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It is all about this cult word “stakeholders”. I am bound to say that I have found this very confusing. I understand what it is in the business context, but what about others? What about the people who have to enforce the requirements of the statutory instrument—particularly, perhaps, local authority trading standards departments, who are notoriously short of staff and money? When we are told that the Local Government Association is being consulted, are we to suppose—because we are never told—that it has actually asked trading standards departments round the country whether they can take this on, or are we simply to understand that it will later notify the trading standards departments that this subordinate legislation has been passed? It goes into innumerable types of investigation that they will have to enforce—chemical levels in crops, seeds and food, pesticides, cosmetics, grades of animal feedstuff, and so on. We never hear whether these things are enforced, and we never hear whether the trading standards departments say that they are able to do it. I do not know, but I have been to a number of trading standards departments, and I know that they are very stretched as it is.

Are the Government therefore satisfied that the people who are supposed to enforce these requirements do so? What are the figures? We do not know. We have never been told. They do not turn up in the Home Office statistics. We do not know whether this is simply an exercise on paper to which no one pays the smallest attention. It would be very interesting to know more detail about that. Then there is the public. The Government say, in their response to the report at paragraph 38, that they are committed to ensuring that consultation exercises are accessible to all relevant “stakeholders”—again—whether they are citizens, businesses, charities or voluntary groups. The Cabinet Office code of practice on consultation emphasises the importance of making special efforts to reach certain stakeholders, such as small businesses, children, consumers, and those from minority groups. It can be done by public surveys, focus groups, regional events, and so on. Is it? We are not told. We see a few examples of it, but not very many. An enormous number of these instruments affect individual members of the public,

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and I am very uncertain whether they have any idea that these instruments have been passed and that they will affect their lives.

There was one example in the bundle of papers that we had at yesterday’s meeting about compensation claim management. The Explanatory Memorandum says that the sectors intended to be regulated were announced during the passage of the Act and that the Government consulted last July and August. There was a series of meetings with key stakeholders. Who were they? Did they include the people who are dissatisfied, for instance, with pneumoconiosis claims, who we know have been trying to get better justice round the country? Are they key stakeholders? We are not told whether they were consulted and, if so, what they said.

It really is not good enough that the process of consultation is so obscured. I very much hope that the noble Lord, Lord Bassam, if he cannot do it today, will at any rate say something later about this and be able to reassure us. If people like that do not go to the workshops, do not go to the meetings and do not go to the focus groups because they are not invited, their point of view will not be taken into account. That is one point about consultation.

The other thing that is missing at the moment is any account of the results. We are told that some changes have been made. Is that the replacement of a semi-colon, or is it a much more substantial change in the text of the instrument? I am not sure that the Merits Committee quite made that point in paragraph 11 but, if it did not, I think that we have learnt more since then and I believe it to be a valid point which requires attention now. After all, we learnt in the Legislative and Regulatory Reform Act that transparency is a key concept in the Cabinet Office. If that is so, the sort of improvement that I have just suggested must be a small price to pay for not having to go into detailed examination and amendment of the instrument when it comes before Parliament.

I shall be brief on my last point because it has already been covered by previous speakers, including the noble Lord, Lord Filkin. As the noble Lord said, it is absolutely true that, whatever the European Communities Act may say about consultation, it is too late once the European instrument has been made and has to be transposed in this country. At that stage, it cannot be changed, however much consultation you engage in, and possibly you will simply be able to make some minor alterations around the edges. The noble Lord was right: it may have been very difficult for him as a Minister, but he took the right approach if he tried to get consultation at the early stage before going to Brussels to meet the other state delegations and discuss the proposed instrument. Such action would give us the basis of some sort of view from the stakeholders, whoever they may be, and then perhaps we would not be so upset if there was less opportunity for meaningful consultation when the instrument came back to be transposed.



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I have concentrated on consultation because I believe that it is the essence of improving the standard of these instruments. I hope that we shall go on imploring the Government to improve their act on this matter.

