publications.parliament.uk · CONTENTS Oral Evidence Better Regulation Task Force Oral Evidence, 1 November 2005 1 Supplementary Written Evidence 9 Better Regulation Executive Oral

HOUSE OF LORDS

Merits of Statutory Instruments Committee

29th Report of Session 2005–06

The Management of Secondary Legislation

Volume II: Evidence

Ordered to be printed 21 March 2006 and published 27 March 2006

Published by the Authority of the House of Lords

London : The Stationery Office Limited £price

HL Paper 149–II

CONTENTS

Oral Evidence Better Regulation Task Force Oral Evidence, 1 November 2005 1 Supplementary Written Evidence 9 Better Regulation Executive Oral Evidence, 1 November 2005 12 Supplementary Written Evidence 20 Her Majesty’s Stationery Office Written Evidence 22 Oral Evidence, 8 November 2005 26 Supplementary Written Evidence 34 Department for Trade and Industry Oral Evidence, 8 November 2005 93 Supplementary Written Evidence 104 Department for Environment, Food and Rural Affairs Oral Evidence, 22 November 2005 115 Confederation of British Industry, Institute of Directors and National Council for Voluntary Organisations Written Evidence, Institute of Directors 128 Written Evidence, Confederation of British Industry 130 Oral Evidence, 29 November 2005 134 Supplementary Written Evidence, Confederation of British Industry 145 Home Office Oral Evidence, 17 January 2006 146 Supplementary Written Evidence 158 Better Regulation Commission Oral Evidence, 31 January 2006 159 Jim Murphy MP, Parliamentary Secretary, Cabinet Office Written Evidence 165 Further Written Evidence 170 Oral Evidence, 31 January 2006 171 Supplementary Written Evidence 180

Written Evidence Mr Tim Ambler and Professor Francis Chittenden 192 Mr Bryan Cassidy 196 National Housing Federation 197 The Hansard Society 198 The Law Commission 201 The Law Society 204

The National Consumer Council 210 LSE 217 Mrs Linda Weeks, Kent Police College 219 NOTE: (Q) refers to a question in oral evidence The Report of the Committee is published in Volume I (HL Paper 149–I) and the Evidence is published in Volume II (HL Paper 149–II).

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Minutes of EvidenceTAKEN BEFORE THE MERITS OF STATUTORY INSTRUMENTS COMMITTEE

TUESDAY 1 NOVEMBER 2005

Present Armstrong of Ilminster, L Maddock, BBoston of Faversham, L Methuen, LColville of Culross, V Morgan of Prefelin, BEccles, V Northesk, EFilkin, L (Chairman) Tunnicliffe, LJopling, L

Examination of Witness

Witness: Sir David Arculus, Chairman, Better Regulation Task Force, examined.

Q1 Chairman: Sir David, welcome. My name is report, so I am sure that all of us have read at theGeoVrey Filkin. I will not go round the room very least the summary and most likely the wholeintroducing all of my colleagues, hopefully you can of the report, but we would welcome your summarysee their nameplates. Thank you very much for of it.coming to help us with our inquiry. As I am sure you Sir David Arculus: Thank you very much. I thinkknow, the Committee essentially is given the task by the first thing I would like to say is that the Betterthe House of looking at every statutory instrument Regulation Executive and the Better Regulationthat is laid before the House, with a view to Task Force (of which I am Chairman) are separateidentifying any which we believe should be drawn to bodies, so the BRE sits inside government and itsthe particular attention of the House. This is because job is execution; and I sit outside and my job isthe House felt it was important that, particularly for really like being a non-executive director. My job isnegative instruments that never go before the House, to make the challenge and say, “Is this really whatsomewhere in the House there is a process for you wanted to do? Have you thought of thescanning the issues to see whether they require consequences? Is there a better way to achieve it?”attention by the House. That is our task. We So probably two-thirds of my work involvestherefore have the joy of scanning and reading business. I am involved with various businesses, allprobably 1,200 statutory instruments a year. You can of which are in highly regulated sectors. A third ofsee how old we have become in the process! As a the time I work with the Better Regulation Taskconsequence, obviously we develop a perspective and Force and my job there is to make the challenge. Iviews about the ways in which government makes think what I should say is that we have developedregulations and, not being too sharp about it, it does the five principles of better regulation which are nownot always strike us as perfection. And therefore we widely applied, and those are the principles ofare extremely interested, in terms of the focus of our proportionality, accountability, consistency,inquiry, in the way that Government manages transparency, and targeting. I think those aresecondary legislation and whether it can be done appropriate to both primary and secondarybetter—so that we on our part can scrutinise this

legislation. Much of our work is involved withmore eVectively—and about how this can bescrutinising regulatory impact assessments,improved. This is related to but not identical to theparticularly those concerned with major primaryBetter Regulation issue by the Government andpieces of legislation. We are also very passionatetherefore we are extremely interested, in a sense, toabout the issue of consultation and, as you know,get your perspective on what are the problems withthe Government has developed a system ofthe ways in which the Government currentlyconsultation periods for 12 weeks which are nowmanages and makes secondary legislation andwidely used across Whitehall. The other thing wetherefore whether you think that solutions that youare particularly passionate about is the use ofhave identified are the fundamental ones. That isalternatives to regulation. The challenge Iwhat we would like to explore with you today. Docontinually make to government is, “Look, weyou feel you have come to the meeting you expected?understand what you want to do but is this reallySir David Arculus: Yes indeed, thank you.the best way to do it?” Of course one of thedisadvantages about statutory regulation is that, ifQ2 Chairman: Would you like to say a few wordscircumstances change and there is a need forto start oV really in terms of your role and BRTF’s

role. I think the Committee has had the Less is More regulation, then it is much harder to change if it is

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2 management of secondary legislation: evidence

1 November 2005 Sir David Arculus

take away.” It does not literally have to be “one in,a statutory piece of legislation than if it is anone out”. As a possible example, we gave the generalalternative to regulation—such as, for instance, theduty not to trade unfairly which is being progressedself-regulation of the advertising industry, whichthrough the EU at the present time, which is a pieceworks particularly well. So I think my job as aof horizontal legislation aVecting business andbusinessman looking from the outside is to say toretailers, and I think in that instance you can seegovernment, “Look, if I were running a business, Ithat, if you have got a horizontal piece of regulationwould be looking at at least five diVerent ways ofwhich prohibits people from trading unfairly, it mayachieving my objective; I would not just be lookingbe that a lot of the vertical product regulation weat the legislative option.” So that is one of the mainhave in the UK could be swept away. So it mightchallenges that I have to make. I think it is fair tobe a case of “one in and 20 out or 30 out” in thatsay that the knowledge that the Better Regulationcase. So those were the challenges that we wereTask Force has of the statutory instrument processmaking to government. I think the things that reallyand the executive processes that surround that ismatter to us, if I may say so, are the issues that aVectactually quite limited. We did propose doing a studyour labour markets. We are very keen to keepon this last year but for various reasons welabour markets flexible and eYcient. We are veryconcentrated on the independent regulatory sectorkeen to remove unnecessary regulatory burdens, theinstead and on the Less is More Report, so we haveadministrative costs I have just been talking about.not examined SIs indepth. I am particularly gladThe alternatives to regulation are very important tothat the House of Lords is doing that. It may beus as well. I am also keen that regulators should bethat, after you have done that, we might have somesubject to the highest standards of corporatecomments to add. We did have a very goodgovernance. One of the things I said particularly tocollaboration with a House of Lords Committee lastthe Prime Minister when I came into this job wasyear when we worked on the governance of thethat I have heard an awful lot from the Governmentindependent regulators, and Lord Norton and hisabout the corporate governance of business andcolleagues produced a complementary piece of workhow it is failing, but when I look at the corporatehere in the House of Lords, so the whole thinggovernance of the regulators I am not sure that itworked very neatly together. As far as Less is Moreis nearly as good as we have seen in the privateis concerned, if I could just say a word about that.sector. That challenge has largely been taken upWe made two challenges to government in Less isnow and most of the regulators have regulatoryMore. The first was that what gets measured getsboards, which I think has been a great improvementdone, and the particular challenge there was ‘let’sand led to a better performance by them. We aremeasure the administrative cost of legislation’—thatalso concerned about small firms. They are often theis, all the inspections, the returns that have to behardest hit by regulations such as statutoryproduced, the bureaucracy associated withinstruments. I am particularly concerned about thelegislation—and let’s see what the cost of that is.European agenda at this stage of the UK PresidencyThe Dutch have measured their administrative costsand we have been trying to convince the Europeansof regulation in some depth and they reckon that itthat our measure of impact assessment, mandatorycosts them 3.6 per cent of their GDP, and they thinkconsultation and thinking about alternatives toabout another 6 per cent of GDP is the policy eVectregulation is the way to go forward. So that is aof legislation—so 6 per cent is policy and 3.6 persnapshot of our work.cent is the administration associated with the policy.

They have managed to reduce that 3.6 per cent byabout a quarter since they started on their Q3 Chairman: That is very helpful, thank you verymeasurement of the administrative burdens process, much. We would like in questioning to come backwhich equates with about 1 per cent of their gross to quite a number of those issues. Can I just askdomestic product having been saved. If we could do you one specific one before I invite members of ourthat in the UK, that would be a very constructive Committee to come in on questions. Has the Taskmove, I think, and the saving would be £16 billion a Force had any perspective at all about the qualityyear or thereabouts, which would finance a lot more of secondary legislation? Has it looked at secondaryschools and hospitals of course. The second aspect legislation in any respect? Do you get any sense ofof Less is More is the issue of “one in, one out”. I what is going on at this detailed level? Clearly inwas particularly keen on that because it seemed to part you are saying diVerent mechanisms to try tome that the volume of legislation was growing all regulate links will have an impact but what is yourthe time and the mechanisms for removing perspective currently about how secondary

legislation is being made and proposed?legislation when it was no longer needed were notparticularly eVective, so my challenge to the Sir David Arculus: I think the amount of work weGovernment was, “Look, whenever you are have done on secondary legislation specifically is

small, so I am not going to be nearly as helpful toproducing a piece of legislation let’s see what we can

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3management of secondary legislation: evidence


eVectively to legislation within eight weeks?you on that issue as the Better Regulation Executivepeople will be when they come and talk to you later. Furthermore, we found that in about a third of

cases Brussels was not even conforming to its ownBut what I would say is that we had a lot of peoplecoming to complain to us about the issue of gold- eight-week guideline and that in many instances the

eight weeks also covered the August holiday periodplating. We have not been able to find specificinstances of gold-plating, but what we have found or Christmas or whatever. I think the best way to

answer your question is to say that the mechanismis instances of what I call “regulatory creep”. I thinkregulatory creep crops up in a number of situations: for European consultation needs to be greatly

improved, and I think that the impact assessmentfirstly, where there is a lack of scope, a lack of clarityabout the scope and intention of the original process, which is really just starting to bite in

Brussels, we all need to encourage. We know it islegislation; secondly, where there is a lack of clarityabout what those who have been regulated need to not perfect yet but we do need to encourage it and

push the Europeans to do better. There is also ando to conform with the legislation; thirdly, wherethere is a lack of clarity about the legal guidance and issue with business and with government

departments, because I think implicit in yourpurpose of that guidance; and, fourthly,enforcement activity itself can often lead to question was the thinking that we do not engage

early enough and we wait until we see the outcomes.regulatory creep, and if there is particularlyvigorous enforcement activity, people tend to over- I think that that is a major problem. One of our

findings in our study about consultation, which wasreact to the legislation. So I think that really is asdeep as we have gone into the issue to which you published just a week or so ago, was that the NGOs

did it rather better than business. And, of course,were specifically alluding in your question.the NGOs are mainly concerned with the socialagenda and the environmental agenda, and theyQ4 Viscount Colville of Culross: Sir David,tend to move seamlessly from one issue to the nextalthough you may not have looked a great deal atissue. Of course, business, when it sees somethingsecondary legislation, an awful lot of it comes fromwritten down, then responds and says “This isEuropean Union Directives and Regulations. Atterrible.” But broadly speaking all the businesseswhat stage in the Government’s negotiations withhave got diVerent interests, so they do not engageBrussels do you get into the act? Are you there at thein a seamless process like the NGOs do. So one oftime when they are proposing to make submissionsour findings was that the NGOs were rather betterabout what is proposed by the Commission? or doat engaging with Brussels than business was andyou never come into it until after the Commissionalso for some of the UK government departments.has decided and the Regulation or the Directive has

been issued?Sir David Arculus: As I explained at the beginning, Q6 Chairman: Can I just follow up ViscountI am not part of the executive arm of government, Colville. Clearly, RIAs are meant to be part of theso my job is to make the challenge and say, “Is this process for assessing the burdens on those beingreally what you meant to do?” and I do not engage regulated. I think the worry is in secondarywith individual departments as they engage with legislation: it is such a long way down the processBrussels. What we do try to do is to ensure two chain that it is almost inconceivable at that pointthings: one is that the quality of legislation coming that the RIA will lead to change. Have you ever seenout of Brussels is as good as we would wish it to be. any examples of RIAs of secondary legislationFor that reason the impact assessment process is leading to a withdrawal of legislation or where it isnow being picked up by Brussels. We have also an eVective instrument? I think we have somelooked at the issue of consultation coming out of doubts whether at that stage it really is eVective.Brussels and I think there is a major question on Sir David Arculus: I think this is quite an importantconsultation because we have a mandatory 12-week issue, if I may say so. I certainly have seen instancesconsultation period here in the UK. In Brussels the of good impact assessments. A fairly topicalconsultation period is eight weeks. example at the present time would be the impact

assessment that was done on smoking in pubs,which I am sure will not have escaped any of you inQ5 Viscount Colville of Culross: Eight weeks?the last week or so. The impact assessment basicallySir David Arculus: Eight weeks, and when you thinkcame up with the conclusion that, if smoking werethat there are 27 million small businesses in Europeto be banned in pubs that sold food, at least 20 perand that the consultation should be taking intocent of the pubs that sold food would stop sellingaccount at least some of the views of those smallfood, which we pointed out was a rather undesirablebusinesses, you can see that eight weeks is a prettyoutcome. Impact assessments can pull out quiteinadequate period. If it takes us 12 weeks in a close-interesting results like that, which are then fed intoknit community like the UK, how on earth is a

community of 25 nation states going to respond the political process and cause a lot of political




set in Holland, and in Denmark and in Sweden, wasdebate. I think they are very useful instruments butat the conference I was at in Brussels last week, a 25 per cent reduction and that I thought that

seemed a sensible level. But I think that is a politicalwhich was about consultation, the Americanequivalent to the Better Regulation Executive decision as to what we set it at. I think it is a very

important question you ask, if I may say so, because(which is called the OIRA) was there as well andthey were basically saying, “Look, we think you do the burden of these instruments and of legislation in

general obviously falls harder on small business, andtoo many impact assessments in the UK and theyare of too low quality.” The American approach is indeed on the charity sector, than it does on larger

businesses, which are better able to cope with it.to do impact assessments on pieces of policy whichhave a threshold level of $100 million-worth eVecton the economy. Anything below that level they do

Q9 Lord Methuen: We have talked quite lot aboutnot bother with an impact assessment. Although wethe consultation process and the production ofare a much smaller country, we do many moreRIAs. Do you think that the departments concernedimpact assessments than the US does. I think youconsult the correct firms and get the views righthave put your finger on one of the unfortunate sideacross the industry concerned or the activityeVects of that—which is the lower down the processconcerned?you go, at the SI level, the less good the impactSir David Arculus: Yes, I think the consultation isassessments may become.actually done much better than it was. We canalways get better at it. The bit of consultation I

Q7 Chairman: And it is almost impossible to particularly like is the bit where they have standingconceive of a statutory change to be made to get a panels of practitioners in some areas. For instance,better outcome because it is too late in the process. in the vehicle industry there is a standing panel ofSir David Arculus: Indeed. I think a danger of the practitioners which is called the Viper Group, andimpact assessment process is that impact the Viper Group is a group of about 20 people.assessments can be used to justify policy as opposed When the Department of Transport is looking atto inform policy. Broadly speaking, the earlier the legislation, it will pull the Viper Group together andconsultation is done and the more up-stream the it will just talk about what the Department ofimpact assessment process is done, the better it will Transport wants to do for half a day or a day, andbe. Certainly on the major pieces of legislation now then they will draft the consultation document afterwe have a preliminary indicative impact assessment that. I think that leads to much better draftedthat is done, then there is an interim assessment, and consultation documents than when civil servantsthen there is a final assessment, and that tends to draft them without that level of input being fed in.lead to better results. But I firmly believe that Also, when Charles Clarke was at the DfES, heimpact assessments should be used to inform heard about this idea and developed a standinglegislation. That is the whole purpose of them, not panel of headteachers and had a similar sort ofto justify legislation. consultation with headteachers before legislation

coming out of the DfES aVecting schools wasintroduced. I think that kind of continuous process,Q8 Chairman: Exactly. One last question. Are youwhere you get people in a room, is actually ratheraware of anywhere in government that anyone isbetter than at the other extreme—consultationtracking, monitoring and assessing the collectivebased on, let’s say, Internet responses. This is oneimpact on, say, small businesses or small localof the things I talked to some of the Commissionersauthorities of the secondary legislation that is beingin Brussels about, because they rather like the ideamade across all government at any one point inof Internet responses. The trouble with Internettime. We have not seen it, but maybe we areresponses is that it is not a very dynamic tool andignorant.you can end up counting 30,000 responses—andSir David Arculus: I think that will be caught, if Ithen how do you weigh them? I had one specificmay say so, in the work in terms of measuringpiece of legislation which was quoted to me whereadministrative burdens which is going on at theI think the Commission had 600 responses, and 500present time. As a result of the Less is More studyof them came from Portugal. It sounded to me inthe Government has engaged a number of specialiststhat case as if there had been some particularand consultants who are going to be looking atpressure group in Portugal that had got together.precisely this issue of the total burdens on businessBroadly, the kind of consultation that is interactive,of administrative costs, and those will be availablewhere people can develop arguments and testby the time of the Budget in March. I believe it isarguments against each other, is much morethe intention of the Chancellor to say what he thinksvaluable than the Internet-based consultation at theabout that burden and how much he thinks itother end of the scale and then the variancesshould be reduced at that time. I pointed out to him

when we did our study that the target that had been between those two extremes.




whole area of secondary legislation? Is it just left toQ10 Lord Methuen: We thought if you had got theCBI and there are a lot of smaller firms, the CBI departments, do you think, or is there anybody whoperhaps has excessive influence on the results of the keeps an eye on it?consultation? Sir David Arculus: Right, there are a number ofSir David Arculus: This is the danger where you questions wrapped up there. I think the first part ofhave got representative bodies. We particularly your question was whether the Government takefound this in Brussels and I think it was partly any notice of us. I have just been launching one ofbecause of the eight-week consultation period. The our studies today, which is on the voluntary andEuropean Commission would consult, for instance, community sector, and I was saying to the peoplewith UNICE, which is the European employers’ in the room there that the publication of the studybody, and they would say “well, we have consulted marks the 50 per point; the other 50 per cent iswith business”. One thing for certain is that persuading the Government to do what it says it willrepresentative bodies have a diVerent input to make do. The normal mechanism of our reports is that theto individual businesses, and in some cases diVerent Government has a number of weeks to respond tointerests. If I could give you a very graphic example us and then the Government will issue a response,of that. Last year, following a suggestion that we and then it is up to us to monitor that themade, the idea of common commencement dates for Government does what it says it will do. In termsemployment legislation was developed by the DTI, of things like the 12-week consultation period or theand quite interestingly the initial response to this, 21-day notice period, I think these things areparticularly from the consultancy sector, was that important parts of the process, and I am very keenthis was a rather bad idea. Of course, when we that we should have these hurdles that legislatorslooked into it in a bit more detail, we discovered have to go through, but I think they are a necessarythat the consultants rather like a smooth flow of condition of better regulation. I do not think theywork throughout the year and, when we got to do are a suYcient condition because to have a suYcienta survey of individual businesses, which we did in condition you have got to have a change of culturethe West Midlands through the Birmingham in departments and you have got to have civilChamber of Commerce, we found that 81 per cent servants and ministers who actually want it toof business thought a common commencement date happen. So the 21 days, the 12 weeks or whatever,for employment legislation was a very good idea. I they are necessary but not suYcient; more than thatassume the consultants were in the 19 per cent who has got to happen. In terms of looking at thedid not think it was quite such a good idea. So it performance of individual departments, which Iis, I think, an excellent point that the interests of think was your third question, we found there hadrepresentative bodies and consultancy bodies can been great diVerences in regulatory performancediverge from those of the practitioners on the between departments. We asked last year that everyground. government department should produce in its

annual report a survey of how it was dealing withthe issue of better regulation and regulatory impactQ11 Lord Jopling: Sir David, your Task Force hasassessments and so on and so forth. Of course, formade various recommendations over the years andthe first year the response was very patchy. In fact,you have referred, I think twice, to the 12-weekI think the Home OYce, which is one of the biggestconsultation period which you have recommended.legislators, covered the whole topic in under a pageWhat I want to ask you is—to what extent do youand we got very cross about that. And in fact thethink Government takes notice of theseHome OYce did very much better the second timerecommendations and similar recommendations?round. All the reporting of how departments dealWe have been very irritated in this committee thatwith better regulation processes and targets is nowthe recommendation of a 21-day period betweendone in public and the Better Regulation Executivelaying an instrument and implementing it ismonitors those, and the Better Regulation Taskfrequently ignored. Your reports very often identifyForce will then challenge departments that it feelsbest practice. But to what extent do you thinkare not doing particularly well. So I do believe thatgovernment take notice of this? In another field, thesetting these targets, be it 21 days or whatever itrecommended practice in this House is thatmight be, is important, and I think it is necessary.parliamentary questions should be answered in twoHowever, it is not enough; the departments have gotweeks. Last week the Home OYce had a questionto be monitored and they have got to be challengedunanswered for 18 weeks—a particularly idleand I think their feet have got to be continually helddepartment, I may say. But how much notice do youto the fire. It is interesting, just coming back to ourthink is taken of your recommendations and theEuropean study, that when we looked atvarious outlines and targets which are set forconsultation in Europe it was very diYcult to winkledepartments? Are you aware of anybody in

government who is responsible overall for this out that a third of consultation periods in Europe




regulation agenda gets a lot of publicity, a lot ofdid not conform to the eight-week guideline. Thatinformation was not immediately to hand and we people know it is the right thing to do, but when a

really tough decision comes along—like, if wehad to do a lot of research to find it. It is by findingthese kinds of anomalies and challenging people and introduce this new burden on business of a billion

pounds, is there a billion pound burden we can takemaking it public that they are not meeting thetargets that I think we continually strive towards a away—we more often than not fudge the issue.

Chairman: That brings us neatly on to the next issue.better result.

Q13 Viscount Colville of Culross: Just a short point,Q12 Lord Jopling: Do you think the BRE isSir David. I am sure you are very well aware abouteVective in its overall responsibility for managingthe channels of communication with businesses andsecondary legislation? If I just pop in anotherparticularly small businesses. Have you got anyquestion here. Secondary legislation is drafted andviews about the extent to which we have gotprepared by the departments, and again thisproper channels of communication with othercommittee becomes very irritated when we find anorganisations? You mentioned NGOs, and then theinstrument laid and then another one comes a weeklocal authorities are very much involved in this,or two afterwards because they have made a messwhich are themselves of course departmentalised.of the first one. Do you think it would be better ifDo you think that we are getting a fair picture backall secondary legislation were drafted by the mainfrom the consultees when they are asked questionsparliamentary draftsmen in Whitehall?about these things? or do they just not have time toSir David Arculus: I think this problem of poorget round to it? or does it not get to the right peoplelegislation is something we are concerned aboutin the first place?right across Whitehall. I confess I do not know theSir David Arculus: I do not know whether all theseprecise solution to it and your suggestion may be abodies take consultation quite as seriously as theyvery good one. Going back to the question aboutshould do, but what I can say to you is that as athe Better Regulation Executive, I think the Betterresult of the work that we have done in the BetterRegulation Executive actually does a very good job.Regulation Task Force with the businessIt has been led for the last three years by a civilcommunity a number of other people are comingservant called Simon Virley who in my opinion hasalong and saying—why can we not be treatedmoved it to new heights. However, the thing toin the same way? The whole measurement-of-recognise is that it is not a huge body. There areadministrative-costs agenda, which was basicallysomething like 60 civil servants in the Betterinitially applied to the business community, a lot ofRegulation Executive, although I think that numberthe public sector bodies have been coming to me andis being expanded slightly now. But 60 or 70 civilsaying, “Look, we would like to be included in thisservants, and they have to deal with 15 governmentprocess of reduction in administrative costs as well.”departments, 150 independent regulators, and aEarlier today I was launching a study for thewhole mass of primary legislation—I think we arevoluntary and community sector and there are somegoing to have 38 bills in the next session ofquite remarkable statistics there. The voluntary andParliament—and then all the ensuing secondarycommunity sector, for instance, contributes aboutlegislation that comes out of that. So it is a£27 billion to GDP, and 16 million people in themammoth task, and I think for that number ofcountry work in the voluntary sector in some waypeople it is very diYcult to catch the leaves as theyor other and about half a million of them are paid.fall oV the tree. What is a much better process, asThey all want the same quality of consultation, thefar as I am concerned, is to make sure that the treesame look at their administrative costs, how theis well watered and well fertilised and produces thegovernment accounts for their funding streams askind of results we would all wish. That is where Ibusiness is asking for as well, so there is much morethink these hurdles come in that governmentwork to be done, I believe.departments have to go through, but we need a

culture change in government departments as well,and ministers need to take some of these issues Q14 Viscount Colville of Culross: Everybody isseriously. As you may know, simplification plans trying to keep costs down. Can you give us anyare being drawn up by all the departments of state examples of successful methods of consultationand they will be submitted to the Better Regulation which have led to the identification of ways in whichExecutive in January, and those simplification there could be less regulatory burden because thatplans, I believe, should be scrutinised and taken very would apply very much across the board, I wouldseriously. And I think it may well be necessary to imagine?shove one or two of them back to departments to Sir David Arculus: I think a good example would beshow the others that we really are serious, because the REACH Directive, which was a piece of

European legislation about the tracking ofwhat so often happens of course is that the better




huge bundles of paper coming three times or fourchemicals, and the initial cost of that legislation wassomething like £25 billion, and of course everybody times a year and are not able to give them the same

degree of attention than if we could get the flowthen said this is impossible and reacted much toolate. But as a result of the fuss that was made, more evenly spread throughout the year.

