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Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, I shall just say briefly to the noble Lord, Lord Methuen, that I am not going to resurrect the point about transparency of criminal offences that are imposed under EU regulations. The happy outcome of our previous discussions on that is that it is in the hands of the noble and learned Lord, Lord Davidson of Glen Clova, and he will include something about it in his review. I believe it is relevant to what he is doing, and I look forward very much to the results. I am happy to support my chairman, the noble Lord, Lord Filkin. He said that the Better Regulation Executive did not go in any depth into statutory instruments. The same of course applies to the Joint Committee on Conventions. It dealt with the rejection of statutory instruments, about which various things have been said. It said, in terms, that it had not been asked to consider amendments. Very few statutory instruments can be amended. This is a point that a number of noble Lords are interested in. In fact, it simply is not feasible to have a system of amending statutory instruments in Parliament; the volume alone would preclude that. On the Library shelves, as an example, the statutory instruments from 2001 run to 10,800 pages and, looking at a slightly smaller set of books, those from 2005 go to 8,800 pages. Not all of those are subject to the parliamentary process, but quite a lot of them are, and it just would not be possible for either House to contemplate amending them. If the departments that produce statutory instruments are going to be immune from a process of detailed scrutiny and amendment in the House, we must ask for compensation by return. It has already been mentioned by previous speakers, and it comes in the form of consultation. The experience so far is that if there is adequate consultation, changes can be made before the instrument is made or laid. It depends entirely on the adequacy of the consultation. This must be particularly important, with the ever-increasing number of framework Bills where, on the hangers, will come an enormous number of details in the form of statutory instruments. Some Ministers are better than others at giving the House notice when the actual Bill is being discussed of what those details are going to be. We need more consultation. It is all about this cult word ““stakeholders””. I am bound to say that I have found this very confusing.I understand what it is in the business context, but what about others? What about the people whohave to enforce the requirements of the statutory instrument—particularly, perhaps, local authority trading standards departments, who are notoriously short of staff and money? When we are told that the Local Government Association is being consulted, are we to suppose—because we are never told—that it has actually asked trading standards departments round the country whether they can take this on, or are we simply to understand that it will later notify the trading standards departments that this subordinate legislation has been passed? It goes into innumerable types of investigation that they will have to enforce—chemical levels in crops, seeds and food, pesticides, cosmetics, grades of animal feedstuff, and so on. We never hear whether these things are enforced, and we never hear whether the trading standards departments say that they are able to do it. I do not know, but I have been to a number of trading standards departments, and I know that they are very stretched as it is. Are the Government therefore satisfied thatthe people who are supposed to enforce these requirements do so? What are the figures? We do not know. We have never been told. They do not turn up in the Home Office statistics. We do not know whether this is simply an exercise on paper to which no one pays the smallest attention. It would be very interesting to know more detail about that. Then there is the public. The Government say, in their response to the report at paragraph 38, that they are committed to ensuring that consultation exercises are accessible to all relevant ““stakeholders””—again—whether they are citizens, businesses, charities or voluntary groups. The Cabinet Office code of practice on consultation emphasises the importance of making special efforts to reach certain stakeholders, such as small businesses, children, consumers, and those from minority groups. It can be done by public surveys, focus groups, regional events, and so on. Is it? We are not told. We see a few examples of it, butnot very many. An enormous number of these instruments affect individual members of the public, and I am very uncertain whether they have any idea that these instruments have been passed and that they will affect their lives. There was one example in the bundle of papers that we had at yesterday’s meeting about compensation claim management. The Explanatory Memorandum says that the sectors intended to be regulated were announced during the passage of the Act and that the Government consulted last July and August. There was a series of meetings with key stakeholders. Who were they? Did they include the people who are dissatisfied, for instance, with pneumoconiosis claims, who we know have been trying to get better justice round the country? Are they key stakeholders? We are not told whether they were consulted and, if so, what they said. It really is not good enough that the process of consultation is so obscured. I very much hope that the noble Lord, Lord Bassam, if he cannot do it today, will at any rate say something later about this and be able to reassure us. If people like that do not go to the workshops, do not go to the meetings and do not go to the focus groups because they are not invited, their point of view will not be taken into account. That is one point about consultation. The other thing that is missing at the moment is any account of the results. We are told that some changes have been made. Is that the replacement of a semi-colon, or is it a much more substantial change in the text of the instrument? I am not sure that the Merits Committee quite made that point in paragraph 11 but, if it did not, I think that we have learnt more since then and I believe it to be a valid point which requires attention now. After all, we learnt in the Legislative and Regulatory Reform Act that transparency is a key concept in the Cabinet Office. If that is so, the sort of improvement that I have just suggested must be a small price to pay for not having to go into detailed examination and amendment of the instrument when it comes before Parliament. I shall be brief on my last point because it has already been covered by previous speakers, including the noble Lord, Lord Filkin. As the noble Lord said, it is absolutely true that, whatever the European Communities Act may say about consultation, it is too late once the European instrument has been made and has to be transposed in this country. At that stage, it cannot be changed, however much consultation you engage in, and possibly you will simply be able to make some minor alterations around the edges. The noble Lord was right: it may have been very difficult for him as a Minister, but he took the right approach if he tried to get consultation at the early stage before going to Brussels to meet the other state delegations and discuss the proposed instrument. Such action would give us the basis of some sort of view from the stakeholders, whoever they may be, and then perhaps we would not be so upset if there was less opportunity for meaningful consultation when the instrument came back to be transposed. I have concentrated on consultation because I believe that it is the essence of improving the standard of these instruments. I hope that we shall go on imploring the Government to improve their act on this matter.