APPENDIX 5: EVIDENCE FROM HER MAJESTY'S
GOVERNMENT ON THE MANAGEMENT OF SECONDARY LEGISLATION
Letter to the Chairman from Mr Michael
Wills MP, Minister of State, Ministry of Justice
1. As part of its follow-up inquiry into
the Management of Secondary Legislation, the Committee asked for
written evidence that we may wish to submit and whether I would
like to take this opportunity to comment on the issues dealt with
in Baroness Ashton's letter of 14 May 2007. In particular, you
also sought clarification of my and Pat McFadden's respective
roles in relation to secondary legislation. I am very sorry for
the delay in providing this response.
2. I welcome the follow-up by the Committee
and look forward to hearing your views as to how matters have
developed since the original inquiry report. I can commit us to
review the original Government response in the light of developments
since that was provided. The Committee's report will be a key
input to this.
The respective roles of Ministry of Justice and
the Department for Business, Enterprise and Regulatory Reform
3. First, perhaps I could provide some clarification
of the respective roles of Pat McFadden and myself.
4. As you will be aware at the time of the
Committee's original inquiry responsibility for all matters in
respect of the secondary legislation process rested with the Cabinet
Office. Since that time there have been two Machinery of Government
changes that affect this.
Ministry of Justice
5. The Office of Public Sector Information
(OPSI) and Her Majesty's Stationery Office (HMSO) merged with
The National Archives, and that required the Transfer of Functions
(Statutory Instruments) Order 2006. This means that the Secretary
of State for Justice has responsibility for:
— overseeing the arrangements for all
of the processes governing the drafting, production and publication
of Statutory Instruments under the Statutory Instruments Act 1946
and the Statutory Instruments Regulations 1947. Section 8 of the
Statutory Instruments Act particularly confers a power on the
Secretary of State (with the concurrence of the Speakers of the
House of Commons and the House of Lords) to make regulations for
the purpose of the Act;
— for ensuring the publication of an
Annual Edition of Statutory Instruments; and
— for the management of Her Majesty's
Stationery Office which has a key role in relation to the production
and publication of all Statutory Instruments and retains its editorial
responsibility in relation to Statutory Instrument Practice (SIP).
SIP sets out guidance for the use of civil servants, departmental
lawyers and others concerned with the preparation and making of
statutory instruments and the parliamentary procedures relating
to them. HMSO also seeks to ensure that departments comply with
the guidance and brings to the attention of departments any apparent
failures on their part.
Department for Business, Enterprise and Regulatory
Reform
6. Following the appointment of the new
Prime Minister, the Better Regulation Executive (BRE) was moved
from the Cabinet Office to the new Department for Business, Enterprise
and Regulatory Reform (BERR). Within BERR, Pat McFadden is the
Ministerial lead for the Government's Better Regulation Agenda
and has ministerial responsibility for the BRE.
7. The BRE has been tasked by the Prime
Minister to minimise bureaucracy for businesses and front-line
staff in the public sector and to help charities and the voluntary
sector to make a greater contribution to society.
8. The BRE works across government to support
and challenge departments and regulators as they reduce and remove
regulation across the private, public and voluntary sectors. The
BRE also plays an active role in promoting the better regulation
agenda in Europe.
9. The BRE has overall responsibility for
the Government's commitments to:
— regulate only when necessary;
— set targets for reducing the cost
of administering regulations; and
— rationalise the inspection and enforcement
arrangements for both business and the public sector.
10. This involves:
— scrutinising new policy proposals
from Departments and Regulators;
— speeding up the legislative process
to make it easier for Departments to take through deregulatory
measures;
— working with Departments and Regulators
to reduce existing regulatory burdens affecting business and the
voluntary sector, and frontline staff in the public sector; and
— driving forward the better regulation
agenda in Europe.
11. The work of the BRE covers public, private
and voluntary sectors and European issues, and also how inspection
and enforcement arrangements are carried out on the ground.
12. In many ways the split in responsibilities
could be summarised as follows:
— 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.
13. None of the above, however, overrides
the responsibility which individual Secretaries of State have
for managing their Department's secondary legislation.
Actions since the original Government Response
to the Committee's Inquiry Report
14. The Government has not reconsidered
its views since the Committee's original recommendations and Baroness
Ashton's letter of 14 May set out the results of the further consideration
by departments of three key recommendations.
15. As I have already indicated individual
Secretaries of State are responsible for their Department's legislation,
both primary and secondary. Secondary legislation is an integral
part of the policy process and the volume of secondary legislation
varies widely between departments and it would be inappropriate
to prescribe how departments should take forward their responsibilities.
16. A number of departments have offered
to share with the Committee information which they have regarding
plans for forthcoming secondary legislation. In this respect it
is also worth noting that the Home Office, as part of their legal
awareness programme, have produced a comprehensive plan of the
Department's forthcoming statutory instruments, to be updated
on a quarterly basis, and on which they hope to produce a published
version in the near future. Wherever departments have information
regarding their forthcoming programmes then they are being encouraged
to share this with the Committee.
17. I also understand that HMSO has provided
the Committee's Advisers with a range of statistical information
regarding volumes of Statutory Instruments produced and which
shows an improvement in departmental performance in ensuring compliance
with the 21 day rule.
18. I hope also that the Committee agrees
that the standard of the Explanatory Memoranda has continued to
improve. HMSO has taken note of your recent evidence sessions
with officials from DWP and DCSF identified areas where it might
be helpful for the Committee to modify the form of the Memoranda
by:
— including a specific heading under
which departments would be required to provide information about
the Consultation which they have undertaken in respect of individual
or groups of instruments, underlining the importance of consultation
and to show how the drafting of the instrument has been affected
by the outcome;
— reminding departments of the need
to ensure that they append to the Explanatory Memoranda all relevant
Impact Assessments which have been undertaken in respect of the
instrument itself or originally alongside the Bill which was creating
the power under which the instrument is being made; and
— to provide information as to how
and when they would be intending to measure the success of the
policy which was giving rise to the instrument being made.
HMSO is currently finalising a new edition of
Statutory Instrument Practice and will agree with your advisers
and those of the Joint Committee on Statutory Instruments, the
specific changes to the guidance to departments on completion
of the Memoranda.
19. Otherwise, I can reiterate that we will
be reviewing the initial Government response in the light of the
Committee's views arising from your follow up to the Inquiry.
I shall await your report with interest. In the meantime if you
have any further questions for me then I should be very happy
to provide a response.
14 January 2008
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