APPENDIX 2: CORRESPONDENCE WITH MINISTERS
EXPLANATORY MEMORANDA
Letter from the Lord Armstrong of Ilminster,
who chaired this item of business in the Select Committee, to
Tony McNulty Esq. MP, Minister of State, Home Office
Explanatory memoranda to statutory instruments
I am writing on behalf of the Merits Committee, whose
meeting I chaired this week. You may be aware that the Committee
has, over the last year, had concerns about the Home Office's
conduct in relation to secondary legislation, particularly with
regard to the explanatory memorandum (EM) laid with each instrument.
Our Chairman, Lord Filkin, corresponded with Andy Burnham MP,
then Parliamentary Under Secretary, on this subject in October
2005 and January 2006. In the hope that the Home Office will soon
be working better with Parliament in this area, we welcome Sir
David Normington's recent appointment of David Seymour as Head
of a new Legislation Management Group: he has already opened a
constructive and sympathetic dialogue with the Committee's officials.
The Committee has, however, asked me to write to
you about the Local Probation Boards (Appointment and Miscellaneous
Provisions) (Amendment) Regulations 2006 (SI 2006/2664). The EM
laid with this instrument fell well below the standard expected
by the Committee, and they have asked me to make this point directly
to you as the Minister responsible for parliamentary business.
The explanation in the EM of the purpose of the regulations was
superficial, not to say perfunctory, and failed to set their policy
in context (for example by explaining to the uninitiated the purpose
of Local Probation Boards). Nor did it make any mention of consultation,
a matter to which the Committee attaches great importance. We
consider that consultation always improves the quality of the
legislation laid before Parliament; and the absence of a statutory
requirement to consult is no reason to suggest that consultation
should not be considered or would not add value to the process.
Even when an instrument deals with a small number of stakeholders
we expect to see some information on whether and, if so, how they
have been consulted, and on the views and representations they
have made and the extent to which those views and representations
have been accepted.
Most seriously, the EM stated that Local Probation
Boards now need "a different set of skills and competencies,
focusing on business acumen - and in particular HR, finance, diversity
and competition" and that "while many magistrates possess
these skills, there is substantial evidence [my emphasis] that
many magistrate members of probation boards do not. The same applies
to local authority members." (paragraph 7.1). When the Committee's
officials asked to see this evidence, the assertion was withdrawn
as having been made in error (page 5 of the attached letter).
I hope you will agree that it is not appropriate to make such
an unfounded assertion to Parliament. Each of these deficiencies
has been addressed by a letter from your officials, which we will
publish for the information of the House, but I trust you would
agree that the EM should not have been so drafted in the first
instance.
We understand from the supplementary information
provided by your officials that it is your intention to legislate
to abolish Local Probation Boards as soon as parliamentary time
permits. These Boards are a comparatively recent innovation, having
been established by the Criminal Justice and Court Services Act
2000. We question the wisdom both of the policy and use of parliamentary
time in making these regulations, if the Boards are soon to be
abolished. This is an issue the Government may wish to address
in the debate scheduled in the House of Lords for 3 November.
Mr Burnham's letter to the Chairman of 20 January
assured the Committee that Heads of Unit would exercise quality
control over SIs and EMs. This example suggests that there is
some way for the Home Office to go in improving its practice.
We recognise that many policy officials are only rarely responsible
for laying secondary legislation before Parliament, and it is
to this end that we have produced guidance for departments on
best practice in the drafting of EMs and dealing with the scrutiny
committees. We should appreciate any assistance you can give in
ensuring that this is well disseminated.
25 October 2006
MANAGEMENT OF SECONDARY LEGISLATION
Letter from the Chairman to the Baroness
Ashton of Upholland, Parliamentary Under-Secretary of State, Department
for Constitutional Affairs
This Committee has long been concerned about the
recurrent "traffic jams" of statutory instruments which
occur at certain times of the year when departments lay larger
numbers of instruments than usual as this makes it more difficult
to ensure effective Parliamentary scrutiny. We have just experienced
one of the predictable peaks, the run-up to the end of the financial
year. We note from the Minute that the Department for Constitutional
Affairs laid 18 instruments last week, which represents 20% of
all statutory instruments laid in that week and one seventh of
DCA's output for the session so far. Although the Committee had
no intrinsic objection to the measures, they would like to know
why so many instruments were laid at the last possible moment
to meet the 6th April deadline.
This surge in laying, directly conflicts with the
Government's assurance that it is committed to ensuring that Parliament
has an opportunity to scrutinise all of its legislative proposals.
While we note that many of these instruments must take effect
on or around 6 April, we see no obvious reason why the instruments
could not have been laid at any time in the preceding month.
As the report from our recent Inquiry notes, the
21 day rule is meant to be a minimum not a maximum period. I enclose
a copy for your information. In the course of our Inquiry we also
noted that 16% of your Department's statutory instruments breached
the 21 day rule, of which only two appeared to be generated by
genuine emergencies.
A key recommendation of our report is that Departments
need to manage the production of secondary legislation better.
While we agree that some DCA projects e.g. the Civil Procedure
Rules are planned and coordinated, there appears to be a lack
of overview for the whole Department's output, resulting in the
peaks and troughs illustrated in the attached chart (not printed).
