Examination of Witnesses (Questions 1-19)
Ms Lesley Longstone and Ms Claire Johnston
27 NOVEMBER 2007
Q1 Chairman: Good afternoon and welcome. I am
Geoffrey Filkin, Chairman of the Merits Committee. We have met
before—I am not sure whether it is your sins catching you
out or mine—but you are most welcome, and you will know
a number of members of the Committee as well, I suspect. I am
sure that you know the central focus of the Committee's interest
which is the quality and the management of secondary legislation
by departments, and no doubt you have seen our first report, and
this request for further evidence is in a sense to see what has
happened in the Department since then and how the process is being
managed now with a view to getting better quality legislation
and better policy implementation. I wonder if I might start off
by asking if, between you, you could each describe what is your
role in overseeing the quality of the Department's overall secondary
legislation, both quality and the management of the totality of
the process?
Ms Longstone: I think I will start, if I might. I
am one of the three policy Director Generals within the Department
with responsibility for young people, along with my colleagues
who are responsible for the Schools Directorate and Children and
Families' Directorate, and therefore I have responsibility for
regulation activity that happens within my area of command. We
also as a board take collective responsibility through policy
Directors General in particular, for the programme of the work,
and I think as we explained the last time in response to your
recommendation our Director General for corporate services has
responsibility for better regulation within the Department, and
he is the regulatory champion, if you like, who acts as the board's
conscience when we are discussing these sorts of issues.
Q2 Chairman: Does that mean he has
responsibility for managing and monitoring the overall quality
of secondary legislation that is produced in total?
Ms Longstone: At the minute he is acting in
a champion capacity and a conscience capacity asking questions
at the board about what we are doing in individual areas. What
we are moving towards is actually a more formal process of monitoring
quality and activity generally, so the volume of statutory instruments,
whether we are meeting the 21-day rule, et cetera, and the way
we are proposing to do that is via the Corporate Performance Report
that that Director General is responsible for. So each quarter
the board takes a report which is about our achievement against
our business objectives as a Department, our Departmental strategic
objectives, and the PSAs, that we are responsible for delivering.
At the minute we also have a section which is all about our feedback
from customers, from young people, parents, teachers, so that
is part of the Corporate Performance Report as well. What we are
proposing to do is to take that a step further and monitor regulatory
activity, because at the minute Claire, who is our head of Legal
Services, is the person who has the overview in the sense of working
with her lawyers and individual policy teams as to what the overall
programme looks like, but at the moment we are not looking at
that as a board, and that is what we think our next step is. So
what would tend to happen is that if all was going well that would
be fine, and we would intervene on an exception basis, and if
there were particular issues or problems that Claire was aware
of from the Merits Committee, an issue about quality of Statutory
Instruments, then she would raise that with the individual Director
General and she still would, and that would be then our responsibility
to sort out, but what we are trying to do is create a mechanism
whereby the regular monitoring information is available to the
board as well as to Claire, so we can actually see what is happening
and hopefully pick problems up before they happen rather than
after.
Ms Johnston: And that has very much come out
of our work preparing for this session, so it has been very helpful
to step back a bit, Lesley and I together, to look at themes that
emerged from the last year. I think we then identified a useful
role for me in bringing those themes up to the board on a regular
basis and also taking a forward look at the next quarter's plan.
So we have had a very helpful series of discussions and very much
triggered by the Committee's questions. The traditional role of
the legal adviser is certainly to be accountable for the legal
quality of Statutory Instruments, and that is taken very seriously
in the Government Legal Service, as you heard last time round.
We have very strict checking mechanisms, a high level of training,
and in my Department we have a "third pair of eyes"
system where an independent lawyer, usually me or someone else
on a consultant basis who has not been involved with the detailed
drafting, looks at the SI and checks for its legal effectiveness
and whether it is in good, up-to-date modern drafting. All of
those things are a traditional role but, of course, the Government
Legal Service is very keen on us being fully engaged with the
business of the Departments where we work. So I think this advancement,
where I would be reporting to the Board on a regular basis about
the Parliamentary responses that we have had to our Statutory
Instruments and their Explanatory Memoranda and the wider context
of our secondary legislation, is a good development and very consistent
with the way government lawyers want to engage with the business
they are doing for their departments.
