Examination of Witnesses (Questions 100-119)
Mr Pat McFadden MP
22 JANUARY 2008
Q100 Baroness Deech: If I may say,
my Lord Chairman, it is not quite the same thing, is it? When
we are governed by a Freedom of Information Act and openness,
it has to start at the top, I think. To rely on guidance is one
thing but if you actually want to know what the law really is,
I think many people, and not just lawyers, would want to find
that statutory instrument and expect to find it consolidated.
I can see that the guidance is helpful but it really is not the
same thing at all. Of course, the process of consolidating it
may make those who are responsible realise that there is work
to be done in getting rid of unnecessary regulation. I was thinking,
for example, of the new gambling regulations. If, heaven forfend,
I ran a casino I would hate to have to pick my way through it;
we must have had about 50 different pieces of secondary legislation
before this Committee over the last year or so. I felt quite despairing
of finding my way through it. I wondered if there was anything
to be learned from other countries. How do they handle it in,
for example, Canada or Europe? Europe must face exactly the same
problems because so much of the legislation comes from Europe.
Have you looked abroad at all to see if they have ways of cutting
through the thicket?
Mr McFadden: Do you mean in terms of how they
list it on a website, or something, in relation to previous—
Q101 Baroness Deech: How it is presented
so the public gets an absolutely accurate view and officials know
exactly what it all is.
Mr McFadden: I do not know how other countries
put together their banks of legislation. What I do know is that,
as I said at the beginning, in speaking to other ministers abroad
about our better regulation efforts, there is, I think, significant
admiration for the UK's efforts in this regard. I was recently
in Poland where I met the Deputy Premier. He sang the praises
of what we were doing and said that Britain was an example for
other countries to follow in this regard. That may not be the
universal view in all other states. But our approach of measuring,
then setting a target and then trying to get departments to reduce
the admin burden has been noticed around Europe. We are not the
first to do this or the only to do it; the Netherlands, of course,
have blazed a trail, in some ways, and also carried out a similar
approach. Now we are moving from doing that for business and the
third sector to, also, trying to reduce public sector burdens.
Chairman: We will come to that in a minute.
Q102 Baroness Deech: As I am sure
you know, Minister, this Committee takes the process of consultation
very seriously, and it is one of the first things we look at in
the accompanying documentation. We get concerned if the results
are not available. Quite often the explanatory memorandum tells
one very little about the consultation, and it is suggested that
we go to the website. When we do see the consultation and it is
analysed, quite often there is no explanation of how the final
statutory instrument gets from consultation, where very many concerns
are expressed, to a position where those concerns do not seem
to have been taken on board without much explanation. A recent
example that we have just been looking at is the Alcohol Disorder
Zones Regulations, where the police have concerns and the local
authorities have concerns, but it is going ahead nonetheless.
Mr McFadden: I think this is really important
and not easy to get right and not easy to keep all different interests
satisfied. I have thought long and hard about consultation, partly
because, sometimes, there can be a difference in where the public
are, and a difference, for whoever is doing the consulting, about
what the question is, which can lead to a frustration. So a different
question can be answered compared to the one that is being asked.
A lot of consultations are about how something is going to be
implemented, and the question that is answered is whether it should
be implemented. I think the public, quite understandably, when
they hear the word "consultation" will think: "Everything
about this matter, then, is up for grabs, or up for debate here",
but it might not be; it might be that you have made an "in
principle" decision to do something, there are two ways of
doing it, A or B (or C) and you are consulting. Let me give you
a current example which is live in the House of Lords at the moment.
Prior to the publication of the Employment Bill my department
consulted on two ways to abide by a ruling from the European Court
of Human Rights with regard to trade union law. There was option
A and there was option B. Most of the responses came for option
A, and that was reflected in the Bill. During the Second Reading
of the Bill in this House there were some concerns raised about
that, and a lot of people speaking for option B. Does the voice
of the legislators triumph, as it may, because—
Q103 Chairman: I do not think we
have ever, as a Committee, thought that the Government was not
entitled to its policy, but we would be particularly, I think,
concerned when we see that there are really strong doubts from
those who will be affected by legislation, about whether it is
going to work and about whether the cost benefits justify it.
Obviously, some of it is a policy judgment. We have seen good
examples on the WEEE regulations, where the department pulled
it because they knew it was not going to work, and we commended
them for that, but we have seen examples when it looks (we will
come to it on RIAs) as if there is a mind-set by Ministers and
departments that: "We have got to do something. We're going
to do this", and it is brushed under the carpet. You see
that, sometimes, in the way in which the responses to consultation
are written up in EMs—they are brushed aside.