Sir David Arculus: I think that is sheer ineYciencyanother consultation was done, more impactassessments were done and the net cost was reduced on the part of departments, if I may say so. We

certainly have not asked for common laying dates,to something of the order of £7 billion, which wasabout a third of the original burden. So that was a which I surmise is what is happening as opposed to

common commencement dates.very high-profile example, but I think we all felt thata much better outcome was finally achieved becauseof the consultation that was done. Q19 Lord Armstrong of Ilminster: I think the two

are getting elided.Q15 Viscount Colville of Culross: But that was Sir David Arculus: They certainly should not be inbecause somebody was awake? my view, and I am aware of the problem that youSir David Arculus: Well, I think it was because raise. I think you have to take quite a firm line withsomebody was asleep and they did not respond departments and say there has got to be a flow. Iquickly enough in the first place. And then a big fuss sometimes think that we should just throw thingswas made because it was such a big piece of back if that kind of bunching happens. There arelegislation and the consultation process and the lots of instances within the bureaucratic processimpact assessments were re-opened, and we got to where we let things slip through at the last moment.a much better result. It did graphically demonstrate I think if one or two things got chucked back tomy other point that often business reacts when it departments and we said we have not got time tosees the draft legislation as opposed to when it is look at this because it all came at the last moment,being talked about and formulated in Brussels, it would be a salutary lesson and they will have towhich is quite a long process. It could be two or wait until the next year. That would be my advice.three years before the draft is produced.

Q20 Chairman: In a recent press release your TaskQ16 Chairman: We have commented that it is at Force stated that the Government should be “re-that stage you have to have the regulatory impact engineering the machinery to focus on outcome notassessment identified on the secondary legislation as admin.” That is what was said, and Amen to that.well because later on you have no powers to do How do you see that happening? What do you meanmuch about it. by that in more detail?Sir David Arculus: Exactly, it is too late then. The Sir David Arculus: I think what I am particularlyNGOs, as I say, are much better at getting engaged concerned about there, Lord Filkin, is the issue ofearly than businesses. alternatives to regulation, really talking with

business or the regulatory community about howQ17 Chairman: That is a message for ministers as the outcome can be achieved rather than layingwell, of course, that it is not just about highlighting, down laws. If I can give you quite a graphic exampleit is about the detailed costs of implementation as of this. Most of the various data protection lawswell and they have not always done so. that we have got in this country were drafted in theSir David Arculus: That is right. days of mainframe computers and they were replete

with phrases like “the information controller of thebusiness shall ...” I have got quite a large businessQ18 Lord Armstrong of Ilminster: You have already

referred to common commencement dates, and of about 15,000 people working in it and about 15million customers, and we do not have anindeed you recommended them. I think we have

found that departments too often elide common information controller. We do not even have amainframe computer, we have distributed computercommencement dates with common laying dates, so

you get a kind of bunching. There will be a lot of power, data shooting about all over the world. Andthe legislation is a nightmare as far as we areorders which come to us before the end of the

financial year, before 31 March, a lot more before concerned. If the Government came to us and said,“We want X, Y and Z outcomes; how can that bethe House rises in July, and a lot more perhaps in

December. I can see that common commencement best achieved?” we would be able to help. Businessdoes not want no regulation, it is part of the socialdates are useful and convenient for those who are

aVected by the orders. Can you see how we might fabric of the country. It simply wants betterregulation which enables it to operate eYciently.encourage departments to spread them out so that

the process of scrutiny could be more even? The fact Reputable businesses do; of course some businesseswant no regulation at all. I think there is a touchingis that the way it works at the moment probably

inhibits parliamentary scrutiny because we get these belief, if I may say so, that if you legislate you get




the interests of the individual firms. So I think often100 per cent compliance and if you have a voluntaryagreement that you get, let’s say, 70 per cent the degree of concentration of the industry is helpfulcompliance. I think it is often the opposite actually. in drawing up alternatives as well. If I may just add,If you legislate you sometimes get firms that just I am very keen on the idea of the informedignore it but if you get industry associations and consumer. Informing consumers what is the bestbusinesses together to say how can we achieve this deal, what the pros and cons of particular productsoutcome, how can we all co-operate, you often get are, I think is a very good form of regulation. I have100 per cent compliance. been complaining particularly about the issue of

food labelling recently because, when a shoppergoes into a supermarket, on average, they spendQ21 Chairman: I think we have a lot of interest inabout two seconds deciding which product they arethat because we see very many examples ofgoing to buy. If you look on the back of most pre-regulations that are made that look very hard topackaged food products now, you will see hundredsunderstand, even with Explanatory Memoranda,of little tiny symbols which you will probably needand there is not much eVort put into dissemination.a magnifying glass to read. Those are all theSo those who are meant to be obeying the legislationingredients of the food, and of course it is a uselessare not easily, unless they are very keen, aware ofmethod of informing consumers, it is a regulatoryit, the rewards or sanctions for compliance aremechanism. I think the kind of colour-codingpretty weak, the intelligence system which tells yousystem or star system that has been developed, forwhether anybody is taking any notice of it is prettyinstance, in the hotel industry is a rather better wayflawed, and therefore, without being too glib aboutof telling people what the standards are. I know thatit, it paints a picture of a machine that generatessome of the firms—Sainsbury’s for instance—arepaper which is not connected to a lot of outcomesexperimenting with a colour-coding scheme at thein the real world except for those who are obedientpresent time. I think those issues of the informedand therefore have a competitive disadvantage as aconsumer are a very good way of pushing andconsequence of their behaviour. You say—yes, itdeveloping alternatives to regulation as well.requires a shift in policy processes to get better and

more creative thinking. But this is not the mind-setof organisations, is it, this level of creative Q22 Baroness Maddock: You touched, Sir David,imagination? It is still the belief that legislation leads on gold-plating earlier. I think, if I heard youto results? correctly, you said you had not found muchSir David Arculus: I think we are getting better at evidence of gold-plating. Wearing other hats andalternatives to regulation. For instance, the whole having dealt with European legislation, what weissue of carbon emissions which is being dealt with

have found on the European committees here is thatby the trading scheme I think has the potential toin other parts of Europe a regulation will bebe a pretty eVective outcome. In the advertisinginterpreted with many less pages than it isindustry, the Advertising Standards Authority,interpreted here. I do not know whether you havewhich started with press advertising but has nowfound that? You were comparing Europeantaken in television advertising because it was socountries earlier on.successful, has been a conspicuously good model.Sir David Arculus: We define gold-plating asThe German government, by the way, has formalsomething like this: regulations that deliberately goregulations on advertising whereas we do it with abeyond the intended scope of the original law.voluntary system here. I think where it can beCould I find evidence that people were deliberatelyproven that alternative models work well, one of thegoing beyond the scope of the law? I could not. Butthings I have been trying to do is to publicise thosecould I find evidence that people were adding to theand encourage others to follow the example. In ourlaw as the process was developed? I certainly could.study on better regulation we presented it as 10 tipsFor instance, a great many of the regulatory powersfor better regulation. Why do you not think aboutin the UK have now been devolved by Parliamentdoing this? Why do you not think about doing that?to the independent regulators and the independentOf course, you also need to look at the structure ofregulators tend to put their own particular gloss onthe industry when you are talking about alternativesthe regulation. And then they will pass theirto regulation. Just as an example, only five firms inguidance down to the local authorities and they willEurope are involved in the trade of tankers carryingput another level on as well, and then the firms willchemicals, so it was very easy to persuade those fiveget their legal department to look at it and they mayfirms that double-hulled tankers were a necessity. Ifwell put another level on as well. This whole processyou look at the oil tanker industry, which is muchof what I call regulatory creep (you might call gold-more of a spot market with lots of fly-by-nightplating but to me it is regulatory creep) is accidentalglobal operators, it is very diYcult to persuade them

to have double-hulled tankers because it is not in gold-plating as opposed to deliberate gold-plating.




think it is very smart to work on a bill team and itThere is plenty of evidence for that accidental gold-plating process. For instance, money-laundering is not so clever to work on a better regulation

initiative. I think the whole business of the rewardregulation is a classic example of this, where becausethe wording of the original law was somewhat structure of the Civil Service, the bonuses that are

given to good performers in the public sector, theobscure and enigmatic, people then interpreted it ina particularly legalistic way. And then of course the way people are promoted, that has got to come into

the process as well. Also the issue of how publicbanks, who are very highly legalistic themselves, putanother gloss on it as well. So I think the clarity of servants are trained is important. I am actually glad

to say on the training issue I think progress is beingthe original legislation, be it primary or secondarylegislation, is the key to avoiding the kind of eVect made. Certainly Andrew Turnbull was quite keen

on this when he was Head of the Civil Service, andthat you are talking about.Baroness Maddock: That is very helpful, thank you. various of the executive programmes and training

programmes in the Civil Service were changed tomeet this particular challenge. I and other membersQ23 Chairman: Finally, we are hopeful like you

that we will see fewer regulations and better ones of the Task Force go and talk to groups of civilservants about this quite often. There is no doubtcoming before us because we have a self-interest in

this. Do you think that the agenda set out by the that more work needs to be done and of course thegreat danger which I think lies behind your questionTask Force, while many of us think it is necessary,

is going to be suYcient? is of a “tick box” mentality. So this is a very diYcultissue and it is to some extent not an immenselySir David Arculus: I think I have alluded to that

already. I think it is very necessary. Is it suYcient? glamorous issue. It is about a great deal of hardwork, a great deal of attention to detail, and that isIt is not, no. Again, if I can give you a business

analogy, I am a non-executive chairman of a what the simplification plans that are coming out ofgovernment departments early next year need tobusiness. It is very important that there is a non-

economic challenge made to that business but what attend to. They need to attend to the detail. Theyneed to look at how regulations overlap with eachit needs to deliver on that challenge is a highly

committed executive, and I think that is the analogy other and how departments overlap with each other.It is mind-numbingly detailed but it has got to beI would give with government as well. I think we

need a highly committed executive and I am not done.Chairman: Thank you very much indeed, that hasentirely sure how we bring about that culture change

because to quite a large extent civil servants still been extremely helpful.

Supplementary letter from Sir David Arculus, Better Regulation Taskforce (BRTF)

We welcome the opportunity to contribute to your inquiry. The Better Regulation Task Force (BRTF)considered launching a study about statutory instruments last year but eventually chose not to do so, partlybecause your committee was already covering much of the ground in need of review. Nevertheless, we remainconcerned that the process of preparing, submitting scrutinising and approving statutory instruments shouldbe subject to better regulation principles and we are therefore pleased that your Committee is undertakingthis project.

It is worth highlighting that the BRTF generally considers regulation as a whole— we do not tend todistinguish between primary and secondary legislation. In our view ALL policy intervention and itsenforcement should meet our five Principles of Good Regulation: Proportionality, Accountability,Consistency, Transparency and Targeting. We believe it is vital to have a robust process— or series ofhurdles— in place to evaluate proposed legislation and to ensure that the costs and implications have beenfully considered. We believe that scrutiny of proposals against better regulation principles should be a priorityfor both Houses of Parliament. Statutory instruments should not escape rigorous scrutiny, particularly wherethey impose costs or burdens.

The Independent Better Regulation Commission, under the chairmanship of Rick Haythornwaite, looksforward to continuing discussions in the New Year.



Quality—Drafting and Corrections

There needs to be a strong commitment to Better Regulation in all government departments to make sure thenecessary steps are taken and procedures followed ie that all the potential impacts are known, the rightstakeholders thoroughly consulted and alternatives to regulation are considered.

If carried out properly, Regulatory Impact Assessments (RIAs) should help identify the costs, benefits andimpacts of proposals in advance. The RIA process has been in place since 1998 and the overall quality of RIAshas improved since then. However, quality varies significantly between proposals and governmentdepartments.

The BRTF has since 2001, been referring strong and weak RIAs to the National Audit OYce (NAO) forfurther examination. The 2005 NAO report registered an improvement in the sample of RIAs against thoseassessed previously. This year the BRTF has broadened the remit and asked the NAO to look at wholegovernment departments, both particularly good ones (DTI) and those where improvements could be made(DfT, DCMS and HO).

We have no evidence that the quality of RIAs and consultation exercises varies significantly between primaryand secondary legislation. However we would be suspicious if any statutory instrument (SI) were to beproposed without an accompanying, updated RIA on the argument that nothing significant had changed sincethe original primary enabling legislation.

It might help if Sls were made available, even if only in draft form, when primary legislation is being discussedin Parliament. This would allow the political debate to be properly informed, while leaving the detail to bedealt with later. We appreciate that it can be too late to raise objections once the primary legislation hasbeen passed.

The BRTF strongly supports post-implementation reviews—legislation (be it primary or secondary) shouldnot be introduced and then left unexamined. In our view, where corrections are necessary corrections shouldbe made, to avoid damaging confusion later. However, the need for corrections should be kept to a minimum,for example by ensuring good project management and thorough consultation in the initial stages.

The sharing of best practice can help improve the quality of RIAs, consultation and Sls. This is stronglyencouraged by the BRTF through its reports and by others such as the Better Regulation Executive and theNAO.

Consolidation

Consolidation, where appropriate, will clearly make Sls more user-friendly as stakeholders will only have torefer to one piece of regulation rather than several.

We recommended this in our report “Less is More” report, where we said that deregulation, rationalisationand consolidation were good ways to achieve the more general goal of simplification.

The Government accepted all the recommendations in our report and the proposed Regulatory Reform Billshould improve the process for simplifying existing legislation. Stakeholders should already have beenapproached by the BRE and government departments to suggest ideas for the simplification of legislation.

Timetabling and Common Commencement Dates (CCDs)

The BRTF recommended the introduction of CCDs for employment regulations in 2002. This proposal wasfully supported by business. We have since recommended the extension of CCDs to other policy areas,something which has been taken forward by the government.

It should be possible to avoid peaks and troughs in the laying of SI’s with proper timetabling and better projectmanagement. The bunching around certain dates is not being caused by CCDs in themselves. CCDs set dateswhen Sls should come into force— not when they should be submitted for scrutiny. We would support the useof a clear legislative timetable for the preparation, laying and scrutiny of Sls.

As part of the CCD policy, departments and agencies are required to prepare an annual statement at the startof the year, indicating which regulations they expect to start on the next CCD date. Perhaps these annualstatements could be used to aid project planning.



1 November 2005

Commencement

The BRTF does not know about the level of compliance with the government’s SI “21 day rule” as this is notsomething we monitor.

We note that guidance accompanying legislation that imposes burdens should be issued at least 12 weeks inadvance of the legislation coming into force— as recommended by the BRTF and accepted by the PrimeMinister. We are therefore surprised that as little as 21 days notice is considered to be enough before Sls areimplemented after they have been laid— particularly for the more complex and controversial Sls. We wouldsupport clarification of this point.

Consultation

The BRTF firmly believes that consultation is at the heart of better regulation. Good consultation means theright people being consulted in the right way and at the right time.

Careful thought upfront about who to consult, how and when should help, with targeting and prioritisationnecessary to avoid “consultation fatigue” among stakeholders. The provision of prior warning of forthcomingconsultations should also improve the quality and quantity of responses received. Standing advisory panelsof practitioners in certain sectors can prove useful, such as the VIPER Group in the vehicle industry.

It should be made clear in RIAs who has been consulted and what evidence has been provided. This shouldencourage consultation to be used to inform policy decisions rather than to tick the right box. Responsesshould be carefully analysed with an open mind. It is important to identify the most prevalent views for eachquestion asked in the consultation document. However weight should be aVorded to the most cogent ideasand arguments, and not necessarily to the views held by the most influential/most well known stakeholders.

Overall consultation is actually done better than it was, but there is of course always room for improvement.For example, some departments need to show greater willingness to change direction on the basis ofconsultation responses. We believe the government’s consultation code is suYcient in itself when adhered toby all. Once again, adherence varies between individual proposals and government departments.

Users and Impact

It is vitally important that the likely impacts of proposals and the concerns of stakeholders are identified andconsidered early on.

The tracking, monitoring and assessment of the collective impact of legislation (primary or secondary) shouldbe caught by current government eVorts to measure administrative burdens. As a result of the BRTF “Lessis More” study, the Government has commissioned a number of specialists and consultants to measure theadministrative costs of regulation on business and the voluntary and community sector. The results should beavailable by the Spring 2006 budget.

Links to Better Regulation

A burden is a burden no matter how it is introduced. The BRTF “Less is More” report and recommendationsdo not distinguish between primary and secondary legislation.

In the future Parliament should expect to see Sls cutting burdens rather than increasing them. The BRTFwants to see administrative burdens reduced within five years. It is up to the government to set the target bywhich the burden is reduced— Holland and Denmark have set a target of 25 per cent. We have asked thegovernment to set a target by May 2006. We hope Parliament will support the proposals in the forthcomingRegulatory Reform Bill to facilitate the simplification of legislation through Regulatory Reform Orders.

The whole point of this work is for users to be significantly less burdened by regulation. Success should bejudged by whether the results are felt on the ground (ie by users directly aVected by legislation), not by whethergovernment departments think they have done a good job or not. The government will have failed if adiVerence cannot be felt.

1 December 2005



1 November 2005

Examination of Witnesses

Witnesses: Mr William Sargent, Executive Chairman, Ms Kate Jennings, Head of the Regulatory ReformStrategy Team, and Ms Marie-Anne Mackenzie, Head of the Scrutiny Team, Better Regulation Executive,

examined.

Q24 Chairman: Good afternoon and thank you together to make sure it happens. A lot of it is about,as you have seen and why we are talking,very much for joining us. You have had a slightmanagement of legislation and getting it right, so thatwarm-up act, so I do not need to explain to youis quite important. So from the Government’s pointwhat we do because you knew well before you evenof view the Better Regulation Executive is at the corecame here. By all means, if it would be helpful, sayof trying to drive this forward, together with the resta few words about where you see BRE currentlyof the government departments. We obviously needpositioned. I recognise the challenge for you, oneto work with the departments to deliver the goods.month in post. But just set the scene for usWe personally, as Sir David said, are quite a limitedsuccinctly if you would.number of people, so we have to work together withMr Sargent: Thank you very much for the invitation.colleagues in order to deliver the overall agenda. WeI am very pleased to be here. It is early on in theare perhaps the best practice catalyst or clearingagenda for me and it is good to be engaging withhouse and we need to persuade a significant numberyourselves, who obviously have quite an interest inof people outside of our own world to deliver thethis. It is an allied interest which I am pleased to begoods. We are taking forward the work of thehere to talk about. I am new to the role, and a bit likeRegulatory Impact Unit, which you will be familiarSir David, I have come from the private sector, andwith from working with them over the last few years,he and I have worked together in previous guises, soand the aim is very much to reduce the businessit is interesting coming from outside the Civil Serviceburden. Interestingly enough, however, our brief is toand working together with my colleagues in the Civilgo beyond that. We are not just looking at the privateService now. It is quite an interesting new approachsector but the public sector as well. People assumethat has been taken with the Better Regulationthat I will be very close to the private sector having

Executive. I am going to try to give you some come from that world myself, but actually I can seeoverview and my colleagues, Kate and Marie-Anne, very quickly in the first four weeks that the impact inwill help me with the detailed questions as we go the public sector of the regulatory burden is equallythrough. As I outlined in the letter that we sent, the significant. The gains in the public sector are similarPrime Minister has asked John Hutton to take to the gains in the private sector and may well beforward this agenda of cross-government working, more, my instinct tells me. It is very much what we areworking closely with his Cabinet colleagues. In the focusing on and I feel progress is already happening.announcements that were made this year around the In the six months since the Budget alone a lot hasMarch Budget time, both the Prime Minister and the been done in structural, cultural and policy changesChancellor gave an interesting indication of very that have happened already. Our Executive is not juststrong support for the whole agenda of better focusing on the UK but it is focusing on Europe asregulation. It is believed that the impact on the well. My brief, as you and Sir David discussed, iseconomy, and therefore business, is a very important significant, particularly in certain areas—one to address. It is incredibly radical and needs to be environment law and places like that—and agiven some context. In Europe and elsewhere in the significant proportion of that law is coming out ofworld, the UK is seen as best practice. We are at least Europe, so our brief is to engage there just as much.five years ahead of the rest of the world in trying to We still have a lot to do. It is a very long-termmake all this work. We are at an interesting point exercise. If I could bring it to what we are focusing onnow because the Regulatory Impact Unit, which has here today. We feel that the work that we are doingbeen doing the work, as Sir David said, under which is of interest to the inquiry is very much aroundSimon’s very eVective leadership, has got to the first improving regulatory impact assessments. We thinkstage now, where we are entering a very interesting that driving that forward and pushing it up the foodstep change; and hence the Regulatory Impact Unit chain, so it is being used further and further andhas become the Better Regulation Executive as we closer to the origination of the policies whereseek to implement the work of Sir David’s Task hopefully they can become more and more eVectiveForce report and Phil Hampton in his review. The in that.two reports combined together are an incrediblyambitious agenda. I am very pleased and honoured Q25 Chairman: Could I pursue that for a secondto be part of that now, on the one hand inside the because I would welcome your take on the nature ofsystem, and with people like Sir David obviously the problem. From our perspective secondary

legislation does not look perfectly formed. We arealongside and outside the system challenging