Q3 Chairman: You mentioned as part
of preparation, or perhaps as part of normal business, you were
identifying themes that seemed to you to merit attention for the
Department in reflecting perhaps on both process and policy skills
in making Statutory Instruments. Can you give us a flavour of
what some of these might be, or are?
Ms Longstone: The concerns you have raised are
around the timing of Statutory Instruments and we have obviously
picked up on those and looked at why the number of Statutory Instruments
laid in recess is still so high. It is going in the right direction,
it is going down, but obviously it is still too high, so that
is one of the things we can look at, and we also have what Claire
described as the process where we look backwards a quarter but
also ahead six months, that is the way we hope to pick up issues
like that at the time and ask the question: "Is that absolutely
necessary?" In some cases it might be necessary that we have
to lay them, but we would hope they would be exceptional circumstances
rather than what seems not exactly routine at the minute but rather
too many. You are also obviously concerned about the thoroughness
of the Explanatory Memorandum and the degree to which we have
done the consultation with children and young people and families,
which we need to look at, but also, where we have done that consultation,
it has not obviously been sufficiently brought out. So there is
an issue around quality and training of people involved in doing
those.
Q4 Chairman: Could I move on then
now to an issue that is increasingly of interest to the Committee?
One of our terms of reference is to advise the House when we think
that an instrument may imperfectly achieve its policy objective,
for obvious reasons, and it seems to us that one would expect
that a Department, on any significant instrument rather than one
which was just a price change, for example, significant issues,
had defined in one would expect measurable terms what success
was, how they would define success, for the achievement of the
policy objective through that instrument. Do you agree with that
in broad terms? If so, do you do it?
Ms Longstone: I think we agree with it in broad
terms, yes, and normally we would expect that the policy objectives
should be set out either in the policy background section of the
Explanatory Memorandum or in more detail, or maybe as well, in
the regulatory impact assessment or the new impact assessment,
so I think you clearly should have a policy objective which is
the basis for what you are doing. In lots of cases it will be
possible to identify specific outcomes that you want to achieve
and the time scales you want to achieve them in; in some cases
I think it is a little bit more difficult. Do you want me to give
examples?
Q5 Chairman: Yes.
Ms Longstone: If, for instance, we were talking
about in broad terms infant class sizes there is a very clear
measurable impact which is the size of infant classes where, with
a very small number of limited exceptions, we believe the classes
should be below 30 pupils, and there is a way of measuring that
because we have a school census that enables us to identify classes
that are oversized, therefore we can take action; and also we
publish that data on an annual basis. So that is an example where
there is a policy intent with a very clear outcome that is measurable
and reportable, and I do not see why we should not say very explicitly
what those outcomes are that we are looking to achieve. If you
are talking about school admissions, then the objective is that
schools admissions policies are fairer, and we are responding
to feedback through schools, through the appeal system, from parents,
about what they see as unfair practice, and over the past few
years we have been tightening the admissions criteria culminating
in the new Admissions Code. It is really quite difficult to translate
that into a measurable kind of outcome indicator. On the one hand
you could say well, if the number of appeals goes down then schools
policies must be fairer, but on the other hand you could say if
the appeals go up that is good because we are giving parents the
power to redress some of their practices, and the Appeals Code
is having an effect; it is changing schools' practices and as
a result of the adjudicator's decisions schools are having to
change their policies. So yes to the principle, but depending
on the nature of the Statutory Instruments there may or may not
be very specific measurable targets you want to achieve over a
specific time period.
Q6 Chairman: To be devil's advocate
we would probably assert that the default should be that one has
to make that attempt to be explicit about policy --
Ms Longstone: Absolutely.
