The management of secondary legislation:
follow-up
1: Fresh evidence on the management of
secondary legislation
1. Two years ago, we made a number of recommendations
about the management of secondary legislation following a substantial
inquiry[1]. The general
thrust of the Government's response[2]
was that it was for each Secretary of State to oversee his own
Department's quality controls. We have kept the position under
review both in our weekly scrutiny of the instruments laid before
the House and by taking fresh evidence from the Department for
Children, Schools and Families (DCSF) and from the Department
for Work and Pensions (DWP), both high producers of secondary
legislation with, in our view, a mixed profile of strengths and
weaknesses. The transcripts of oral evidence, together with the
Government's written evidence, are printed at Appendix 5. Our
experience has not been wholly encouraging: Departments still
need to do much more to improve their planning and management
of statutory instruments (SIs), and the policy delivered through
them, both to assist parliamentary scrutiny and to ease the impact
on the people to whom the legislation applies.
2. We also use this report to publish statistics
about our weekly scrutiny during the last session (Appendix 1)
and to publish our correspondence with Ministers which has not
been published in previous Reports (Appendix 2).
The Government's evidence
Summary: Too often, Departments seem only to pay
serious attention to issues of secondary legislation 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
3. Both Departments gave accomplished performances
to the Committee. Having recently been split from the Department
for Education and Skills, DCSF took the approach that this was
the opportunity for a fresh start in complying with best practice.
Their senior representatives expressed their intention to conform
in the future; we will be observing developments with interest
(Q2). DWP is well-established, but we took from them the impression
of entrenched practices, some good, some bad, and that they were
less inclined to modify their approach.
4. Although both Departments have board-level
members responsible for overseeing secondary legislation, our
perception was that, before the invitation to speak to the Committee,
this item figured low on their list of priorities. Both Departments,
as with the three Departments from which we took evidence in 2005-06,
said that the invitation to speak to us had inspired them to review
their working practices and, as a result, they had identified
items which required attention and improvement (Q2, Q39). We regret
that it takes an appearance by senior officials before our Committee
for Departments of State to have regard to the recommendations
in our original Report.
5. Our most recent evidence sessions confirmed
our view, built up from the scrutiny of 1,100 instruments per
year, that Departments pay insufficient attention to secondary
legislation, both when considering the exercise of powers in new
primary legislation and more generally, in that they do not actively
manage their general output of secondary legislation.
6. We also took evidence from Ministers: in writing
from Michael Wills MP, Minister of State at the Ministry of Justice,
responsible for HMSO and the publication of SIs; and orally from
Pat McFadden MP, Minister for Business and Regulatory Reform at
the Department for Business, Enterprise and Regulatory Reform.
Mr Wills' letter summed up the different roles of the two Departments:
"BERR has responsibility for questioning the
need for regulation and for ensuring, that the burdens affecting
business, charities and the voluntary sector are reduced whilst
the Ministry of Justice is responsible for the process after which
a decision has been taken that regulation is required."
His letter conveyed a grasp of the subject and willingness
to engage with the Committee constructively on the issues that
concerned us. In contrast, we were disappointed that Mr McFadden
did not, when questioned, see secondary legislation as a tool
of better regulation. Although he said that statutory instruments
were "in focus but part of the broader picture" of the
better regulation initiative, we felt that it was on a dim and
distant horizon (Q91,Q114). This concerned us because we see hundreds
of SIs each year of direct regulatory effect on business, and
many more of indirect effect. In addition, better regulation should
not affect only private enterprise but should also extend to central
Government's regulation of the public sector, for example, education
and healthcare. We consider this issue in more detail at paragraphs
15 to 21 below.
7. While the Minister was clear that all proposals
for primary legislation will have been subject to consultation
and impact analysis, it did not seem important to him that secondary
legislation be treated with equal vigour. A key conclusion of
our previous inquiry was that secondary legislation was being
treated as second-class legislation and we see no change in the
attitude from the centre (Q112). In our view, secondary legislation
needs more rather than less attention: primary legislation is
fully debated and amended in its passage through the two Houses.