1 November 2006 Mr William Sargent, Ms Kate Jennings andMs Marie-Anne Mackenzie

Q28 Lord Jopling: Yes, but to what extent do youfrequently irritated by the quality of it, by the lack ofjoined-upness of it, by what looks like a not very think the impact of secondary legislation is properlylively consultation process. Could you give us what assessed before it ever is produced? You haveyour three or four takes are of the fundamental mentioned the diVerence between private sector andproblems with how secondary legislation is currently public sector. Just go a little further, if you will, inbeing managed and made? explaining how you think there could be betterMr Sargent: It is being managed by the diVerent impact assessment so far as the public sector isdepartments themselves as opposed to people like us. concerned? Do you oversee these things by email, by

letter, or do you have regular meetings? Is every pieceof secondary legislation subject to a meeting? or is itQ26 Chairman: And that itself is a problem?all done rather distantly? Do you then go to theMr Sargent: It is best done by those people who are indepartments and say, “We do not believe that youconsultation with their stakeholders. If you originatehave properly assessed the impact of what you aresomething in the farming community, obviously theproposing”. We have found that departments, inpeople who deal with the farming community—telling us what the result of consultation, is just giveus a very wishy-washy sort of reply. We quite oftenQ27 Chairman: But they are not joined up with thehave to go back to departments and say—what didother departments, are they? Nobody is lookingthat very bland statement about consultationcollectively at the impact on a particular business oractually mean, what were the numbers, and who werevoluntary organisation?the people? As you know, with a referendum you canMr Sargent: As an outsider before I took this job I feltnearly always get the answer you want according tothat was improving dramatically. As Sir David said,the question you ask and of course, you can probablythe consultation process has certainly improvedalways get the result of a consultation if you carefullydramatically over the last few years. I certainly wascherry-pick the people you consult with. Do youon the receiving end of a lot of joined-upthink that goes on? Is there anyone else beside yourconsultations, but you guys might have a betterteam who monitors the collective impact ofperspective on that.regulations?Ms Mackenzie: I think that one of the importantMr Sargent: If I can unpick the questions in that.changes that is coming about is the way thatMarie-Anne will deal with some of them. If I coulddepartments are now going to be encouraged to lookcome in after Marie-Anne with some opinions, I willmore at the regulatory landscape in order to decidelet her answer the facts first.what oVsetting provisions they might developMs Mackenzie: There were quite a few points there. Inalongside the development of new legislation. Thatterms of who actually looks at the proposals forwill encourage them increasingly to look at the widersecondary legislation, the requirements to completeregulatory landscape and not just at what is beingregulatory impact assessments are the sameproduced within a department. It is acrossregardless of whether or not it is primary ordepartments and there will be more of a role to besecondary legislation, so departments are required toactively challenging during the preparation of bothundertake regulatory impact assessments for allprimary and secondary legislation to look more at themeasures that are going to have an impact onwider landscape and the opportunity there forbusiness, charities, the voluntary sector or the publicreform. I think that will help with co-ordination.sector. They have to undertake the same for primaryThere is an issue about how we help departments toas for secondary legislation. In the centre in thethink more widely about what else is out there.Cabinet OYce for RIAs we perform the sameMiss Jennings: I think in terms of the consultation andchallenge function for significant proposals whetherpolicy, our role in the Cabinet OYce is issuing thethey are primary or secondary legislation. Of course,guidance on consultation. The Cabinet OYce isif secondary legislation does not cost enough, if itresponsible for the Code of Practice on consultationdoes not cost as much as the criteria for significanceand issues guidance on consultation. We also help to(which is £20 million), then it would not beco-ordinate a network of consultation co-ordinatersscrutinised in the centre and of course that is whereacross all departments. The role of the consultationsome of the secondary legislation misses out fromco-ordinaters and our role is partially to disseminatethat challenge function that we perform. But thatgood practice but also to try and make sure that thosedoes not mean it should not be carefully scrutinisedconsultation co-ordinaters are joining up where theywithin the department. Departments have their ownhave policies in one department which might bedepartmental Better Regulation Units that should berelevant to stakeholders in another department.looking again at quality and performing internallyAgain, what we are trying to do is to encourage morethat challenge function, so the requirement is notjoined-up thinking and more joined-up consultation

where issues are cross-departmental. diVerent for primary and secondary legislation. It




major terrorism incidents. There have been somemight be being perceived to be diVerent but the basicrequirement is the same. In terms of the outcome of cases where legislation has not gone forward.consultation and how that is reflected within the Chairman: That is comforting to hear. It brings us onimpact assessment (because there is a requirement for to Lord Methuen’s question on consultation. I thinkthat to be included in the regulatory impact our worry is that too often RIAs can look just like aassessment following consultation) that is an area piece of process compliance that has gone through,where departments are being encouraged to provide but nothing much really happens at all as a

consequence. Maybe I am wrong.more information. It is one of the conclusions fromnot last year’s but the previous year’s report from theNAO on regulatory impact assessments. They didpick up that there was an issue about how Q30 Lord Methuen: I think my Lord Chairman hasdepartments reported the outcomes of consultation already asked some of the points about consultation,and we have been strengthening our guidance in that but we have noticed in certain cases that the 12 weekarea to departments and encouraging them to be period is not being kept to, which does not give themore open about the range of responses they get to respondents enough time. We also noticed anotherconsultation. That is Kate’s area in particular. case on the recent Pensions Act, where the DWP wasMr Sargent: The thing about the Regulatory Impact excused from consultation for the first six months,Assessments, the fact that they exist, means that and this does not sound like very good practice.someone has to put down on a piece of paper the logic Miss Jennings: The 12-week period for consultation isthey came up with, and that is available then for the the standard which we expect departments to meet aswhole world—the lobby groups, Mothers Union and far as possible, but within that there is somenon-governmental organisations—to look at it and flexibility. Then the emphasis really is on the ministerchallenge it. People have an obligation to create them justifying why the 12-week period has not been met,in the first place. We obviously scrutinise those above why it was not appropriate in those circumstancesa £20 million impact. Therefore, it is available for and doing everything possible to make sure thepeople to look at and challenge, by parliamentary consultation is nevertheless as eVective as possible, socommittees or outsiders, so that in itself is a good making sure they maybe hold workshops or try anddiscipline. The one area that would be interesting for meet stakeholders and engage their views in otherpeople would be to subsequently look back at the ways. Sometimes I think it is the case that maybeRegulatory Impact Assessments to see how accurate there has been extensive consultation on an area ofthey were in the first place. As a discipline and as a policy where there has been more than one round ofform of transparency it is a very powerful one and consultation, and then it is deemed appropriate,departments ignore them at their peril. perhaps, to have a shorter consultation for some final

decision-making. On the Pensions Act, the exampleyou gave, I think that was an extremely unusual thingQ29 Chairman: Can you think of any examplesto happen, but there, I think, it was felt thatwhere an RIA on a secondary piece of legislation hasGovernment had conducted one of the widestled to it being dropped?consultations on pensions that had ever beenMr Sargent: Personally, I cannot.undertaken, and there was a risk that stakeholdersMs MacKenzie: There are some cases where that hashad been over-consulted and, therefore, it might behappened, but I think the main point of the RIAappropriate at that point not to consult further forprocess is not necessarily for legislation to be stoppedthe next six months.entirely, it is for it to be developed and for the processMr Sargent: Certainly there are examples whereto reflect what people’s views are and what might bepeople on the receiving end asked for it to be shorterthe best way forward. Quite often we see cases wherethan 12 weeks because they wished the result of theRIAs have made a diVerence, and you can see thelegislation to come forward quicker and, therefore,result of informed decision-making both througheverybody agreed that it should be shorter.consultation and internally as the policy develops.Lord Methuen: There are obviously examples, theThere have been some quite high profile cases ofscallop ones, where you had to do somethingwhere legislation has not continued. For example, theinstantaneously, one accepts that.Treasury—unfortunately I cannot remember the

exact title of the piece of secondary legislation oV thetop of my head—received quite a lot of presscoverage in the FT when they decided, following Q31 Baroness Maddock: I wonder whetherconsultation, not to continue with proposals to departments report on their progress through the

years as to how often they have not kept within the 12introduce secondary legislation, setting outemergency procedures for the City in response to weeks—in their Annual Report, for example?




sometimes highlight good and bad practice, weMr Sargent: We certainly track them.would try to learn the lessons from those reports.Miss Jennings: We produce an Annual Report of the

performance on the consultation. It is true thoughthat we do not scrutinise consultation documents in Q33 Chairman: Can I check that I heard correctly,the same way as we would scrutinise the Impact you have no active role on SIs at all, is that what IAssessments. Our role in the consultation process is heard?to look at compliance with the Code of Practice Mr Sargent: Not in the management of them, butrather than looking at the individual responses. We ensuring that people understand that the Regulatorywould expect the departmental consultation Impact Assessments are applied to that process, butcoordinators to approach us to seek our views where we do not manage SIs.they were concerned about something like notmeeting the 12 week period and thinking how they Q34 Baroness Morgan of Drefelin: Do you think itmight seek our advice on eVective stakeholder would be a good idea if you did have more of anengagement, for example. active role with SIs?

Mr Sargent: What we can do is educate, inform andtrain. I think the obligations lie best in theQ32 Baroness Morgan of Drefelin: At the start youdepartments, and we are not in a position todescribed your relationship with us, perhaps, asmanage that.allies, and I hope that is very much true. Speaking to

us as allies, would you give us your opinion on howQ35 Chairman: That was not what was asked. I dowell you see best practice identified, how well thatnot mean to speak for Baroness Morgan but she wasbest practice is disseminated and how well enforced itasking—should you have more of a role, she was notis, particularly obviously talking about thesaying take the job away from the department.management of secondary legislation?Mr Sargent: Being new to the job I do not have anMr Sargent: Not being an expert obviously I willopinion on that.defer to Kate and Marie-Anne in a second. But theBaroness Morgan of Drefelin: I am thinking about thebest practice, like any area of operation, varies in“one in, one out” idea. How many regulations do wequality and how well people have been developed andsee a year. I have not been here for a full year?trained in that, so we see a range of experience at the

moment. In general, my perception of that is it isQ36 Chairman: The nub of the question is we seeimproving all the time, even before I came into this1,200 regulations and we often think they are a pile ofrole. Kate, I think you can be more specific on themess—putting it rather crudely—and we ratherexamples we are seeing at the moment.hoped that BRE was going to say you were going toMiss Jennings: It is worth noting that we do not havecome over the hill like the cavalry and sort this out.a formal role on SIs and spreading best practice on SIWhat I am hearing is, “It is nothing to do with us,management or production. The guidance on SIguv, it is up to the departments” I am slightlypractice is produced by the OYce of Public Servicesurprised with that?Information and not by BRE. Where we doMr Sargent: If we take the responsibility oV thedisseminate best practice is on things like Regulatorydepartments—Impact Assessment, consultation policy, and the SBS

produces best practice guidance on commonQ37 Chairman: I was not suggesting that youcommencement dates. What we do to propagate thatshould.is partly through our departmental network of betterMr Sargent: No, but if we take the responsibility forregulation units in all the departments, we holdchecking, managing and vetting it, then the othertraining events for those units and, indeed, trainingpeople who should be taking that responsibility doevents for the policy oYcials, and we also work withnot.the National School of Government who have an

input to their training courses. As well as thedepartmental oYcial level network, there is a Q38 Chairman: That is diVerent from saying that itministerial Better Regulation Ministers network and is not a role at the centre of Government to drive ina Board Level Champions network, and we use both the improvement of best practice, to incentiviseof those to disseminate and share good practice behaviour and to make things happen. I think we arearound the diVerent departments. We also obviously in a false dichotomy where it is not a positive one.look to the NAO and their reports to disseminate Mr Sargent: No, I think our role is to ensure thatsuggestions of good practice which they have people understand how to do Better Regulation andidentified, and with David Arculus’s Better we are doing that. We do not have the resources nor

the remit to go beyond that.Regulation Task Force where they themselves




20 clauses in it which require secondary legislation,Ms MacKenzie: Can I help on “one in, one out” asyou termed it. “One in, one out” is a phrase which some of it of very considerable complexity. Secondly,

the Pension Protection Fund has led to a raft ofwas used in the Better Regulation Task Force, Less isMore Report, but we are calling it “oVsetting secondary legislation of really colossal nature. Do

you have the ability to say, “Secretary of State, Isimplification” because the text itself makes it quiteplain that the aim is not to literally remove one piece know you want to do this, but do you realise what the

consequences are in terms of the volume of sub-of regulation when a new one is brought in. As I saidearlier, I think this is an opportunity to help to ordinate legislation which is going to come and the

burdens that this is going to place on all sorts ofreinforce the message to departments, that when theyare introducing new provisions, they need to think people?”. Do you have that duty and that power?

Mr Sargent: The decisions about what to bringvery carefully about the wider regulatory landscape.Indeed, just this week we have issued new guidance, forward are obviously Secretary of State decisions,

ministerial decisions. All we can do is obviouslyan additional piece of guidance to the RegulatoryImpact Assessment Guidance, which encourages analyse and ensure that the process is available in the

diVerent departments, analyse and come up with thedepartments to do this as part of identifyingoVsetting simplification. I think, as we were saying, numbers and do the Regulatory Assessments.

Therefore, that information would be available whenwe are trying to encourage good practice in this area,whilst not necessarily feeling that it is our particular people analyse, and the tools and the systems are in

place to provide that information. We do not haverole to co-ordinate every aspect of the programmemanagement of secondary legislation. I think we are that remit as such.very keen to encourage the culture change withindepartments that looks both at the wider regulatory Q41 Chairman: You have no power or remit, if youlandscape but also encourages good project wanted to, to carry out an audit on a particularmanagement techniques and supports them in department’s capacity either on a particular bill ordoing that. whatever?

Mr Sargent: No, the National Audit OYce obviouslyaudits various aspects of practice.Q39 Lord Jopling: I am astonished, I had not

realised that you do not have an overall responsibilitywith regard to Statutory Instruments. Let me put it Q42 Chairman: How do you know what is going onanother way round, do you think it would be a good in this case?thing if there was an organisation which had a Mr Sargent: We see the flow of information and theresponsibility, as Lady Morgan said, to enforce Panel for Regulatory Accountability is obviouslybetter practice, an overall umbrella organisation there to be part of the checks and balances process.which could hit departments who were sloppy and The RIAs are very much how we see the flow ofidle—and there are a good few of those—would that information. There is an obligation above £20 millionbe an improvement? if a particular piece of legislation is coming forwardMr Sargent: As Sir David suggested earlier, the to you.ultimate discipline is Your Lordships’ House and theHouse of Commons in terms of rejecting it. If it is Q43 Chairman: I think what we are struggling withinadequate, as you are suggesting, and is turning up in this Committee is, having put great hopes in thesloppy, and that then it is unacceptable, from your BRE as a salvation for some of this, we are notpoint of view, that the discipline is not there. What we getting a very clear picture of the places where youcan do is put in place the knowledge of how to do it are going to motivate this very diYcult culturalproperly and to assist people to do to it, but the change—which we were persuaded by Sir Davidresponsibility needs to be of those who originate in Arculus is necessary—which is thinking about thelegislation. The parliamentary system is part of those business in a completely diVerent way in order tochecks and balances which ensures that the job is avoid having to go through pointless regulation. Wedone right in the end because if it is not, you should are not getting a clear picture as to how you are goingreject it. to drive such a process. I do not think it will work by

just having good intents, they need to be driven?Ms MacKenzie: The Regulatory Impact AssessmentQ40 Viscount Colville of Culross: I am told that one

of your tasks is to scrutinise new policy proposals. I process will identify—all the departments areencouraged to identify—where there is going to bewould like to know a bit more about this, and I want

to give you two examples. Please do not think I am secondary legislation what they estimate the impactsof that are likely to be. Obviously we do ask them toasking you to give any opinion about the merits of it

or its simple machinery. Firstly, yesterday we gave a give some indication of that when the primarylegislation comes through, as a sort of precursor ofSecond Reading to the Identity Cards Bill. There are




Q44 Lord TunnicliVe: You will have heard us ask Sirthe type of work they do on individual pieces ofDavid Arculus about the “bunching” that occurssecondary legislation and that information should bewhen we have these common commencement dates,outlined in RIAs on primary legislation. In the end,favoured by the Task Force. As far as we arethe decisions about introducing legislation and theconcerned, they tend to be not only commoninformation that is provided on impacts, and thecommencement dates but common laying dates,future impacts and eVects of secondary legislation,often less than the 21 days which is normallyare signed oV by individual Secretaries of State, aprescribed, with the result that we get a huge bunch ofdecision is taken by them about whether or not tothese things to look at in this committee in December,take that forward on the basis of the information theyMarch and again in July. I wonder whether you haveare provided. They are given the information to makeany view of how we can all together encourage betteran informed decision, but in the end the decision isproject planning in the departments so that, even ifwith the Secretaries of State and the politicians. Inyou have a common commencement date, the flow ofterms of what we do to disseminate good practice,draft instruments—draft in the sense that they areKate might want to say a bit more about that in termsnot yet laid—can be more evenly spread over theof what we are trying to do to encourage cultureyear. That would make for better scrutiny certainly inchange.Parliament and, I believe, for better legislationMiss Jennings: Again, where our role lies is not in themaking.volume of Sis—I think you mentioned the figure ofMr Sargent: I have two observations. The Executive1,300 SIs a year. The majority of those SIs will notis not a policy lead on the common commencementhave an impact on business. I think something like 48dates: the Small Business Service is the organisationper cent of them are on things like road closure ordersthat is leading in that, but obviously we are workingor air navigations orders and, of course, those wouldclosely with them. Part of the policy is that thehave no relevance to us at all. It is only really wheredepartments and agencies have to prepare an annualthey have an impact on business, charities and othersstatement each January, so it is not just that theywhere we have a role. In terms of guidance and oursuddenly turn up in March and September; they haverole, we issue the Regulatory Impact Assessmentan obligation to sit down and work it out a yearGuidance and then we run training awareness eventsahead. We would be disappointed if people startedso the departments know what their responsibilitiesbunching because there is a very clear indication inare in terms of developing their policies. As Marie-the guidance and the advice we give that what is likelyAnne has said, they are encouraged to start thinkingto happen if they bunch is they will end up losingin terms of their Regulatory Impact Assessments atsome of the legislation because they will not leavethe very start of the process, and they would issueenough time. Before, in this role, when I was quite aninitial partial Regulatory Impact Assessments at theactive supporter of common commencement dates,time of consultation. On the final Regulatory Impacton the receiving end, I felt that it would forceAssessment on a bill, such as the ID Cards Bill, theydecisions to be made between legislation comingwould be expected to do further Impact Assessmentsforward quite early on. People would say, “If you arewhere relevant when the secondary legislation comesbringing forward 11, 12 or 15 pieces on 1 October,through. I think this is our role in terms of driving upyou better start thinking quite early on”. Originallythe quality is making sure the impacts are properlypeople used to say, “It will end up in bunching”, butconsidered, and I think we see that as a separate thingI believe what is happening, and what is likely tofrom the management of the number of SIs.happen, is it will spread it out a bit more and give anMr Sargent: Can I come back to the point you areoverview. Part of the problem is that when you lookdriving at, which is—are we the blocker ofat seven pieces of legislation, each one seems verylegislation? Our role is to challenge. To answer one ofreasonable; it is when you put the collective togetherthe questions from earlier, we do have dialogue onand say, “All of these seven are going to come out onsignificant pieces of legislation where the Regulatorythe same day” that suddenly people start thinking—Impact Assessment has been developed and ourmaybe that is all a bit too much and maybe we shouldadvice has been sought on the methodology in thespread it out to the second half of the year. I think thisdiscussion. We identify significant pieces ofis an example of a very small idea which will havelegislation early on and we enter into dialogue quiteprobably the biggest mindset change, which is that

quickly. We are there as a challenge function, but the you have to behave in a diVerent way.decisions are always made by those departments andthose ministers who originate them. All we do isensure that the best practice and thinking has been Q45 Lord Armstrong of Ilminster: The trouble is, it isdone properly in the first place so the information is human nature to leave it to the last minute, and itavailable for you to evaluate when you are evaluating looks very much as if that is what tends to happen. I

do not know if you have any comments on that?the quality of the legislation.




voluntary as opposed to an actual regulation. What IMr Sargent: I thought Sir David’s advice wasexcellent, which was in the end it is in your hands to believe will happen, and what I feel I am seeing, is

that people are thinking more about the impact oftake a view on that.Lord Armstrong of Ilminster: I do not know if this what they are doing and then trying to work out—are

there other ways of doing it? and should we do itCommittee has the power to throw a thing back, butthe House of Lords certainly wish we had. lighter. Here in the UK the debate has been much

more vigorous and it is only just starting. I was withSir David in Brussels last week when we wereQ46 Viscount Colville of Culross: A very simplediscussing consultation with European oYcials, andquestion and a very simple answer—would you seethey are starting a mindset of going down that way ofyourself more in the “hearts and minds” business“we should be worried about the impact”, and I thinkthan the discipline business?we have achieved that in the UK now. We areMr Sargent: That is quite a philosophical approach.worrying about the impact and now we are trying toIt is a combination of the two because the hearts andwork out. “Now that we have worried about theminds is what we are doing in terms of getting peopleimpact, what do we do about it?. I think the Less isto do their discipline in a diVerent way, so in someMore Report and the Hampton Review are veryways you cannot separate the two, you have to putmuch about, here is a relevant plan, so to speak, as tothe two together. The Regulatory Impactwhat to do about it.Assessments are about a discipline, but if they are not

done with the right hearts and minds, they do notQ49 Viscount Eccles: We as a committee shouldachieve their purpose. I think we are eVectively in thethink about it in terms of continuous improvementbusiness of persuading people to do both, and dorather than there being any opportunity for a changethem well.in direction?Mr Sargent: It is all about the continuousQ47 Viscount Colville of Culross: I thought it wasimprovement all the time because of the manner invery straightforward. It seems to me that you createwhich legislation has originated in the UK.atmospheres, train people and all that sort of stuV,

and I think that is correct. But you have relativelyQ50 Viscount Eccles: I understand that. I am askinglittle power to discipline people who fail to work tofor your opinion as to whether we would be correctthe standards you promulgate, as far as oneto conclude that what we are doing, and what youunderstands?and all the other people involved are doing, is aMr Sargent: We have the ability to highlight the factprocess of continuous improvement rather than anythat they are not doing what they could do and theymajor change in direction which might lead to muchcould do it better, but we do not have specific powersless regulation in total?to discipline people.Mr Sargent: I feel I am part of something where therehas been a dramatic change in speed, but the solutionQ48 Viscount Eccles: We have had the Less is Moreis evolutionary. It is constantly improving; what weReport and the Government has accepted itshave to end up with is where the burden is as light asrecommendations, and now we have your good selvesit can be given the outcomes which Parliament wishesas the Executive. There are a lot of people who haveto have.given evidence, stakeholders—and you concentrated

on the departments as obviously being veryQ51 Viscount Eccles: The burden could be lighter,important stakeholders. Do you or does anybodybut will it in total be lighter? Each individual piece ofbelieve that at the end of all the processes going onsecondary legislation could be looked at in such athere will be less regulation? or is it simply a matterway as to minimise the burden, but at the end of thethat there will still be inevitably more but it will beprocess you could still have, in total, a greaterbetter implemented?burden. It is a judgment I was seeking.—whetherMr Sargent: I think I can give you a fairly personalyour Executive has come to any judgment on that?perspective coming into this role. Society, as such, isMaybe you have not come to that judgment.not looking—and this includes the businessMr Sargent: No, we have not. I have not either.community—for less regulation because we all wish

to live in a regulated environment where theQ52 Viscount Eccles: We can ask you the questionrestaurants we eat in or the roads that we cross oragain in six months’ time.whatever are properly regulated, where there is a setMr Sargent: Absolutely.of rules which we all abide by and follow. The

problem generally tends to be the amount ofimplementation of those regulations and how heavy Q53 Viscount Eccles: Maybe you will be closer to the

judgment?they are or how light the touch is or how much is




Q57 Chairman: Has your unit, not you personally,Mr Sargent: I am an optimist that the burden will beas light as it can possibly be given the ambitions of the done any proper assessments as to what has been the

impact, in the real world, of an SI?society we live in. I would not be sitting here if I didnot feel I could help lighten the burden as much as Mr Sargent: Retrospectively?possible. I would be doing something else.Miss Jennings: Can I add something to that in terms Q58 Chairman: A post-legislative assessment of itsof cumulative burdens because Recommendation 8 impact. In other words, there is the belief inof the Better Regulation Task Force Report was Whitehall that, when you legislate, somethingaimed at encouraging the Government to look at a happens in the real world. We know that life is notmethodology of identifying cumulative burdens. that simple and, therefore, when it works and when itThey accepted the recommendation to look at a does not and what you need to do to makemethodology and then come to a decision if further regulations happen is a fundamental question, itaction was needed in two years’ time; they gave us seems to us. For us as a committee and for you as antwo years to develop a methodology. The arm of government, what do we know about it?Department for Trade and Industry are leading a Mr Sargent: Our remit is not to look backwards atgroup of economists who are looking to develop a where the work was done previously, we are verymethodology to look at cumulative burden. much focused on the flow of regulations coming

through at the moment.Chairman: If we do not know what works we will notQ54 Chairman: Can you tell us what the function ofhave a chance of ever getting it better for the future.the Prime Minister’s Panel for RegulatoryLet me leave the thought with you.Accountability is?

Mr Sargent: I have not got the answer oV the top ofmy head. Q59 Lord Methuen: Can I make the point that you

have had an RIA at the beginning of a piece oflegislation. Does anyone look back six months or aQ55 Chairman: Can I leave that with you?year later to see how accurate that impactMr Sargent: Yes.assessment was?Ms MacKenzie: We do encourage departments to

Q56 Chairman: The Arculus Report recommended state what they are planning to do in terms of post-that the Department should undertake post- implementation review.implementation reviews of all major pieces oflegislation, and the Government’s response was silent

Q60 Chairman: Can you write to us with examples ofon that, which was interesting. Can you give me anywhere that has happened, so we can look at thespecific examples whereby your unit or othercaseload?departments have seriously looked at what hasMs MacKenzie: I accept that is a problem that it doeshappened in practice as a result of a Statutorynot happen as often as it should have done. Again, weInstrument, because we are suspicious at times thathave just issued strengthened guidance tothe delivery model is flawed—by which we mean thatdepartments on how to set out accurate timetablesthe world does not hear, the world is not supportivewhen undertaking this work.in doing anything about it, nobody knows they do

not do anything about it and nothing happens whenthey do not do anything about it? I am being crude Q61 Chairman: Can we have a note on what

guidance you give and a note on what evidence therebut, in other words, do you not really know ingovernment, as a result of a few snapshots, what has been that this has been well done. We do not

expect to see a great forest of flowers, but two or threehappens out in the real world? It is a relevantquestion, is it not, because unless we know what leads would cheer us up. I am left with the last question,

which is one of Sir David Arculus’s, which wasto better compliance or not we do not make betterpolicies or better processes. Do we know anything essentially to make for what we want, which is that to

see fewer and better regulations coming before us—about what leads to better compliance?Mr Sargent: The answer is that the consultation we are with you on that—is going to require a

significant shift in culture. What he really means byprocess and the search for best practice, whichcertainly is the Executive’s role, has already identified that, if I have got it right, is you need in some way to

make departments think much more creatively andsome, and Sir David referred to examples in histestimony. Sorry, I have lost my train of thought imaginatively about alternative ways of getting the

policy objective without making a law That is a very,there, that was the answer to the previous question.If you can ask the question again, I will get my train very diYcult cultural change to bring about. How are

you going to promote it?of thought back.