Q7 Chairman: -- and effectiveness,
because otherwise it invites the comment: "Well, if you do
not know whether it is going to have any effect or not why bother",
and save everybody the trouble. I am being slightly flippant but
is there anything further to add on that? Because I think we are
likely to be continuing this expecting to see, in Impact Assessments
or an EM when there is no Impact Assessment, something that is
explicit about policy success and how it is going to be measured
and monitored, or at least an argumentation as to what will be
the best surrogates you will use. Because most of the thrust has
been about reducing the burdens of regulation; there has not been
that much of a thrust about getting policy effectiveness. Would
you agree?
Ms Johnston: As we said in relation to helping
all our officials deal with Explanatory Memoranda in a way which
helps the Committee most, there is a similar issue about the new
Impact Assessment. There is a new template from the beginning
of this session and it does have an explicit question: "When
will the policy be reviewed to establish costs and benefits?"
That has been highlighted to officials and practice will develop
around that, so we would expect to see more of a focus in departments,
stimulated again by the Committee's interest in the issue, but
linked to the new Impact Assessment model.
Q8 Chairman: Last word from me then
I will cease: that is half of the story, monitoring the effect,
but on this question we are focusing on us being able to better
advise the House whether it looks as if there is policy and intellectual
clarity about what you are trying to do and how you are going
to get there through this instrument in doing it. That is where
the House has a legitimate interest and may want to cross-question
the Minister on it. Does that make sense to you?
Ms Longstone: Yes, it does.
Q9 Lord Tunnicliffe: Would it be
practical to include a statement that either this is how you were
going to measure it, or that you had been unable to find a measurement?
Ms Longstone: I am sorry if I have misled the
Committee; I was not suggesting we should not be clear about what
our objectives are or even how we might try and measure it, but
sometimes there might be softer measures rather than hard value-driven
outcomes. It may be you need to look at qualitative information
and you need to look at parental satisfaction with the admissions
system, et cetera. I think it is very reasonable that we should
be really clear about what the policy objectives are and how we
are going to determine their success; I think I am saying that
it is not always as simple as a single measure of success.
Chairman: We agree with that.
Q10 Baroness Butler-Sloss: Carrying
on from that, talking about the monitoring which you have done
really for the basis of coming to this meeting today, what sort
of monitoring do you do, say, three years on to see whether or
not what you thought it would be has really come up to expectation?
Who would do that? Would it be your new Director General? How
are you going to manage it?
Ms Longstone: At the minute our research and
evaluation programme, which is essentially how we monitor and
evaluate, is organised around policies rather than around regulatory
instruments, so we do not have a process of automatically reviewing
regulations at a certain point in time at the moment. Certainly
for significant pieces of legislation which are linked to a significant
policy then clearly, if we are investing resource, our own and
other people's, we would want to evaluate after a period of time
how effectively that had been done, so our analytical services
colleagues who work within the Department—we have a central
strategic unit and then we have analysts on policy areas—will
work with us to identify a programme of research and evaluation
and that is accessible via our departmental website, along with
the results of that exercise, our evaluation, internal and external,
reports that we complete. Now, all this is going to change with
the new Impact Assessment because that requires us to specify
that there is a point in time at which this instrument is going
to be reviewed, and what we have started there is our better regulation
unit in the Department, who work for the designated Director General,
is developing a system, a database, that will enable us to track
what commitments we gave to reviewing Statutory Instruments at
one point, so that at the time at which they come up for review,
or probably a little ahead, it will flag that with the policy
teams, and what that will then do is it will inform a review on
the actual Statutory Instruments but also inform our research
and evaluation programme, so when we sit down and say: This is
our programme research and evaluation for the next year, we are
doing so knowing that these Statutory Instruments also are going
to come up for review.
Q11 Baroness Butler-Sloss: As I understand
it you have not yet followed any particular Statutory Instrument
at all?
Ms Longstone: We do not follow the Statutory
Instruments, no. We follow the policy.
Q12 Baroness Butler-Sloss: But you
are proposing to follow the Statutory Instrument on the basis
of the Impact Assessment in the future?
Ms Longstone: Yes.
Q13 Baroness Butler-Sloss: How are
you going to choose which of those SIs you will follow up? Do
you follow them all up?