We would be grateful if you could consider ways of
addressing this, to ensure that Parliament is not overburdened
unnecessarily.
28 March 2006
Letter from the Baroness Ashton of Upholland,
Parliamentary Under-Secretary of State, Department for Constitutional
Affairs, to the Chairman
Thank you for your letter dated 28th March 2006.
It is unfortunate that seventeen Statutory Instruments
from the DCA were laid before Parliament less than the conventional
21-days before the in-force date. The reasons for the breach in
each case was fully explained in the Explanatory Memorandum published
along with each Instrument. My Department always does endeavour
to lay Statutory Instruments in advance of 21-days before the
in-force date and only breaches this where it is unavoidable.
The Committee's concern with Statutory Instrument
congestion is reflected in the recommendations contained in the
Report on the 'Management of Secondary Legislation'. The Government
will be providing a co-ordinated response to the Report where
this and other issues raised will be addressed. Under the circumstances
it would be more helpful to allow for a fuller Government response.
18 April 2006
Letter from the Chairman to Rt Hon. Patricia
Hewitt MP, Secretary of State for Health
At the most recent meeting of the Merits of Statutory
Instruments Committee, the Committee considered a group of statutory
instruments laid on 10 March relating to the amalgamation of various
"Arm's Length Bodies": SIs 2006/562, 596, 632 -5
Although the Committee has no intrinsic objection
to the measures, they would like to know why the instruments were
laid at the last possible moment to meet a 1 April deadline.
The Committee's irritation over this matter is aggravated
by the fact that we wrote to Lord Warner at the same point last
year in identical terms (correspondence enclosed)[22].
He acknowledged that the Statutory Instruments were laid at the
time of year when this Committee's workload is at its highest
and assured the Committee that he had "asked the Arm's
Length Bodies Change Team in the Department to consider the legislation
required for the future changes set out in the Implementation
Framework to do their best to avoid excess work pressures on your
Committee in the future."
We have long been concerned about the recurrent "traffic
jams" of statutory instruments which occur at certain times
of the year when departments lay larger numbers of instruments
than usual, for example, in the run-up to the end of the financial
and calendar years. This surge directly conflicts with the Government's
assurance that it is committed to ensuring that Parliament has
an opportunity to scrutinise all of its legislative proposals.
The Committee has repeatedly made it clear that we look to Departments
to manage the process of producing and laying statutory instruments
in a more efficient way, in particular by avoiding leaving the
laying of instruments to the last possible minute. We would not
want to feel that the only remedy left to us was to ask a Minister
to appear in person before the Committee.
One of the predictable peaks fell on 10 March, (21
days before 1 April). We note from the Minute that 35 instruments
were laid on that day, of those 13, one third, were laid by the
Department of Health. In addition to the six instruments mentioned
above, two make corrections to previous SIs and three enable routine
uprating of fees and could, in theory, have been laid at any time
in the preceding month.
A contributory factor to the large number of instruments
which your Department laid on that day is the delay between the
instruments being made and being laid. In this context we particularly
note the National Health Service (Optical Charges and Payments)
Amendment Regulations 2006 (SI 2006/497), which was made on 23
February but not laid until 10 March.
27 March 2006
Letter from Rt Hon. Patricia Hewitt MP,
Secretary of State for Health, to the Chairman
Thank you for your letter of 27 March regarding the
volume of statutory instruments my Department has laid recently.
I note your concerns and thank you for bringing them
to my attention. It is always our intention to make and lay regulations
as early as we can, whilst at the same time recognising the need
to ensure the regulations are fit for purpose.
I have looked at the statutory instruments you have
highlighted in your letter. Of the six instruments (SI 562, 563,
596, 632 to 635) the Committee has quoted relating to the amalgamation
of our Arms Length Bodies (ALB) two (562, and 596) were final
instruments needed for the establishment of the new NHS dental
services arrangements from 1 April. They represent the drafting
of particularly complex interrelated provisions both to complete
transitional provisions following regulations which came into
force on 1 January. Four (632 to 635) related to one reconfiguration
- the assumption of various functions by the new NHS Business
Services Authority (SI 632 and 633) and the consequential abolition
of 5 predecessor bodies which included the SIs 634 and 635 (NHS
Pensions Agency (Asiantaeth Pensiynau'r GIG) Abolition and the
Special Health Authorities Abolition Order).
I agree with the Committee on the points regarding
the correction of the two instruments which could have been made
at a time to avoid the congestion period. However, one of these
instruments SI 640 - the NHS Blood and Transplant (Gwaed a Thrawsblaniadau'r
GIG) (Amendment) Regulations 2006 - was required to be made jointly
by the Secretary of State for Health and the National Assembly
for Wales. These Regulations needed to go through the Assembly's
legislative procedure before they could be made and laid in England.