7.52 pm

Viscount Eccles: My Lords, some 18 months on the Merits Committee provided a chance to reflect not only on process but on wider issues which face Parliament. The volume of domestic primary and European legislation over the past 10 years has, as has already been referred to, led to a doubling in the length of manuals setting out the state of the law. The Merits Committee considers more than 1,000 regulations each year and, although the net addition to the total is considerably smaller, nevertheless the appetite for regulations persists. There are some 60 order-making powers in the Bill that was read for the second time in this House this afternoon.

The impact on institutions and the public has been given some recognition. The Better Regulation Executive has been set up, as has the Better Regulation Commission. We now have what remains of the Legislative and Regulatory Reform Act, during the passage of which the Minister several times told the House that, if deregulation was wanted, the Act would achieve it. We shall see how busy the Delegated Powers and Regulatory Reform Committee becomes.

This mounting pile of regulation is, I believe, a major contributor to the worrying trend of public indifference to our democratic process; nor would much necessarily follow from a fuller explanation of the importance and system of secondary legislation. Indeed, given its complexity and detail, there might well be greater disenchantment as people spotted unresolved policy dilemmas and did not see much sign that they were being tackled. For example, business consistently says that it is over-regulated both by the number of regulations and by what has to be done to comply. Indeed, Parliament may well need to achieve a greater understanding of what people have to do to comply. Simpler, shorter and less frequent reporting would reduce burdens.

It follows that, although there is some awareness in both London and Brussels that business has a case and that Europe’s competitive position, and that of the United Kingdom, is weakening, there is no certainty—is there even a likelihood?—that those who like and lobby for more regulation will take heed. It must be doubtful, for the search for villains is the daily fare of pressure groups, and the media delight in feeding their addiction.

Here lies the dilemma, because the search for the perfectly regulated level playing field, with penalties for all infringements, runs directly counter to the market-driven dynamic of business. Business would always tilt the playing field if it could. If regulation is too prescriptive, it flies in the face of comparative advantage and product differentiation. To combat all such levelling, business will be less open and as ingenious as possible in coping with and outflanking regulation, while staying—just—within the rules. The business operators in the field will always know things

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which the politicians and administrators do not, and, when that becomes clear, the temptation is to tighten up. Then we face a self-reinforcing process, which, to some extent, may well have happened already. Now, we await deregulation or, perhaps more realistically, less and lighter regulation, which will not come just as a result of changed—shall I say “better”?—procedures; a change in political direction is also needed.

In a quite different category comes regulation designed to be in the interests of the most vulnerable members of society. I am not sure how often Ministers or, indeed, Members of this House would confidently tell an individual that he or she was “most vulnerable”. It is not a flattering description but has become a catch-all to refer, for example, to the 10 million people classified as disabled, to all those people over a certain age who live alone or to retired miners who have claims for compensation. The recent Compensation Act relies heavily on regulation in the interests of the most vulnerable, and I suppose that similar thinking lies behind the drive towards home information packs.

The dilemma here is that society is too diverse. Its standards of living and education—rising, as we hope and expect—spread so widely that many people who might qualify under departmental rules will neither see themselves as most vulnerable nor wish to be described as such. It is, in fact, undemocratic to compartmentalise society.

Here again, much careful thought is needed about what will be appropriate and acceptable within the very varied expectations of the many. It is not enough to listen to the vocal few; nor will this issue be tackled to the benefit of the public interest by process alone. It needs political leadership and direction because the five accepted principles of proportionality, accountability, consistency, transparency and targeting, sensible as they are, can be and are being interpreted in many different ways in default of clear policy.

It would be good to be assured that, when we write our next report, we will record continuous improvement in procedure and will be able to identify from the Explanatory Memoranda in front of us policy clarification.

8 pm

Baroness Thomas of Winchester: My Lords, it is with great pleasure that I take part in this debate, although I do not plan to speak for long. I shall refer to the report, but I hope that the House will forgive me if I indulge in a little nostalgia.

Having worked here in my party’s Whips’ Office since 1977, I have watched with some alarm the growth in the importance of legislation by statutory instrument. It was not the volume of statutory instruments that caused that alarm, but the fact that much secondary legislation was being created about matters that some Peers believed should more properly be contained in primary legislation and, particularly, that those matters should be amendable by Parliament.