Ms Longstone: I think we are required to follow
them all up. Obviously there will have to be a decision about
the weight, if you like, of our investment and the follow-up,
and according to the significance in terms of impact, cost, regulatory
burden, et cetera, we will have to make an assessment as to which
ones we are going to do a kind of a light touch review of and
which ones require a really fundamental review, and you would
expect that the more significant ones, particularly in relation
to brand new policies, would be a very substantial evaluation
programme, whereas the more technical ones would probably be less
so. But that is how we are trying to bring it together from where
we are now, which is policy programme based, to where we need
to be, which is to have the regulatory review as well.
Q14 Baroness Butler-Sloss: When will
you be expecting to put this into place, and secondly, even more
important perhaps, how will the House be able to know how to follow
up what it is that you are doing, because it will be of great
interest to us to know what you think about the outcome of your
Statutory Instruments?
Ms Longstone: Claire might be able to tell you
more about the timing.
Ms Johnston: The Impact Assessments which have
to be laid now do all have to have this comment in them, so at
the moment we are operating a manual system where we are recording
what commitments we have given to review. What we want to put
in place is a database system, which will help us manage it as
the volumes go up. In terms of reporting to the House I think
we need to take that back, perhaps, to the person who is developing
the database so that we have a connection with the House's interest
and this Committee's interest. I think we have an opportunity
to make that connection in designing this.
Baroness Butler-Sloss: I think it is very important
that this Committee should know, because we really do need to
be able to monitor what you are monitoring.
Chairman: And we can signal in our reports or in
the debates on our reports the issues that seem to us important
to identify the measures and when it would be evaluated.
Q15 Baroness Maddock: I wonder how
much at the moment you are affected by events when you look back
at instruments, because one of the instruments that came before
us recently was the instrument about setting up ContactPoint,
and I noticed today I think the Minister has made comments about
this. Would this have come through your Department? Would you
have alerted him to this? Or would he just have thought of it
himself?
Ms Longstone: Are you talking about the Minister's
comments in his statement to the House?
Q16 Baroness Maddock: Yes, because
we raised concerns he is looking at again.
Ms Longstone: He knows of the interest of this
Committee. I know you have looked at the ContactPoint regulations
in some detail. His statement today is prompted by two things.
One is there has been on-going work with potential users of the
system across the different children's services who have come
back and said they need more functionality, they need the system
to do some things at the minute that it is not designed to do,
and, prior to the events of last week, we were coming to a view
that we needed to delay ContactPoint in order to get this right
before it was rolled out. Subsequent to that, the HMRC incident
means that we just need to be absolutely copperbottom sure that
we have everything as absolutely secure as we possibly can. We
are confident, and we have been back through our procedures since
last week, that the fact we have this delay means we have got
time to do even more and get some external experts in to look
again and give us that assurance. So we have commissioned Deloitte
to do some further work on that.
Q17 Baroness Maddock: So part of
our work would have informed that debate?
Ms Longstone: Absolutely.
Q18 Lord James of Blackheath: I was
going to start by asking you to give a little more background
as to the process of central control over the quality and flow
of the instruments coming through, but you have already been addressing
a large part of that already. I would like to take you back to
your opening introductory remarks when you talked about regulation—I
think you have used the word "regulation" more than
any other single word this afternoon—and I would like you
to give me your definition, because it sounded to me as though
what you were talking about was not quite regulation but compliance.
Could you describe the difference between the regulatory and compliance
functions within the Department, and how they are managed?
Ms Longstone: I think compliance is much wider
than the regulatory functions—
Q19 Lord James of Blackheath: They
play to different audiences, do they not?
Ms Longstone: I think what I mean by "regulatory"
is the process of regulating what happens in our context in the
education system, so that includes the primary legislation, the
secondary legislation, which I know is the focus of this group,
the statutory instruments that are not really statutory instruments
but we say we want them to be treated as such, things like the
Admissions Code, so that is what I mean by regulation. When I
talk about better regulation I am talking in the framework of
the better regulation unit which works to reduce the regulatory
burden.
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