The final version of the Regulations was sent to colleagues in
Wales on 23 January 2006. This allowed sufficient time for the
Regulations to pass through the Welsh legislative procedure and
be made and laid in Parliament by 3 March 2006. Unfortunately,
the Regulations were withdrawn from the Assembly Plenary at the
end of February. This was because they had been included in a
composite motion with Orders and Regulations relating to the NHS
Pensions Agency and the Business Services Authority in respect
of which a motion for debate was tabled leading to the requirement
to postpone considering the legislation. The relevant motions
were subsequently disaggregated and the Regulations were heard
separately on 8th March and as a result, the Regulations were
made on 9th March and laid on 10th March. Statutory instrument
563 was not laid earlier because we were waiting to finalise the
transitional order in case anything further errors cropped up
which necessitated amendments to the 2005 regulations with effect
from 1 April.
I also agree that the uprating of fees instruments
could also have been laid or made earlier. I understand that was
our intention but as you know, this is dependent on a number of
factors including Treasury agreement on the fee levels.
In response to the Committee's concerns last year,
my officials introduced an informal target of laying regulations
28 days prior to the regulations coming into force. I understand
almost fifty per cent of the statutory Instruments laid since
last September have met the 28 days target thus allowing Parliament
more than the minimum time to scrutinise the regulations. I think
this is a step in the right direction but we recognise your concerns
and will be considering how we might improve management of statutory
instruments further.
27 April 2006
Letter from the Chairman to Stephen Timms
Esq. MP, Minister of State, Department for Work and Pensions
This Committee has long been concerned about the
recurrent "traffic jams" of statutory instruments which
occur at certain times of the year when departments lay larger
numbers of instruments than usual as this makes it more difficult
to ensure effective Parliamentary scrutiny. We have just experienced
one of the predictable peaks, the run-up to the end of the financial
year. We note from the Minute that the Department for Work and
Pensions laid 24 instruments in the last two weeks, which represents
44% of all the statutory instruments that DWP has laid this term.
Although the Committee had no intrinsic objection to the measures,
they would like to know why so many instruments were laid at the
last possible moment to meet the 6th April deadline.
This surge in laying directly conflicts with the
Government's assurance that it is committed to ensuring that Parliament
has an opportunity to scrutinise all of its legislative proposals.
While we note that many of these instruments must take effect
on or around 6 April, we see no obvious reason why the instruments
could not have been laid at any time in the preceding month. This
is a matter of particular concern to us due to the knock-on effect:
as a significant proportion of the other instruments laid during
this peak period sought to reflect the changes in DWP benefit
rates and thresholds.
We note from the DWP's evidence to our Inquiry that
the Department plans to publish annual statements of regulations
that affect business from 2006 (Q8d), can we suggest that you
consider expanding this to an overview of all the secondary legislation
that the DWP produces which could then be used as a tool to actively
manage your legislative programme? Although DWP's performance
this year has been rather better that in the previous session,
you will see from the attached chart (not printed) of the
peaks and troughs that there is still some room for improvement
We would be grateful if you could consider ways of
addressing this, to ensure that Parliament is not overburdened
unnecessarily.
28 March 2006
Letter from Stephen Timms Esq. MP, Minister
of State, Department for Work and Pensions, to the Chairman
Thank you for your letter of 28 March regarding the
volume of statutory instruments my Department has laid recently.
I note your concerns and thank you for bringing them to my attention.
It is always our intention to make and lay regulations
as early as we can, whilst at the same time recognising the need
to ensure the regulations are fit for purpose, and conducting
consultation in accordance with Cabinet Office guidance. I have
looked at why so many instruments were laid during the period
that you mentioned and there appears to be a number of reasons.
These included the fact that many of the instruments that were
laid in this period could not be laid before associated Instruments
had been processed and other instruments required arose from consultation
feedback or required information from other Government departments
before they could be completed.
My officials have noted your concerns and will take
account of the need for effective Parliamentary scrutiny when
managing the laying of our regulations. I acknowledge the difficulties
that have resulted from the issues you raise and appreciate the
advantages in providing an even flow of instruments to the Committee.
I have read the recommendations of the Committee's
report into the management of secondary legislation and note that
your suggestion to publish annual statements of all instruments
is also mentioned there. I would like the opportunity to consider
this suggestion within the context of the whole report before
I respond fully on this matter.
19 April 2006
Letter from the Chairman to Rt Hon. Margaret
Beckett MP, Secretary of State for Environment, Food and Rural
Affairs
The Merits Committee has this week published a report
on its inquiry into the management of secondary legislation.
We were assisted in our conduct of the inquiry by the submission
of evidence from a number of sources, including from representatives
of your Department.
One of the concerns which we highlight in our report
is the recurrent "traffic congestion" which occurs at
certain times of the year when Departments lay larger numbers
of instruments than usual, for example, in the run-up to the end
of the financial and calendar years. We have drawn attention to
this before (in our two Special Reports covering Sessions 2003-04
and 2004-05), but current experience shows that problems continue.
In our report, we comment that, where a Department
knows that it is going to have to lay instruments for coming into
force at the start of the calendar or financial years or, in the
case of SIs with Common Commencement Dates (CCDs), on 6 April
or 1 October, it could plan ahead to lay such instruments in good
time before the due date. If that is not possible, it could schedule
any other secondary legislation which it may be planning in such
a way as to avoid submission for parliamentary approval during
these peak periods.
