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Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, I understand the point and it is something I intend to address. In the December 2004 Pre-Budget Report,the Chancellor announced that the common commencement date initiative would be extended progressively to all domestic regulations with a bearing on business. Under this initiative departments are required to prepare an annual statement, to be issued in January, listing regulations affecting business which they expect to commence on the following 6 April and 1 October. Common commencement dates and the accompanying annual statements help businesses to plan for new regulation, increase awareness of new or amended regulations and give Ministers a strategic overview of departments’ regulation programmes. The introduction of common commencement dates has generally been welcomed by stakeholders, who benefit from the knowledge that the regulations which might affect their businesses will be changed on only two dates each year. Alongside that, many departments whose secondary legislation is not formally subject to common commencement dates have in place alternative commencement dates for some of their statutory instruments which have been agreed in conjunction with stakeholders. Departments’ timetables for projected legislation can be subject to amendment and revision in response to a wide range of policy developments and external events. Any management plans would of course be subject to substantial and frequent revision. As a result, they are likely to be of limited benefit to either Parliament or stakeholders. To attempt to reduce such plans could accordingly impose a disproportionate burden on departments. Given that and the information already published under the common commencement date initiative, the Government do not think that departments can produce effective detailed management plans for all projected secondary legislation, with such plans being centrally consolidated, but the scope for that will be kept carefully under review. The Government acknowledge the importance of good planning and the use of project management techniques in the statutory instrument process. The Government acknowledge, too, the committee’s concerns about congestion in the parliamentary scrutiny stage and the bunching of instruments at various times of the year. Every effort is made to give sufficient notice of debates on statutory instruments to enable the committee to report beforehand. A good working relationship has been established between the Government Whips’ Office and the committee, which has enabled both sides to show flexibility in the past year. We share the committee’s view about the desirability of minimising the bunching of instruments during peak periods in March, July and December. Parliamentary scrutiny of instruments is a key part of the process, and departments need to allow adequate time within their planning, including contingencies, to allow for slippage to ensure that this scrutiny occurs. I emphasise again that bunching is not a new phenomenon; it has occurred under previous Administrations. Improved planning is a key issue for departments but, even if that is achieved, it is unlikely that bunching will be avoided completely. The Government acknowledge that there is scope for improved management of the statutory instrument process in some departments. The committee’s inquiry has helped Government in bringing this to the attention of those departments. However, even with improved management of the departmental statutory instrument process, the Government do not believe it will be possible to eliminate completely congestion or bunching. Departments make every effort to introduce their secondary legislation within the parliamentary calendar to allow for proper scrutiny and approval. The guidance to departments makes it clear that they must allow time for proper and effective scrutiny. They should avoid laying instruments just ahead of the 21-day minimum period before commencement, avoid laying negative instruments in the summer Recess, and allow sufficient time for instruments subject to affirmative resolution to be considered and reported upon by Select Committees before any Motion to approve can be moved. The guidance also emphasises that good project management and planning skills are key elements of the common commencement date process and that all key stakeholders, policy divisions, legal teams and parliamentary clerks should be involved in that process. The committee has been particularly concerned that no instruments are laid before Parliament fewer than 21 days before they are due to come into force unless there are clear and compelling reasons of operational urgency for such action. The new edition of Statutory Instrument Practice emphasises that the 21-day period is a minimum and that, whenever possible, instruments should be laid well in advance of this to allow Parliament to consider their impact. The examples highlighted by the committee of failure to comply with this rule include many instances where it was necessary to take urgent action and where, had it not been taken, the Government would probably have been criticised by noble Lords for their slow response. Such examples included preventive measures for dealing with avian influenza, food import emergency control regulations, export control orders, the application of United Nations measures and sanctions against overseas territories, and instruments implementing Budget announcements where prior notice could not be given. As I understand it, the committee noted in its report that some breaches derived from the need to take that urgent action. If the more recent report on the work of the committee is to be understood clearly, it specifically cited food safety issues as one area where urgency might be required. On internal departmental controls, the committee recommended that each department should have one member of its top management who is accountable to the relevant Minister for the efficiency and effectiveness of preparing SIs and for ensuring