Mr McFadden: I would hope not. Certainly my
own experience, as a Minister, of how consultation is treated
and whether or not it is treated seriously is that it is treated
seriously, and in fact, in the legislation I have been involved
in, when the department or I have decided to depart from the predominant
view in the consultation, it has been after quite careful thought;
it has been because that option that was the most popular just
would not work for this reason. I appreciate what you are saying.
In the end, the elected government of the day will have to decide
and make the policy, and consultation can only go so far. It can
help inform, or should help inform, policy making, but our system
is that, in the end, after every X years we will have to go and
stand up and be counted on all those decisions, and whatever we
are promising in the future. So consultation can take you so far,
and it is very important, but, in the end, ministers will have
to decide. That will, sometimes, mean that the majority view in
a consultation will not always hold, but I think that is probably
understood in our system.
Q104 Baroness Deech: You having said
that, Minister, it probably would not be a bad idea to spell out
in the documents or on the website exactly what is immutable,
what the real choices are, and perhaps, at the end, when it is
all over, come back on the website and say: "Nevertheless,
we have had to go this way or that way".
Mr McFadden: This desire, which I share, for
greater clarity about what it is one is consulting about and what
it is that is already decided is one of the reasons for the process
we have been going through to revise the code on consultations,
because I think there is sometimes public confusion about that,
which can, in turn, lead to frustration, which can, in turn, lead
to a dissatisfaction with the political process, which may from
the politician's end of the telescope be unfair, because they
think: "They are only consulting about this part here and
70% of it is decided". You have to get the initial question,
in the broadest sense of the word, right for the public or you
get this dissonance between public and politics, which we should
all be concerned about.
Q105 Chairman: Minister, given you
have this code in preparation, can we leave two specific thoughts
with you? It seems to the Committee that always the analysis of
consultation should be available at the time an SI is laid, and
there is not an excuse for not doing so as it ought to be part
of informing the legislative process and you can see what the
consultation process has been. Many departments do it and some
do not. Secondly, in terms of the time for consultation, the 12
weeks that is Cabinet Office guidance, only 75% of SIs meet that.
That seems to us to be unacceptable. Do you not agree?
Mr McFadden: We encourage people to do that.
There can be reasons why—
Q106 Chairman: Do you think 75% is
acceptable?
Mr McFadden: You might hope for more but, actually,
that does show that in most cases it is being abided by. As I
say, we know the reasons why it is sometimes not possible because
people have to act quickly; sometimes there are European reasons
which make that difficult and sometimes there are public health
reasons why that is not possible. So it is not something that,
in 100% of cases, you are going to be able to stick to. However,
as a yardstick of what normal practice is, doing it three times
out of four does show that this is taken seriously.
Chairman: We differ. We grant the exception that
at times you have to move with urgency for good health reasons,
or whatever. We have never been persuaded that the fact that we
had to comply with a Directive that has taken three years in the
making has meant that the public are not allowed their consultation
processes. That has never seemed to us to be acceptable. I will
leave those thoughts with you. We are not going to move you on
that, I can see, today.
Q107 Lord James of Blackheath: Minister,
it is quite notable that a great number of new Acts of Parliament
provide powers for ministers to make secondary legislation, and
they usually take up that opportunity in profusion, and we seem
to have a glut of them on new legislation. The Ministry of Defence
have scored some brownie points with us by offering to provide
a programme on how they intend to use their powers under the Act,
and it is such a welcome initiative that we wonder whether it
should not be implemented, as far as possible, by all other departments
as well. It would certainly help the scrutiny process.
Mr McFadden: I am sure it is a good example.
Again, I go back to saying it is important that departments take
responsibility for their own legislation and how they do things.
If that is a good example for others to follow then I am sure
they will look at it and learn from it.
Q108 Lord James of Blackheath: I
would like to press the question a little further, if I may. Do
you think that the availability of the statutory instrument becomes
too easily seen as the safety net to fill the holes which sloppy
drafting has allowed to pass through in the first place?
Mr McFadden: I certainly hope not.
Q109 Lord James of Blackheath: One
gets the impression at times that there is such a proliferation,
as Baroness Deech mentioned, for example, in the Gambling Act.
We have only had it five minutes and already we are more or less
saying there should be a consolidation process, and exactly the
same could be said of the Employment Act. Is there not a point
at which the sheer proliferation of the statutory instruments
which flow ought to bring about a trigger point at which consolidation
becomes a reasonable way forward?
Mr McFadden: You say there is a proliferation;
if you look back over the last seven or eight years, has it grown
a great deal?