Against this background, we noted with concern that
on 16 March of this year your Department laid 10 statutory instruments
(some 8% of the annual total laid by DEFRA), all subject to negative
resolution, and all scheduled to come into force on 6 April 2006.
The instruments were the following:
- SI 2006/737
- SI 2006/743
- SI 2006/755
- SI 2006/756
- SI 2006/770
- SI 2006/771
- SI 2006/781
- SI 2006/779
- SI 2006/783
- SI 2006/798
I realise that it can be a challenging task to manage
the preparatory processes before laying statutory instruments
in a timely and thorough manner. However, we are concerned that
the adoption of Common Commencement Dates should not bring in
its train "Common Laying Dates" and the attendant congestion
in the management of secondary legislation.
29 March 2006
Letter from Rt Hon. Margaret Beckett MP,
Secretary of State for Environment, Food and Rural Affairs, to
the Chairman
Thank you for your letter of 29 March 2006. You
and the Merits Committee are concerned that DEFRA laid ten statutory
instruments on 16 March, all scheduled to come into force on 6
April. This is a particular aspect of a general concern that
the adoption of common commencement dates should not lead to common
laying dates.
The Merits Committee's recent report on the management
of secondary legislation recognises that the preparation of SIs
is a complex and far from predictable process and sympathises
with the difficulties which departments experience as a result.
In turn, I recognise the important scrutiny role that the Merits
Committee performs and that the "traffic congestion"
you experience at certain times of the year does not make your
ole any easier.
Six of the ten instruments to which you refer are
connected with the implementation of the Clean Neighbourhoods
and Environment Act 2005, which received royal assent last April.
The timetable for implementation was a challenging one and consultation
on the draft instruments only ended in January. It would not
have been practically possible to phase the laying of these instruments
over a period of weeks. Furthermore, it is often the case with
related instruments that, as thinking advances in one area, it
alters what is required in other areas. This was the case with
some of the instruments you have identified.
I hope that this letter assists you and the Merits
Committee in your ongoing work in this area.
24 April 2006
BREACHES OF THE 21 DAY RULE
Letter from the Chairman to the Lord Bach,
Parliamentary Under-Secretary of State, Department for Environment,
Food and Rural Affairs
Common Agricultural Policy Single Payment
and Support Schemes (Amendment No. 2) Regulations 2006 (SI 2006/301)
At its meeting this week, the Merits Committee considered
these Regulations and agreed not to bring them to the special
attention of the House. We also agreed, however, that I should
write to you about a concern prompted by them.
The Regulations were laid on 13 February 2006 and
brought into force on the following day. The accompanying Explanatory
Memorandum acknowledged that this was a breach of the 21-day rule,
and offered the following explanation (in section 3):
"It has not been possible to lay these regulations
before Parliament in accordance with the 21 day rule. Our review
of the Moorland Line has taken six months longer than planned.
This is due to the complexity of a small number of cases which
required detailed consideration; the vast majority of cases were
finalised well within the original deadline. All cases have now
been fully considered, and the definitive establishment of Single
Payment Scheme (SPS) entitlements will take place on 14 February.
It is vital to have the new Regulations in force by then, thereby
breaching the 21 day rule, to ensure that the establishment of
SPS entitlements and payments are not delayed …"
The Committee had little sympathy for this explanation.
There may well have been a number of reasons why your Department
was unable to adhere to its own timetable for the review of the
Moorland Line, but the Committee felt that responsibility for
managing the review lay with your Department, and that responsibility
should have included the need to conclude matters in good time
to provide the long-established interval of 21 days between laying
and bringing into force. The Committee was unhappy that Parliament's
ability to scrutinise the Regulations was restricted because of
difficulties which your Department encountered in the project
management of the Moorland Review.
8 March 2006
Letter from the Lord Bach, Parliamentary
Under-Secretary of State, Department for Environment, Food and
Rural Affairs, to the Chairman
Thank you for your letter of 8 March about the second
amendment to the Common Agricultural Policy Single Payment and
Support Schemes Regulations 2006. I share your concern about
our breach of the 21-day rule; and I am grateful to the Committee
for not bringing the amendment to the attention of the House,
given the further delay that would have caused in making payments
to farm businesses.
The main reason for the review taking longer than
planned was the number of appeal cases which required detailed
consideration on my part. I wanted to ensure we reached the right
decisions, so that the individuals concerned received the level
of Single Payment to which they were entitled. In devoting time
to this, however, we should have placed greater emphasis on the
risk of breaching the 21-day rule; and I have asked my officials
to place greater emphasis on this in future advice to me on similar
cases. I am keen to ensure that Parliament has a full opportunity
to consider properly the secondary legislation we put before it.
24 March 2006
Letter from the Chairman to the Lord Bach,
Parliamentary Under-Secretary of State, Department for Environment,
Food and Rural Affairs
Common Agricultural Policy Single Payment
and Support Schemes (Amendment No. 3) Regulations 2006 (SI 2006/989)
At its meeting this week, the Merits Committee considered
these Regulations and agreed not to bring them to the special
attention of the House. We also agreed, however, that I should
write to you about them.