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A few voices crying in the wilderness drew attention to that unsatisfactory state of affairs. One was that of my noble friend Lord Hooson, whose speech on 19 December 1984, in a debate about the parliamentary role of the House of Lords, was strangely familiar when I looked it up the other day. I shall quote one sentence, which I believe I may have written. He stated:

Much water has flowed under the bridge since those days. In 1992, the Jellicoe committee recommended the establishment of the Delegated Powers Scrutiny Committee to examine whether the Government were using delegated legislation appropriately in new Bills. Since 2003, that committee’s successor, the equally powerful Delegated Powers and Regulatory Reform Committee, has been joined by the Merits Committee, which I am very pleased to be joining this Session.

I found the report that we are debating to be a model of lucidity. Its recommendations are constructive, although I do not believe that they will all be acted on with the alacrity and enthusiasm that the committee would perhaps like. The need for action was borne out by much of the evidence.

Like my noble friend Lord Methuen, I was struck by the written evidence of Mrs Linda Weeks, the learning support centre manager at Kent Police College. She provides monthly updates on new legislation that she obtains from Parliament and from other sources, but states that she would very much like more notice of instruments coming into force, particularly as the press often know about these things in advance. I wonder how on Earth police officers keep track of these things when they suddenly find out via the press that they have new powers as from that very day.

Mrs Weeks went on to say that there could often be confusion when parts of Acts come into force—sometimes only part of a subsection. She wrote tellingly of all the various criminal justice Acts—for example, those of 1972, 1982, 1988 and 1991, all of which have parts in force and parts not in force. I repeat my noble friend’s astonishment that part of an old Act might suddenly be brought into effect in 21 days’ time. Her evidence makes the case for the report’s recommendation that annual statutory instrument plans by government departments should be compiled and published to give valuable long-range warning to those affected.

The other matter that I was pleased to read about in the report was the emphasis on clear Explanatory Notes. Many is the time that I have looked to those for enlightenment, only to be completely daunted by complicated cross-referencing and minimal explanation that give absolutely nothing away as to the meaning of the instrument. I fervently endorse the committee’s recommendation that statutory instruments and their Explanatory Notes in particular should be subjected to review by a senior

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official—although a junior official might better mirror the general public—who is,

Finally, I pay tribute to all those Peers who have in the past 30 years to my knowledge flagged up the importance of the proper scrutiny of secondary legislation, and particularly to those no longer with us, including Lord Rippon and Lord Simon of Glaisdale and, from these Benches, the much missed Lord Russell. I am very honoured to have a place on this important committee.

8.05 pm

Lord Jopling: My Lords, I have worked man and boy in this building for 42 years and I spent a great many of them doing everything that I could to keep as far away as possible from secondary legislation. I did that successfully until three years ago when, out of nothing else but love for my Chief Whip, I agreed to serve on this new committee. Years ago, there was a time when I was responsible in another place for recommending Members of the rather desultory Statutory Instruments Committee that met down the other end of the Corridor. Mercifully, a great and good man, Sir Graham Page, whom some of my colleagues may remember, was the ultimate guru on statutory instruments and I was delighted to be able to recommend his appointment on to that committee down the Corridor.

I have now spent some three years as a Member of this committee and have found it immensely absorbing. We have been graced by two helpful and patient chairmen—I was particularly glad to see the noble Lord, Lord Hunt, pop in for a few moments earlier in this debate. We have been given outstanding help by our clerks and advisers. Although I am not allowed to refer to people outside the House, they sit not as my personal advisers, but as advisers to the whole committee.

One matter that has struck me forcefully in those three years is that even in this building there are few who realise the massive scale and scope of secondary legislation. I am glad that the committee has concentrated its thoughts and work over these first years by looking at secondary legislation in terms of how it will affect the individual citizen, the small businessman, the charity and the local authority. This is exactly the way that we should conduct ourselves, because secondary legislation often affects the individual citizen, the individual business and the small organisation much more heavily than does primary legislation. Parliament as a whole has been woefully inadequate over the years in the way in which it deals with secondary legislation.

