Previous Section Back to Table of Contents Lords Hansard Home Page

24 Feb 2010 : Column GC301

The sadness, it seems to me, is that there is not a specific set-up in this government department to look to see, across the board, what policies are being produced in statutory instruments and what the effect is on the schools, and to review them after three years or so. I am not, of course, suggesting that every single statutory instrument should be reviewed, but there are so many and they produce so much and such changeable policy-as, indeed, the Government themselves have recognised-that it is time that something was done.

Recommendation 5 from the 13 March report of the Merits Committee states:

"We recommend that the DCSF should ensure that all significant statutory instruments are subjected to post-implementation review, and that the review findings are made known to Parliament".

That was in March 2009; we are nearly in March 2010. So far, to my knowledge, we have not heard any review findings of any sort. I wonder whether, in fact, that government department has yet got round to thinking about our recommendation 5. I therefore ask the Minister to pass a message to the Schools Minister asking him to look at recommendation 5 of our 13 March 2009 report, because I entirely and respectfully agree with what the noble Lord, Lord Norton of Louth, said about the requirement that the centre should provide good practice. However, while the centre is looking at it, the individual government department should be getting on with it.

In particular, each department requires a push in the right direction, none more strongly than the schools department. More than anything else, it seems to me that we need a change of culture in government to make it important to know the outcome of what the Government put through as legislation, and that is for those sitting behind the Minister. We know that the majority of legislation coming through for schools is by negative statutory instruments. Unless someone stands up every now and again and comments on them they pass through without a word, and it is the schools and pupils who suffer.

4.16 pm

Lord Filkin: My Lords, I shall speak briefly, mostly because my former colleagues will give me a further hard time if I do not, but also because I do not wish to repeat what is in the report or has been set out eloquently by my noble friend Lord Rosser. I very much welcomed the way in which he presented the report.

I want to address three points-first, why this subject matters; secondly, the primary/secondary debate; and, thirdly, some lessons on this, and perhaps my reflections on the Merits Committee more generally, which may be relevant to debates on the House's role itself, as touched on by the noble Lord, Lord Norton of Louth.

Why this matters has already been expressed well by a number of speakers, but let me try to underline a few particular reasons. First is what I call policy naivety, which applies to Ministers, civil servants, legislators and lawyers without excuse-the belief that in some way having a good intention and making a law leads to the wished-for policy result. It is a profound cultural attitude within Westminster, and we are not immune from it ourselves. It leads to the most naive forms of legislating at times, whereby you produce something

24 Feb 2010 : Column GC302

without thinking through-with an understanding of the real world-whether anybody will take significant notice of it. One of the best examples of this that I can think of, without wearying the House, is where I as a householder am liable if I fail to make sure that my builder does not tip my building refuse over the fence. The intention is perfectly good but the problem is, first, that none of us is aware of the abuse and, secondly, the builder will just say, "Of course, guv". As a mechanism for controlling an abuse, it is naive. It is a silly example, but it shows that thinking that such mechanisms will get the result is naive.

This subject also matters because legislation and policies that do not achieve their result waste taxpayers' money. If you get a 30 per cent compliance rate when your success level was 70 per cent or whatever, you might as well not have got it. Governments ought to specify their success criteria as part of both their primary and their secondary legislation before it moves forward. They do not, for all sorts of good and bad reasons that you can spot for yourselves.

Linked to that is that within the next decade, or even sooner, there will be much less public expenditure than we have been used to. We are going to have to be more chary about when we launch new policies and initiatives and there will have to be a far more rigorous investment-if I may call it that-in the analysis of approaches to legislation to see whether the mechanisms are actually going to work. This is necessary for all those reasons, but above all for the learning culture so that we know better in the future how to make policy work in practice, and therefore can better identify what is not working and knock it on the head because it is a waste of money. That learning culture is not deeply embedded in either civil servants or Ministers. We are going to have to have more of it in the future, and even if there had been no fiscal crisis, it would be healthier.

Secondly, I turn to the secondary/primary debate. I personally welcomed the Government's response, which is a positive one, when I met the Minister for a good discussion. The point they make, however, is why look at secondary legislation without looking at primary legislation since they are part of the same carpet. Sometimes that is a perfectly valid response, but one would warm towards it more if one had seen more signs of life on post-legislative scrutiny by the Government more generally. We saw the Government's approach to PLS in March 2008. It came out covered in blood from battle because the behind-the-scenes fights to get that far were horrifying to behold; I am glad that I did not see them. However, we have not really heard a great deal since. I ask the Minister what is going to happen in the specific terms of a programme for post-legislative scrutiny by Government themselves for the future. Where are the explicit plans setting out what will be done, where, and by which department, so that we are able to see a programme of PLS presented to Parliament, which we believe ought to be the proper process of response by the Government? What are the Government going to do to honour those statements?