Q110 Lord James of Blackheath: I
am not old enough to know that far back!
Mr McFadden: I do not know if there has been
tremendous growth. I think it is a roughly steady number of SIs
produced each year. Part of your question is: is this too easy
a tool for sloppy legislation? I certainly hope not. I do not
see anything wrong, in principle, with primary legislation setting
out the main framework for whatever it is a government is doing
and saying: "The Secretary of State" (as it usually
is) "shall have powers, for example, to decide the price".
Another example from my own responsibilities is that we have the
National Minimum Wage Act, which set out the establishment of
the National Minimum Wage. Each year the Low Pay Commission recommends
the rate and, through a statutory instrument that is debated in
this House, the rate is set. That seems to me, as a sort of basic
structure, a perfectly reasonable way of the Government carrying
through its policy. I think the same principle can hold for other
legislative—
Q111 Lord James of Blackheath: Just
to tighten this one down, if I may, Minister, if the requirement
was extended for every department to provide a statement of how
they intended to use the powers in secondary legislation, would
it not cause them to look in advance at what they might have to
use it for, which would therefore provide a discipline within
which to do a very intensive reassessment of what they were drafting
in the first place, and which would then bring about a simplification
and the avoidance of the need for later and earlier consolidation?
Mr McFadden: I am not sure, is the honest answer
to that question. One thing I am always slightly wary of, particularly
in this better regulation field, is saying that because someone
has done something good (you said the MoD had impressed you with
what they have done on this) everyone else should do this, and
everyone should produce a statement. Sometimes, that kind of process
is how we get to people producing an awful lot of pieces of paper
which may actually add to their work, and are we sure of the value?
Sure what they have done is good, but before saying: "This
must be replicated throughout government", I think, you have
to look a bit more closely at it.
Q112 Baroness Maddock: You talk about
the fact that you have your primary legislation and it goes through
the secondary legislation and it gets looked at, but it gets looked
at in a very different way. The reality is we do not vote down
the secondary legislation, and some of the things that come through
in secondary legislation—and we see it in our Committee—are
things that actually were not thought of at the time of the primary
legislation, and were not ever discussed. In fact, these days,
many things are not discussed in any great detail in the House
of Commons, whereas they are more at this end. We see the results
of some of that. If you look at what has happened over Home Information
Packs, I think you can see what we worry about and what we are
talking about.
Mr McFadden: I am not sure, again, that it is
wrong in principle that things that you did not think of are not
then dealt with in secondary legislation. I talked about the minimum
wage a moment ago, and setting the rate. It has also been the
case that, over the years, those statutory instruments about the
rate have been used for other things that were not thought of
at the time of the original act. For example, if my memory serves
me right, last year's up-rating order also dealt with the position
of people undertaking work experience as part of their further
education course, and whether or not they would be entitled—and
there might have been a grey area there. There may have been other,
similar examples, again. I am not sure that in principle it is
wrong to deal with that through a statutory instrument when the
main bones of the system have been set up by the original primary
act.
Q113 Chairman: I think it is a bit
more of a sense that when you have got a really complicated set
of secondary legislation that may, necessarily, have to be implemented
from the act itself, that, again, the real world has said to us
they found it really helpful if the department told us what was
going to be implemented and when, and, to some extent, why. There
is our famous little worker in the Kent Police Force who spends
chunks of her week trying to spot what is coming next, so that
she can advise people locally. That is, again, about retailing
the implementation of the primary act in a clear way to those
who will be affected by it.
Mr McFadden: I could not agree more. That is
very important, and that is why we have moved to common commencement
dates. Your police staff member, who was doing that, was in the
same position, I think, as a lot of business people in the past
who found that these things were coming up without much warning
and they did not really know what was going to be coming next,
so the Government responded to that by saying: "We will have
two main implementation dates"—again, not universally
abided by but, in the main, abided by—"in April and
October each year when new regulations will come in". That,
I think, has gone down well with business. I am not saying business
will always agree on the content of the measures coming in, but
I think the fact that they come in on two predictable, known days
is certainly helpful for those whom regulation affects. I agree
with you on that.
Chairman: I am sure it is right. It is a slightly
related point, but it is wider.
Q114 Baroness Maddock: When the Prime
Minister announced the creation of your department (the name changes
all the time), BERR, as they call it now, in 2007, he said one
of the key priorities would be its cross-government role in promoting
better regulation across business, public and the voluntary sector.
Looking at what we see on this Committee, we do wonder whether
you are pursuing this aim with equal vigour across all the sectors.