that the finished instruments meet the requirements of good regulation. The noble Lord, Lord Jopling, referred to that. It is the Government’s view that it would not be possible for departments to have a single accountable person along the lines suggested. Each department already has a better regulation champion who works with the department’s better regulation Minister, and many already have a member of their management board carrying out a role broadly similar to that envisaged by the committee. It is worth pointing out that the circumstances of individual departments in the context of secondary legislation are not all the same, and the way they are structured to handle the process needs to accommodate these differences. Against that background, we acknowledge that there is scope for improvement in the way in which individual departments manage their processes, and the committee's report is helpful in promoting such improvement. The committee also raised concerns about the nature of the guidance on best practice and the need to ensure that this is followed by departments. Extensive guidance on the SI process is available to officials. The statutory instrument practice and the common commencement dates guidance are very helpful in that regard. There is also the code of practice on consultation, regulatory impact assessment guidance and the transposition guide about how to implement European directives effectively. All that is now linked via the new statutory instrument practice section of the Office of Public Sector Information website. The Government do not feel that it is necessary to add to that guidance. In addition, departmental lawyers can access guidance materials and advice on drafting secondary legislation through the Government Legal Service intranet. Many noble Lords spoke about the importance and value of consultation and the means of improving it. My noble friend Lord Filkin, in particular, expressed the need for greater emphasis on quality of contact with stakeholders. The noble Viscount, Lord Colville, stressed the importance of a pre-secondary legislative consultative process and of making sure that we consulted effectively with those most affected. One would find it hard to disagree with any of those points; we agree with the committee about the importance of ensuring that consultation requirements are met. The Better Regulation Executive already takes action to achieve this in relation to domestic and European legislation. In addition to working on a day-to-day basis with departments on all aspects of better regulation, including consultation, the BRE reports annually on compliance of these consultation arrangements against the code of practice. Consulting as early as possible is promoted across government not only for domestic policy work but as a way of assisting Ministers to determine UK positions on EU proposals. The transposition guide states that before a proposal is published, departments should carry out appropriate informal consultation with other government departments and with external stakeholders. The code of practice makes it clear that departments are required to consult fully on instruments implementing EU legislation. Moreover, government departments are required to carry out full impact assessments when preparing to transpose EU law into national law, and the consultation of stakeholders is a significant part of the regulatory impact assessment process. We recognise fully the issues noble Lords have raised about the value and importance of consultation, particularly with regard to measures originating from the EU. The revised guidance on the preparation of Explanatory Memoranda makes it clear that departments should set out who was consulted, over what period and with what responses. There should also be some analysis of the outcome and the department's policy response to the opinions expressed. A summary of the responses given and an explanation of how the proposal will change in the light of the responses received will generally be included in the regulatory impact assessment which is attached to the Explanatory Memorandum. On consolidation and simplification, the committee was concerned that the Government should put more impetus behind the process of consolidation and that we should aim as a general rule to publish consolidated electronic versions of each instrument following amendment. There is a distinction to be drawn between formal consolidation—making new legislation—and the publication ““informally””, without making a new instrument, of an unofficial text of an instrument taking account of textual amendments that have been made to it in subsequent instruments. The key consideration as to whether an instrument should be consolidated is the convenience and ease of comprehension for users, about which noble Lords were particularly concerned. Consolidation can also make a major contribution to better regulation. The Government agree that consideration should be given to formal legislative consolidation, both in cases in which there are large numbers of instruments and amending instruments, and when minor changes are made in the principal instrument. The Government will continue to dedicate resources to the task of formally consolidating instruments when departmental Ministers can identify appropriate cases for action. The task of consolidation can be a complex and resource-intensive operation, involving not only the mechanical task of applying amendments but a review of the policy objectives. I am very grateful to the committee for its report and to the noble Lord, Lord Filkin, for his strenuous efforts to ensure that we are kept well informed on the committee and its work. I hope that in this response I have covered most of the major points raised by the committee and noble Lords during the debate. I shall study Hansard closely to ensure that those I have missed are followed up, and I shall happily put those consolidation points in correspondence to the noble Lord, Lord Filkin, as chair of the committee—and to those other noble Lords who have contributed to the debate.