I wish to make a further point here. A Joint Committee of both Houses would be a good thing and I hope I live long enough to see that happen, but if it does not,

24 Feb 2010 : Column GC303

we should not wait. The noble Lord, Lord Norton of Louth, is absolutely right to say that while the Select Committees do some of the plenty that is to be done, there is a need for one body which not only looks at what is not being done by the Select Committees, but-perhaps more importantly-takes the holistic or thematic approach to these lessons. I hope that that would be a joint body but we should do it if that does not happen, Even if the Select Committees reviewed every single piece of legislation, they would not be taking a holistic or thematic approach. I think we have seen the benefits of having a go at these issues in the early and stumbling attempts under my chairmanship. This is a call to the House itself to wake up and be a bit bolder by getting on with it, after making a proper offer to the Commons, saying that we would like to do this with them.

Thirdly, I want to cover one or two lessons that are relevant to this report from my time with the Merits Committee. It is getting to be a bit of a habit, but again I strongly agree with the noble Lord, Lord Norton, that the House is too cautious about its own terms of reference, which are that the Government should not normally or usually-I have forgotten the exact wording-defeat secondary legislation. That is for a very good reason, because primary legislation sets the policy and you cannot constantly rewash the clothing without purpose. However, the emphasis is on "normally or usually". The frequency with which the House has rejected secondary legislation is, I think, supine. I say that particularly because if the Government feel that they want to have their way, they can bring the same instrument back a week later having tweaked it slightly. Given how well behaved we are in this House, we always or virtually always give in. I can think of very few examples of where it has not done so. But actually saying "This will not do", or "It will not achieve the policy objectives", or "It is flawed", which is fundamentally what the House can do, having read the judgments of the Merits Committee, acts as a wake-up call to officials and Ministers. It catches attention.

Perhaps I may make the reverse point. While those big shocks to the system are occasionally essential and ought to be seen as part of our role rather than something that we think somehow confuses our constitutional position-which I do not believe they do-the distinct alternative is the less visible response that I will call "grinding away". The most significant impact of the Merits Committee over the past few years has been a process almost of attrition, whereby our excellent officials, supported I hope by their committee, sought to get the Cabinet Office to strengthen and clarify the guidance to departments about what they should do when making Explanatory Memoranda and SIs. These should then be policed against those standards on individual cases.

The consequence of that, and of the occasional big bang, was that the attention given by Ministers-I speak as a culprit-and of Permanent Secretaries to secondary legislation went from about zero to quite significant over a period of time. Some Permanent Secretaries-I think of Sir David Normington-put

24 Feb 2010 : Column GC304

their back into recognising that their departments were really failing and committed themselves to doing something about it.

We could apply that principle to other areas of our legislative process-on which we might touch tomorrow-whereby there are standards and principles which are policed in almost a non-histrionic way. But the officials, and their Ministers behind them, know that if these things are not done well, the House will properly bring them to account. The effect is not usually massive rows but a gradual improvement in the process by which legislation is made and, I hope, the policy that goes to make legislation.

That is more than enough from me. I am delighted that my noble friend is taking this debate. I look forward to touching on some of these issues in the debate to be introduced by the noble Lord, Lord Norton of Louth, tomorrow.

4.26 pm

Lord James of Blackheath: My Lords, I should like to use the gap to make one small but very important point, which I do not think has been covered by any speaker so far. It arises out of my observations over the three years I have spent on this committee. When the National Audit Office came to us, it was very diligent and thorough in what it sought for its briefing. We covered one particular point with it; namely, that it should particularly follow up where the Merits Committee had decided that, in passing through an SI, there should be a precise follow-up on some specific aspect of its implementation, which usually occurred where the department had to delegate to another government body the sharp-end implementation. I believe that there was one case involving medical prescriptions, another on an aspect of traffic control and one on education.

When we selected the two dozen or so cases that we wanted the National Audit Office to review, there were two cases where such a follow-up should have been pursued. When the report came back, there was a total absence of any comment on the follow-up points. Through the officers of the committee, we asked why not. In each case, we were told that there was no record in the departments of the need to follow up and no process had been followed so to do.

I believe that this is a very important point and that a number of occasions will occur where departments should have noted this. There needs to be a central index or something like that. Indeed, our committee should maintain-I believe that it now does-such an index. But the departments should have such an index which can be inspected by the National Audit Office or anyone on behalf of the committee at any time. Otherwise, a major part of the process is being failed completely by the lack of this very important point.