You will recall that you and I exchanged correspondence
recently about SI 2006/301 - Common Agricultural Policy Single
Payment and Support Schemes (Amendment No. 2) Regulations 2006
(laid on 13 February 2006 and brought into force on the following
day). I wrote to you on 8 March to say that the Committee was
unhappy at the breach of the 21-day rule and the resulting restriction
of Parliament's ability to scrutinise the Regulations. In your
reply of 24 March, you confirmed that you shared our concern about
breaching the rule, and that you were keen to ensure that Parliament
had a full opportunity to consider properly the secondary legislation
put before it.
SI 2006/989 was laid on 31 March 2006 and brought
into force the following day. The accompanying Explanatory Memorandum
(EM) acknowledged the breach of the 21-day rule, and commented
that it was "not possible to lay these Regulations before
Parliament in accordance with the 21 day rule as the necessity
for this amendment to the 2005 Regulations has only become apparent
in the last few days … and it is required immediately."
Section 7 of the EM gave more of the background, including the
difficulties which the Rural Payments Agency had faced in completing
validation of applications in good time.
I have to convey to you the Committee's disappointment
that your Department have found it necessary to breach the 21-day
rule again, so soon after the breach about which I wrote to you
in March, and in the same area of policy. It would be unfortunate
if repeated breaches occurred and gave the impression that your
Department did not take seriously the need to allow full Parliamentary
scrutiny of secondary legislation. Of course, the Committee would
not wish to see any groups affected by secondary legislation to
be disadvantaged by avoidable delay. However, we would be very
concerned if your Department appeared to regard the period comprised
in the 21-day rule in effect as no more than a resource which
could be used to make good timing difficulties experienced elsewhere.
26 April 2006
Letter from the Chairman to the Lord Rooker,
Minister of State, Department for Environment, Food and Rural
Affairs
At its meeting this week, the Merits Committee agreed
that I should write to you to underline our concern about your
Department's handling of the 21-day rule for the laying and bringing
into force of statutory instruments.
The Committee agreed not to bring to the special
attention of the House the following three statutory instruments:
- SI 2006/1538 Cattle Identification (Amendment)
Regulations 2006
- SI 2006/1539 Cattle Database (Amendment) Regulations
2006
- SI 2006/1540 Eggs (Marketing Standards) (Amendment)
(England and Wales) Regulations 2006
All three were laid before Parliament on 14 June
2006 and brought into force on 15 June. The Explanatory Memorandum
(EM) for SI 2006/1538 and SI 2006/1539 included the statement:
"These Regulations amend the Cattle Identification Regulations
1998 and the Cattle Database Regulations 1998 with immediate effect
to remove any doubt that they effectively enforce Community measures
on cattle identification. Consequently the Department has felt
obliged to break the 21-day rule." The EM for SI 2006/1540
contained a very similar statement.
The Committee had in mind that, at its previous meeting
on 20 June, it saw an exchange of correspondence between the Committee
Adviser and officials in your Department, in relation to the breach
of the 21-day rule effected by SI 2006/1327 Sea Fishing (Restrictions
on Days at Sea) (Monitoring, Inspection and Surveillance) Order
2006. A letter from DEFRA setting out the background contained
the statement that "the Department apologises for the breach
of the 21-day rule and would wish to reassure the Committee that
it does have proper regard to the importance of the rule and that
the breach in this case though regrettable was not intended or
expected."
In the case of SI 2006/1538 and SI 2006/1539, our
Adviser had received further advice from DEFRA which included
the statement: "The validity of DEFRA's powers to prosecute
offences under the Cattle ID Regulations is being challenged for
the first time before the courts in a case scheduled to be heard
on 22nd June. An earlier prosecution under the same regulations
was due for sentencing on 15th June. DEFRA sought legal advice
on the issue of continuing the prosecution. DEFRA took the view,
supported by legal advice, that urgent legislation should be made
to put future prosecutions onto a solid legal foundation. It
was considered important to have this in place before the hearing
on the 15th June." DEFRA officials had further explained
that this did not imply any attempt to change the legal position
retrospectively, but a wish to provide a firm legal basis for
future prosecutions, in case the conclusion of the hearing on
15 June generated publicity which highlighted the existence of
doubt about the previous position.
The Committee understood DEFRA's wish to remove doubts
about the legal position. However, we were not at all persuaded
by the explanations offered for breaching the 21-day rule in bringing
any of these SIs into force. Your Department's action in disregarding
the rule in these cases gives the impression of poor forward planning
of secondary legislation, since the doubts mentioned must have
been raised some time ago. It also means that the assurances
previously given about having proper regard for the 21-day rule
ring very hollow indeed.
I can only underline to you that the Committee is
very concerned to see genuine compliance with this rule. It was
an issue that we highlighted in our report in March of this year
following our inquiry into the management of secondary legislation.
Indeed, we referred to a claim from DEFRA that "it was meeting
the 21-day rule in the overwhelming majority of cases" (paragraph
69 of our report). Again, this claim loses much of its force
in the light of our recent experience. Some 10% of the 150 or
so SIs laid by DEFRA which the Committee has considered during
the present session have breached the 21-day rule, and this is
a higher proportion than any other Department.
