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Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, some 18 months on the Merits Committee provided a chance to reflect not only on process but on wider issues which face Parliament. The volume of domestic primary and European legislation over the past 10 years has, as has already been referred to, led to a doubling in the length of manuals setting out the state of the law.The Merits Committee considers more than 1,000 regulations each year and, although the net addition to the total is considerably smaller, nevertheless the appetite for regulations persists. There are some60 order-making powers in the Bill that was read for the second time in this House this afternoon. The impact on institutions and the public has been given some recognition. The Better Regulation Executive has been set up, as has the Better Regulation Commission. We now have what remains of the Legislative and Regulatory Reform Act, during the passage of which the Minister several times told the House that, if deregulation was wanted, the Act would achieve it. We shall see how busy the Delegated Powers and Regulatory Reform Committee becomes. This mounting pile of regulation is, I believe, a major contributor to the worrying trend of public indifference to our democratic process; nor would much necessarily follow from a fuller explanation of the importance and system of secondary legislation. Indeed, given its complexity and detail, there might well be greater disenchantment as people spotted unresolved policy dilemmas and did not see much sign that they were being tackled. For example, business consistently says that it is over-regulated both by the number of regulations and by what has to be done to comply. Indeed, Parliament may well need to achieve a greater understanding of what people have to do to comply. Simpler, shorter and less frequent reporting would reduce burdens. It follows that, although there is some awareness in both London and Brussels that business has a case and that Europe’s competitive position, and that of the United Kingdom, is weakening, there is no certainty—is there even a likelihood?—that those who like and lobby for more regulation will take heed. It must be doubtful, for the search for villains is the daily fare of pressure groups, and the media delight in feeding their addiction. Here lies the dilemma, because the search for the perfectly regulated level playing field, with penalties for all infringements, runs directly counter to the market-driven dynamic of business. Business would always tilt the playing field if it could. If regulation is too prescriptive, it flies in the face of comparative advantage and product differentiation. To combat all such levelling, business will be less open and as ingenious as possible in coping and outflanking regulation, while staying—just—within the rules. The business operators in the field will always know things which the politicians and administrators do not, and, when that becomes clear, the temptation is to tighten up. Then we face a self-reinforcing process, which, to some extent, may well have happened already. Now, we await deregulation or, perhaps more realistically, less and lighter regulation, which will not come justas a result of changed—shall I say ““better””?—procedures; a change in political direction is also needed. In a quite different category comes regulation designed to be in the interests of the most vulnerable members of society. I am not sure how often Ministers or, indeed, Members of this House would confidently tell an individual that he or she was ““most vulnerable””. It is not a flattering description buthas become a catch-all to refer, for example, to the10 million people classified as disabled, to all those people over a certain age who live alone or to retired miners who have claims for compensation. The recent Compensation Act relies heavily on regulation in the interests of the most vulnerable, and I suppose that similar thinking lies behind the drive towards home information packs. The dilemma here is that society is too diverse. Its standards of living and education—rising, as we hope and expect—spread so widely that many people who might qualify under departmental rules will neither see themselves as most vulnerable nor wish to be described as such. It is, in fact, undemocratic to compartmentalise society. Here again, much careful thought is needed about what will be appropriate and acceptable within the very varied expectations of the many. It is not enough to listen to the vocal few; nor will this issue be tackled to the benefit of the public interest by process alone. It needs political leadership and direction becausethe five accepted principles of proportionality, accountability, consistency, transparency and targeting, sensible as they are, can be and are being interpreted in many different ways in default of clear policy. It would be good to be assured that, when wewrite our next report, we will record continuous improvement in procedure and will be able to identify from the Explanatory Memoranda in front of us policy clarification.