4.28 pm

Baroness Thomas of Winchester: My Lords, I welcome this debate on the most timely report from the Merits Committee of which I am also a member. Perhaps I may say how much we value our two advisers, Jane White and Grant Oliver, without whom we simply could not

24 Feb 2010 : Column GC305

operate. The committee members are just crawling out from under an absolute avalanche of statutory instruments, many of which are of considerable importance. No doubt this has much to do with the impending general election and Ministers clearing their in-trays. I believe that that is not unprecedented for this stage of the electoral cycle, but it helps to focus the mind on what happens after these statutory instruments become law and on whether they are doing the job that they were implemented to do.

We have come a long way in the whole field of the scrutiny of statutory instruments in a relatively short space of time. For years, scrutiny in the House of Lords was confined to the Joint Committee, which looked only at the vires of statutory instruments, and the relatively few Peers who took part in the usual dinner-break debates on affirmative instruments. Prayers against negative instruments would occasionally be tabled and debates held, but the Prayer would invariably be withdrawn, and that was that.

With the growth of the important detail of Bills being left to statutory instrument in the 1980s and 1990s-incidentally, I was told by a civil servant friend that Whitehall had discovered how to bypass Parliament by putting important and controversial matters into statutory instruments-heroic figures, such as the late Lord Simon of Glaisdale, from the Cross-Benches, and the late Lord Russell, from the Liberal Democrat Benches, spoke up forcefully for the House of Lords not to be bullied by the Government of the day if Peers wanted to contest an instrument. The noble Lords, Lord Norton of Louth and Lord Filkin, are right: we should have the courage to vote down instruments more often if we believe that they are objectionable.

It may be worth citing the report of the Joint Committee on Conventions of the UK Parliament in 2006, which stated that in exceptional circumstances it may be appropriate for the House of Lords to reject a statutory instrument. It went on to state that if the Merits Committee-new when the report was issued-drew especial attention to an instrument, that would be a relevant factor.

Although the question of voting down statutory instruments is not strictly relevant to this debate, it is worth those of us who take an interest in delegated legislation reiterating that point whenever we can. This afternoon, we have shown that we all believe that that is important. That footpath, however seldom used, must be kept open.

We now have the Delegated Powers and Regulatory Reform Committee and the Merits Committee. What we do not have, as has been said, is a post-legislative scrutiny committee of any sort for either primary or secondary legislation. That was not a recommendation of the Merits Committee in its report for secondary legislation, for very good reason, although it was suggested by the Law Commission and endorsed by the Hansard Society in its evidence-a point made by both the noble Lords, Lord Norton of Louth and Lord Filkin.

The Merits Committee wants all departments themselves to undertake post-legislative scrutiny of their secondary legislation, so that they can learn

24 Feb 2010 : Column GC306

lessons from looking at how an instrument has fared. That is reflected in the report's second point, which calls for a stronger government impetus to help departments establish a methodical post-implementation review system to inform both the content and delivery mechanisms of their secondary legislation in future. In other words, as one of our advisers put it succinctly: physician, heal thyself. However, in general, I am in favour of post-legislative scrutiny, and would endorse a Joint Committee being set up in future for that purpose-or, if not a Joint Committee, a committee of this House.

Another strong point in the Merits Committee report was that the views of those affected by the legislation should be sought when assessing its performance. Some graphic examples are to be found in the report's case studies. For example, those affected by the horse passports legislation over the past seven years gave telling evidence. That was the subject of heated debate in this House in 2003 and 2004, seeking to clarify the policy objective and how it was being implemented.

The original recommendations in 2003 were from the European Commission, and were solely to protect the human food chain. The rationale was that a horse passport should show that no medicines had been given to that horse which should not be given to food-producing animals. However, by the deadline set, only relatively few horses had been given passports, so the following year, more regulations were introduced easing the deadline and introducing another policy objective: that of protecting and enhancing the trade in pedigree horses, with Defra opting for complete implementation.

Just last year, new regulations were introduced requiring all foals born after 1 July 2009 and all older horses not previously identified to have a microchip implanted. There was no systematic post-implementation review, with Defra saying that the policy was thought to be successful because it had monitored the intervention through dialogue with key stakeholders. This, however, is not quite what the evidence presented to the Merits Committee shows; rather, it shows all too clearly that the horse passport system is full of holes. For example, it was found that some of the 61 passport-issuing bodies actually issued passports at the sale ring, thus undermining the whole system of deterrence from theft-or was that not an objective of horse passports? Perhaps it was not.

Another practical problem with the data that a vet has to supply for a passport is how that vet describes, say, a black horse other than as a black horse if there are no distinguishing marks. There is hardly any enforcement of the legislation, which has upset compliant horse owners, and there seems to be little understanding of what the purpose of the original legislation was, given the fact that comparatively few horses in this country enter the human food chain-although I recognise that a lot are exported. My own research shows that, in some parts of the country, the costs of a vet identifying and microchipping a horse can be more than the value of that horse. If ever there was a case for Defra to undertake a systematic review of the whole horse passport system along the lines suggested

24 Feb 2010 : Column GC307

by the report, this is it. It is a good example of what the noble Lord, Lord Rosser, said: the department thinks about aspirations, whereas for the public the focus is on practical outcomes.