We shall continue to take a close interest in your
Department's compliance with the rule. I hope that you will bring
your influence to bear on this, as well as on other aspects of
your Department's handling of statutory instruments. We want
to avoid the situation where further breaches of the rule made
the Committee feel it necessary to ask you to discuss the issue
with us.
28 June 2006
Letter from the Lord Rooker, Minister
of State, Department for Environment, Food and Rural Affairs,
to the Chairman
Thank you for your letter of 28 June underlining
your concern about DEFRA's handling of the 21-day rule.
I am pleased that the Merits Committee did not draw
SIs 2006/1538-1540 to the special attention of the House of Lords.
Equally I note your comments that the Committee is very concerned
to see genuine compliance with the 21-day rule.
Let me tell you what has been done recently in this
Department that may help to reassure that we take the rule very
seriously. Mindful of your critical comments and of the remarks
you made in your recent report into the management of secondary
legislation, a message has been sent to all policy directors and
to all senior lawyers reminding them that the 21-day rule may
only be broken where there are clear and compelling reasons of
operational urgency for such action, which reasons must be explained
in the explanatory memorandum.
We have also instituted a procedure whereby if Ministers
are to be advised to break the 21-day rule, the relevant policy
and legal directors must personally consider and recommend such
a course of action. An example might be an outbreak of animal
disease where controls are required to be brought into force immediately.
The above-mentioned SIs are also examples where we felt it was
necessary to legislate immediately to remove any doubt that various
Community measures were enforceable.
Officials were also reminded that the 21-day period
is a minimum period and that, wherever possible, instruments should
be laid well in advance of this to allow Parliament to consider
the impact of the instrument
Bearing this in mind, I can assure you that statutory
instruments that break the 21-day rule will not be signed in future
unless we have been provided with clear and compelling reasons
of operational urgency for such breach.
12 July 2006
ARMED FORCES PENSIONS
Letter from the Chairman to Tom Watson
Esq. MP, Parliamentary Under-Secretary of State, Ministry of Defence
Draft Pensions Appeals Tribunals (Armed
Forces and Reserve Forces Compensation Scheme) (Rights of Appeal)
Amendment Regulations 2006
You will recall that, earlier this year, we exchanged
correspondence about the consultation processes which your Department
follows in relation to secondary legislation affecting the pay
and conditions of Armed Forces personnel. The correspondence
arose out of the Merits Committee's consideration of SI 2006/717Armed
Forces Pension Scheme etc. (Amendment) Order 2006. In your reply
of 7 June, you said that your officials were examining whether
there was scope to refine established consultation procedures;
and you also mentioned that MOD would soon bring forward further
SIs in the pensions and compensation field where consultation
was being completed in accordance with established procedures.
In June, the Committee considered the SIs to which
you referred, which included the draft Pensions Appeals Tribunals
(Armed Forces and Reserve Forces Compensation Scheme) (Rights
of Appeal) Amendment Regulations 2006. The Committee saw no reason
to bring the Regulations to the attention of the House, and noted
the statement in the Explanatory Memorandum (EM) that "ex-Service
organisations, the Presidents of the PAT [Pensions Appeals Tribunal]
and the Council on Tribunals are being informed about the proposals
in parallel with laying this instrument. It is not anticipated
that there will be any adverse reaction from these bodies."
The Regulations were considered in Grand Committee on 4 July.
However, the Committee has now learnt that during
June, following the laying of the Regulations, the President of
the PAT for England and Wales wrote to your Department to voice
concern about the SI; and that several letters were exchanged
about this concern. It may be that this correspondence has now
reassured the PAT President, but it is unfortunate that the statement
in the EM quoted above has proved to be inaccurate. I hope that
you would agree that this underlines the need for your Department
to be certain that its consultation procedures are reliable, not
least in order to be able to inform Parliament properly about
the impact of the measures proposed. In this context, the Committee
would be interested to know what conclusions emerge from your
Department's review of established consultation procedures.
12 July 2006
Letter from Tom Watson Esq. MP, Parliamentary
Under-Secretary of State, Ministry of Defence, to the Chairman
Thank you for your letter of 12 July about the draft
Regulations and your views on the consultation procedures which
the Ministry of Defence currently follows.
I agree that it is unfortunate that we did not anticipate
this reaction from the PAT President, and I was unaware of the
correspondence until you raised this matter with me. Clearly
we have yet to reassure him on the points he has raised, and therefore
I have decided to delay signing the Statutory Instruments pending
more detailed advice from my officials.
As I mentioned in my letter to you of 7 June, I have
asked officials to examine ways by which our consultation arrangements
are conducted. I would hope this work will be concluded during
the summer Recess and I will report the findings to the Committee
shortly thereafter.
I am sorry that I am unable at present to reply fully
to your 12 July letter, but I wanted to reassure you that I take
this matter seriously and will write again as soon as possible.
25 July 2006
Letter from Derek Twigg Esq. MP, Parliamentary
Under-Secretary of State, Ministry of Defence, to the Chairman
Thank you for your letter of 12 July to Tom Watson
concerning the consultation arrangements for the Pensions Appeals
Tribunals (Armed Forces and Reserve Forces Compensation Scheme)
(Rights of Appeal) Amendment Regulations 2006. I was appointed
on 6 September and I am sorry for the delay in responding.
