Examination of Witnesses (Questions 120-128)
Mr Pat McFadden MP
22 JANUARY 2008
Q120 Chairman: Woe betide the official
that came in saying it did not actually stack up and you were
asked to do it again.
Mr McFadden: I think policies do go through
a process of change and amendment as they go through; sometimes,
perhaps, in response to consultation, which makes us change our
mind, or in response to other things. How much I am allowed to
say publicly about policies that have been considered and then
junked, I am not sure.
Q121 Chairman: We encourage you to
say as much as we would like, really. You take the point. It is
very, very difficult, in practice, for the system to be that open-minded
when there is a minister pushing, and officials get locked on
to an agenda.
Mr McFadden: Let me give you an example where
this can influence how things are impacted. We had a manifesto
commitment to extend the number of days' paid leave from 20 to
28. Instead of doing that in one go we have done it in two goes;
first from October last year and then from April 2009. We have
consulted business a lot about how that was implemented, but we
took a lighter touch towards businesses who were already giving
28 days' paid leave. That is not an instance of a policy being
junked—far from it, it was important that it was not junked
because it was a key manifesto commitment—but it is an example
of how we took the headline policy and then made decisions about
implementation that took account of those who were being affected
by the policy, and we have received praise from business organisations
for doing this in a sensible and in a staged way, which still
meets the manifesto commitment for up to six million workers.
Chairman: Jolly good. I think our sense is that does
not happen often enough.
Baroness Maddock: Going back to the public sector
again, I am not sure the same thing could have been said when
people were advised about what would and would not work in local
elections at various levels, and in national elections.
Q122 Chairman: I hear you say "It's
a fair cop"!
Mr McFadden: We have all probably got points
to raise. The point I am making—and I think this is a point
I would stress—is that I think the BRE does add value and
that the better regulation agenda does add value in not necessarily
junking things that are manifesto commitments, and so on, but
in saying: "There are two or three ways you can do that,
and there is a way that you could do it that will be much easier
for those who are having to implement or accommodate it to accept
than if you did it this way". So the importance of this work
is not just about the stock of regulation and legislation which
exists, it is also about the flow. We have big issues coming down
the track for the country that are going to increase in the political
agenda in the next couple of years—I think of climate change,
I think of some public health issues, and so on. There will be
significant demands for government action on this. We have already
got climate change legislation going through. It is very important
that that is carried forward, but there will be choices about
how some of this is implemented. Some thinking on this agenda
can add value, not to say you should not deal with climate change
(that is not what I am saying at all) but to say if you are going
to do it there might be different ways to do it, some of which
can have a better impact than others.
Q123 Chairman: You know what we are
after on this, and I do not think you are after different things.
Impact assessments ought to be a real process of policy testing,
to say: "Is it worth going forward in this way? Is it worth
going forward at all?" unless one is in the privacy of government
seeing the proportion of cases where that is leading to fresh
thinking. If that is not happening it is another cost burden,
because it is basically another box that has to be ticked. I will
leave that with you. You know those issues without me banging
on about them. Let me stay with an issue that we will be looking
at more as a Committee in the future, which is: "Does it
work?"—by which I mean does an instrument that has
been passed actually achieve its policy objective? It is related
to impact assessment, again, of course. It seemed to us that it
ought to be a principle of good practice that at the time when
an instrument is laid, wherever it is possible, there is an explicit
statement about what the objective of the instrument is and what
are the measures for success—the SMART measures, for example.
We assert that partly because it is a test for good policy making
but it also puts down in the public domain a benchmark against
which post-legislative evaluation can be done. We think that should
be the norm. There will, obviously, be trivial examples where
you would never do it, in terms of just an annual price up-rating,
but in most cases one would expect to see that there were clear,
defined measures of success against which the policy will be judged,
partly because it will help to force officials to think about:
"Do we have an adequate delivery mechanism to achieve that
or not?" Do you agree?
Mr McFadden: I do not know whether it should
be the norm. I think a review of how things have panned out is
often a good thing. Again, let me give you an example which is
before this House at the moment. When the new dispute resolution
regulations came in, in 2004, the Government committed to reviewing
them. It did so through the Gibbons review. We have said they
did not meet—although there were some advantages to them
and some pluses to them—the policy intent, and therefore
the Bill before this House gets rid of them and replaces them
with more conciliation and arbitration before you get to the end
point. Leaving aside the specifics of the example, that is an
example where the Government legislated, said that we would review
after a couple of years, and are now legislating again because
we do not think we got it right. That, of course, can always be
used as political capital, and so on, but I think it is better
for a government to admit that it got something wrong and to change
its mind than to just press on because of fear of political embarrassment.