I have my own example of where post-implementation review of a statutory instrument is highly desirable, on this occasion because of possible difficulties with its implementation. This is a recent social security instrument that, among other things, makes it possible for out-of-pocket expenses to be disregarded for benefit purposes to enable disabled people to help in the design and planning of services in the health and social care field-service-user involvement, in the jargon. That was a positive step forward, but no one in the Department for Work and Pensions seems to have fully grasped that it will be a difficult policy for Jobcentre Plus offices unless it can be agreed that service-user involvement which is required by law and that which is required by the Government's own policy guidance should be treated the same for benefit purposes.

The last of the report's recommendations is that the Regulatory Policy Committee that the Government have established should consider the role that post-implementation review should play in informing the cost estimates for amending or replacing regulations, and should establish consistent methods for PIR and impact assessments. In appendix 3, the memorandum from the Better Regulation Executive states confidently that this new committee will be,

However, it does not explicitly address whether it will be the task of the new committee to ensure that post-implementation reviews are carried out.

This brings me to the Better Regulation Executive itself, which I think was established about five years ago with a staff of 99 and a unit in every department. However, I was not particularly reassured to see where its focus lies. According to its website, its purposes are to scrutinise new policy proposals and achieve effective new regulations; to make it easier to change or remove regulations; to reduce existing regulatory burdens; to improve transparency; and so on. Nowhere is it clear that the strengths and weaknesses of the current regulatory system will be properly evaluated to point the way forward, although post-implementation review is in the full policy cycle that is in the BRE guidance to policymakers.

In appendix 3 we learn that:

"The Better Regulation Executive believes there is an upwards trend in the level of commitment to carry out post-implementation reviews".

That sounds very vague. Perhaps the Minister will assure us that it will be given as much weight as the other, perhaps more exciting, parts of the cycle. We were not particularly comforted by the National Audit Office study of a sample of statutory instruments published in 2005-it is worth repeating the statistic mentioned by the noble Lord, Lord Rosser-which found that 45 per cent of 229 regulatory impact

24 Feb 2010 : Column GC308

assessments included a commitment to conduct a full post-implementation evaluation or review, but in four years only half of these had been done.

This is a good moment to have this debate. A new Government will lose no time in sharpening their collective legislative pencil. Nearly all Bills contain statutory instruments. Now is the time to urge a new Government to commit to adopting a consistent and proportionate response to post-implementation review of delegated legislation so that valuable lessons can be learnt from the past before yet more statutory instruments are drawn up which may repeat past mistakes.

4.40 pm

Lord De Mauley: My Lords, I apologise to the Grand Committee for arriving a moment late for this debate. I thank the noble Lord, Lord Rosser, and his committee for producing this report and for giving the Grand Committee the opportunity to consider it, together with the Government's response.

Post-implementation reviews should be a very important part of government, and trends in policy-making and legislation have made them even more so. This Government have produced a vast amount of legislation in the past 13 years. In 2007, for example-the noble and learned Baroness, Lady Butler-Sloss, referred to this in more general terms-more than 3,000 separate pieces of legislation became law. The content of that legislation has also changed over time. We have become accustomed to having our concerns about the lack of detail in primary legislation met by the standard government response that the provisions we are debating are part of "a framework Bill".

Whereas Acts of Parliament were traditionally used to allow the Government to implement a specific policy, they are now vehicles for much broader powers, with many decisions and important details left to secondary legislation, or even guidance and codes of conduct. Nor is it unusual for this Government to fail to achieve the Cabinet guidelines that a draft SI should be published simultaneously with the empowering legislation.

This helpful report rightly identifies the dangers of such an approach. The Government having, at least nominally, accepted the importance of reviewing primary legislation properly, with so much of the detail of policy being contained in secondary legislation it is surely right that this should be extended to statutory instruments. It is also clear from the report that whatever soothing noises the Minister and his colleagues may make about government commitment to post-implementation reviews, it is often a very different story elsewhere in government. The noble and learned Baroness, Lady Butler-Sloss, gave a startlingly clear example of this in DCSF.

The National Audit Office report notes that, even where there was a commitment to further reviews, these were carried out only-I think that the noble Lord, Lord Rosser, referred to this-about 50 per cent of the time. As my noble friend Lord James mentioned, the NAO even had difficulty getting responses from the departments on the subject, getting only 40 per cent of its surveys back by the initial deadline. That surely is not good enough.

24 Feb 2010 : Column GC309

Next Section Back to Table of Contents Lords Hansard Home Page