Q62 Chairman: It may to a point, but then youMr Sargent: First of all, if I go back to the Regulatoryrequire a leap of imagination to think that somethingImpact Assessment approach, one of the goodlike the ASA could do the job as well and you coulddisciplines that does is that it forces people early onlive in government with the risks of having it done byto try to think of the impact and particularly thea diVerent mechanism.economic costs, and that very quickly forces peopleMr Sargent: Absolutely, and I thought Sir David’sto work out whether what they are doing isexample, which is one that aVects me in business, wasworthwhile and if there is a benefit in that. If we driveexcellent.through the discipline fully, then it becomes secondChairman: Let me leave it with you because it is notnature that people think about the consequences ofan easy question and it is not necessarily what youwhat they are doing and they try to measure therecruit people for. Unless there is anything else thebenefits. The cost side is done well, the benefit side isCommittee would like to ask at this late hour, we willdone well and then there can be a proper debateleave you in peace. We have asked for one or twoabout it. For me that is the mindset aim that we arefurther notes and by all means let us have them.looking to achieve because, if we achieve that, then inThank you very much for your help and assistance. Ittheory that will lead to good quality decisions andhas been very good of you to come here today.debates about the policy, the outcome and the

achievability outcome to the other aspect of it.

Supplementary letter from William Sargent, Better Regulation Executive, Cabinet Office

I am writing with additional information on the following issues which we did not have time to explore insuYcient detail:

— alternatives to legislation as informed by Regulatory Impact Assessments (RlAs);

— consultation outcomes in RIAs;

— plans for post-implementation reviews in RlAs; and

— the function of the Panel for Regulatory Accountability.

Encouraging Alternatives to Legislation Through RIAs

The BRE promotes the use of RlAs for all policy changes to help oYcials analyse the best way to achieve theirobjectives and secure implementation—incuding “do nothing” and non-legislative options. In the 2003 editionof “Better Policy Making: A Guide to Regulatory Impact Assessment’ the Prime Minister said “Whereregulations or alternative measures are introduced, this should be done in a light touch way, with decisionsinformed by a full regulatory impact assessment, which includes details of not only the obvious costs andbenefits of the proposal but also the wider economic, social and environmental impacts. New regulationsshould only be introduced when other alternatives have first been considered and rejected, and where thebenefits justify the costs”.

DfT’s work around financial protection for air travellers is an example where an RIA has informed non-legislative options. The Government has decided not to accept the Civil Aviation Authority’srecommendation for a £1 levy on all air passengers departing the UK. The levy was intended to finance thehomeward journeys of passengers whose airline went bankrupt while they were abroad, and refunds of themoney they had lost. After considering all the arguments DfT decided that these benefits were outweighed bythe disadvantages. The department is now working with the airline industry to help passengers learn moreabout air travel insurance.

Reflecting Consultation Outcomes in RIAs

OYcials’ must comply with the Cabinet OYce Code on Consultation and follow the guidance on consultation.This forms an integral part of the policy development process for both primary and secondary legilsation.Informal and formal responses provide valuable information about options available, potential costs andbenefits and the likely consequences and risks involved. A main criteria of the Code is that departments givefeedback regarding the responses received and how the consultation process influenced the policy. Moreover,



1 November 2005

the RIA guidance states that any changes to policy options made as a result of consultation must be recordedin the full RIA.

For example DTI carried out a consultation on the supply of extended warranties on domestic electrical goods.A large number of retailers expressed concern about proposals on the supply of extended warranties ondomestic electrical goods, and the practicality of implementing the recommendations in time for 2004Christmas trading period. The Government responded to these concerns and agreed to delay implementation.

Furthermore, several Articles of the proposal were redrafted to reflect both the implementation concerns andthe suggestions of retailers.

The Home OYce carried out a consultation on compensation and support for victims of crime. One area ofthe consultation focussed on how to ensure that employers do all they can to mitigate the risk of criminal injuryto staV. The Government accepted the arguments raised by respondents around this issue and decided againstlegislating. Going forward, the Government will build on existing eVective practice and continue to work withemployers’ organisations and trade unions.

Examples of RIAs Detailing Post-Implementation Reviews

Cabinet OYce RIA guidance has been strengthened to ensure that departments record how and when newregulations will be monitored and reviewed to determine how well it is meeting the policy objectives andwhether government action is still needed. When developing the full RIA, oYcials are advised to outline plansto conduct reviews of the chosen option to ensure it has the intended eVect. If a legislative option is beingproposed, oYcials should consider whether sunset clauses would be appropriate.

A Post Implementation Review (PIR) establishes whether implemented regulations are having the intendedeVect and whether they are implementing policy objectives eYciently. The PIR is not intended to review theeVects of the policy itself or to determine whether the intended policy is still desirable. The scope forsimplification, including revisiting EU Directives as part of the European programme of simplification, shouldalso be reviewed where relevant.

For example, DTI are planning a review of retirement age legislation in 2011 to decide whether to abolish thedefault retirement age of 65. The RIA provides details of the work to be done to enable an eVective review,including possible impacts and behavioural impacts of the legislation. Independent information sources andinformal discussions with stakeholders are also to be used to monitor developments between now and 2011.DTI are also planning a review of employers’ duty to consider requests to work flexibly. The RIA gave anexplicit commitment for a full review in 2006. It detailed the methodology for the monitoring exercise,including a time scale and success criteria.

Function of the Panel for Regulatory Accountability

All regulatory proposals likely to impose a major new burden on business require clearance from the Panel forRegulatory Accountability, chaired by the Prime Minister. The two main exemptions from this are emergencylegislation and tax matters considered by the Chancellor in the course of normal budgetary processes. ThePanel’s consideration is based on a thorough RIA for the proposal being agreed by the Cabinet OYce BRE,before the proposal can be put to wider ministerial approval. The Panel considers all such proposals in thecontext of the department’s previous regulatory performance and the burden of regulation across keybusiness sectors.

I hope this information is useful to the Committee. The BRE is also contributing to the Government’s writtenmemorandum that will be submitted shortly.

2 December 2005

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Present Armstrong of Ilminster, L Maddock, BBoston of Faversham, L Methuen, LColville of Culross, V Morgan of Drefelin, BEccles, V Northesk, EFilkin, L (Chairman) Tunnicliffe, LJopling, L

Memorandum by Her Majesty’s Stationery Office (HMSO)

Purpose

1. This Memorandum is submitted in response to the Committee’s call for evidence in relation to its inquiryinto the management of secondary legislation.

2. The Memorandum responds to a number of the questions asked by the Committee in so far as they relateto the role and responsibilities of Her Majesty’s Stationery OYce (HMSO).

The Role and Responsibilities of HMSO in Relation to Statutory Instruments

3. Since the privatisation of its trading functions in 1996, HMSO has operated from within the Cabinet OYceas a management unit attached to the department. Earlier this year following a broadening of the unit’s remitto advise on and regulate the operation of the re-use of all public sector information a new OYce of PublicSector Information (OPSI) was created within the Cabinet OYce. HMSO, as a separate legal entity continuesto exist and fulfil its core activities including responsibility for the publication of legislation and themanagement of Crown copyright operating from within OPSI.

4. HMSO and the Queen’s Printer (the Controller of HMSO) have a number of statutory duties in relationto Statutory Instruments which are set out in the Statutory Instruments Act 1946, the Statutory InstrumentsRegulations 1947 and the Statutory Instruments (Production and Sale) Act 1996. These include:

(a) responsibility for the registration and numbering of all Statutory Instruments;

(b) responsibility for the printing and sale of all Statutory Instruments;

(c) publication of a Statutory Instruments Issue List;

(d) on behalf of the Minister for the Civil Service, responsibility for the production of an AnnualEdition of Statutory Instruments.

5. In 1996 HMSO took over responsibility for Statutory Instrument Practice, editorial responsibility forwhich had previously been shared between the Cabinet OYce and the Statutory Publications OYce (then partof the Lord Chancellor’s Department), the functions of which in relation to Statutory Instruments hadpreviously transferred to HMSO.

6. HMSO oversees the arrangements for production of all Statutory Instruments and has been responsiblefor the development of the templates which are used for the drafting of all Statutory Instruments and theExplanatory Memorandum to Statutory Instruments.

7. Day to day responsibility for all of HMSO’s responsibilities in relation to Statutory Instruments, includingeditorial control of Statutory Instrument Practice rests with the Publishing Services Division within HMSO.

Statutory Instrument Practice

8. Statutory Instrument Practice (SIP) is currently in its 3rd edition which was published in June 2003. A 4thedition, incorporating the substance of the SIP Circulars issued by HMSO since publication of the 3rd edition,is scheduled to publish on 11 November 2005.

9. The SIP manual is intended primarily for the use of civil servants and others concerned with the preparationand making of statutory instruments and the parliamentary procedures relating to them. It covers StatutoryInstruments which are made and published as part of the United Kingdom series of Statutory Instruments.SIP is a guide to practice and not a textbook of the law.



8 November 2005

10. The SIP manual is split into a number of parts covering:

10.1 An introduction providing background information for those who are new to statutoryinstrument practice;

10.2 the form in which statutory instruments should be made, and the content of them so far as thatis within the scope of the manual;

10.3 the classification, registration, printing and sale of instruments;

10.4 the control of statutory instruments by Parliament or the House of Commons;

10.5 the role and functions of the parliamentary committees (eg the Joint Committee on StatutoryInstruments and the Merits Committee) which are particularly concerned with statutoryinstruments;

10.6 Forms and Precedents;

10.7 Tables of Procedure;

10.8 Appendices; and

10.9 the texts of relevant legislation.

11. Although the manual refers to all Statutory Instruments published within the United Kingdom series,those made by the National Assembly for Wales under powers devolved by the Government of Wales Act 1998are subject to diVerent procedures and parliamentary control.

Registration of Statutory Instruments

12. It is a requirement of the Statutory Instruments Act that immediately after the making of a statutoryinstrument it should be sent to HMSO for numbering and that, subject to a number of exceptions of whichlocal instruments (approximately 48 per cent of all SIs) form the major exception, it shall then be printed andpublished. In practice “immediately after making” has been defined as within 24 hours for departments inLondon and 48 hours for departments located elsewhere. Where an Explanatory Memorandum is alsorequired for the Parliamentary Scrutiny Committees this will also be sent to HMSO alongside the instrument.

13. HMSO will on receipt of an instrument check that the instrument is valid, that it is certified as a true copy,has been signed by the relevant authority, has a valid subject heading, that the title and dates of making andcoming into force agree with those cited elsewhere in the instrument and that the enabling powers are correctlystated and footnoted. HMSO will also check that an Explanatory Memorandum has been submitted and thatthis follows the agreed template and style. In the past instruments would have been numbered and detailsentered against its number in a Register. The Register is now held in the form of a computerised database fromwhich a number of reports can be generated including a weekly report which is provided to the MeritsCommittee listing all instruments which are due to be laid before Parliament and hence subject to scrutiny bythe Committee.

14. Statistics are reproduced at Annex A showing the number of instruments which have been registeredbetween 1999 and the end of September 2005 while the graph at Annex B illustrates the spread of instrumentsacross each year.

Printing and Sale of Statutory Instruments

15. Once registered individual instruments are forwarded to The Stationery OYce Limited (TSO), HMSO’sthird party contractor, for printing and publication. An instrument will be published on a date requested bythe sponsor department, with the instrument published simultaneously in print and on the OPSI oYciallegislation website. The Explanatory Memorandum will also be published on the OPSI website at the sametime.

16. TSO also produce, under contract on behalf of HMSO, a Statutory Instrument Issue List which appearsas part of its Daily List of Publications. Separate Monthly and Annual Lists are also produced.

17. HMSO also undertakes on behalf of the Minister for the Civil Service, the production of an AnnualEdition of UK Statutory Instruments (excepting those made by the National Assembly for Wales which arepublished separately). The Annual Edition includes all printed General SIs, selected Local SIs which aVectprimary or secondary legislation) and selected instruments not registered as SIs (eg prerogative Orders). TheAnnual Edition which is published in three Parts will also include a Classified List of Local SIs, Tables of EVecton previous legislation and a Numerical and Issue List.



8 November 2005

18. With the growth in Internet usage, sales of printed copies of Statutory Instruments continue to decline asthe online versions are preferred. This can be illustrated by the average sales figure for a Statutory Instrumentin 2000 of 450 copies compared to approximately 310 copies in 2005. Over the same period the average numberof users of Statutory Instruments on the HMSO/OPSI website has grown from 123,000 per month to 571,000per month.

Conclusion

19. Alan Pawsey, the Head of Publishing Services at HMSO looks forward to supplementing this informationand answering questions from the Committee about the role of HMSO in relation to subordinate legislationon 8 November 2005.

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Annex A

STATUTORY INSTRUMENTS 1995–2005 (TO 30 SEPTEMBER)

UK National Assembly Scottish SIs in Total number Scottish Statutory Total Foot andGovernment for Wales SIs UK series of UK Instruments SIs and SSIs Mouth Orders

SIs numbered in UK Statutoryseries Instruments

1995 3098 247 3345 33451996 3035 256 3291 32911997 2760 197 3114 31141998 3110 213 3323 33231999 3330 58 113 3501 204 37052000 3202 231 3433 454 38872001 3806 342 4148 494 4642 597 (UK)

36 (Wales)65 (Scotland)

2002 2959 315 3274 575 3849 8 (UK)5 (Wales)

5 (Scotland)2003 3033 321 3354 622 39762004 3155 297 3452 565 40172005 (to 2523 (2335) 192 (230) 2715 (2565) 478 (427) 3193 (2992)30 September)with 2004comparisons inbrackets



8 November 2005

ANNEX B

SIs registered 1999 - 2005

0

100

200

300

400

500

600

700

Jan Feb Mar Apr May June July Aug Sep Oct Nov Dec

1999200020012002200320042005


Witness: Mr Alan Pawsey, Head of Publishing Services, Her Majesty’s Stationery Office, examined.

Q63 Chairman: Thank you very much for coming Printer of Scotland under the Scotland Act and inthat capacity looks after the equivalent delegatedbefore us. We have a Bill at the Report Stage, so therelegislation and the Acts of the Scottish Parliament.are likely to be divisions. So, if we all suddenlyHMSO, the Queen’s Printer, has a number ofdisappear, you will understand. I wonder if I couldstatutory duties in relation to Statutory Instruments.start oV by asking you if you could really explainThey are set out in the Statutory Instruments Act andwhat HMSO’s position is, first, within thethe Statutory Instruments Regulations and indeed ingovernment machine and, second, in regard to thethe Statutory Instruments (Production and Sale) Actprocess of preparing and laying SIs? Just paint us a1996. These include responsibility for the registrationpicture about what your role is in regard to SIs?and numbering of all Statutory Instruments;Mr Pawsey: HMSO has, since privatisation of itsresponsibility for the printing and sale of alltrading functions back in 1996, operated as part ofStatutory Instruments; the publication of a Statutorythe Cabinet OYce. Whilst it remains part of theInstruments Issue List, which people use as a meansCabinet OYce now, it operates from within the newof checking when a Statutory Instrument wasOYce of Public Sector Information which wasavailable (and they can use that as a defence in courtcreated earlier this year following theif an Instrument has not been issued on a particularimplementation of the re-use of public sectordate); and also, on behalf of the Minister for the Civilinformation regulations, which reflected theService, responsibility for the production of anbroadening of HMSO’s then remit to advise on andAnnual Edition of Statutory Instruments. In 1996,

regulate the operation of the re-use of public sector following our joining with the Cabinet OYce, HMSOinformation generally across the public sector as a gained responsibility for Statutory Instrumentwhole rather than solely within government. HMSO, Practice, editorial responsibility for which had beenthough, remains quite simply a separate legal entity. shared up until then between the Cabinet OYce andIt has a number of statutory duties which it carries the Statutory Publications OYce which was then partout under various Acts and regulations and of the Lord Chancellor’s Department, and whosespecifically in relation to Statutory Instruments and functions in relation to Statutory Instruments hadin relation to the publication and dissemination of previously transferred to HMSO.oYcial information and legislation generally. HMSOis headed by the Controller, who is appointed by Her Q64 Chairman: Sorry to interrupt. Thank you forMajesty as the Queen’s Printer of Acts of Parliament. the paper, the memorandum you sent. I think you are

really taking care in case we have not received it. WeThe Controller also holds the position of the Queen’s



8 November 2005 Mr Alan Pawsey

departments are responsible for the content and thehave received it and most of us, if not all, have readmost of it, so feel free to focus on the fundamentals. impact. I am not entirely clear what that in practice

leaves you with, except you describe it as Practice andWe have that memorandum before us.Mr Pawsey: HMSO specifically has no role in whether they are produced correctly. Are you

responsible for the vires of it? Are you responsible inpreparing the laying of SIs. These are matters fordepartments, in whom powers are vested by any way to see there has been proper consultation?

Are you responsible for a whole raft of matters whichParliament itself in the legislation which gives thosepowers. HMSO, though, has certain responsibilities, go round? Are you consulted at all on the

formulation of Statutory Instruments as distinctas I have said, in terms of Statutory InstrumentPractice and ensuring Statutory Instruments which from simply maintaining the rules? What I think

would be helpful to the Committee is if you could goare produced are produced correctly and publishedcorrectly. In relation to draft aYrmative Legislation into a good deal more detail on precisely what your

role is rather than what it is not. You might just tellOrders, which are laid before both Houses, HMSOdoes not see those generally before they are laid, us as well why it is that you seem to have nothing to

do with aYrmatives and only concern yourself, as Ialthough they are sent to us with the ExplanatoryMemoranda and we publish those on our website. In understand it by implication, with the negatives?relation to the main Instruments, the negative Mr Pawsey: Our responsibilities start once theresolution Instruments, numbers of which have come Instrument has been made. The Practice sets out theacross the Table of the Merits Committee, then procedures which the departments must follow indepartments do have a legal obligation as soon as terms of preparing the Instrument and thethey have made an Instrument to get it through to parliamentary procedures for gaining approval ofHMSO, and HMSO then carries out a variety of that Instrument if they require parliamentarychecks on that Instrument to make sure it has been approval, in terms of aYrmative resolutionmade correctly and to make sure things like the procedures. Practice and various other guidanceExplanatory Memorandum which come to the which they have, which the Government LegalMerits Committee is in a fit and proper state for the Service produces, in terms of how certain thingsMerits Committee to consider. ought to be phrased within Statutory Instruments,

are clearly within the ambit of the governmentdepartments’ responsibility. They are responsible forQ65 Chairman: Does that mean you are checkingwhat the Statutory Instrument is all about, they makeafter they have been published or before?the decisions up-front as to whether they need aMr Pawsey: Before they have been published.Statutory Instrument to take forward a particularpiece of policy. They may of course have to goQ66 Chairman: Except in the case of aYrmatives,through other procedures to gain Cabinet approvalwhen you do not see them until after they have beenfor particular lines of policy development but it islaid before the House?their responsibility for drafting that StatutoryMr Pawsey: Correct.Instrument and taking it forward. Sometimes theywill consult us in advance about various things likeQ67 Chairman: What happens if they are wrong?subject headings and what we believe is correct or

Mr Pawsey: That is the departments’ responsibility.whether in fact something ought to go in a particularThe departments are responsible for the content. Weway. If you think about implementing a Europeanset standards and rules for how StatutoryDirective, there is an option as to whether theInstruments are prepared and that is set out indepartment should go down the aYrmative

Statutory Instrument Practice; it is the departments’resolution route or the negative resolution route, andresponsibility to ensure that the content—what thein those circumstances they will sometimes consultInstrument is all about, what it actually says—and itswith us as to what way we believe they should go. Butimpact are correct. They are fully responsible for thatthe final decision is ultimately with the departmentand for undertaking the parliamentary procedures inand the minister concerned.terms of aYrmative resolution Orders in gaining the

approval of both Houses.Q69 Chairman: I think we would be interested inwhat terms your advice is on that. Could youQ68 Lord Jopling: Thank you very much for thatillustrate that? When you recommend aYrmative andexplanation. We understand that according towhy so and why not?Statutory Instrument Practice you are responsible forMr Pawsey: If it is a very controversial piece ofthe rule book. As I understand it, you say—and IEuropean legislation which is coming forward, wheretried to write down the things you said—you areperhaps the consultation which the department hasresponsible for the Practice, that they are producedundertaken in terms of that Instrument has producedcorrectly and that you check SIs, but you say the

departments are responsible if they are wrong and a variety of responses, then it is clear that in those




Mr Pawsey: Yes.circumstances there are two options as to how youmight implement it.

Q73 Lord Jopling: Do you think it would make yourjob easier if Statutory Instruments were draftedQ70 Lord Methuen: You say you do a certainby parliamentary draftsmen rather than theamount of checking. Can you detail what sort ofdepartments themselves?checking you do? Does that, for instance, check thatMr Pawsey: Given that departments are responsiblethe references in the Statutory Instrument to thefor their policy and the lawyers within thosevarious sections in the parent Act are correct?departments tend to specialise in that area of policy,Mr Pawsey: We will certainly check that things likeI would have thought they were the best people to dothe enabling powers are correctly stated and that theythe drafting. Certainly Parliamentary Counsel areare correctly footnoted. It is quite often the case thatinvolved for some Statutory Instruments, especiallysomeone will give details of the Act, but actually thethose which seek to amend Acts of Parliament, butAct reference which is in the footnote is somethinggenerally speaking it is down to departmentalcompletely diVerent, so we will put that right. Therelawyers.are occasions when it is a regular series of

Instruments which departments are making, andQ74 Viscount Colville of Culross: This is to try toquite often the enabling power may get changed as aelucidate something I have not understood. You saidresult of Parliament amending legislation; and therea moment ago that you do not get the Statutoryis always the case where someone has forgotten toInstrument until it has been laid.change the enabling power, so we that and we willMr Pawsey: Until it has been made.check to make sure that the enabling power they have

quoted is still in force. We would check and go backto them. Q75 Viscount Colville of Culross: Made?

Mr Pawsey: It must come to us for us to carry out ourtask. If it is a Negative Instrument it must come to usQ71 Lord Jopling: How many people are thereand we carry out our responsibilities, checking andengaged in doing this work? Could you give us someregistering it, before it is laid before Parliament.idea of the length of time it takes between an

Instrument being sent to you and you clearing itQ76 Viscount Colville of Culross: We have been toldready for publication?you check for correctness?Mr Pawsey: I have a small team these days which isMr Pawsey: Yes.totally dedicated to Statutory Instruments. There are

three people in London who handle that work. Itused to be five but, with electronic developments and Q77 Viscount Colville of Culross: Do you check thisnew data–bases which we have in place, our task is is consistent with other Statutory Instruments? Isimplified somewhat. A Statutory Instrument will understand the vires point. But do you check whetherarrive with us and be delivered by hand by the there is a battery of Statutory Instruments on thisdepartment or in most cases these days it will be subject, all of which are coherent?transmitted to us electronically, so we will receive it Mr Pawsey: No. Departments are responsible for theby e-mail. We will open it and print oV the electronic content and whether they need that Instrument in thecopy—just because it is diYcult to look at something first place.totally on the screen—to see it looks right; you needto see the thing looks right when on paper. We will

Q78 Viscount Colville of Culross: Which ones do youcarry out our various checks. It could take, for asend back? Can you give us an example?small, simple SI, 20, or 30 minutes to carry out theMr Pawsey: We will send back Instruments whichvarious checks. There is quite a number of SIs—have come to us which appear to be incomplete.Road TraYc Orders, for example—which we dealOccasionally a minister’s name will not appear, so wewith on a regular basis and we get to know theare not sure whether the Minister has actually madeenabling powers oV by heart and know perfectly wellit, which may be just an oversight by whoever haswhether they have stated that correctly or not. Butsent it forward to us. It may not be certified as beingthere are others where we need to go and researcha true record of what the minister has signed, so againthose powers correctly. So anything from probablyuntil we have that certificate we will not process it. Ifhalf an hour of activity on our part to perhaps overwe find the enabling powers to be incorrect, thenan hour, depending upon the complexity and size ofagain it will be returned to the department. Now withthe Instrument concerned.our template procedures, again if it does not passvarious validation checks to make sure the thinglooks correct on the page, it is laid out correctly,Q72 Lord Jopling: Do they normally go back to the

department within the day? those will go back to the department as well.