I think we see with, particularly, the voluntary sector and, perhaps,
local government, that it is not pursued in quite the same way.
Indeed, this afternoon, Minister, you have continually referred
to "business" and we are rather concerned about the
other areas. If you could elaborate a bit and take that on board,
I think we would appreciate it.
Mr McFadden: The public sector is important.
We could have a long debate, probably, about targets, which would
be interesting, but I do not know if it would be quite within
order in terms of our discussion. Part of the better regulation
effort is to reduce the requests for data by the centre by 30%
from the public sector. You mentioned local government. The Department
of Communities and Local Government has cut by a very significant
amount the number of targets and data requests from local authorities.
Any of us involved in politics will meet with frontline professionals
in health, education and other fields, who will talk about this
as a significant part of their work. I think it is important.
Again, going back to Baroness Kingsmill's question about risk,
the pressures are not always one way on this. There are significant
political pressures to always gather more data—"Are
you monitoring this? Are you monitoring that?"—and
government, obviously, of any colour, is always under some pressure
to respond to that. I take the view that many of the targets that
are set, which are often cited in this debate, for the public
sector have actually been beneficial and have produced results
for patients and for users of public services that would not otherwise
have been there. I also think it is sensible to then ask yourself
the question: "Are we asking for too much? Are we asking
for the same data in different ways to go to different parts of
government? Can we do anything to cut that?" So you are right
to say that the Prime Minister talked about the public sector;
that has now become part of the work alongside the admin burdens,
which started off with a business focus but has now very much
extended to the public sector, and quite rightly so.
Baroness Maddock: I should have declared an interest,
as a local councillor in Northumberland, at two levels. Can I,
perhaps, draw your attention to a report that we will produce
from our Committee today, which is about the Alcohol Disorder
Zones Regulations, which you have heard about. The amount of bureaucracy
coming through on that, for small authorities particularly (and
I think of Berwick-on-Tweed, where I live), is quite large. You
will find it quite informative if you read what we have said today.
Those are the sorts of areas. It is not about the target, it is
simply about how you are setting it up. The level of fines, particularly
in licensing, is another area which we have looked at—hugely
complicated bureaucracy with fines—which is very difficult
to deal with. It is that sort of thing, rather than the targets,
which I think is affecting local government.
Chairman: Lord Crisp, your question, I think, goes
into the same domain.
Q115 Lord Crisp: Yes, if I may pick
up a couple of points here. One is this point about, specifically,
impact assessments. Firstly, how are you ensuring that they are
as rigorously assessed on public sector matters as they may be
on business matters? Secondly, the Committee have found, in the
past, some public sector issues where it simply has not been carried
out, and where the DWP has apologised for that. Why are they not
always being carried out?
Mr McFadden: We have got to do more on that
as we improve the impact assessment process, which I think we
are doing. There has been a lot of discussion today about transparency
and accessibility, and so on, and I think we have got to do that
in the impact assessment process and we do have to make sure that
we consider both public and private sector impacts of legislation.
Q116 Lord Crisp: Can I follow that
up? It goes back to my Lord Chairman's first question of all,
which was about your leverage over other departments. There appear
to be no government sanctions for departments that are non-compliant
with this.
Mr McFadden: This is a governmental mechanism
that should be familiar to the group of better regulation ministers;
it is PRA[4]
process, where departments have to write round with their proposals,
and so on. So there are clearance mechanisms in place, and I think
they do help to concentrate minds.
Q117 Lord Crisp: There is a peer
pressure as opposed to—
Mr McFadden: Departments, in the end, must be
responsible (I have said this a few times today) for their own
legislation. The BRE and, at official level, what I can do is
to focus colleagues on the task we have set ourselves across both
public and private sectors—and you are right to draw attention
to both—to stress the importance of this. That comes not
just from me but we have strong support from the Prime Minister
in this regard, too. He made that clear when the department was
established, and he has done since.
Q118 Viscount Eccles: You were referring
to the improvement of RIAs. How significant would the National
Audit Office's reports be in your pursuit of that improvement
and arriving at true evidence-based assessments?
Mr McFadden: I think NAO reports are taken very
seriously. It is quite early days in the change to the impact
assessment process and we know that it will be looked at and examined.
Of course, the National Audit Office is an important body; they
have got a very important role to play in this. All parts of government
take their reports seriously.
Q119 Chairman: Could I ask a rotten
question? Could you, either now or later, give me three or four
examples of where an impact assessment has led to a policy being
junked, or significantly changed?
Mr McFadden: Perhaps I could come back to you
on that.
4 The Panel for Regulatory Accountability. Back
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