ABSTRACT
The 1,200 statutory instruments (SIs) laid for parliamentary
proceedings each year affect us all. It is this Committee's role
to scrutinise the policy in these instruments and to draw those
of significance to the attention of the House. We also consider
how well the Government manage the process of making this legislation.
Two years ago, we made recommendations about how that process
could be improved. We have kept the position under review and
taken fresh evidence on the subject. Our experience has been that
Departments still need to do more to improve the planning and
quality of SIs and the policy delivered through them: to do so
would both help scrutiny and ease the impact of legislation on
stakeholders.
Too often, Departments seem only to pay serious attention
to this area when specifically invited to give evidence to our
Committee, though the response is then positive. The Government's
position, that each Department is responsible for its own output
of SIs, may encourage this passivity. The Minister for Better
Regulation seemed reluctant to acknowledge that the good management
of SIs, or influencing his colleagues even for definite responsibilities
such as consultation practice (where Government performance slipped
last year), was part of his brief.
Recent improvements in regulatory practice (e.g.,
common commencement dates) have focussed on the needs of business,
yet much secondary legislation regulates the public sector: education,
health, the police. We invite Government better to consider the
timing and cumulative impact of SIs on all those regulated, irrespective
of sector. We urge Departments to pay more attention to the strategic
planning of SIs, especially those delivering the policy set by
a new Act. We also urge them to devote more resources to the consolidation
and simplification of secondary legislation so that the law is
clear and accessible for users.
We welcome the new format for Impact Assessments
(IAs), which should now be provided for key measures affecting
the public and voluntary sectors, as well as those affecting business,
but we have not yet seen many. Irrespective of sector, IAs have
too frequently appeared cosmetic, used to shore up policy rather
than formulate it: a concern shared by others. The potential burdens
on business remain far more rigorously assessed than potential
burdens on the public sector. Whether or not an IA is provided,
every instrument (or its Explanatory Memorandum) should clearly
express its policy objective, preferably in measurable terms,
indicating how and when its success is to be measured and evaluated.
The Government's policy is that each Department is
responsible for its own secondary legislation and practice. We
thus invite each Secretary of State to ensure that senior management
systematically checks the quality of the secondary legislation
which his Department makes. If not, Ministers could find themselves
increasingly challenged by Parliament: the Government's experience
with casino licensing and with Home Information Packs shows that
this House is not afraid to challenge poor policy and practice.
We welcome the Report from the Joint Committee on Conventions,
which said that it was consistent with the Lords' role in Parliament
to threaten to defeat a SI, and that this could be appropriate
where the JCSI or our Committee had drawn the attention of the
House to the instrument. We will continue to be robust in our
scrutiny and to draw significant or flawed instruments to the
attention of the House for it to deal with as it sees fit. We
hope we will need to do so less frequently.
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