Q86 Viscount Colville of Culross: So it is a processQ79 Viscount Colville of Culross: The template test?Mr Pawsey: Yes. Departments now have an rather than looking at the merits?electronic template which is based on Microsoft Mr Pawsey: Yes, we certainly do not look at theWord, which provides the draftsman with the means merits of an Instrument. No.actually to produce a facsimile of a StatutoryInstrument. It puts everything in the correct font size,whether it is in bold, capitals or whatever.

Q87 Earl of Northesk: So you are not involved at allin checking for drafting errors?

Q80 Chairman: I understand that eVectively, whilst Mr Pawsey: No. Drafting errors will sometimes beyou produce a rule book which goes beyond the spotted by us and we will point them out to theprocedural element, it is only the procedural elements department but it is certainly not our role to read ayou actually police? You do not actually police Statutory Instrument and correct it.whether they are complying with the guidance onconsultation or whatever?Mr Pawsey: We will check to make sure departments

Q88 Baroness Morgan of Drefelin: It seems to meare complying with their requirements in terms ofyou are describing a process that is perhaps notwhat they have to deliver to Parliament, yes. But indissimilar to the concept of approving a house styleterms of the content of the Instrument itself, thenfor Statutory Instruments. Is that in any way true?certainly we do not check.Mr Pawsey: We certainly set out a house style andthere are certain, if you like, boxes which have to beQ81 Chairman: You would check out whether theycompleted—the heading, to see if the title is correct,had had an adequate consultation process?various information—and we check to make sureMr Pawsey: No, we would not check they had carriedthat information is there and is correct and isout an adequate consultation process. No.appropriate. Quite often, someone will dream up asub-heading which is totally inappropriate for theQ82 Viscount Colville of Culross: We have now beensubject matter of an Instrument and we will adviselooking at these Statutory Instruments for about 18and put that right.months and many and various are the points which

have been made. Have you already told us in factwhat is your role in trying to make sure mistakes anderrors do not get included? If you are not doing it, Q89 Chairman: Can I turn now to the question of theand I quite see there is no reason why you should, do flow of SIs? One of the issues which has concerned thewe solely rely on the departments? Committee, and I think concerned the wider world,Mr Pawsey: Certainly the departments are very much has been the bunching sometimes of the making andin control of their legislation. laying of Statutory Instruments. Is there anywhere

within the central part of government responsibilityQ83 Chairman: We wish they were sometimes! for trying to ensure departments do not have anMr Pawsey: Certainly the senior minister in the excessive amount of bunching of Statutorydepartment, the Secretary of State, is ultimately Instruments? We have sometimes seen that,responsible for the legislation which that department we believe, departments confuse commonproduces. commencement dates and almost think they have to

lay them all at the same time, which of course is notQ84 Viscount Colville of Culross: But you are not? the case. Do you have any role in this respect? DoesMr Pawsey: No. anybody at the centre have a role in this respect?

Mr Pawsey: Again, I would say the responsibility interms of the timetabling of an Instrument, when it isQ85 Viscount Colville of Culross: Where does thebrought forward, is one for departments. They areend of your responsibility come in terms ofadvised, though, quite clearly, and certainly thecorrectness and what is the extent to which you canguidance which is in the common commencementsay, “I do not accept this”?date guidance which they have got does highlight theMr Pawsey: Our role is to check to make sure theneed for good project management and to ensure andthing has been done correctly, that the Statutoryplan to develop the bringing forward of StatutoryInstrument has been made, that it has gone throughInstruments in good time. That does not mean justthe correct processes and that it looks right, that thelaying them 21 days before; that is the minimum. Ok,information which is within the Instrument which issome departments will always have reasons whyrequired to be there is correct. But what thatsome Statutory Instruments get very close to the wire,Instrument actually says and does in its impact andbut in many cases Instruments can be laid earlier andits content is very much for the department

concerned. there is no reason why they should not.




Q95 Viscount Colville of Culross: Do you say toQ90 Chairman: We would agree with you.departments, “For goodness sake, don’t send us 25Mr Pawsey: We are going to make it clear in the newInstruments a month before the commonedition of Statutory Instrument Practice that that iscommencement date, try and spread them out”? Itthe case, that if there is a belief on some people’s partmust help them too. Have you got any method ofthat the requirement is to lay 21 days before, we wantcommunication with the departments in order toto disabuse them of that fact and make it clear whenavoid this sort of thing?the Instrument is ready they should progress it andMr Pawsey: We certainly communicate withlay it then.departments, certainly back in March when clearlywe all suVered. It was the busiest March period, I

Q91 Chairman: We would say amen to that, but think it has only been exceeded once, as far as I canwhat you appear to be describing is that the see, which was back in 2001, when the same set ofGovernment has a view about what good practice is, circumstances occurred—the Budget, the start of thewhich is encapsulated in the guidance you have a new financial year, a forthcoming general election—custodial function for, but then has no process but in 2001 we also had foot and mouth disease aswhereby it actually stimulates the departments to well, which increased numbers. Certainly we do try tocomply with it. What we see is plenty of examples of encourage departments to get Instruments to usdepartments, not necessarily through malice, not spread out because there is absolutely no way we cancomplying with it eVectively in a whole variety of process them if they all hit us at the same time. So weways, and it paints a picture, both from the evidence are very much trying to encourage departments towe have had from the BRE and you, of an extremely spread that workload out.weak centre. Taking a parallel, it is as if you aremaking regulations without any process of statutory Q96 Chairman: Do they take any notice?enforcement and all the consequences. That cannot Mr Pawsey: Some departments do and the people webe satisfactory, can it? deal with try to be as helpful as they possibly can.Mr Pawsey: As I say, the responsibility for bringingforward legislation rests with departments. They are Q97 Chairman: Which ones do not?responsible for their areas of policy. Mr Pawsey: I do not think I would want to specify.

Chairman: Why not?Lord TunnicliVe: Because he has to work with themQ92 Chairman: I understood that and I was nottomorrow, my Lord Chairman.seeking to say that was necessarily wrong. What I was Chairman: You are on the Committee’s side, Lord

saying was, if the game stops there and there is no TunnicliVe, not on the witness’s side!process in the centre of knowing whether Lord Boston of Faversham: There are no sides, mydepartments are doing it well or badly according to Lord Chairman. We are all in it together.your guidance and doing nothing about it if they donot, we have not got a very good system of

Q98 Viscount Eccles: Would it be right to say thatgovernment.departments see you as providing them with a

Mr Pawsey: Again, I am not sure it is practical for service?anybody in the centre to actually co-ordinate the Mr Pawsey: Yes.preparation of secondary legislation. I thinksecretaries of state within departments are best

Q99 Viscount Eccles: As the provider of a service,placed to take forward what is the departments’you are entitled to have an opinion about who makes

policy. your life more diYcult and who makes your lifeeasier.Mr Pawsey: The departments who make our lifeQ93 Chairman: You mean close down the CabinetdiYcult know they make our life diYcult and weOYce?make sure they know that is the case.Mr Pawsey: Again, secretaries of state have got aViscount Eccles: It is very fashionable to produceclear remit in terms of their responsibilities.league tables. I wonder if you would let us knowChairman: Let me not torture you further. Viscountwhich departments make your life most diYcult andColville?which seem to you to make your life easier?

Q94 Viscount Colville of Culross: You must know in Q100 Chairman: If not now, then subsequently. It isadvance about common commencement dates, that an issue of relevance to parliamentary scrutinythere are two periods in the year when these things because it has an eVect on our work and an eVect oncome forward. the general public, and we are also concerned about

your welfare.Mr Pawsey: Yes.




Mr Pawsey: Certainly the group I chair has no doubtsMr Pawsey: Thank you. Certainly I will take thatabout embarrassing departments who come and sitaway and look at it.round the table. If they are not doing things right, weChairman: If you could be clear, it would bewould clearly embarrass them amongst theirappreciated.colleagues, and no one wants to come along to thatmeeting and find themselves embarrassed, so we do

Q101 Lord Boston of Faversham: You have been try to get people into line and work in an appropriatevery clear about where responsibility lies in particular way together.within departments for specific proposals for SIs, andI am sure we all appreciate the diYculties you faced in Q103 Lord Jopling: I am thinking of July when thereMarch. That would suggest that there is in fact some is a second big peak of SIs, do you try to dissuadescope for the management of the construction of SIs departments from the practice of thinkingthroughout government. If you are going to have “Parliament is going into recess for two or threetimetable problems, logjam problems, particular months in a few days’ time, let us pop our SIs downdiYculties following from the March problem, that just before, coming into eVect during the recess, andsuggests there is some scope for some form of of course then they will never have to debate them ormanagement. What do you feel about that, in the first deal with them”? Do you try to dissuade departmentsplace? Is there any consultation or any attempt at co- from doing that? It seems as though they do do that.operation or co-ordination between departments at Mr Pawsey: I would not say I try to dissuade them, Iall? try to persuade departments to have a more even flowMr Pawsey: There are a number of interdepartmental of Instruments and avoid the peaks as much asgroups. I actually chair one group myself which possible.involves a mixture of departmental lawyers andparliamentary clerks, where we primarily look at the

Q104 Chairman: Do you think you have succeeded?process of producing an SI and looking at the futureMr Pawsey: No, I will be honest.development of templates which are used for drafting

the SI itself and indeed the template which is nowused for drafting explanatory memoranda. That Q105 Lord Jopling: I am not talking about that,

Chairman, I am talking about trying to avoidgroup meets every two or three months and we willparliamentary debate on them.consider various issues. Some changes in StatutoryMr Pawsey: Statutory Instruments follow theInstrument Practice are also discussed around thatlegislative process and they fit in with Parliament’stable. There are also groups, lawyers’ groups, whotimetables and programmes, so of course SIs will bemeet on a regular basis and they talk about variousbrought forward at particular times. If you think ofissues and about means of drafting. We remittedparticular pieces of legislation which come forward—suggestions to that group about the form of wordsthe Civil Partnership legislation is a particularwhich are used in the preamble to SIs and they haveexample—they lay down the basis of the law but notnow developed a more modern form of words whichthe detail, and there is a lot of detail which has to betakes out the “herebys” and “wherefores” andeVected. The Act is the bare bones, the Regulationsactually starts to use a modern understanding ofand Orders actually put the flesh on those bones, andlanguage. Those changes are being implemented nowthat Act was to be brought into force again at the endin new Instruments which are coming forward andof this year and there are lots of Regulations andevery new Instrument from January next year shouldOrders which have had to be developed. Some ofbear that.them have had to come forward for AYrmativeResolution and some are Negative Resolutions;and again, working towards that DecemberQ102 Chairman: That is a helpful question by Lordimplementation date, then departments have to bringBoston. That is the first time we have heard that, thatforward those SIs in time spans so they know theythere is a group of oYcials which is looking at certaincan get them through the parliamentary process.elements of the process on a pan-government basis. If

I have heard you right it is essentially looking at theformat and technicalities but it has not seized Q106 Chairman: Understood, but I do not thinkresponsibility for managing the process in a more co- that was the thrust of Lord Jopling’s question, whichordinated way to try to ensure that either the was essentially that the consequence of departmentsguidance is adhered to and people who do not are laying a lot of Instruments late in the parliamentaryvigorously encouraged or to manage the flows more session can in practice mean that the risk ofeVectively. Why not? Why is the centre so weak? Why parliamentary scrutiny is reduced. I think he wasis it cautious about seizing this role because there focusing on whether there was a risk at times that

oYcials might be slightly malign in this respect andwould be benefits, would there not?




about presenting the instructions to lawyers to takesee the benefits of leaving things until the lastmoment. forward the drafting, and the timescales which the

lawyers actually require within departments to doMr Pawsey: I would not say that was the case. Again,they have timetables for bringing in legislation and that.bringing things into force, and quite often they will bedictated by the passage of legislation through both Q111 Lord Methuen: The introduction of electronicHouses. They will not know quite often until the Act publishing must have made the departments’ liveshas been finalised how that is to be taken forward in much easier, I suspect, with all these templates youterms of developing Regulations and Orders under have got. Have you seen an improvement in thethat legislation. quality of what is coming out of them?

Mr Pawsey: I think generally, yes, there has been anQ107 Chairman: I do not think we are persuaded by improvement.that because we have seen some departments layingtheir draft regulations at the same time as the Bill is Q112 Lord Methuen: Do you get any feed-back fromin the House. So we leave with you the question that the public on that?the consequence, if not the intent, of Lord Jopling’s Mr Pawsey: The public certainly welcome electronicquestion is that Parliament can be deprived of publishing. If you look at the way in which people useadequate opportunity to scrutinise SIs if it is left late. the internet these days, certainly there are hits whichMr Pawsey: Departments are reminded of the fact are made on our website in terms of looking atthat they should ensure Parliament has adequate time Statutory Instruments and Acts of Parliaments. Theto consider the Instruments which they are laying. public very much welcome that speedier access which

they have to legislation and the hit rates continue toQ108 Chairman: When they do not do so, the grow month by month.consequence is that Parliament does not, and I thinkyou agree with us on this. Should you not therefore

Q113 Viscount Colville of Culross: The number ofbe doing more about it?Statutory Instruments in a typical year is somethingMr Pawsey: We seek to do that but againlike 3,300?departments have their timetables for bringingMr Pawsey: Yes.forward legislation and it is down to the secretaries of

state in those departments to carry that forward.Q114 Viscount Colville of Culross: They are not allprinted?Q109 Lord Armstrong of Ilminster: Do you thinkMr Pawsey: No.Parliament in those circumstances should be able to

say, “Parliament has not been given suYcientopportunity to scrutinise this Statutory Instrument, Q115 Viscount Colville of Culross: We only get theit will have to wait”? ones which are printed. What are the other ones?Mr Pawsey: I am not sure that is a question I would They do exist, do they, the other ones?like to answer. It might be one you had best address Mr Pawsey: Yes.to my Minister when you see him in January.Chairman: We will hold it in storage. Q116 Viscount Colville of Culross: They are local?

Mr Pawsey: They are local.Q110 Viscount Eccles: Chairman, we might be beinga little hard, it seems to me. If I can just pursue the

Q117 Viscount Colville of Culross: And they are notproviding-the-service point again and then thesubject to parliamentary procedure?groups of professionals which get together, lawyersMr Pawsey: No. The vast bulk of those are in relationor whatever. They are talking about, am I right,to roads, road traYc, temporary speed limits, theprofessional issues, but the management of theintroduction of road closures, things like that. Alsoprocess is going on somewhere else and it is notthe restriction of flying this morning for the Statesomething that departments would welcome yourVisit by the President of China was subject to agetting involved in?Statutory Instrument.Mr Pawsey: I think all departments organise

themselves in diVerent ways, so it is very diYcult foranyone in the centre to tell a department, “You will Q118 Viscount Colville of Culross: So Parliament

gets about 1,200?organise your own internal process in this particularway”. Each department has its, shall we say, Mr Pawsey: 1,200 or 1,300 Parliament gets. But, yes,

there are considerably more, and we are about 3,000interpretation of Statutory Instrument Practice andthey work their own processes and procedures, their already this year. At the end of October I think it was

3,025 SIs had been produced in total.instructions and timetables, how people ought to go




Mr Pawsey: Yes.Q119 Earl of Northesk: As I understand it, you alsoLord Methuen: Why therefore can you not maintainhave responsibility for the oversight of thean up-dated version of that Act which is availableExplanatory Memoranda?from your website with all the Statutory InstrumentMr Pawsey: Yes.modifications applied?

Q120 Earl of Northesk: We in this Committee are Q122 Chairman: In a consolidated way eVectivelydelighted by the introduction of EMs and we pat on-line?ourselves slightly on the back because we think we Mr Pawsey: There is a project being worked on withindeserve the credit for them. I presume the the Department for Constitutional AVairs called theintroduction of electronic publishing applies to Statute Law Database project, which will deliver athem—and you have made the same point about SIs consolidated version of Acts of Parliament from 1235more generally—but there is a concern that maybe to the current date, and that is currently beingpublishing them electronically does not guarantee developed and tested at the moment. I think theirthey reach all the interested parties they should. What hope is that there will be a public service launchare your views on whether or not they should be sometime next year.published in hard copy?Mr Pawsey: Our views on publication in hard copy Q123 Chairman: That would include Statutoryare clear. We just do not believe there is a need, with Instruments as well, would it?the reduction in demand for SIs. If you think back to Mr Pawsey: It would include Statutory Instruments2000, the average demand for a Statutory Instrument which are made under powers contained within thewas about 450 printed copies; that is down to just legislation. The full text of those Statutoryunder 300 now. If you compare, say, Explanatory Instruments will be part of the database but currentlyNotes to an Act of Parliament which are printed and there is no plan to revise Statutory Instruments. Theyhave been printed, they are far more sizeable will revise and up-date Acts of Parliament but notdocuments and far more explanatory, if you like, Statutory Instruments.about what the Act does than a Memorandum. Thenumbers of copies of those is quite small; the Q124 Chairman: So you would still not be able, fromnumbers sold in print is quite small in comparison to the Government website, to see on sight the eVectivethe Act of Parliament itself. If you took that consolidation of a string of Statutory Instruments,percentage and applied it as well to Explanatory each of which had amended a piece of the storyMemoranda to SIs in comparison with the SIs, we are which, as a consequence, makes it almostlooking at a very small number of copies being incomprehensible to the public? Do you think that isprinted. Certainly our contracted publisher, satisfactory?Stationery OYce Ltd, will not consider taking any of Mr Pawsey: We publish in our bound volume Tablesthe risk of taking those on a publication basis and of EVect, so people can check in a particular

Statutory Instrument what changes have been madethey would expect the Government to pay for those.by legislation during the course of that year. So theyOur estimate of that cost is £200,000 a year. At thecan identify for a Statutory Instrument back in, say,end of last year we consulted quite widely with public1976—libraries about the way in which legislation is made

available in print and on the web. Most publiclibraries do not take individual copies of legislation Q125 Chairman: That just gives you the audit trail to

try to piece the jigsaw together, it does not give youthese days. They still take the bound volumes—thethe consolidated document?major reference libraries will still take the annualMr Pawsey: Yes. Certainly with the templates webound volumes—but they do not take the individualhave now got developed it should be far easier forcopies of Acts and SIs, they rely on the internet fordepartments to produce consolidation, and I knowthose. They would like to see any money that we havesome departments are doing that. One recentin our budget available to enhance and improve theexample is the Veterinary Medicines Regulationsdelivery of legislation on our website, and indeed wewhich came forward from DEFRA which I think hasare doing much to do that. In the next few weeksrevoked something in the region of 60 or 70 previousthere will be a new search engine on our websiteStatutory Instruments and various other amendedwhich will greatly enhance the ability of people tosections of Acts as well. I think that is the way infind legislation they want.which a lot of departments are going.

Q121 Lord Methuen: You say you are doing that, Q126 Chairman: We are extremely interested in thepresumably you are also responsible for the issue of consolidation and it being accessible

electronically. Could you put in a further note to uspublication of Acts of Parliament?




Again, it will bring in the new arrangements, the newto explain why you think it is easier for departmentsnow, through technology, to produce consolidated wording, the modern language which is to be used in

preambles to Instruments and to Orders in Council,Statutory Instruments making them more accessibleto the public? and that will work very closely with the legal advisers

to the Joint Committee as well. I think the CommitteeMr Pawsey: Yes.Chairman: The Committee would welcome that. is probably aware, because we do copy in the advisers

and circulars do go out, so the Committee should beaware of the things which have occurred in the lastQ127 Baroness Maddock: We have alreadyfew years.established this afternoon that you are the custodian

of the rule book for Statutory InstrumentQ129 Chairman: Could you tell us a little about themanagement. But I understand there will be a newnature of discussions between HMSO and BREedition of Statutory Instrument Practice and that isabout promoting better regulation, about improvingabout to appear?the quality of secondary legislation?Mr Pawsey: Yes.Mr Pawsey: Certainly we work closely with BRE. Thework they are doing on the simplification project, we

Q128 Baroness Maddock: Will it have any have been able to assist departments in identifying,significant changes in it which you think we ought to because we can analyse using the registrationbe aware of as part of our inquiry? database, and we can produce analyses of SIs byMr Pawsey: The last edition was produced back in subject matter, so we can bring that information toJune 2003. In between new editions, we publish a departments and help them carry out their work.number of Practice circulars, so if changes are BRE have got certain clear responsibilities takingmade—like the creation of the Merits Committee, the forward the Government’s agenda for simplifying,introduction of Explanatory Memoranda—there are modernising, reducing the volume of legislation andPractice circulars issued to departments telling them improving the way in which departments consult,about those changes. Indeed, in terms of those on the making sure there is better take-up, making sureMerits Committee, we have been very grateful for the consultation is taken forward correctly and the viewshelp from the clerk and the advisers to the are taken on board in producing the legislation whichCommittee. The new edition will consolidate all of comes forward. That is clearly BRE’s remit and wethose circulars and we are consolidating our will support them as much as possible by providingguidance. There will certainly be some new changes the information.in procedure. Under the current Practice there isactually no requirement on a department to publish a Q130 Lord TunnicliVe: Is the SIP publicly available?draft aYrmative resolution Order, and indeed really Mr Pawsey: Yes, it is available on our website.until the introduction of the Merits Committee andExplanatory Memoranda some departments did not Q131 Chairman: Thank you very much for yourdo that, and there are still one or two departments time and we look forward to receiving the furtherwhich are very reluctant to do so. But it would information which you promised which we said webecome mandatory with the new edition that every would welcome.

Mr Pawsey: Thank you.aYrmative resolution Order shall be published.

Supplementary letter from Alan Pawsey, Her Majesty’s Stationery Office (HMSO)

1. When I gave evidence on 8 November, in my capacity as Editor of Statutory Instrument Practice and theoYcial responsible within HMSO for overseeing our statutory role in relation to the production of StatutoryInstruments, I was asked to provide some further information for the Committee. This letter and theattachments respond to the Committee’s request and in addition provide further information regarding theStatutory Instruments which were made during 2005.

Performance of Departments

2. The Committee invited information about the performance of departments and was particularly concernedabout the number of occasions on which departments fail to lay instruments at least 21 days in advance ofthem coming into force. In response I am attaching an analysis of the instruments made during 2005 whichwere laid before Parliament (or the House of Commons) showing by department those where 21 days was notallowed between the date of laying and the instrument coming into force. This analysis is compiled from theHMSO Statutory Instruments Database.



8 November 2005

Consolidation of Statutory Instruments

3. The Committee invited information as to how the new drafting technology might help in producingconsolidations of statutory instruments.

4. As I said during my evidence and in the earlier HMSO memorandum to the Committee, most statutoryinstruments are now being produced using an electronic template based on Microsoft Word. Before theintroduction of the template the final version of any instrument would have been held as part of the printingcontractors’ typesetting systems and would not have been available to departments. With the introduction ofthe template, departments now hold the final version of the instrument within their own systems maintainingtheir control of the instruments that they draft.

5. In the past departments have avoided producing consolidated sets of Regulations because of concernsabout the costs to the end-user required to purchase additional documents. With the increasing use of theinternet to access legislation fewer users rely on the printed versions so this is no longer seen as an argumentagainst more regular consolidation.

6. If departments control the original set of Regulations and any amending instruments within their systemsthey should be able to cut and paste any amendments made by subsequent instruments into an original set ofRegulations. An “updated” version of the set of Regulations could therefore be produced at periodic intervalswhich simply applies any amendments to the original set of Regulations. This would be a straightforwardmechanical task but would produce a consolidated version which would be easier for the end-user to workwith.

7. Producing consolidated versions of statutory instruments is, however, generally a more complex task andwill involve not only the mechanical task of applying amendments but also involves a review of the policyobjectives, a complete review of the drafting and ensuring that cross-references to other legislation remaincorrect. Even if straightforward consolidated Regulations were produced at periodic intervals such detailedwork would still be necessary to ensure the continuing quality of any Regulations which remain in force. Onetask which the consolidator ought to undertake (and which is not open to the drafter of amendments undermost circumstances because of resource constraints) is to consider whether the structure of the instrument asa whole should be revised. For example, if a lettered list of exemptions within a paragraph has expandedsignificantly since the original instrument was made, it will be an improved service for users if the exemptionsare re-structured as a Schedule.

2005 Statutory Instruments—Updated Statistical Information

8. I am attaching for the Committee tables showing:

(a) the number of statutory instruments made during 2005 with comparisons with earlier years;

(b) the number of statutory instruments made during 2005 by department with comparisons with earlieryears; and

(c) the number of statutory instruments made during 2005 by subject heading with comparisons withearlier years.

31 January 2006

LAYING DATES ELAPSED DAYS BY AUTHORITY 2005

UK (England/Wales)

Source: Her Majesty’s Stationery OYce

Note: This report shows the elapsed days between the date of laying of an instrument and the date it came intoforce. Under the 21 day rule an instrument should come into force on the 22nd day so for any SI where 21days or lower is shown the department will have failed to comply with the rule.