Secondary legislation cannot be amended by Parliament and is often
not even subject to a debate. It is thus vital that Parliament
can assure itself that the initiating Department has made every
effort to ensure that the instrument laid before the House is
fully fit for its stated purpose.
Central oversight and guidance
8. Since our inquiry, HMSO (responsible for the
printing and production of statutory instruments) have set up
certain performance measures, e.g., the number of instruments
laid less than 21 days before they are due to come into force.
HMSO send these statistics to Departments as a quarterly report.
Fewer Departments are now breaking the 21-day rule: in 2006-07
there were 48 SIs, or 4.1% of the total, by comparison with 90
SIs in 2005-06, or 5.8% of the total. Moreover, the reasons for
the breaches in the 2006-07 session are more in line with guidelines,
e.g., emergency measures to deal with the foot and mouth outbreak,
or fiscal measures brought in quickly to prevent avoidance. It
is this sort of active monitoring and engagement with Departments
that we are looking for from the Better Regulation Executive (BRE)
in respect of their areas of interest and responsibility. HMSO
also keep the guidance for drafting SIs: Statutory Instrument
Practice (SIP) and they have maintained a constructive dialogue
with us about our interest. Thanks to this dialogue, SIP now contains
clear instructions for Departmental officials about how to complete
the Explanatory Memorandum (EM) in a way that will meet the needs
of this Committee and the House. HMSO's guidance is amplified
by our own, published on our website[3].
9. While many Departments have someone at board
level in charge of the quality of their secondary legislation[4]
(Q2,QQ38-9), this person is often the departmental lawyer. This
may not always be the most effective appointment, as the person
needs to have influence over the policy officials responsible
for issuing drafting instructions. Whichever official has responsibility
for the quality of secondary legislation in any Department, we
would encourage him to take a more active approach to ensure that
senior policy officials systematically check the material they
intend to lay before Parliament for efficacy, accuracy and completeness[5].
Consultation
10. The Prime Minister launched a Code of Practice
on Written Consultation[6]
in November 2000. The current version contains six principles,
the first of which is:
"Consult widely throughout the process, allowing
a minimum of 12 weeks for written consultation at least once during
the development of the policy."
Compliance with this 12 week standard fell from 80%
in 2005 to 75% in 2006. When asked whether 75% compliance was
acceptable, the Minister replied that "you might hope for
more" (Q106). This area of the Government's policy on the
management of legislation, perhaps more than any other, raises
serious questions about the disconnection between the centre's
willingness to issue instructions and its ineffectual attitude
to ensuring that Departments follow them.
11. We have long emphasised the importance of
consultation in the production of secondary legislation which
is fit for purpose. We look to see that, in formulating its proposals,
the Department have sought the views of those who are expert,
those who will have to enforce the legislation and those who will
have to obey it. We look to see whether sensible suggestions that
will improve the legislation and make it more effective have been
taken on board, or indeed that stakeholders had no observations
on the Government's proposed approach. A well-run consultation
exercise gives assurance to Parliament that the Government has
targeted its policy appropriately. We recommended in 2005-06 that:
"the guidance to departments on consultation
should reinforce the need for EMs to report the outcome of consultation
and to explain why legislation rather than other forms of regulation
is the chosen course for achieving the required objective"
Regrettably, we still see a number of EMs that contain
an insufficient account of the consultation exercise, and one
or two that misrepresent it[7].
We will always pursue this with the Department, if necessary delaying
scrutiny of the instrument. DCSF in evidence acknowledged that,
although they always undertook comprehensive consultation, they
had not always given an adequate summary in their EMs (Q26).
12. We have also, in the past, expressed concern
to the Ministry of Defence (MOD) about the extent to which, in
producing its legislation, the Ministry took account of the views
of those who would be directly affected by these changes. Although
we accept that the special circumstances of the armed forces mean
that standard Governmental practices of consultation may not always
be appropriate, this should not apply to issues such as pension
rights. Constructive criticism from user groups is always useful
in refining government proposals to make them more effective.
