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Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, I thank my noble friend Lord Filkin for introducing his report, and for the very constructive and challenging way in which he did so. I also thank all other members of the committee who have attended the debate this evening and who have made their telling contributions. It might surprise some Members of your Lordships’ House to know that I have enjoyed listening to the comments and commentary on the content of the report, and have found the debate very valuable. I reassure my noble friend Lord Filkin that I, and other members of the Government, do not see the Merits of Statutory Instruments Committee as a gulag. That denial is very important and we should have it on the record because the committee is certainly not a gulag. The Merits Committee, with the Delegated Powers and Regulatory Reform Committee, does first-rate work. Indeed, it does exactly what my noble friend says it should do: it considers, and makes telling points about, whether key statutory instruments achieve the policy objectives behind them—something that is very important to the development and implementationof policy. I should also tell your Lordships’ House that I struggled this morning when I was explaining to my 16 year-old daughter Lauren, who is a politics student, what the content of the debate might be. She was not entirely convinced that my time would be well spent, but I intend to return home this evening and advise her that she was quite wrong and that an urgent study of Hansard will demonstrate that to her satisfaction. To the debate. It is worth noting that, since the committee published its report and following a machinery of government change, ministerial responsibility for the management of the statutory instruments procedures recently transferred to the Department for Constitutional Affairs as a consequence of the merger of Her Majesty’s Stationery Office, the Office of Public Sector Information and the National Archives. I suppose I should take some joy in that, because it means that I may no longer have to respond to these points. Having heard the quality of the debate, however, I should add that that would be a disappointment for me. As a result of this, many of the issues discussed in the committee’s report will henceforth be matters for the DCA, as I said. It is many years since any parliamentary committee has carried out such a far-reaching inquiry into the arrangements for the management of secondary legislation. For that reason, if for no other, the committee must be congratulated on its work, and the Government record their gratitude for a report that addressed a wide range of issues and highlighted a number of areas in which the committee believes improvements will be required. These are important issues and, although the House will not expect the Government fully to accept all the committee’s recommendations, we acknowledge the importance of the issues. In our formal written response and in our response this evening, we also acknowledge the value of the recommendations and conclusions that the committee made. Noble Lords today have given very good voice to those. This debate comes at a highly opportune time following the Prime Minister’s speech to the CBI, to which a number of noble Lords referred, and the reports that the Chancellor of the Exchequer published yesterday. The Prime Minister told industry leaders at the CBI conference that the Government are embarking on one of the most radical programmes of regulatory reform in the world. He announced to the conference that government departments will, as the noble Lord, Lord Forsyth, said, plan to reduce by 25 per cent the red tape that they oversee through form-filling, inspections and record-keeping, thus reducing the administrative burdens on business and third-sector organisations, which we believe will offer savings worth up to£2.2 billion. These new measures will be formally launched when 18 departments and regulators publish their simplification plans, which many noble Lords seek, before the end of the year. Yesterday, the Chancellor published the report from the noble and learned Lord, Lord Davidson, to which the noble Viscount, Lord Colville, referred, on his review of the implementation of EU regulations. Its overall findings are that inappropriate gold-plating of European legislation is perhaps not as widespread as is sometimes claimed. The progress report was published on the implementation of the Hampton report relating to enforcement and compliance. This week, the Cabinet Office has also published the report of the Macrory Review of Regulatory Penalties, which makes a number of recommendations that aim to ensure that regulators have access to a flexible set of modern, fit-for-purpose sanctioning tools thatare consistent with the risk-based approach to enforcement outlined by Philip Hampton. In his telling contribution, the noble Viscount, Lord Colville, referred to the fact that these issues were discussed in detail. I hope that the House will have the opportunity to discuss these reports on another occasion and I shall therefore concentrate on the report from the Merits Committee. The Government fully accept that, although much delegated legislation is not newsworthy, it may none the less be highly significant in its impact on the citizen, business and the voluntary sector. It is important that all secondary legislation is properly thought through and is of a consistently high quality. The primary legislation that Parliament puts in place generally provides a framework and secondary legislation is required to put much flesh on this before practical effect can be given to Parliament’s intentions. One example is the major reforms that Parliament enacted in relation to the introductionof civil partnerships, which required more than40 separate instruments to effect the changes necessary to the various elements of law that were impacted before the benefits of those reforms could be realised for the benefit of many citizens across the country. Over recent years, the Government have sought to ensure that the quality of secondary legislation is maintained and improved. We have also made a key commitment to improving the process of regulation so that the impact on businesses and the voluntary sector can be reduced. We were therefore pleased to note the committee’s conclusion that we had put in place resources to give effect to that commitment.The committee also concluded that much of the regulation with which it was concerned lives up to the prospectus for better regulation. The Government are concerned to make improvements in the process and to aid proper and effective parliamentary scrutiny. One improvement has been made in relation to the supply of Explanatory Memoranda, which were introduced for affirmative instruments in 2001 and extended to negative instruments in 2004. We have been anxious to ensure that the memoranda provide noble Lords and the Merits and Joint Committees with the information that is required so that the task of scrutinising instruments can be thoroughly conducted. I was pleased to hear praise for the improvements in Explanatory Memoranda made by the noble Lord, Lord Jopling, and the noble Baroness, Lady Thomas of Winchester. When the committee produced its report, it noted that there were examples, however, of a lack of clarity in some memoranda. We note though that in its end-of-Session review the committee has confirmed that the Explanatory Memoranda that departments provide are generally of a high standard. The Government are committed to ensuring that any instances of failure to meet these standards are eliminated. New guidance on their preparation, which officials from HMSO have agreed with the committee’s officials, should assist in that task. That guidance features in the new edition of Statutory Instrument Practice, which is effectively the bible with which departments are required to comply. This guidance is kept under constant review and is reissued periodically. Moreover, it can be downloaded quite readily from the OPSI website, and copies are available in the Library. The committee suggested that all memoranda should be reviewed by someone who is sufficiently detached from the subject to be able to assess their intelligibility to lay people. That recommendation has been adopted in a number of instances and is now being considered by all departments. My noble friend Lord Filkin was very concerned to ensure that the case for central co-ordination of the process was understood in terms of whether there should be some mechanism put in place for overseeing departmental programmes. The committee made a number of recommendations about how departments should manage their secondary legislation, the production of annual management plans including milestones to be met, and the publication of annual statements of their projected secondary legislative programme. The committeealso proposed that departmental lists of planned secondary legislation should be consolidated into a single list in order to establish whether the resultant Whitehall-wide programme was likely to be manageable at the stage of parliamentary scrutiny. It should be emphasised that the role of the centre is not comparable to its role in the management of the programme for primary legislation. The Government do not believe that it would be practical to haveone Minister responsible for co-ordination across government. Individual Secretaries of State are ultimately responsible and best able to manage their own departments’ secondary legislation.