Where no coming into force date is given this is because the Coming into force date is reliant on otherlegislative provisions to bring it into force or where notices are to be published in the London, Edinburgh orBelfast Gazettes (or in one instance the Montserrat Gazette).



8 November 2005

Cabinet Office

Elapsed Days Laying Date Date in Force SI No SI Title

111 27/07/2005 14/11/2005 2042 Civil Contingencies Act 2004 (ContingencyPlanning)

25 21/11/2005 15/12/2005 3171 Superannuation (Admission to Schedule 1 to theSuperannuation Act 1972) Order

22 10/06/2005 01/07/2005 1515 Re-use of Public Sector Information RegulationsTotal SIs for Cabinet OYce % 3

Dept for Education and Skills


304 02/03/2005 30/12/2005 389 Adoption Agencies Regulations304 02/03/2005 30/12/2005 392 Adoptions with a Foreign Element Regulations284 22/03/2005 30/12/2005 691 Adoption Support Services Regulations269 06/04/2005 30/12/2005 1109 Special Guardianship Regulations268 07/04/2005 30/12/2005 888 Disclosure of Adoption Information (Post-

Commencement Adoptions) Regulations 2005268 07/04/2005 30/12/2005 890 Adoption Information and Intermediary Services

(Pre-Commencement Adoptions) Regulations 2005186 03/10/2005 06/04/2006 2690 Education (Student Loans) (Repayment)

(Amendment)117 07/04/2005 01/08/2005 1113 Crawley College and Haywards Heath College

(Dissolution)65 01/02/2005 06/04/2005 93 Tax Credits (Approval of Child Care Providers)

Scheme53 11/07/2005 01/09/2005 1739 Coventry City Council and the North West

Federation of Schools (International GeneralCertificate of Secondary

53 11/07/2005 01/09/2005 1740 Education (Induction Arrangements for SchoolTeachers) (Consolidation) (England) (Amendment)Regulations

52 11/11/2005 01/01/2006 3097 North Area College (Dissolution) Order46 14/01/2005 28/02/2005 2 Education (Co-ordination of Admission

Arrangements) (Primary Schools) (England)(Amendment) Regulations

44 17/01/2005 01/03/2005 5 Education (Student Support) (No 2) Regulations2002 (Amendment) Regulation

41 22/12/2005 31/01/2006 3436 Education (Grants etc.) (Dance and Drama)(England) (Amendment) (No 2) Regulations

40 25/08/2005 03/10/2005 2296 Day Care and Child Minding (Disqualification)(England) Regulations

40 25/08/2005 03/10/2005 2297 Day Care and Child Minding (Suitability)(England)

39 26/08/2005 03/10/2005 2303 Day Care and Child Minding (National Standards)(Amendment) (England) Regulations

39 26/08/2005 03/10/2005 2299 Nursery Education (Inspection) (England)Regulations

39 26/08/2005 03/10/2005 2300 Day Care and Child Minding (Inspection)(England)

39 26/08/2005 03/10/2005 2301 Day Care and Child Minding (Registration Fees)(England) Regulations

39 26/08/2005 03/10/2005 2302 Day Care and Child Minding (Functions of LocalAuthorities: Information, Advice and Training)(England) (Amendment) Regulations

35 26/01/2005 01/03/2005 52 Education (Student Support) Regulations



8 November 2005


35 29/07/2005 01/09/2005 2037 Education (Assisted Places) (Incidental Expenses)(Amendment) (England) Regulations

35 29/07/2005 01/09/2005 2029 Education (Penalty Notices) (England)(Amendment)

35 29/07/2005 01/09/2005 2030 Education (Assisted Places) (Amendment)(England)

33 28/02/2005 01/04/2005 346 Education (Information as to Provision ofEducation) (England) (Amendment) Regulations

33 29/11/2005 31/12/2005 3221 Disability Discrimination (Prescribed Times andPeriods for Accessibility Strategies and Plans forSchools) (England) Regulations

32 05/04/2005 06/05/2005 1101 Education (School Teachers’ Pay and Conditions)(No 2)

32 01/08/2005 01/09/2005 2038 Education (School Inspection) (England)Regulations

32 29/11/2005 30/12/2005 3222 Electronic Commerce Directive (Adoption andChildren Act 2002) Regulations

31 19/10/2005 18/11/2005 2836 Southwark London Borough Council (PrescribedAlteration)

31 02/08/2005 01/09/2005 1973 Children Act 2004 (Joint Area Reviews) Regulations31 02/08/2005 01/09/2005 1972 Children Act 2004 (Children’s Services) Regulations31 01/04/2005 01/05/2005 845 Education (Amendments to Regulations Requiring

the Publication of Pupil Performance Information)(England)

31 08/06/2005 08/07/2005 1437 Education (Pupil Information) (England)Regulations

31 02/08/2005 01/09/2005 2039 Education (Pupil Referral Units) (Application ofEnactments) (England) Regulations

30 03/08/2005 01/09/2005 2058 Wanstead High School (Change to School SessionTimes)

30 03/08/2005 01/09/2005 2084 Education (Student Support) (Amendment) (No 2)30 03/08/2005 01/09/2005 2083 Education (Mandatory Awards) (Amendment)

Regulations29 15/03/2005 12/04/2005 677 Education (Grants etc) (Dance and Drama)

(England) (Amendment) Regulations29 04/07/2005 01/08/2005 1708 Kent Institute of Art and Design Higher Education

Corporation (Dissolution) Order29 03/06/2005 01/07/2005 1386 Education (Outturn Statements) (England)

Regulations29 14/11/2005 12/12/2005 3101 Education (Information About Individual Pupils)

(England) (Amendment) Regulations29 08/04/2005 06/05/2005 1032 Education (Review of StaYng Structure) (England)29 01/02/2005 01/03/2005 94 Tynemouth College and North Tyneside College

(Dissolution) Order28 04/04/2005 01/05/2005 873 Education (Variation of Admission Arrangements)

(England) (Amendment) Regulations28 04/03/2005 31/03/2005 345 Education (Budget Statements) (England)

Regulations27 06/04/2005 02/05/2005 892 Teacher Training Agency (Additional Functions)

(England) Order 200527 04/04/2005 30/04/2005 875 Education (Head Teachers’ Qualifications)

(Amendment) (England) Regulations26 07/07/2005 01/08/2005 1718 Education (Student Loans) (Amendment) (England

and Wales) Regulations26 14/11/2005 09/12/2005 3102 Haringey London Borough Council (Temporary

Governing Body) Order



8 November 2005


26 06/09/2005 01/10/2005 2411 Children Act 2004 (Designation of NHS Direct)Order

25 09/09/2005 03/10/2005 2450 Education (Local Education Authority PerformanceTargets) (England) Regulations

25 08/03/2005 01/04/2005 397 Central Sussex College (Government) Regulations25 09/09/2005 03/10/2005 2449 Education (School Performance Targets) (England)

(Amendment) Regulations25 08/03/2005 01/04/2005 396 Central Sussex College (Incorporation) Order25 06/04/2005 30/04/2005 885 Education (Free School Lunches) (State Pension

Credit) Order 200525 08/07/2005 01/08/2005 1731 Education (Change of Category of Maintained

Schools) (Amendment) (England) Regulations25 09/09/2005 03/10/2005 2448 Child Minding and Day Care (Applications for

Registration) (England) (Amendment) Regulations25 08/07/2005 01/08/2005 1730 School Governance (Constitution, Federations and

New Schools) (England) (Amendment) Regulations24 23/05/2005 15/06/2005 1341 Education (Student Support) (Amendment)

Regulations24 06/04/2005 29/04/2005 882 European Communities (Recognition of

Professional Qualifications) (Second GeneralSystem) (Amendment) Regulations

24 09/12/2005 01/01/2006 3342 Education (School Organisation Proposals)(Amendment) (No 2) (England) Regulations

24 08/04/2005 01/05/2005 1070 Disability Discrimination (Educational Institutions)(Alteration of Leasehold Premises) Regulations

24 08/08/2005 31/08/2005 2119 Education (Student Loans) (Amendment) (No 2)(England and Wales) Regulations

23 18/01/2005 09/02/2005 18 European Communities (Recognition ofProfessional Qualifications) (First General System)Regulations

23 10/08/2005 01/09/2005 2152 Education (School Information) (England)(Amendment) Regulations

23 23/06/2005 15/07/2005 1542 Education (London Residuary Body) (PropertyTransfer) (Amendment) Order

23 10/03/2005 01/04/2005 640 National Care Standards Commission (Commissionfor Social Care Inspection) (Fees and Frequency ofInspections) (Adoption Agencies) (Amendment)Regulations

23 10/03/2005 01/04/2005 539 Education (School Teachers’ Pay and Conditions)Order

23 08/04/2005 30/04/2005 1014 Education (Residential Trips) (Prescribed TaxCredits) (England) (Amendment) Regulations

23 10/03/2005 01/04/2005 482 Day Care and Child Minding (Inspections)(Prescribed Matters) (England) (Amendment)Regulations

23 10/08/2005 01/09/2005 2149 Children and Young People’s Plan (England)Regulations

23 10/08/2005 01/09/2005 2212 Education (School Teachers’ Pay and Conditions)(No 3)

23 10/08/2005 01/09/2005 2198 Teachers’ Pensions (Amendment) Regulations23 08/12/2005 30/12/2005 3299 Schools Forums (England) (Amendment)

Regulations23 10/03/2005 01/04/2005 433 Children and Family Court Advisory and Support

Service (Membership, Committee and Procedure)Regulations



8 November 2005


23 09/12/2005 31/12/2005 3322 Education (Head Teachers’ Qualifications)(England) (Amendment) (No 2) Regulations

22 09/12/2005 30/12/2005 3339 Local Authorities Adoption Service (England)(Amendment) Regulations

22 11/07/2005 01/08/2005 1792 Education (Leeds College of Music) (Transfer to theHigher Education Sector) Order

22 09/12/2005 30/12/2005 3341 Voluntary Adoption Agencies (Amendment)Regulations

22 09/12/2005 30/12/2005 3332 Independent Review of Determinations (Adoption)22 10/06/2005 01/07/2005 1533 Children (Private Arrangements for Fostering)

Regulations22 24/01/2005 14/02/2005 58 Education (School Attendance Targets) (England)

Regulations22 09/12/2005 30/12/2005 3390 Local Authority (Adoption) (Miscellaneous

Provisions) Regulations22 07/10/2005 28/10/2005 2720 Adoption Support Agencies (England) and

adoption Agencies (Miscellaneous Amendments)Regulations

22 09/06/2005 30/06/2005 1508 School Governance (Contracts) (England)Regulations

22 09/12/2005 30/12/2005 3309 Education (Teacher Student Loans) (Repaymentetc.) (Amendment) Regulations

22 26/08/2005 16/09/2005 2338 Education (School Performance Information)(England) (Amendment) (No 2) Regulations

22 11/07/2005 01/08/2005 1801 Education (School Organisation Proposals)(England) (Amendment) Regulations

22 10/03/2005 31/03/2005 526 LEA Budget, Schools Budget and IndividualSchools Budget (Amendment) (England)Regulations

21 21/01/2005 10/02/2005 51 Education (School Performance Information)(England (Amendment) Regulations

9 22/12/2005 30/12/2005 3482 Adoption and Children (MiscellaneousAmendments)

9 22/12/2005 30/12/2005 3504 Adoption and Children Act 2002 (ConsequentialAmendments) Order

"1 03/01/2006 01/01/2006 3479 Education (School Teachers’ Pay and Conditions)(No 4)

08/08/2005 2121 Local Authorities (Elected Mayors) (England)Regulations

Total SIs for Dept for Education and Skills % 97

Department for Constitutional Affairs


139 20/07/2005 05/12/2005 1982 Land Registration (Amendment) (No 2) Rules130 29/07/2005 05/12/2005 2056 Enrolment of Deeds (Change of Name)

(Amendment)110 07/07/2005 24/10/2005 1766 Land Registration (Amendment) Rules110 07/07/2005 24/10/2005 1765 Land Registration (Proper OYce) (Amendment)

Order107 21/12/2005 06/04/2006 3515 Civil Procedure (Amendment No 4) Rules105 19/07/2005 31/10/2005 1976 Family Proceedings (Amendment No 4) Rules105 19/07/2005 31/10/2005 1977 Family Proceedings Courts (Miscellaneous

Amendments)



8 November 2005


84 10/10/2005 01/01/2006 2749 Solicitors (Compensation for InadequateProfessional Services) Order

80 12/10/2005 30/12/2005 2795 Family Procedure (Adoption) Rules80 12/10/2005 30/12/2005 2808 Parental Responsibility Agreement (Amendment)

Regulations80 12/10/2005 30/12/2005 2804 Courts Act 2003 (Revocations, Savings and

Transitional Provisions) Order75 19/08/2005 01/11/2005 2305 Conditional Fee Agreements (Revocation)

Regulations75 19/08/2005 01/11/2005 2306 Access to Justice (Member Organisation)

Regulations56 08/02/2005 04/04/2005 230 Asylum and Immigration Tribunal (Procedure)

Rules56 08/02/2005 04/04/2005 227 Asylum and Immigration Tribunal (Judicial Titles)

Order55 12/10/2005 05/12/2005 2796 Justices’ Clerks (Amendment) Rules55 12/10/2005 05/12/2005 2797 Children (Allocation of Proceedings) (Amendment

No 2) Order44 19/08/2005 01/10/2005 2292 Civil Procedure (Amendment No 3) Rules43 21/12/2005 01/02/2006 3489 Derbyshire (Coroners’ Districts) (Amendment)

Order42 25/10/2005 05/12/2005 2920 Dissolution Etc (Pensions) Regulations42 25/10/2005 05/12/2005 2921 Family Proceedings (Civil Partnership: Staying of

Proceedings) Rules42 25/10/2005 05/12/2005 2930 Magistrates’ Courts (Miscellaneous Amendments)

Rules42 25/10/2005 05/12/2005 2924 Family Law Act 1996 (Part IV) (Allocation of

Proceedings) (Amendment) Order42 25/10/2005 05/12/2005 2922 Family Proceedings (Amendment No 5) Rules36 28/02/2005 04/04/2005 352 Civil Procedure (Amendment) Rules32 04/03/2005 04/04/2005 384 Criminal Procedure Rules32 04/11/2005 05/12/2005 3042 Civil Partnership (Treatment of Overseas

Relationships) Order29 04/03/2005 01/04/2005 446 Courts-Martial Appeal (Amendment) Rules29 18/03/2005 15/04/2005 781 Pensions Regulator Tribunal (Legal Assistance

Scheme) Regulations29 18/03/2005 15/04/2005 782 Pensions Regulator Tribunal (Legal Assistance

Scheme—Costs) Regulations29 09/03/2005 06/04/2005 473 Civil Proceedings Fees (Amendment) Order29 09/03/2005 06/04/2005 472 Family Proceedings Fees (Amendment) Order27 31/08/2005 26/09/2005 2410 Collection of Fines (Pilot Schemes) (Amendment

No 3) Order27 02/02/2005 28/02/2005 184 Community Legal Service (Funding) (Counsel in

Family Proceedings) (Amendment) Order26 17/02/2005 14/03/2005 340 General Commissioners (Jurisdiction and

Procedure) (Amendment) Regulations26 17/02/2005 14/03/2005 341 Special Commissioners (Jurisdiction and Procedure)

(Amendment) Regulations26 10/03/2005 04/04/2005 569 Asylum and Immigration Tribunal (Procedure)

(Amendment)26 10/11/2005 05/12/2005 3126 Court of Protection (Enduring Powers of Attorney)

(Amendment No 2) Rules26 10/03/2005 04/04/2005 571 Community Legal Service (Funding) (Amendment)

Order26 17/11/2005 12/12/2005 3166 Collection of Fines (Pilot Schemes) (Amendment

No 4) Order



8 November 2005


26 10/11/2005 05/12/2005 3125 Enduring Powers of Attorney (Welsh LanguagePrescribed Form) Regulations

26 10/11/2005 05/12/2005 3116 Enduring Powers of Attorney (Prescribed Form)(Amendment) Regulations

26 10/03/2005 04/04/2005 635 Gender Recognition (Disclosure of Information)(England, Wales and Northern Ireland) Order

26 10/03/2005 04/04/2005 561 Asylum and Immigration Tribunal (Fast TrackTime Limits)

26 10/03/2005 04/04/2005 560 Asylum and Immigration Tribunal (Fast TrackProcedure) Rules

26 10/11/2005 05/12/2005 3104 Civil Partnership (Supplementary Provisionsrelating to the Recognition of OverseasDissolutions, Annulments or Legal Separations)(England and Wales and Northern Ireland)Regulations

26 10/03/2005 04/04/2005 638 Gender Recognition (Application Fees) Order25 04/02/2005 28/02/2005 207 Social Security and Child Support Commissioners

(Procedure) (Amendment) Regulations25 08/12/2005 01/01/2006 3382 Proceeds of Crime Act 2002 (Legal Expenses in

Civil Recovery Proceedings) Regulations25 08/03/2005 01/04/2005 489 Legal Services Ombudsman (Jurisdiction)

(Amendment) Order25 08/03/2005 01/04/2005 520 Children (Allocation of Proceedings) (Amendment)

Order24 10/03/2005 02/04/2005 642 Collection of Fines (Pilot Schemes) (Amendment

No 2) Order24 09/03/2005 01/04/2005 553 Justices of the Peace (Size and Chairmanship of

Bench) Rules24 08/09/2005 01/10/2005 2506 Constitutional Reform Act 2005 (Transitional and

Consequential Provisions) Order24 09/03/2005 01/04/2005 554 Local Justice Areas Order24 09/03/2005 01/04/2005 545 Justices’ Clerks Rules24 09/03/2005 01/04/2005 564 Justices of the Peace (Training and Appraisal) Rules24 09/03/2005 01/04/2005 474 Damages (Government and Health Service Bodies)

Order24 09/03/2005 01/04/2005 562 Courts Act 2003 (Continuing Provision of Court-

houses) Regulations23 10/02/2005 04/03/2005 269 Representation of the People (Variation of Limits of

Candidates’ Election Expenses) Order23 16/01/2006 07/02/2006 3593 Freedom of Information (Additional Public

Authorities) Order23 10/02/2005 04/03/2005 266 Non-Contentious Probate Fees (Indian Ocean

Tsunami) Order23 10/03/2005 01/04/2005 617 Courts Act 2003 (Consequential Provisions) (No 2)

Order23 28/01/2005 19/02/2005 147 Registration of Political Parties (Prohibited Words

and Expressions) (Amendment) Order23 22/09/2005 14/10/2005 2625 Criminal Procedure Rule Committee (Amendment

of Constitution) Order23 08/03/2005 30/03/2005 484 Fines Collection (Amendment) Regulations23 08/03/2005 30/03/2005 485 Register of Fines (Amendment) Regulations23 16/01/2006 07/02/2006 3594 Freedom of Information (Removal of References to

Public Authorities) Order23 08/03/2005 30/03/2005 487 Collection of Fines (Pilot Schemes) (Amendment)

Order23 15/03/2005 06/04/2005 690 Pensions Regulator Tribunal Rules



8 November 2005


23 10/01/2005 01/02/2005 14 Information Tribunal (Enforcement Appeals) Rules23 10/01/2005 01/02/2005 13 Information Tribunal (National Security Appeals)

Rules23 10/03/2005 01/04/2005 587 High Court and County Courts Jurisdiction

(Amendment)23 10/03/2005 01/04/2005 591 Civil Legal Aid (General) (Amendment)

Regulations23 10/03/2005 01/04/2005 589 Community Legal Service (Financial)

(Amendment)23 10/03/2005 01/04/2005 585 Family Proceedings Courts (Children Act 1989)

(Amendment No 3) Rules23 10/03/2005 01/04/2005 668 Court of Protection (Enduring Powers of Attorney)

(Amendment) Rules23 10/03/2005 01/04/2005 559 Family Proceedings (Amendment No 3) Rules23 10/03/2005 01/04/2005 605 Children and Family Court Advisory and Support

Service (Reviewed Case Referral) (Amendment)Regulations

23 10/03/2005 01/04/2005 588 Court Security OYcers (Designation) Regulations23 10/03/2005 01/04/2005 607 National Assembly for Wales (Conduct of

Litigation and Exercise of Rights of Audience)Regulations

23 10/03/2005 01/04/2005 667 Court of Protection (Amendment) Rules22 10/10/2005 31/10/2005 2783 Criminal Defence Service (Recovery of Defence

Costs Orders) (Amendment) Regulations22 04/07/2005 25/07/2005 1793 Community Legal Service (Financial) (Amendment

No 3) Regulations22 08/02/2005 01/03/2005 229 Family Proceedings Courts (Children Act 1989)

(Amendment) Rules22 20/12/2005 10/01/2006 3443 Family Proceedings Fees (Amendment No 2) Order22 20/12/2005 10/01/2006 3444 Magistrates’ Courts Fees Order22 20/12/2005 10/01/2006 3445 Civil Proceedings Fees (Amendment) Order22 10/10/2005 31/10/2005 2784 Criminal Defence Service (General) (No 2)

(Amendment) Regulations22 16/03/2005 06/04/2005 709 Pensions Appeal Tribunals (England and Wales)

(Amendment) Rules21 09/02/2005 01/03/2005 265 European Communities (Jurisdiction and

Judgments in Matrimonial and ParentalResponsibility Matters)

21 09/02/2005 01/03/2005 264 Family Proceedings (Amendment) Rules21 05/07/2005 25/07/2005 1802 Civil Legal Aid (General) (Amendment No 2)

Regulations20 30/03/2005 18/04/2005 965 Pensions Appeal Commissioners (Procedure)

(Northern Ireland) Regulations13 21/09/2005 03/10/2005 2621 Criminal Defence Service (Funding) (Amendment)

Order13 21/09/2005 03/10/2005 2622 Costs in Criminal Cases (General) (Amendment)

Regulations12 24/03/2005 04/04/2005 916 Gender Recognition (Disclosure of Information)

(England, Wales and Northern Ireland) (No 2)Order

9 24/03/2005 01/04/2005 911 Courts Act 2003 (Transitional Provisions, Savingsand Consequential Provisions) Order

8 04/03/2005 11/03/2005 450 Information Tribunal (Enforcement Appeals)(Amendment)

8 22/12/2005 29/12/2005 3359 Non-Contentious Probate Fees (London TerroristBombings)



8 November 2005


6 30/11/2005 05/12/2005 3284 Civil Partnership (Treatment of OverseasRelationships No 2) Order

5 04/04/2005 08/04/2005 1071 Human Rights Act 1998 (Amendment) Order4 16/12/2005 19/12/2005 3470 Parliamentary Elections (Welsh Forms)

(Amendment) Order2 02/03/2005 03/03/2005 412 Family Proceedings (Amendment No 2) Rules2 02/03/2005 03/03/2005 413 Family Proceedings Courts (Children Act 1989)

(Amendment No 2) Rules2 31/03/2005 01/04/2005 1012 Courts Act 2003 (Consequential and Transitional

Provisions) Order2 06/04/2005 07/04/2005 1105 Parliamentary Elections (Welsh Forms) Order2 24/10/2005 25/10/2005 2949 Local Justice Areas (No 2) Order1 05/04/2005 05/04/2005 1097 Community Legal Service (Financial) (Amendment

No 2) Regulations"2 14/03/2005 11/03/2005 656 Civil Procedure (Amendment No 2) Rules

16/01/2006 3595 Register of Judgments, Orders and FinesRegulations

Total SIs for Dept for Constitutional AVairs % 111

Department for the Environment, Food and Rural Affairs


150 03/11/2005 01/04/2006 3047 North-West, Severn-Trent and Welsh RegionalFlood Defence Committees (Boundaries Alteration)Order

115 24/03/2005 16/07/2005 895 List of Wastes (England) Regulations101 23/03/2005 01/07/2005 883 Waste Management Licensing (England and Wales)

(Amendment and Related Provisions) Regulations81 13/07/2005 01/10/2005 1905 Drought Plan Regulations59 04/04/2005 01/06/2005 1067 Norfolk and SuVolk Broads Act 1988 (Alteration of

Constitution of the Broads Authority) Order51 13/12/2005 01/02/2006 3433 Cattle Compensation (England) Order51 10/02/2005 01/04/2005 268 Water and Sewerage Undertakers (Inset

Appointments) Regulations48 23/03/2005 09/05/2005 880 Landfill Allowances and Trading Scheme (England)

(Amendment) Regulations44 19/08/2005 01/10/2005 2304 Smoke Control Areas (Exempted Fireplaces)

(England) Order39 24/05/2005 01/07/2005 1380 Home-Grown Cereals Authority (Rate of Levy)

Order37 24/02/2005 01/04/2005 379 Diseases of Animals (Fees for the Testing of

Disinfectants) (England) Order36 27/05/2005 01/07/2005 1435 Plant Protection Products Regulations 200536 24/08/2005 28/09/2005 2347 Animal By-Products Regulations35 18/10/2005 21/11/2005 2900 Waste (Household Waste Duty of Care) (England

and Wales) Regulations34 05/10/2005 07/11/2005 2726 Plant Breeders’ Rights (Discontinuation of Prior