It is important that we invite views from those who
will be most directly affected by changes in legislation, and
in this case we informed the Presidents of the three Pensions
Appeal Tribunals (PAT) jurisdictions, together with the major
ex-Service organisations and the Council on Tribunals of the proposals
with a full explanation on the need for the Amendment. As you
are aware, my officials have been in correspondence with the President
of the PAT for England & Wales, Dr Concannon, on a matter
of policy concerning temporary awards. It is disappointing that
we have been unable to reassure him on the issues of concern to
him, although I can assure you that the issues raised have been
fully considered, and have been explained and clarified in correspondence.
I believe that our statement, that we did not anticipate
that there would be any adverse reaction from the bodies that
we consulted, was sound when providing the Explanatory Memorandum
which accompanied the draft Statutory Instrument. The ex-Service
organisations had been briefed last year on the late inclusion
of temporary awards into the Armed Forces and Reserve Forces Compensation
Scheme Order 2005 and of our intention not to extend appeal rights
to such decisions. These groups had already accepted the absence
of appeal rights on interim awards (those where the prognosis
for an injury is uncertain and the Department is unable to take
a final decision on the appropriate level of benefit) and which
are in principle similar to temporary awards.
Dr Concannon did not raise objections to the lack
of appeal rights on interim awards when the Pensions Appeal Tribunals
(Armed Forces and Reserve Forces Compensation Scheme) (Rights
of Appeal) Regulations 2005 were scrutinised by Parliament early
last year. It was, therefore, felt that temporary awards would
similarly not attract any adverse comment. Parliament was also
informed of our intentions some time ago in response to a question
from the Lord Morris of Manchester on 14 July 2005 (Official Report
Col WA 165). Again, this provoked no unfavourable comment. For
all of these reasons I think it was understandable why we did
not believe that temporary awards would become a contentious issue.
While I accept that the Dr Concannon has some reservations,
I remain convinced that the legislation is appropriate because
a claimant will have the right of appeal when the decision on
a final award is made. This approach has not been criticised
by the ex-Service organisations, the other PAT jurisdictions or
the Council on Tribunals. Final approval in the Lords was given
on 17 July without attracting further comment. On this basis
I have now signed the Statutory Instrument.
As Tom mentioned in his letter to you of 7 June,
we have been considering whether our consultation arrangements
remain appropriate, and whether more can be done to enhance them.
I believe, both in this case and more widely, that our current
arrangements are broadly satisfactory, but recognise that more
can be done to engage key stakeholders earlier in the process.
I also believe that better use can be made of existing tools
such as the internet, particularly when seeking to consult a wider
and more disparate audience as may sometimes be required. I have
instructed officials to take this into account during future consultation
exercises in relation to Armed Forces pension and compensation
regulations. We are firmly committed to timely and effective
consultation, and will remain so.
30 October 2006
PLANT BREEDERS' RIGHTS
Letter from the Chairman to the Lord Bach,
Parliamentary Under-Secretary of State, Department for Environment,
Food and Rural Affairs
The Plant Breeders' Rights (Discontinuation
of Prior Use Exemption) Order 2005 (SI 2005/2726)
At its meeting this week, the Merits Committee gave
first consideration to this Order, which your Department laid
on 5 October.
The accompanying Explanatory Memorandum (EM) says
that the Order discontinues the prior use exemption provided by
section 9(5) of the Plant Varieties Act 1997, which exempts farmers
from paying a royalty for the use of a protected variety where
the variety was farm saved before the 1997 Act came into force.
The EM also sets out the process of consultation which preceded
the laying of the Order, and which has elicited views from organisations
representing plant breeders and farming unions.
The Committee noted that, while the two sides of
the industry have moved towards each other in the matter of future
payments to plant breeders once the exemption is discontinued,
some disagreement remains over the level of such remuneration.
While we recognised that a Government Department cannot be expected
to compel a settlement in such a case, the Committee agreed that
I should raise with you the question of whether you see no advantage
in further efforts to encourage agreement between the two sides
before proceeding with the Order.
The Committee also foresaw that there could be difficulties
in enforcing the requirement on farmers to make payments in relation
to farm-saved seed. We would find it helpful if you could comment
on the practicalities of enforcement in this area.
19 October 2005
Letter from the Lord Bach, Parliamentary
Under-Secretary of State, Department for Environment, Food and
Rural Affairs, to the Chairman
Thank you for your letter of 19 October 2005 in which
you ask, on behalf of your Committee, whether I see any advantage
in further efforts to encourage agreement between producers' and
breeders' representatives before proceeding with the Order and
whether I could comment on the practicalities of enforcement in
this area.
On the first point, your Committee has recognised
that Defra has no legal power to impose a settlement on royalty
issues which are essentially a civil matter. Nevertheless, Defra
has held talks separately with the farming unions and the British
Society of Plant Breeders; encouraged them to meet informally
to discuss their differences, which they have; and arranged independent
mediation to try and break the deadlock. This all ended in failure
despite the best efforts of a professional mediator. I believe
that we have now exhausted the opportunities for discussion and
must conclude that there is little prospect of making any further
progress at the present time.