We were therefore pleased that MOD have responded positively by
reviewing their approach and have set out their methodology in
a paper reproduced at Appendix 3.
13. The Better Regulation Executive plans to
revise its current guidance on the conduct of consultations and
first issued a consultation document, Effective consultation[8],
on how the system could be improved. Many of the 114 respondents
to that consultation shared our concerns that the analysis of
consultation must be available when the SI is laid and that the
guidance should be enforced more vigorously (Q105)[9].
Paragraph 4.47 of the analysis of responses says:
"Feedback, in several people's eyes, is key
to trust in the process and key to future engagement. When the
Government announces things during the consultation exercise,
trust is eroded. Also, it makes little sense when the Government
takes action, e.g. laying bills before Parliament, prior to publishing
the Government's response to the consultation exercise."
The analysis of a consultation exercise is not
an afterthought but should drive policy. The full analysis should
always be available when the SI is laid, as should any other supporting
documents. EMs should better and more accurately summarise the
results of consultation.
14. We have a further concern about consultation,
relating to DWP. In a range of its legislation, particularly that
relating to pensions, DWP have a statutory exemption from consultation
for the exercise of powers within six months of the enabling provision
coming into effect. Provision of this kind seems to have appeared
in social security legislation since the 1960s, the motivation
being to enable quick implementation of the Act[10].
DWP argued that they were a special case because they have a statutory
consultee, the Social Security Advisory Committee (SSAC) (QQ58-63).
We note that other Departments have similar arrangements (e.g.,
DWP with the Heath and Safety Commission, DCLG with the Building
Regulations Advisory Committee, and the statutory obligation on
the Ministry of Justice to consult the Administrative Justice
and Tribunals Council on Procedural Rules). In any case, the exemption
also prevents the SSAC from commenting formally on the proposals.
We see no justification for this exemption. The six-month
exemption from consultation enjoyed by DWP is at odds with the
Government's general policy and we recommend that it should be
discontinued. Non-compliance with the 12-week consultation requirement
should be exceptional and always explained fully.
1 The management of secondary legislation,
29th Report (2005-06) HL Paper 149-I. The Report was debated in
the House on 29 November 2006. Back
2
The Government response was published in our 49th Report (2005-06)
and was supplemented by a letter to the Chairman from the Parliamentary
Under-Secretary of State, Ministry of Justice, published in our
22nd Report (2006-07). Back
3
www.parliament.uk/parliamentary_committees/merits.cfm Back
4
A recommendation in The management of secondary legislation,
29th Report (2005-06) HL Paper 149-I, paragraphs 51-52, responded
to by Baroness Ashton of Upholland, Parliamentary Under-Secretary
of State, Ministry of Justice: 22nd Report (2006-07), Appendix,
Annex 1. Back
5
See, for example, the letter from Mr Vernon Coaker MP about the
draft Local Authorities (Alcohol Disorder Zones) Regulations 2008,
printed at Appendix 2. Back
6
http://bre.berr.gov.uk/regulation/consultation/code/index.asp
Back
7
See, for example 16th Report (2006-07) on the Electricity Generating
Stations and Overhead Lines (Inquiries Procedure) (England and
Wales) Rules 2007 (SI 2007/841); and 17th Report (2006-07) on
the Housing (Tenancy Deposits) (Prescribed Information) Order
2007 (SI 2007/797). Back
8
Effective consultation: http://bre.berr.gov.uk/regulation/consultation/policy_review/index.asp
published 14 June 2007. Back
9
Response to Effective consultation, para 4.17, published
online at the address above. The response does not identify how
many. Back
10
See, for example, section 10(1)(a) of the National Insurance Act
1969. The exemption began as a specific exemption from consulting
the National Insurance Advisory Committee (the predecessor of
the SSAC) for a period of 6 months from the date on which the
enabling Act was passed and was restricted to consequential matters.
But the exemption has now expanded in both duration and scope:
see for example the Pensions Act 2007 section 25 (4). Back
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