Use Exemption) Order33 19/12/2005 20/01/2006 3467 Radioactive Contaminated Land (Enabling Powers)

(England) Regulations32 30/03/2005 30/04/2005 918 Common Agricultural Policy Single Payment and

Support Schemes (Cross Compliance) (England)(Amendment)

32 21/03/2005 21/04/2005 829 Crime Prevention (Designated Areas) Order



8 November 2005


32 23/12/2005 23/01/2006 3522 Older Cattle (Disposal) (England) Regulations31 02/03/2005 01/04/2005 415 Environmental Protection (Waste Recycling

Payments) (England) (Amendment) Regulations31 01/06/2005 01/07/2005 1441 Reporting of Prices of Milk Products (England)

Regulations31 26/05/2005 25/06/2005 1430 Environmental Impact Assessment (Uncultivated

Land and Semi-natural Areas) (England)(Amendment) Regulations

30 22/09/2005 21/10/2005 2624 Sea Fishing (Enforcement of Community ControlMeasures) (Amendment) Order

29 28/09/2005 26/10/2005 2671 Beet Seed (England) (Amendment) Regulations29 28/09/2005 26/10/2005 2672 Cereal Seed (England) (Amendment) Regulations29 28/09/2005 26/10/2005 2673 Fodder Plant Seed (England) (Amendment)

Regulations29 01/02/2005 01/03/2005 154 Hill Farm Allowance Regulations29 03/10/2005 31/10/2005 2715 Charges for Inspections and Controls (Amendment)

(No 2) Regulations29 28/09/2005 26/10/2005 2674 Oil and Fibre Plant Seed (England) (Amendment)

Regulations29 28/09/2005 26/10/2005 2675 Vegetable Seed (England) (Amendment)

Regulations29 28/09/2005 26/10/2005 2676 Seed (Registration, Licensing and Enforcement)

(England) (Amendment) Regulations29 01/02/2005 01/03/2005 219 Common Agricultural Policy Single Payment and

Support Schemes Regulations29 25/07/2005 22/08/2005 2027 Access to the Countryside (Correction of

Provisional and Conclusive Maps) (England)(Amendment) Regulations

28 04/03/2005 31/03/2005 465 Dairy Produce Quota Regulations28 04/03/2005 31/03/2005 466 Dairy Produce Quotas (General Provisions)

(Amendment) Regulations28 19/12/2005 15/01/2006 3460 Common Agricultural Policy Single Payment

Scheme (Set-aside) (England) (Amendment)Regulations

28 24/03/2005 20/04/2005 914 Crime Prevention (Designated Areas) (No 2) Order28 18/10/2005 14/11/2005 2895 Smoke Control Areas (Authorised Fuels) (England)

(Amendment) Regulations28 24/03/2005 20/04/2005 906 Plant Health (Import Inspection Fees) (England)

Regulations28 21/10/2005 17/11/2005 2927 Salmonella in Broiler Flocks (Survey Powers)

(England) Regulations27 03/02/2005 01/03/2005 187 Transfrontier Shipment of Waste (Amendment)

Regulations26 21/07/2005 15/08/2005 2002 Animals and Animal Products (Import and Export)

(England) Regulations26 21/07/2005 15/08/2005 2003 Environmental Stewardship (England) and Organic

Products (Amendment) Regulations26 05/04/2005 30/04/2005 1087 Common Agricultural Policy Single Payment and

Support Schemes (Amendment) Regulations26 19/10/2005 13/11/2005 2903 Greenhouse Gas Emissions Trading Scheme

(Amendment) and National Emissions InventoryRegulations

26 11/01/2005 05/02/2005 12 Charges for Inspections and Controls (Amendment)



8 November 2005


26 01/03/2005 26/03/2005 404 Production of Bovine Collagen Intended for HumanConsumption in the United Kingdom (England)Regulations

26 31/10/2005 25/11/2005 2992 Common Agricultural Policy (Wine) (England andNorthern Ireland) (Amendment) Regulations

26 17/11/2005 12/12/2005 3197 Plant Protection Products (Amendment)Regulations

26 07/03/2005 01/04/2005 477 Water Industry (Determination of Turnover forPenalties) Order

26 20/12/2005 14/01/2006 3480 Plant Health (Export Certification) (England)(Amendment)

25 19/12/2005 12/01/2006 3459 Common Agricultural Policy Single Payment andSupport Schemes (Cross-compliance) (England)Regulations

25 17/06/2005 11/07/2005 1638 Water Supply Licence (Application) Regulations25 13/06/2005 07/07/2005 1605 Registration of Fish Buyers and Sellers and

Designation of Fish Auction Sites Regulations25 07/11/2005 01/12/2005 3075 Water Supply (Exceptions from Supply System

Prohibitions) Regulations25 11/02/2005 07/03/2005 278 Potatoes Originating in the Netherlands

(Revocation) (England) Regulations25 07/11/2005 01/12/2005 3076 Water Supply Licence (New Customer Exception)25 23/02/2005 19/03/2005 359 Salmonella in Laying Flocks (Survey Powers)

(England) Regulations25 07/09/2005 01/10/2005 2468 Enterprise Act 2002 (Bodies Designated to make

Super-complaints) (Amendment) Order25 14/10/2005 07/11/2005 2867 Agricultural Holdings (Units of Production)

(England) Order25 01/06/2005 25/06/2005 1399 Environmental Impact Assessment (Land Drainage

Improvement Works) (Amendment) Regulations25 07/11/2005 01/12/2005 3077 Water Supply Licence (Prescribed Water Fittings

Requirements) Regulations25 27/06/2005 21/07/2005 1674 Control of Trade in Endangered Species

(Enforcement) (Amendment) Regulations25 11/02/2005 07/03/2005 279 Dutch Potatoes (Notification) (England) Order25 21/06/2005 15/07/2005 1640 Landfill (England and Wales) (Amendment)

Regulations24 26/09/2005 19/10/2005 2633 TSE (England) (Amendment) (No 2) Regulations24 10/03/2005 02/04/2005 621 Environmental Stewardship (England) Regulations24 07/10/2005 30/10/2005 2745 Veterinary Medicines Regulations24 06/07/2005 29/07/2005 1805 Financial Assistance for Environmental Purposes

Order24 24/03/2005 16/04/2005 894 Hazardous Waste (England and Wales) Regulations24 23/11/2005 16/12/2005 3223 Litter (Fixed Penalty Notices) Order 1991 and the

Dog Fouling (Fixed Penalties) Order 1996(Revocation) (England)

24 08/09/2005 01/10/2005 2517 Plant Health (Forestry) Order23 16/03/2005 07/04/2005 717 Producer Responsibility Obligations (Packaging

Waste) (Amendment) (England and Wales)Regulations

23 28/09/2005 20/10/2005 2686 High—activity Sealed Radioactive Sources andOrphan Sources Regulations

23 09/06/2005 01/07/2005 1530 Home Energy EYciency Scheme (England)Regulations



8 November 2005


23 30/06/2005 22/07/2005 1725 Pesticides (Maximum Residue in Crops, Food andFeeding StuVs) (England and Wales) (Amendment)(No 2) Regulations

23 26/05/2005 17/06/2005 1402 Stanswood Bay Oyster Fishery Order23 09/06/2005 01/07/2005 1531 Energy Information (Household Air Conditioners)

Regulations23 11/01/2005 02/02/2005 17 Incidental Catches of Cetaceans in Fisheries

(England) Order23 26/05/2005 17/06/2005 1400 Calshot Oyster Fishery Order23 03/06/2005 25/06/2005 1448 Pollution Prevention and Control (Public

Participation) (England and Wales) Regulations23 07/02/2005 01/03/2005 218 Common Agricultural Policy Single Payment and

Support Schemes (integrated Administration andControl System) Regulations

23 30/03/2005 21/04/2005 925 Greenhouse Gas Emissions Trading SchemeRegulations

23 19/01/2005 10/02/2005 59 Water Industry (Charges) (Vulnerable Groups)(Amendment) Regulations

22 11/10/2005 01/11/2005 2773 Volatile Organic Compounds in Paints, Varnishesand Vehicle Refinishing Products Regulations

22 24/06/2005 15/07/2005 1673 List of Wastes (England) (Amendment) Regulations22 12/09/2005 03/10/2005 2530 Plant Health (England) Order22 01/12/2005 22/12/2005 3286 Pesticides (Maximum Residue Levels in Crops,

Food and Feeding StuVs) (England and Wales)Regulations

22 01/11/2005 22/11/2005 3026 Environmental Protection Act 1990 (Amendment ofSection 57) (England and Wales) Regulations

22 07/07/2005 28/07/2005 1811 Fees for Assessment of Active Substances (FourthStage Review) Regulations

22 24/05/2005 14/06/2005 1387 Greenhouse Gas Emissions Trading Scheme(Approved National Allocation Plan) Regulations

22 27/01/2005 17/02/2005 117 Fees for Assessment of Active Substances (ThirdStage Review) Regulations

22 03/03/2005 24/03/2005 421 New Forest National Park Authority(Establishment) Order

22 01/04/2005 22/04/2005 1033 FeedingstuVs (Zootechnical Products) andMedicated FeedingstuVs (Amendment) (England,Scotland and Wales) Regulations

22 25/07/2005 15/08/2005 2015 Veterinary Surgery (Testing for Tuberculosis inBovines)

22 09/06/2005 30/06/2005 1528 Waste Management Licensing (England and Wales)(Amendment and Related Provisions) (No 2)Regulations

22 06/09/2005 27/09/2005 2463 Crime Prevention (Designated Areas) (No 3) Order22 06/09/2005 27/09/2005 2461 Public Rights of Way (Register of Applications

under section 53(5) of the Wildlife and CountrysideAct 1981) (England) Regulations

4 25/02/2005 28/02/2005 393 Sea Fishing (Restriction on Days at Sea) Order2 29/06/2005 30/06/2005 1728 Waste Management Licensing (England and Wales)

(Amendment and Related Provisions) (No 3)Regulations

2 07/09/2005 08/09/2005 2469 Detergents Regulations2 29/06/2005 30/06/2005 1726 Energy Information (Household Air Conditioners)

(No 2) Regulations2 09/12/2005 10/12/2005 3386 Products of Animal Origin (Third Country Imports)

(England) (No 4) (Amendment) Regulations



8 November 2005


2 14/01/2005 15/01/2005 49 South-west Territorial Waters (Prohibition of PairTrawling) (Amendment) Order

1 09/12/2005 09/12/2005 3394 Avian Influenza (Preventive Measures) (No 2)Regulations

1 28/10/2005 28/10/2005 2989 Avian Influenza (Preventive Measures) Regulations1 28/10/2005 28/10/2005 2990 Avian Influenza (Preventive Measures in Zoos)

RegulationsTotal SIs for Dept for the Environment, Food andRural AVairs % 107

Department for Transport


124 28/02/2005 01/07/2005 390 Tractor etc (EC Type-Approval) Regulations90 20/07/2005 17/10/2005 1992 Railways (Accident Investigation and Reporting)86 08/03/2005 01/06/2005 452 Road TraYc (Permitted Parking Area and Special

Parking Area) (County of Hertfordshire) (Boroughof Stevenage) Order

73 21/03/2005 01/06/2005 779 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of Hertfordshire) (District ofWelwyn Hatfield)

67 04/03/2005 09/05/2005 405 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of Hertfordshire) (Boroughof Broxbourne)

64 31/01/2005 04/04/2005 81 Road TraYc (Permitted Parking Area and SpecialParking Area) (Metropolitan Borough of Stockport)Order

57 07/02/2005 04/04/2005 194 Road TraYc (Permitted Parking Area and SpecialParking Area) (City of SheYeld) Order

55 09/12/2005 01/02/2006 3355 Biofuel (Labelling) (Amendment) Regulations 200554 10/02/2005 04/04/2005 233 Road TraYc (Permitted Parking Area and Special

Parking Area) (County of Hampshire) (Borough ofHavant) Order

44 06/09/2005 19/10/2005 2454 Motor Vehicles (EC Type Approval) (Amendment)Regulations

44 29/11/2005 11/01/2006 3261 Railways (Accident Investigation and Reporting)(Amendment) Regulations

43 08/02/2005 22/03/2005 927 Midland Metro (Wednesbury to Brierley Hill andMiscellaneous Amendments) Order

41 02/11/2005 12/12/2005 2987 Road Vehicles (Construction and Use)(Amendment) (No 3) Regulations

41 02/11/2005 12/12/2005 2988 Public Service Vehicles Accessibility (Amendment)41 22/08/2005 01/10/2005 2295 Tonnage Tax (Training Requirement) (Amendment)

Regulations41 02/11/2005 12/12/2005 2986 Public Vehicles (Conditions of Fitness, Equipment,

Use and Certification) (Amendment) (No 3)Regulations

40 23/06/2005 01/08/2005 1641 Road Vehicles (Construction and Use)(Amendment)

40 26/05/2005 04/07/2005 1385 Road TraYc (Permitted Parking Area and SpecialParking Area) (Metropolitan Borough of Barnsley)Order



8 November 2005


40 26/05/2005 04/07/2005 1384 Road TraYc (Permitted Parking Area and SpecialParking Area) (Metropolitan Borough ofRotherham) Order

40 26/05/2005 04/07/2005 1383 Road TraYc (Permitted Parking Area and SpecialParking Area) (Metropolitan Borough ofDoncaster) Order

39 28/11/2005 05/01/2006 3231 Transport for London (Woodside Park Substation)Order

39 28/11/2005 05/01/2006 3232 Transport for London (High Barnet Substation)Order

37 08/09/2005 14/10/2005 2460 Road Vehicles (Payment of Duty by Credit Card)(Prescribed Fee) Regulations

36 28/02/2005 04/04/2005 378 Road TraYc (Permitted Parking Area and SpecialParking Area) (City of Coventry) Order

36 27/05/2005 01/07/2005 1403 Public Service Vehicles (Conditions of Fitness,Equipment, Use and Certification) (Amendment)Regulations

36 25/02/2005 01/04/2005 370 Road TraYc (Permitted Parking Area and SpecialParking Area) (Borough of Thurrock) Order

36 28/02/2005 04/04/2005 387 Road TraYc (Permitted Parking Area and SpecialParking Area) (Borough of Torbay) Order

36 28/02/2005 04/04/2005 388 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of Surrey) (Borough ofEpsom and Ewell) Order

34 27/01/2005 01/03/2005 74 Merchant Shipping (Prevention of Pollution)(Drilling Rigs and Other Platforms) Order

33 02/06/2005 04/07/2005 1438 Road TraYc (Permitted Parking Area and SpecialParking Area) (Borough of Hartlepool) Order

33 22/12/2005 23/01/2006 3494 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of West Sussex) (District ofMid Sussex) Order

33 28/11/2005 30/12/2005 3224 Travel Concessions (Extension of Entitlement)(England)

33 11/11/2005 13/12/2005 3128 Public Service Vehicles (Conditions of Fitness,Equipment, Use and Certification) (Amendment)(No 4) Regulations

33 23/06/2005 25/07/2005 1645 Road TraYc (Permitted Parking Area and SpecialParking Area (County of Surrey) (Borough ofWoking) Order

33 22/12/2005 23/01/2006 3492 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of West Sussex) (District ofHorsham) Order

32 30/08/2005 30/09/2005 2342 Public Service Vehicles (Conditions of Fitness,Equipment, Use and Certification) (Amendment)(No 2) Regulations

32 30/08/2005 30/09/2005 2341 Motor Vehicles (Tests) (Amendment) (No 2)Regulations

32 30/08/2005 30/09/2005 2354 Minibus and Other Section 19 Permit Buses(Amendment) Regulations

32 30/08/2005 30/09/2005 2355 Public Service Vehicles (Registration of LocalServices) (Amendment) (England and Wales)Regulations

32 30/08/2005 30/09/2005 2343 Goods Vehicles (Plating and Testing) (Amendment)32 04/03/2005 04/04/2005 403 Road TraYc (Permitted Parking Area and Special

Parking Area) (County of Surrey) (Borough ofSpelthorne) Order



8 November 2005


32 30/08/2005 30/09/2005 2353 Community Bus (Amendment) Regulations32 30/08/2005 30/09/2005 2344 Road Vehicles (Registration and Licensing)

(Amendment) Regulations32 21/10/2005 21/11/2005 2905 Railway Heritage Scheme Order32 20/09/2005 21/10/2005 2559 Road Vehicles Lighting (Amendment) Regulations32 30/08/2005 30/09/2005 2346 Public Service Vehicles (Operators’ Licences) (Fees)

(Amendment) Regulations32 20/09/2005 21/10/2005 2560 Road Vehicles (Construction and Use)

(Amendment) (No 2) Regulations32 30/08/2005 30/09/2005 2345 Goods Vehicles (Licensing of Operators) (Fees)

(Amendment) Regulations31 27/06/2005 27/07/2005 1670 TraYc Signs (Amendment) Regulations and

General31 01/11/2005 01/12/2005 2981 Vehicle Crime (Registration of Registration Plate

Suppliers) (England and Wales) (Amendment)Regulations

31 27/06/2005 27/07/2005 1671 M42 (Junctions 3A to 7) (Actively Managed HardShoulder and Variable Speed Limits) Regulations

31 01/09/2005 01/10/2005 2362 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of SuVolk) (Borough ofIpswich) Order

30 02/03/2005 31/03/2005 395 Rail Vehicle Accessibility (Croydon Tramlink ClassCR4000 Vehicles) Exemption (Amendment) Order

30 31/01/2005 01/03/2005 75 Transport Act 2000 (Commencement of QualityContracts Schemes) (England) Order

30 02/06/2005 01/07/2005 1434 Ship and Port Facility (Security) (Amendment)Regulations

29 10/03/2005 07/04/2005 476 TraYc Management (Strategic Roads in GreaterLondon) Designation Order

29 01/02/2005 01/03/2005 86 Rail Vehicle Accessibility (Heathrow Express Class360/2) Exemption Order

29 05/04/2005 03/05/2005 1095 Railways (Penalty Fares) (Amendment) Regulations29 08/08/2005 05/09/2005 2155 Road TraYc (Permitted Parking Area and Special

Parking Area) (Borough of Stockton-on-Tees)Order

29 21/11/2005 19/12/2005 3207 Channel Tunnel (International Arrangements)Order

28 04/10/2005 31/10/2005 2713 Road Vehicles (Registration and Licensing)(Amendment) (No 2) Regulations

28 02/02/2005 01/03/2005 95 Road TraYc (Permitted Parking Area and SpecialParking Area) (Metropolitan District of Leeds)Order

28 14/07/2005 10/08/2005 1902 Motor Cars (Driving Instruction) Regulations28 05/08/2005 01/09/2005 2151 Road TraYc (Permitted Parking Area and Special

Parking Area) (County of Buckinghamshire)(District of Chiltern) Order

28 05/12/2005 01/01/2006 3295 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of Hampshire) (District ofNew Forest) Order

27 06/10/2005 01/11/2005 2717 Motor Vehicles (Driving Licences) (Amendment)(No 2) Regulations

27 19/01/2005 14/02/2005 56 Transport for London (Consequential Provisions)Order

27 14/12/2005 09/01/2006 3407 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of Surrey) (Borough ofElmbridge) Order



8 November 2005


27 14/12/2005 09/01/2006 3406 Bus Lane Contraventions (Approved LocalAuthorities) (England) (Amendment) Order

27 04/01/2006 30/01/2006 3543 Road TraYc (Permitted Parking Area and SpecialParking Area) (County of Hertfordshire) (Boroughof Hertsmere) Order

27 01/06/2005 27/06/2005 1404 Rail Vehicle Accessibility (Heathrow Express Class360/2) Exemption (Amendment) Order

27 02/03/2005 28/03/2005 329 Rail Vehicle Accessibility (Virgin West Coast Class390) Exemption Order

27 06/10/2005 01/11/2005 2716 Motor Cars (Driving Instruction) (Amendment)Regulations

26 17/11/2005 12/12/2005 3169 Road Vehicles Lighting (Amendment) (No 2)Regulations

26 18/08/2005 12/09/2005 2290 Transport (Guided Systems) (England)(Amendment) Order

26 05/04/2005 30/04/2005 1089 Civil Aviation (Insurance) Regulations26 24/03/2005 18/04/2005 881 Merchant Shipping (Accident Reporting and

Investigation) Regulations26 17/03/2005 11/04/2005 763 Transport for London (Reserved Services)

(Croydon Tramlink and Docklands Light Railway)Exception Order



25 30/06/2005 24/07/2005 1738 Railways Act 2005 (Transitional Provisions andSavings)

25 24/06/2005 18/07/2005 1672 Driver and Vehicle Licensing Agency Trading Fund(Variation) Order

25 08/07/2005 01/08/2005 1832 Motor Vehicles (Tests) (Amendment) Regulations25 04/11/2005 28/11/2005 3049 Railways Infrastructure (Access and Management)25 04/11/2005 28/11/2005 3050 Railway (Licensing of Railway Undertakings)

Regulations24 13/07/2005 05/08/2005 1904 Passenger and Goods Vehicles (Recording

Equipment)24 30/06/2005 23/07/2005 1737 Railways (Rail Passengers’ Council and Rail

Passengers’ Committees) (Exemptions)(Amendment) Order

23 01/04/2005 23/04/2005 975 Civil Aviation (Denied Boarding, Compensationand Assistance) Regulations

23 12/05/2005 03/06/2005 1308 Health and Safety at Work etc Act 1974(Application to Environmentally HazardousSubstances) (Amendment)

23 13/10/2005 04/11/2005 2833 Disclosure of Vehicle Insurance InformationRegulations

23 12/07/2005 03/08/2005 1866 Transport for London (Waterloo Station) Order23 08/09/2005 30/09/2005 2458 Passenger and Goods Vehicles (Recording

Equipment) (Approval of Fitters and Workshops)(Fees) (Amendment)

23 05/04/2005 27/04/2005 1092 Merchant Shipping (Amendments to ReportingRequirements) Regulations

23 08/09/2005 30/09/2005 2457 International Transport of Goods under Cover ofTIR Carnets (Fees) (Amendment) Regulations

23 23/09/2005 15/10/2005 2628 Railways (Provision etc of Railway Facilities)(Exemptions)



8 November 2005


23 10/03/2005 01/04/2005 580 Merchant Shipping (Fees) (Amendment)Regulations

23 08/09/2005 30/09/2005 2456 International Carriage of Dangerous Goods byRoad (Fees) (Amendment) Regulations

23 19/07/2005 10/08/2005 1975 Motor Vehicles (Driving Licences) (Amendment)Regulations

23 18/07/2005 09/08/2005 1919 Merchant Shipping (Medical Examination)(Amendment) Regulations

23 21/07/2005 12/08/2005 1999 M275 and M27 Motorway (Speed Limit)Regulations

22 11/10/2005 01/11/2005 2758 Tribunals and Inquiries (Bus Lane Adjudicators)(England)

22 11/10/2005 01/11/2005 2757 Bus Lane Contraventions (Penalty Charges,Adjudication and Enforcement) (England)Regulations

22 23/02/2005 16/03/2005 354 Airport Byelaws (Designation) Order22 16/08/2005 06/09/2005 2286 Merchant Shipping (Bridge Visibility) (Small

Passenger Ships) Regulations22 01/07/2005 22/07/2005 1732 Carriage of Dangerous Goods and Use of

Transportable Pressure Equipment (Amendment)Regulations

22 11/10/2005 01/11/2005 2756 Bus Lanes (Approved Devices) (England) Order22 11/10/2005 01/11/2005 2755 Bus Lane Contraventions (Approved Local

Authorities) (England) Order22 14/07/2005 04/08/2005 1916 Merchant Shipping (Prevention of Oil Pollution)

(Amendment) Regulations22 14/03/2005 04/04/2005 639 Road Transport (Working Time) Regulations17 18/11/2005 04/12/2005 3190 Disability Discrimination (Transport Vehicles)

RegulationsTotal SIs for Dept for Transport % 110

Department for Work and Pensions


287 24/06/2005 06/04/2006 1643 Control of Noise at Work Regulations186 03/10/2005 06/04/2006 2677 Social Security (Deferral of Retirement Pensions,

Shared Additional Pension and GraduatedRetirement Benefit) (Miscellaneous Provisions)Regulations

169 24/10/2005 10/04/2006 2904 Housing Benefit and Council Tax Benefit (General)Amendment Regulations

141 17/11/2005 06/04/2006 3117 OVshore Installations (Safety Case) Regulations2005

120 12/12/2005 10/04/2006 3360 Social Security (Hospital In-Patients) Regulations106 17/01/2005 02/05/2005 34 Social Security (Claims and Payments and Payments

on account, Overpayments and Recovery)Amendment Regulations

91 07/04/2005 06/07/2005 1093 Control of Vibration at Work Regulations85 07/04/2005 30/06/2005 1088 Control of Major Accident Hazards (Amendment)

