We have now had the opportunity to consider the evidence which you gave to the Committee on 20 March of this year, in the light of the transcript. We have also received the letter of 14 March from the Rt Hon. David Lidington, MP, offering an update on training related to Explanatory Memoranda, as well as your letter of 26 March about the Secondary Legislation Monitoring Board, and the role of the Cabinet Office.
At the evidence session, we were pleased to learn about your involvement in the issue of Government consultation policy, and about your recognition of the interest which we as a Committee continue to take in this, in the context of the preparation and presentation of secondary legislation.
However, we were not persuaded of the merits of Ministers’ decision to go back on the commitment given by Sir Oliver Letwin, MP, in 2016 that the Cabinet Office would actively monitor the effectiveness of consultation processes carried out across Whitehall, and would then set down its findings in an annual report. You explained that the Cabinet Office was committed to supporting other Departments, for example, through training, as you again make clear in your letter of 26 March. This is of course to be welcomed, but we take the clear view that such support should be a complement to the monitoring function, rather than an alternative to it.
Nor were we inclined to agree with you that, in looking at evidence of the quality of Departmental consultation practice, the Cabinet Office could rest on reports by our Committee drawing individual statutory instruments to the attention of the House. As I explained in my letter to you of 21 March, our reports often comment less formally on aspects of other statutory instruments scrutinised, including how relevant consultation has been handled. We would hope that the Cabinet Office considers these comments as well.
There is a wider point to be made. We are concerned with consultation in relation to secondary legislation, but the Government’s Principles apply to all consultation exercises carried out by Departments. We have no knowledge of such exercises which do not relate to secondary legislation.
At the evidence session, we referred to evidence given to the Constitution Committee of the House of Lords, and mentioned in its report on “The Legislative Process: Preparing Legislation for Parliament” (4th Report of Session 2017–19, HL Paper 27). That report contains a chapter on consultation and pre-legislative scrutiny which reflects a range of views on the Government’s approach, several of them critical. If the Cabinet Office looks to the findings of Parliamentary committees as a litmus test of Government consultation practice, it should take account of reports such as this one from the Constitution Committee; and where there are criticisms, we suggest that it should take an active interest.
We were pleased to receive David Lidington’s letter of 14 March, which shows the progress that has been made in offering training across Whitehall. The Annex to the letter lists some 20 Departments, alongside the number of officials from those Departments who have attended the training. We were struck by the fact that, among Departments that expect to prepare larger numbers of Brexit-related statutory instrument, BEIS and Defra have sent 31 and 50 officials respectively to the training, but HM Treasury has sent only three. We also note that the FCO is not included in the list at all. On the face of it, these details seem anomalous.
We would welcome a further response from you to the points raised in this letter. Above all, we would ask you to take seriously our concern that what we might call the arm’s-length approach which you and your Ministerial colleagues have chosen to follow towards consultations by other Government Departments is likely to leave the Cabinet Office with too little knowledge of practice “on the ground”, and also to create a vacuum within Government where, in our view, there should be a central function to intervene and press for improvements where these are needed.
18 April 2018
Thank you for your letter of 18 April in response to mine of 26 March.
As I promised in my previous letter, I enclose a report from the Secondary Legislation Monitoring Board’s first quarter. As you will see the Board has identified a number of areas of concern, and outlined the action that will be taken to address this.
At the evidence session, and in my last correspondence, I also updated you on the work the Government Digital Service (GDS) is undertaking to prompt departments when closed consultations are approaching the twelve week mark for publishing a response, or an explanation of why that cannot be provided. This will allow us to monitor, on a periodic basis, whether departments are publishing responses within the timeframe set by the Consultation Principle.
With regards to your point about the Contented Committee: Effective Explanatory Memorandum training, a further session ran on 23 March and this was attended by four civil servants from the FCO. To date 261 civil servants have attended the training since its introduction. Two further sessions are planned for 18 May and 6 July: these currently have 76 and 9 civil servants registered to attend respectively. There are further bespoke sessions planned for the Home Office and Defra. The training is available to all civil servants across Whitehall and it is not prescribed that departments send a particular quota, hence the anomalies you refer to. It should also be noted that the training is not limited to EU Exit Explanatory Memorandum (EM), but applies to all EMs. These numbers do not take account any other internal training or resources on statutory instruments that departments may be providing.
Finally, as promised I have written to departments highlighting the importance of the newly updated Consultation Principles and the DExEU guidance regarding consultation on EU Exit secondary legislation. I have also taken that opportunity to seek the views of Ministerial colleagues on performance in this area and will consider any further steps in the light of responses, consistent with the position I outlined in my evidence that individual departments are properly responsible for the content and conduct of their negotiations.
The Secondary Legislation Monitoring Board (SLMB) have considered a total of 27 Explanatory Memoranda (EMs) in December, January and February. EMs from the following Departments were viewed in each month of the review period:
December: BEIS, DCLG, DfT, DH, HMRC, MoD, MoJ
January: CO, Defra, DfE, DfT, DWP, FCO, HMT, NIO
February: BEIS, DCMS, DfE, DH, DWP, HMRC, HO, MoD, NIO
These EMs were considered at the Board’s quarterly meeting on 13 March 2018.
The Board noted that there has been a general increase in the quality of EMs, with each EM considered having a number of positive points. However, there are several key areas of concern noticed across Government:
Civil Service Learning will be adapting its training course, titled ‘Contented Committees: Effective EMs’, to emphasise where EMs are falling short of the expected standard, how to avoid the problematic practices noted by the Board, and why this is important for ensuring that Parliament can properly scrutinise secondary legislation laid before it.
These key areas of concern have also been directly fed back to Departments by Board Members, and have been fed into internal training offered by Departments to up-skill their policy professionals.
Concerns identified by the Board have also been fed back to the cross-Government SI Practitioners Network and Policy and SI Processors Working Group to ensure that those who deal with Sis and EMs on a daily basis are aware of the trends identified by the SLMB and what improvements need to be made going forward.
2 May 2018