On the second point, the enforcement of royalty rights
is again a civil matter rather than a state responsibility. It
applies equally to all protected varieties whether covered by
UK or EU rights. There are problems with enforcement, which apply
across the board, and not just in this case. Defra is engaged
in discussion with breeders, and is also participating in consideration
of this issue at international level.
24 October 2005
PRIVATE SECURITY INDUSTRY
Letter from the Chairman to Paul Goggins
Esq. MP, Parliamentary Under-Secretary of State, Home Office
At its meeting on 28 March the Merits Committee considered
the Private Security Industry Act 2001 (Designated Activities)
(Amendment) Order 2006 (SI 2006/ 824), the latest in the series
of Home Office Statutory Instruments to implement the Private
Security Industry Act 2001. I attach an Annex which briefly
lists those instruments in the series that we have seen. [not
printed[23]]
You may be aware that the Committee has been conducting
an inquiry into the way Departments manage the process of producing
statutory instruments. Our report was published on Monday and
I enclose a copy for your interest. It concludes that Departments
need to plan their legislative activity more effectively, and
that top management should be more closely involved in overseeing
the process. A brief glance at the Annex may illustrate why we
formed that conclusion.
I would be grateful for your observations on this
case study. Although in this instance the Department appears to
have an overall plan, with milestones, which we would commend,
in practice there appears to be great difficulty in delivering
it within the normal requirements of the Parliamentary process.
29 March 2006
Letter from Paul Goggins Esq. MP, Parliamentary
Under-Secretary of State, Home Office, to the Chairman
Thank you for your letter of 29 March, in which you
asked for my observations on the Home Office's Statutory Instruments
associated with the Private Security Industry Act (PSIA) 2001.
Your letter specifically mentioned the latest in
this series of SIs: the (Designated Activities) (Amendment) Order
2006 (SI 2006/824), which the Home Office failed to lay 21 days
before it came into force. The background is that on 20 March,
licensing by the Security Industry Authority became compulsory
for all manned guards and keyholders who work under contract.
It does not affect those manned guards and keyholders employed
in-house.
It became clear that the legislation bites on security
guards working in private prisons, privately run immigration detention
centres, and a few others. These people work in a secure environment
and work alongside persons whose training and selection is under
my statutory control. They have all undergone CRB or criminal
records office checks before they are able to work.
My officials had been working on alternative mechanisms
to remove these groups from the scope of the Act. Work began
on an Order under Schedule 2, subject to the draft affirmative
procedure, earlier this year. We believed that we had allocated
enough time for this process, but unfortunately it took far longer
than expected to identify all the relevant persons affected.
By the time all the groups had been identified there was insufficient
time for the Order to be debated and brought into force by 20
March. The exemption route, which is achieved by a negative statutory
instrument, was then considered but it became apparent that it
would not be appropriate for all the groups in question.
We could not revoke the original order, as this would
have created very considerable difficulties for the private security
industry. Many thousands of people in that industry already held
licences, which they had been expecting to come into effect on
20 March.
The alternative route of amending the 2006 Order
was identified to resolve the immediate problem, the details of
which are contained in the SI and its Explanatory memorandum.
The Home Office considers that the decision to remove
these persons from the licensing requirement is a decision that
would benefit from scrutiny by both Houses and for that reason
will lay an affirmative order under paragraph 1(2) of Schedule
2 to the 2001 Act to remove the activities of these persons from
the scope of the 2001 Act as soon as possible.
We are considering the lessons from this delay, and
will ensure they are fully learned within the Home Office. As
you have pointed out, other SIs related to the Private Security
Industry Act have also encountered problems and we will do our
utmost to avoid these for the future.
More generally I would like to reassure you that
I share the Committee's concern about the Home Office's overall
quality control of Statutory Instruments, of which the PSI Act's
SIs are examples. In response to the Committee's concerns, the
Department has already made some significant changes to procedures,
some of which were detailed in Andy Burnham's letter to you of
20th January. These include placing responsibility on relevant
Heads of Unit (Senior Civil Servants) to exercise local quality
control and sign off all Explanatory Memoranda, and the Department's
Group Executive Board will exercise central oversight of the picture
across the Home Office through quarterly reviews.
Your letter also included a copy of the Committee's
report into how departments manage the process of producing statutory
instruments. I have read this with great interest. In response
to that report, we have set up a Working Group, led by Martin
Bryant, our Director of Strategy and Reform, with the responsibility
of considering the Merits Committee's report on the management
of SIs across Whitehall. The Cabinet Office is leading on the
response to the report, and our Working Group will contribute
to this.
I and my fellow Home Office Ministers are very conscious
of how the Home Office's reputation is affected if we do not get
things right on legislation, and will keep a close eye on how
arrangements develop.
12 April 2006
22 17th Report (Session 2004-05), pages 17 and 18. Back
23
The Annex refers to SIs 2004/3145, 2005/224, 2005/234, 2005/235,
2005/248, 2005/361, 2005/1107, 2005/2118, 2005/2251, 2006/425,
426,427 & 428, 2006/824. Back
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