much more difficult so they do not have an access to up-to-date legislation. Q195 Mr Knight: Do you think there has been a Whitehall trend in recent years for officials to include in bills a wide regulation-making power which is not strictly necessary for the purpose of the bill and the idea is to allow departments to make other changes later on down the line without then having to seek further parliamentary approval? Ms Barratt: Yes. Mr Schofield: Yes. Q196 Mr Knight: And that should be deplored. Ms Barratt: Yes. We were worried about the Legislative and Regulatory Reform Bill which seemed to do exactly that, which gave powers to make more or less any secondary legislation. We did think that perhaps it might be possible to set aside some parliamentary time in the session that was devoted to keeping the law up-to-date, keeping the law effective, since that must be one of the functions of Parliament and if there was perhaps time set aside for that it would not be able to say, "We do not have time to do that" and Law Commission Bills would not take ten years or so to get on the statute book. Chairman: There is a big problem about Law Commission Bills. Q197 Mr Knight: I have one other question which is unrelated to that last question. On deferred divisions you appear to be in favour of deferred divisions in committees saying it would be advantageous to witnesses and "a change would almost certainly same time". Is there not a big downside though in that if committees use the deferred division procedure what might happen is the government of the day would merely seek to have a quorum during the whole of the proceedings and then members would turn up en masse at the end of the day to vote, therefore leading to a situation where we have less scrutiny? Mr Schofield: Yes. In practice that might well be the effect of it and that would be regrettable. The comments that we made about how the process could be improved are all predicated on the assumption that parliamentarians are committed to participating in scrutiny at a high level and a detailed level. Q198 Mr Burstow: I just wanted to pick up on your comments about departmental select committees and their contribution to this process. You refer in the paperwork to the example of the inter-relationship between the draft Mental Health legislation and the Mental Incapacity Act and concerns about how those two pieces of legislation might interact one with the other, which certainly I know during the passage of the Mental Incapacity legislation was an issue, particularly during the draft stage of the bill. In process terms what do you think could be done differently to allow those sorts of concerns to be addressed or is it something that has to be dealt with outside of the parliamentary process before we even get to this stage? Mr Schofield: If there is a fault in the process the chances are that the fault is going to have occurred right at the very beginning of the deliberative process within government and within departments. It would be quite difficult to remedy that fault purely by change to the parliamentary process. I have no particular solution in mind. To some extent, any change in the parliamentary process would need to reflect a change in practice within government departments as to how they create adequate liaison channels where there are proposals for change which cross over departments. I have no particular recommendation. Q199 Ms Butler: I want to thank you for your paper, it is very informative, and the post-legislative overview is very good as well. I want to concentrate on the "Parliament and Public" section. You have already mentioned access to the internet and so on, which we all agree with, as the Chairman has stated, but you mention digital television and I wonder if you could talk us through your thoughts around the use of digital TV and how you think Parliament can make better use of that. Also, you briefly mentioned something about your lawyers' database that you keep up-to-date with regard to legislation and I am just wondering how exactly you do that. Ms Barratt: The database is a commercial product which is run by external providers and many lawyers sign up to. They track all changes and put them into the legislation, so as soon as it is passed they physically put it into the legislative database. Q200 Ms Butler: What product is that? Ms Barratt: It is a Butterworths' run one, Nexus. Mr Schofield: If you want more information on that I am sure we can provide you with information and a demonstration of how it works. Ms Butler: That would be great. Q201 Chairman: Our clerk is saying we should get the library, who run our website, or lead on the website - it is a Byzantine organisation - to co-operate with you and Ms Butler about that. Mr Schofield: We would be happy to do that. Chairman: Thank you. Mr Burstow: My understanding is that is already available in the Lords and Members of the Lords do have access to the Nexus database in respect of the law but it is not generally available to Members of the Commons, I understand. Q202 Chairman: It is something we need to follow up here. I am sorry, I interrupted you. Mr Schofield: I was going to refer back to the point about digital TV. What we were looking at there was the expansion of access to different forms of technology amongst different demographic groups. Access to the internet affects certain demographic groups and there is clearly high penetration. There are other demographic groups where there is greater access to digital television than there is to home access to the internet. All we are saying is that there should be some exploration of the use of digital television as a means to proactively communicate with the public at large as well as relying wholly on the use of the internet. Q203 Sir Nicholas Winterton: I agree with Dawn Butler, your paper is excellent and extremely helpful. You have a tiny section devoted to "Programming and Carry-Over". You have mentioned carry-over and commented on it but you have made no comment whatsoever about programming. Is it because programming to you is too party political or too political? Do you think the way programming is currently implemented in the House is beneficial to the proper scrutiny of legislation? Do you have any comment on that? Mr Schofield: Can I break my answer down into two parts. The first is do I think programming to be beneficial to scrutiny investigation? Yes, I do. Do I think the way it is currently done creates as beneficial effect as it might do? There are question marks over that. Perhaps it is possible that the programming process can be affected to the advantage of certain parties in certain situations and that might happen in certain circumstances. Yes, the programming process can be manipulated to the advantage of one party or another. Because the process of programming is largely done through the usual channels rather than through some more transparent process it is very difficult for organisations like ours on the outside to judge whether or not the programming has been done purely in the interests of the best scrutiny of as much legislation as possible within a given session or whether it has been done for other reasons. Q204 Sir Nicholas Winterton: To be specific, do you think it is right that a programming motion is tabled at the same time that the second reading is tabled and that it should take place without debate immediately after the second reading prior to the House as a whole, with members in all parts of the House expressing views on that legislation which might well affect ultimately the terms of the programming motion? Would it not be better to have it 48 or 72 hours after the second reading debate? Mr Schofield: I think probably the answer to that is yes. Whenever the House votes on any motion it should do that on the basis of having as much information and the time to evaluate information before it makes such a decision. Ms Butler: Did you get the answer you wanted? Chairman: I think you are probably leading the witness. You are entitled to. Q205 Sir Nicholas Winterton: Patricia Barratt, would you like to comment? Ms Barratt: It would depend on what kind of committee you were talking about. If you were talking about a committee that was taking evidence from external users then you might want a longer time than if you were talking about a committee that was just focusing on line by line scrutiny. I wonder whether the programming motion could have a little bit more leeway built into it so that it says "We will have six to ten sittings" as opposed to six sittings. Q206 Mr Knight: Mr Schofield, a few minutes ago you said that programming as we presently do it can be manipulated for the benefit of one party or the other. I am trying to think of any occasion when the present system of programming could be used by an opposition party for their benefit. It is always in the government's favour, is it not, always? Mr Schofield: I cannot think of an example when it could be used otherwise. Chairman: He is right about that. Any other questions? Could I thank you both very much indeed for that. |