I want to talk about what I call “the three cons”, all of which have been referred to. I do not mean confidence tricks; I mean consultation, consolidation and content. First, I cannot add very much to the wise things that have been said in the field of consultation. I believe that the work of the committee has already concentrated the minds of most departments on the need for consultation and the

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need to explain the result of that consultation in detail to Parliament. The noble Viscount, Lord Colville, spoke about the need to be more precise in these matters. Over the past few years, the quality of Explanatory Memoranda has improved notably. I agree with those who have said that proper and full consolidation is likely to mean that the legislation itself will be more sensible and workable.

On consolidation, briefly, I was struck by the words of the noble Baroness, Lady Thomas of Winchester, just a moment ago. She said that she remembers having pored over some of these instruments and being able to make neither head nor tail of them; I hope that is what she meant—she nods. Looking at some of these things, you sometimes cannot begin to understand what they are all about. There is often a desperate need for more regular consolidation; you cannot say that there should be consolidation every year, or even every few years, but there must be much more regular consolidation of legislation than at present. So many people and organisations do not have the time, the facilities or the expertise to go progressively back into prior legislation to uncover all the implications.

The third “con” is content. In my time on the committee, I have continually drawn attention to sloppy drafting, which has led to orders being reprinted free of charge after an error has been found in the original drafting. It is lamentable to see, on the back of our report, that no fewer than 62 negative instruments over the last Parliament—March 2005 to 9 November, a week or two ago—had to be reprinted. In addition, 21 instruments were laid including a correction, bringing the total up to 83. A number of departments are woefully inadequate when it comes to proper, careful, accurate drafting. The noble Lord, Lord Filkin, said that he was not going to refer to departments. I am afraid that I shall be less delicate.

Four departments are really awful culprits. One in 16 of Defra’s orders has had to be reprinted free of charge. The figure for the Home Office is one in 15 and the figure for the Department of Health is one in 14. One in 12 orders from the Department for Work and Pensions—I cannot believe it—has contained errors. It is absolutely infuriating for the customers—the public and organisations that must note and deal with these things. When they have been through one, it is infuriating to find that a mess has been made of the drafting and that they must start considering what the orders are about all over again. It is not good enough. I hope that those four departments will take careful note of the black list on the back of our report, of which they should be most embarrassed.

Some departments are better than others, but I must draw attention to two particular culprits. I declare an interest in Defra, as I was once a Minister at the Ministry of Agriculture, Fisheries and Food. I am shamed by how that department conducts itself nowadays. I will not weary your Lordships tonight with the dreadful scandal that it has brought about with the single farm payment, with the Rural Payments Agency continually in a state of collapse. The chief executive, our friend and colleague, was quoted in the press the other day as saying that he had

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been fired because of the mess. Strangely, the Secretary of State responsible for all of it became the Foreign Secretary. The Government conduct themselves in funny ways. I also note that, in one of our documents before the House, Defra is again a disgraceful culprit in laying instruments where the date in force is less than 21 days after the laying date. Of the 61 orders that have broken the 21-day rule, Defra is responsible for no fewer than 11. It certainly ought to be very ashamed indeed.

Finally, the Home Office seems to show very little respect for Parliament as a whole. I shall cite two examples demonstrating its apparent indifference and contempt. In your Lordships’ House, the noble Lord, Lord Lester of Herne Hill, put down two Questions for Written Answer on 5 June. The rule is that they should be answered within two weeks. It took the Home Office until the very last day of the last Session, in excess of 22 weeks, to answer those Questions. That is the most lamentable record of idleness and contempt from that woeful department.

I cite another case, from just over a year ago, where the clerk of our committee wrote to the Home Office’s parliamentary and briefing delivery unit about four instruments that the committee was concerned about. It took this person, a parliamentary adviser whom I shall not name, just short of three weeks to reply to this, saying,

This is three weeks after we approached him, and I cannot remember whether the orders were held in abeyance or not. Then he has the impertinence to end his letter saying,

The idle beggar did not even have the courtesy to say, “I have passed your queries on to them and hope they will respond very soon”. That department is an absolute scandal in Whitehall. I hope somebody is doing something about it. It keeps writing letters saying, “We are trying to do better; we are going to do better”. Yet it almost exactly analogous to a schoolboy I heard of some time ago, whose end-of-term report said, “This boy sets himself lamentably low standards and usually fails to attain them”.


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