I see value in post-implementation review, and there is an increasing
demand for it in the debates in the House, I think, where people
call for reviews of this or that after a couple of years. It may
not always be appropriate; sometimes people want certainty and
sometimes people want to know that there is a new system, there
is a new law, and it is going to be in place for a while; "Do
I spend money making sure that I can organise my service, my business,
around this, or is it still going to be there in a couple of years?"
So I think you have got to be slightly careful in always saying
it is the norm, but I do think it can add value and it is certainly
something we should encourage departments to think about when
appropriate.
Q124 Chairman: Let me just pick up
Baroness Maddock's earlier example. Clearly, one legislates for
a purpose and therefore one should have some rough indication
about whether it has been effective or not. On a measure like
Alcohol Disorder Zones there ought now to be some sort of statement
as part of that instrument about what level of impact it is going
to have in which circumstances, so one, at least, has a basis
for evaluating whether it works. Another example would be mobile
"phone use"—a popular law that has been well-ignored
by most of the public ever since. What was the Government's policy
at the time that that was passed, in terms of what level of compliance
was to be expected within two years, three years, or what-have-you?
We do not see this. It is easy for government not to. I leave
the question.
Mr McFadden: I hope you do not mind if I do
not get drawn too much into commenting on individual pieces of
legislation from other departments, because they will know better
than me the details of the legislation. As I have said a few times,
it is an important part of this system that, ultimately, departments
and Secretaries of State must take responsibility for legislation
their department passes. So the pluses and minuses of the mobile
"phone" and the Alcohol Disorder Zones—they may
be very good points but I think they are points to be made to
the ministers responsible for the legislation.
Q125 Chairman: I was not asking about
those, I was asking about whether, in principle, you agree that
legislation should have defined policy objectives which will allow
evaluation of them.
Mr McFadden: You do legislate with an aim. I
have, hopefully, given you a valuable example where post-implementation
review was right and was a good thing to do, but I would rather
others, with greater knowledge of those individual pieces of legislation,
pass judgment on them rather than me.
Q126 Lord Lucas: It is a hard thing
for us to do as politicians, let alone for the civil servants,
as everyone thinks of them, to see the things that I have seen
pass, like the Dangerous Dogs Act and the legislation banning
handguns, and so on and so forth—all high hopes at the time
but we never subjected ourselves to the discipline of saying:
"What do we actually expect these to achieve so that we have
a measure for when we might set about these things again?"
I am very encouraged by what you have said about the inclusion
of a requirement for specific review dates in regulatory impact
assessments and that sort of area. That opens the possibility
that we might actually have a process of improving by learning
from our mistakes rather than just doing things to fit in with
the need the minister has for a press announcement at the time.
It would be a great improvement if that is possible, but do you
think it actually is?
Mr McFadden: Let me be clear, I am not sure
I have said that there should be a requirement for a review every
time we had change; I was saying I can appreciate the case for
this but sometimes certainty is also required. In terms of legislating
in haste, which is really what you are implying, this is a difficult
thing to judge because, again, without getting into specific pieces
of legislation too much, would it have been worse not to have
legislated at all? If you take the banning of handguns, I think
that would probably have been successful. Some people might argue
it has not been because people are still being shot through illegal
handguns. They may be but would that situation have been worse
without that legislation? These are difficult judgments and there
is always not just the question of the effect of the legislation
but what would the effect have been of doing nothing. It is not
always easy to cite. As for the Dangerous Dogs Act, was it wrong
to legislate or should we have gone further, when we see some
of the attacks committed by these dogs? Maybe the legislation
is not wrong, but it just does not go far enough? We clearly all
have an opinion about this.
Q127 Baroness Kingsmill: It does
seem to me that the counter-factual is something which should
always be taken into account in assessing the effectiveness of
regulation, and I wonder if the Minister agrees with that.
Mr McFadden: I think it is an important question
because people can easily point to the downsides of anything which
is done with an aim, as we have discussed, and say: "This
worked" or "This didn't quite work". However, we
should also consider what would have been the case if one had
not acted; would the situation have been worse? Again, this brings
us back, perhaps, to where we started, which are the structures
of risk and accountability and whether they always point in a
productive direction.
Q128 Chairman: Finally, Minister,
I am reminded by my good officials that the requirement for a
baseline in success criteria in impact assessments is already
in your guidelines, and so we are on the same page on this, it
is just a matter of encouraging it to happen a bit more often.
Can I thank you. If there is anything further that you wanted
to write to us on we are always pleased to receive that. Thank
you for your time and help.
Mr McFadden: Thank you.
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