Regulations63 04/10/2005 05/12/2005 2703 Disability Discrimination (Questions and Replies)

Order56 10/02/2005 06/04/2005 217 Social Security Pensions (Low Earnings Threshold)

Order



8 November 2005


56 10/02/2005 06/04/2005 216 Social Security Revaluation of Earnings FactorsOrder

54 08/12/2005 30/01/2006 3321 Social Security (Electronic Communications)(Miscellaneous Benefits) Order

52 14/02/2005 06/04/2005 228 Anthrax Prevention Order 1971 etc (Revocation)Regulations

47 20/10/2005 05/12/2005 2877 Civil Partnership (Pensions, Social Security andChild Support) (Consequential, etc Provisions)Order

47 20/10/2005 05/12/2005 2878 Social Security (Civil Partnership) (ConsequentialAmendments) Regulations

46 17/11/2005 01/01/2006 3156 Occupational Pensions (Revaluation) Order46 15/02/2005 01/04/2005 273 Housing Benefit and Council Tax Benefit

(Miscellaneous Amendments) Regulations43 24/10/2005 05/12/2005 2901 Disability Discrimination (Service Providers and

Public Authorities Carrying Out Functions)Regulations

42 25/10/2005 05/12/2005 2966 Disability Discrimination (Public Authorities)(Statutory Duties) Regulations

40 22/09/2005 31/10/2005 2571 Chemicals (Hazard Information and Packaging forSupply) (Amendment) Regulations

36 26/09/2005 31/10/2005 2604 Social Security (Incapacity Benefit Work-focusedInterviews) Amendment (No 2) Regulations

35 25/10/2005 28/11/2005 2906 Protected Rights (Transfer Payment) (Amendment)35 29/07/2005 01/09/2005 2052 Discretionary Housing Payments (Grants)

Amendment Order32 01/07/2005 01/08/2005 1719 Housing Benefit (General) (Amendment)

Regulations29 18/02/2005 18/03/2005 337 Social Security, Child Support and Tax Credits

(Miscellaneous Amendments) Regulations29 09/03/2005 06/04/2005 449 Pension Protection Fund (Hybrid Schemes)

(Modification) Regulations29 22/12/2005 19/01/2006 3476 Social Security (Payments on account,

Overpayments and Recovery) AmendmentRegulations

28 10/03/2005 06/04/2005 455 Social Security (Claims and Payments) Amendment28 10/03/2005 06/04/2005 454 Social Security (Graduated Retirement Benefit)

Regulations28 10/03/2005 06/04/2005 469 Social Security (Retirement Pensions etc)

(Transitional Provisions) Regulations28 10/03/2005 06/04/2005 650 Pension Protection Fund (Maladministration)

Regulations28 10/03/2005 06/04/2005 453 Social Security (Deferral of Retirement Pensions

etc)28 14/02/2005 13/03/2005 236 Rent OYcers (Housing Benefit Functions) (Local

Housing Allowance) Amendment Order28 08/11/2005 05/12/2005 3070 Vaccine Damage Payments (Amendment)

Regulations28 08/11/2005 05/12/2005 3061 Social Fund Maternity and Funeral Expenses

(General) Regulations28 14/02/2005 13/03/2005 238 Housing Benefit (General) (Local Housing

Allowance) Amendment Regulations27 12/01/2005 07/02/2005 3 Social Security (Incapacity Benefit Work-focused

Interviews) Amendment Regulations27 22/11/2005 18/12/2005 3205 State Pension Credit (Amendment) Regulations



8 November 2005


27 09/11/2005 05/12/2005 3078 Social Security (Retirement Pensions andGraduated Retirement Benefit) (Widowers and CivilPartnership)

27 18/03/2005 13/04/2005 633 Social Security (Industrial Injuries) (Dependency)(Permitted Earnings Limits) Order

26 05/07/2005 30/07/2005 1744 Employment Zones (Amendment) Regulations26 07/10/2005 01/11/2005 2724 Social Fund Cold Weather Payments (General)

Amendment Regulations25 30/09/2005 24/10/2005 2687 Social Security (Care Homes and Independent

Hospitals) Regulations25 09/09/2005 03/10/2005 2465 Social Security (Miscellaneous Amendment)

(No 2)25 18/02/2005 14/03/2005 324 Social Security (Industrial Injuries) (Prescribed

Diseases) Amendment Regulations25 06/12/2005 30/12/2005 3294 Housing Benefit and Council Tax Benefit

(Miscellaneous Amendments) (No 5) Regulations25 07/04/2005 01/05/2005 1121 Disability Discrimination (Providers of Services)

(Adjustment of Premises) (Amendment) Regulations25 10/03/2005 03/04/2005 573 Housing Benefit and Council Tax Benefit

(Miscellaneous Amendments) (No 2) Regulations25 27/05/2005 20/06/2005 1440 Pension Protection Fund (Pension Protection Levies

Consultation) Regulations25 08/07/2005 01/08/2005 1807 Social Security (Students and Income-related

Benefits) Amendment Regulations25 18/03/2005 11/04/2005 632 Social Security Benefits Up-rating Regulations24 25/02/2005 20/03/2005 369 Income-related Benefits (Subsidy to Authorities)

Amendment Order24 14/03/2005 06/04/2005 577 Stakeholder Pension Schemes (Amendment)

Regulations24 08/09/2005 01/10/2005 2446 Social Security (Incapacity) (Miscellaneous

Amendments) Regulations24 14/03/2005 06/04/2005 555 Contracting-out, Protected Rights and Safeguarded

Rights (Transfer Payment) Amendment Regulations24 09/08/2005 01/09/2005 2154 Social Security (Claims and Payments) Amendment

(No 3) Regulations24 08/09/2005 01/10/2005 2451 Biocidal Products (Amendment) Regulations23 10/03/2005 01/04/2005 590 Pension Protection Fund (Entry Rules) Regulations23 10/03/2005 01/04/2005 535 Income-related Benefits (Subsidy to Authorities)

Amendment (No 2) Order23 10/03/2005 01/04/2005 597 Register of Occupational and Personal Pension

Schemes Regulations23 09/09/2005 01/10/2005 2466 Genetically Modified Organisms (Contained Use)

(Amendment) Regulations23 15/03/2005 06/04/2005 616 Pension Protection Fund (Appointment of Ordinary

Members) Regulations23 10/08/2005 01/09/2005 2184 Occupational Pension Schemes (Fraud

Compensation Payments and MiscellaneousAmendments) Regulations

23 22/03/2005 13/04/2005 832 Workmen’s Compensation (Supplementation)(Amendment) Scheme

23 15/03/2005 06/04/2005 686 Pensions Regulator (Freezing Orders andConsequential Amendments) Regulations

23 10/03/2005 01/04/2005 626 Occupational and Personal Pension Schemes(General Levy) Regulations

22 16/03/2005 06/04/2005 735 Work at Height Regulations



8 November 2005


22 16/03/2005 06/04/2005 704 Personal and Occupational Pension Schemes(Indexation and Disclosure of Information)(Miscellaneous Amendments) Regulations

22 16/06/2005 07/07/2005 1610 Pension Protection Fund (Payments to meetInvestment Costs) Regulations

22 20/07/2005 10/08/2005 1923 Occupational Pension Schemes (Equal Treatment)(Amendment) Regulations

22 21/03/2005 11/04/2005 703 Occupational Pension Schemes (IndependentTrustee)

22 01/04/2005 22/04/2005 928 Export and Import of Dangerous ChemicalsRegulations

22 10/10/2005 31/10/2005 2727 Social Security (Work-focused Interviews)Amendment Regulations

22 14/11/2005 05/12/2005 3164 Occupational and Personal Pension Schemes (CivilPartnership) (Miscellaneous Amendments)Regulations

22 16/03/2005 06/04/2005 676 Health and Safety (Fees) Regulations22 20/10/2005 10/11/2005 2893 Pension Protection Fund (Insolvent Partnerships)

(Amendment of Insolvency Events) Order22 16/03/2005 06/04/2005 674 Pension Protection Fund (Provision of Information)22 16/03/2005 06/04/2005 729 Statutory Maternity Pay (General) (Amendment)

Regulations22 01/09/2005 22/09/2005 2426 Occupational Pension Schemes (Administration and

Audited Accounts) (Amendment) Regulations22 16/03/2005 06/04/2005 675 Pension Protection Fund (Statement of Investment

Principles) Regulations22 21/03/2005 11/04/2005 777 Social Security (Claims and Payments) Amendment

(No 2) Regulations22 16/03/2005 06/04/2005 678 Occupational Pension Schemes (Employer Debt)

Regulations22 12/09/2005 03/10/2005 2502 Housing Benefit and Council Tax Benefit

(Miscellaneous Amendments) (No 3) Regulations22 06/04/2005 27/04/2005 992 Occupational and Personal Pension Schemes

(Pension Liberation) Regulations22 09/12/2005 30/12/2005 3378 Occupational Pension Schemes (Investment)

Regulations22 11/10/2005 01/11/2005 2743 Pensions Ombudsman (Disclosure of Information)

(Amendment of Specified Persons) Order22 09/12/2005 30/12/2005 3377 Occupational Pension Schemes (Scheme Funding)22 16/03/2005 06/04/2005 672 Pension Protection Fund (Valuation) Regulations22 16/02/2005 09/03/2005 339 Pension Protection Fund (Limit on Borrowing)

Order22 09/12/2005 30/12/2005 3381 Occupational Pension Schemes (Cross-border

Activities) Regulations22 09/12/2005 30/12/2005 3380 Occupational Pension Schemes (Regulatory Own

Funds) Regulations22 01/09/2005 22/09/2005 2401 Pension Schemes (Categories) Regulations22 18/08/2005 08/09/2005 2294 Social Security (Tax Credits) Amendment

Regulations22 01/09/2005 22/09/2005 2360 Occupational Pension Schemes (Trust and

Retirement Benefits Exemption) Regulations22 03/08/2005 24/08/2005 2153 Pension Protection Fund (Entry Rules)

Amendment22 10/08/2005 31/08/2005 2159 Occupational Pension Schemes (Winding Up)

(Modification for Multi-employer Schemes andMiscellaneous Amendments) Regulations



8 November 2005


22 11/08/2005 01/09/2005 2188 Pensions Regulator (Financial Support Directionsetc)

22 11/08/2005 01/09/2005 2189 Financial Assistance Scheme (Provision ofInformation and Administration of Payments)Regulations

22 16/03/2005 06/04/2005 600 Pension Protection Fund (Reviewable Matters)Regulations

22 14/03/2005 04/04/2005 574 Social Security (Miscellaneous Amendments)Regulations

22 12/08/2005 02/09/2005 2224 Occupational Pension Schemes (Employer Debt etc)(Amendment) Regulations

22 09/12/2005 30/12/2005 3379 Occupational Pension Schemes (Internal Controls)22 19/01/2005 09/02/2005 48 Social Security Pensions (Home Responsibilities)

(Amendment) Regulations22 25/01/2005 15/02/2005 72 Occupational Pension Schemes (Winding Up,

Deficiency on Winding Up and Transfer Values)(Amendment) Regulations

22 15/06/2005 06/07/2005 1551 Social Security (Shared Additional Pension)(Miscellaneous Amendments) Regulations

22 16/03/2005 06/04/2005 670 Pension Protection Fund (Compensation)Regulations

22 05/04/2005 26/04/2005 1082 Manufacture and Storage of Explosives Regulations22 16/03/2005 06/04/2005 669 Pension Protection Fund (Review and

Reconsideration of Reviewable Matters)Regulations

22 20/10/2005 10/11/2005 2894 Housing Benefit and Council Tax Benefit(Miscellaneous Amendments) (No 4) Regulations

22 16/03/2005 06/04/2005 652 Pension Protection Fund (Reviewable Ill HealthPensions) Regulations

22 15/02/2005 08/03/2005 277 Pension Protection Fund (Partially GuaranteedSchemes) (Modification) Regulations

22 16/03/2005 06/04/2005 649 Transfer of Employment (Pension Protection)Regulations

22 31/03/2005 21/04/2005 891 Occupational Pension Schemes (Contracting-out)(Amount Required for Restoring State SchemeRights) Amendment Regulations

15 23/03/2005 06/04/2005 706 Occupational Pension Schemes (Winding Up etc)Regulations

13 24/03/2005 05/04/2005 846 Social Security (Graduated Retirement Benefit)(Amendment) Regulations

8 30/03/2005 06/04/2005 931 Pensions Regulator (Contribution Notices andRestoration Orders) Regulations

8 02/03/2005 09/03/2005 441 Pension Protection Fund (Multi-employer Schemes)(Modification) Regulations

7 31/03/2005 06/04/2005 900 Pensions Regulator (Notifiable Events) Regulations2005

7 31/03/2005 06/04/2005 989 Statutory Maternity Pay (General) and StatutorySick Pay (General) (Amendment) Regulations

4 29/07/2005 01/08/2005 2113 Occupational Pension Schemes (MiscellaneousAmendments) Regulations

4 09/12/2005 12/12/2005 3391 Income-related Benefits (Amendment) (No 2)Regulations

2 31/03/2005 01/04/2005 993 Occupational Pension Schemes and PensionProtection Fund (Amendment) Regulations



8 November 2005


2 04/08/2005 05/08/2005 2183 Income-related Benefits (Amendment) RegulationsTotal SIs for Dept for Work and Pensions % 123

Department of Culture, Media and Sport


119 29/07/2005 24/11/2005 2091 Licensing Act 2003 (Second appointed day) Order38 23/02/2005 01/04/2005 374 Awards for All (England) Joint Scheme

(Authorisation) Order34 29/11/2005 01/01/2006 3274 Parks for People (England) Joint Scheme

(Authorisation)33 30/06/2005 01/08/2005 1751 Football Spectators (Seating) Order29 13/10/2005 10/11/2005 2868 Royal Parks (Establishment of Eligibility for

Transfer and Termination of Employment)Regulations

28 04/04/2005 01/05/2005 1085 Planning (Listed Buildings and Conservation Areas)(Amendment) (England) Regulations

26 13/01/2005 07/02/2005 43 Licensing Act (Licensing authority’s register) (otherinformation) Regulations

26 13/01/2005 07/02/2005 42 Licensing Act 2003 (Premises licences and clubpremises certificates) Regulations

26 13/01/2005 07/02/2005 41 Licensing Act 2003 (Personal licences) Regulations26 13/01/2005 07/02/2005 40 Licensing Act 2003 (Transitional provisions) Order26 13/01/2005 07/02/2005 44 Licensing Act 2003 (Hearings) Regulations25 07/09/2005 01/10/2005 2470 Millennium Commission (Reduction in

Membership) Order24 09/03/2005 01/04/2005 566 Gaming Act 1968 (Variation of Fees) (England and

Wales)24 01/11/2005 24/11/2005 3027 Licensing Act 2003 (Amendment of the Gaming Act

1968) (Transfer of Gaming Machine Permits) Order24 08/06/2005 01/07/2005 1519 Public Lending Right Scheme 1982

(Commencement of Variations) Order24 09/03/2005 01/04/2005 567 Gaming Act 1968 (Variation of Fees) Order24 09/03/2005 01/04/2005 568 Lotteries (Gaming Board Fees) Order24 06/12/2005 29/12/2005 3351 Public Lending Right Scheme 1982

(Commencement of Variation) (No 2) Order24 30/06/2005 23/07/2005 1748 Safety of Sports Grounds (Designation) Order24 09/03/2005 01/04/2005 570 Gaming (Bingo) Act 1985 (Fees) Order24 08/06/2005 01/07/2005 1522 Royal Parks (Regulation of Specified Parks) Order24 01/11/2005 24/11/2005 3028 Licensing Act 2003 (Amendment of the Lotteries

and Amusements Act 1976) (Transfer ofAmusements With Prizes

23 02/11/2005 24/11/2005 3048 Licensing Act 2003 (Consequential Amendments)Order

23 10/03/2005 01/04/2005 608 Transformational Grants, Joint Scheme(Authorisation) Order

23 10/03/2005 01/04/2005 606 Communications (Television Licensing)(Amendment)

22 26/08/2005 16/09/2005 2366 Licensing Act 2003 (Personal licence: relevantoVences) (Amendment) Order

22 20/10/2005 10/11/2005 2918 Licensing Act 2003 (Permitted TemporaryActivities) (Notices) Regulations

22 10/10/2005 31/10/2005 2776 Gaming Act 1968 (Variation of Monetary Limits)Order



8 November 2005


22 10/10/2005 31/10/2005 2775 Gaming Machines (Maximum Prizes) Regulations19 20/01/2005 07/02/2005 80 Licensing Act 2003 (Transitional conversions fees)

Order19 20/01/2005 07/02/2005 79 Licensing Act 2003 (Fees) Regulations19 20/01/2005 07/02/2005 78 Licensing Act 2003 (Hearings) (Amendment)

Regulations15 07/02/2005 21/02/2005 220 Foreign Satellite Service Proscription Order2 22/02/2005 23/02/2005 357 Licensing Act 2003 (Fees) (Amendment) Regulations2 19/07/2005 20/07/2005 1974 Protection of Wrecks (Designation) (England) Order1 07/07/2005 07/07/2005 1830 Olympic Lotteries (Declaration that London is to

host the 2012 Olympic Games) OrderTotal SIs for Dept of Culture, Media and Sport % 36

Department of Health


150 05/08/2005 01/01/2006 2059 Food Hygiene (England) Regulations116 02/08/2005 25/11/2005 2057 Food Labelling (Amendment) (England) (No 2)

Regulations96 28/09/2005 01/01/2006 2626 OYcial Feed and Food Controls (England)

Regulations93 30/12/2005 01/04/2006 3491 National Health Service (Performers Lists)

Amendment Regulations78 15/07/2005 30/09/2005 1872 Postgraduate Medical Education and Training

Board (Fees) Rules Order59 04/11/2005 01/01/2006 2991 Fishery Products (OYcial Controls Charges)

(England) Regulations59 04/11/2005 01/01/2006 2983 Meat (OYcial Controls Charges) (England)

Regulations58 24/03/2005 20/05/2005 899 Food Labelling (Amendment) (England)

Regulations 200555 07/04/2005 31/05/2005 1094 Medicines (Advisory Bodies) Regulations54 09/11/2005 01/01/2006 3068 Bovine Products (Restriction on Placing on the

Market) (England) (No 2) Regulations54 08/08/2005 30/09/2005 2120 General and Specialist Medical Practice (Education,

Training and Qualifications) Amendment Order51 18/08/2005 07/10/2005 2279 Health and Social Care (Community Health and

Standards) Act 2003 (Savings) Order45 28/09/2005 11/11/2005 2630 Tryptophan in Food (England) Regulations42 21/07/2005 31/08/2005 1920 Honey (Amendment) (England) Regulations37 27/07/2005 01/09/2005 2028 National Health Service Appointments Commission

(Establishment and Constitution) (Amendment)Order

33 30/11/2005 01/01/2006 3251 Contaminants in Food (England) Regulations32 01/12/2005 01/01/2006 3259 Medicines (Pharmacies) (Applications for

Registration and Fees) Amendment Regulations32 16/12/2005 16/01/2006 3393 East Sussex County Healthcare National Health

Service Trust (Transfer of Trust Property) Order32 01/07/2005 01/08/2005 1710 Medicines (Provision of False or Misleading

Information and Miscellaneous Amendments)Regulations

30 26/08/2005 24/09/2005 2359 Food Safety (General Food Hygiene) (Amendment)(England) Regulations



8 November 2005


30 02/09/2005 01/10/2005 2414 NHS Business Services Authority (AwdurdodGwasanaethau Busnes y GIG) (Establishment andConstitution) Order

30 02/09/2005 01/10/2005 2427 Chelsea and Westminster Healthcare NationalHealth Service Trust (Transfer of Trust Property)Order

30 02/09/2005 01/10/2005 2415 NHS Business Services Authority (AwdurdodGwasanaethau Busnes y GIG) Regulations

29 09/12/2005 06/01/2006 3324 Medicines for Human Use (Prescribing)(Miscellaneous Amendments) (No 2) Order

29 07/06/2005 05/07/2005 1501 National Health Service (Pharmaceutical Services)(Amendment No 2) Regulations

29 17/06/2005 15/07/2005 1622 Health and Social Care (Community Health andStandards) Act 2003 (Public Health LaboratoryService Board) (Consequential Provisions) Order

29 23/11/2005 21/12/2005 3206 West SuVolk Hospitals National Health ServiceTrust (Transfer of Trust Property) Order

29 10/10/2005 07/11/2005 2719 Bovine Products (Restriction on Placing on theMarket) (England) Regulations

29 09/12/2005 06/01/2006 3315 National Health Service (Primary Medical Services)(Miscellaneous Amendments) (No 2) Regulations

29 02/09/2005 30/09/2005 2361 General and Specialist Medical Practice (Education,Training and Qualifications) Transitional ProvisionsOrder

29 04/07/2005 01/08/2005 1781 NHSU Abolition Order29 03/06/2005 01/07/2005 1447 NHS Institute for Innovation and Improvement

Regulations29 03/06/2005 01/07/2005 1446 NHS Institute for Innovation and Improvement

(Establishment and Constitution) Order29 03/06/2005 01/07/2005 1445 National Health Service Litigation Authority

(Establishment and Constitution) Amendment(No 2) Order

29 25/10/2005 22/11/2005 2909 Medical Devices (Amendment) Regulations28 05/12/2005 01/01/2006 3280 Feed (Hygiene and Enforcement) (England)

Regulations28 05/12/2005 01/01/2006 3281 Feeding StuVs (England) Regulations28 28/10/2005 24/11/2005 2969 Food Labelling (Amendment) (England) (No 2)

(Amendment) Regulations28 08/11/2005 05/12/2005 3074 National Health Service (Pension Scheme, Injury

Benefits, Additional Voluntary Contributions andCompensation for Premature Retirement) (CivilPartnership) Amendment

26 10/03/2005 04/04/2005 556 TSE (England) (Amendment) Regulations26 10/03/2005 04/04/2005 557 Feeding StuVs (Establishments and Intermediaries)

(Amendment) (England) Regulations26 07/04/2005 02/05/2005 1100 National Health Service (Standing Advisory

Committees) Amendment Order26 24/03/2005 18/04/2005 896 General Medical Council (Legal Assessors)

(Amendment)25 18/03/2005 11/04/2005 708 National Assistance (Sums for Personal

Requirements and Assessment of Resources)(Amendment) (England) Regulations 2005

25 07/03/2005 31/03/2005 398 Cambridge University Hospitals National HealthService Foundation Trust (Transfer of TrustProperty) Order



8 November 2005


25 07/04/2005 01/05/2005 1124 Medicines for Human Use (Fees Amendments)Regulations

25 07/03/2005 31/03/2005 451 West Hertfordshire Hospitals National HealthService Trust (Transfer of Trust Property) Order

24 07/10/2005 30/10/2005 2750 Medicines (Traditional Herbal Medicinal Productsfor Human Use) Regulations

24 07/06/2005 30/06/2005 1481 Contact Lens (Specification) and MiscellaneousAmendments Regulations

24 09/03/2005 01/04/2005 456 Sunderland Teaching Primary Care Trust (Transferof Trust Property) Order

24 09/03/2005 01/04/2005 464 Smoke Flavourings (England) Regulations24 09/12/2005 01/01/2006 3361 National Health Service (General Dental Services

Contracts) Regulations24 07/10/2005 30/10/2005 2759 Medicines (Marketing Authorisations Etc)

Amendment Regulations24 07/10/2005 30/10/2005 2753 Medicines (Homoeopathic Medicinal Products for

Human Use) Amendment Regulations24 09/12/2005 01/01/2006 3373 National Health Service (Personal Dental Services

Agreements) Regulations24 07/10/2005 30/10/2005 2754 Medicines (Advisory Bodies) (No 2) Regulations24 09/03/2005 01/04/2005 480 National Health Service (General Ophthalmic

Services Supplementary List) and (GeneralOphthalmic Services Amendment andConsequential Amendment) Regulations

24 09/03/2005 01/04/2005 444 Surrey Hampshire Borders National Health ServiceTrust (Transfer of Trust Property) order

23 17/10/2005 08/11/2005 2898 Blood Safety and Quality (Amendment) (No 2)Regulations

23 12/12/2005 03/01/2006 3362 Feeding StuVs (Application to ZootechnicalAdditives etc.) (Scotland) Regulations

23 10/03/2005 01/04/2005 578 National Health Service (Charges for Drugs andAppliances) and (Travel Expenses and Remission ofCharges) Amendment Regulations

23 10/03/2005 01/04/2005 436 University Hospital of North StaVordshire NationalHealth Service Trust (Transfer of Trust Property)Order

23 10/03/2005 01/04/2005 525 Health Protection Agency Act 2004 (NationalRadiological Protection Board and HealthProtection Agency Special Health Authority(Yr Asiantaeth Diogelu Iechyd)) (ConsequentialProvisions) Order

23 09/09/2005 01/10/2005 2532 National Blood Authority and United KingdomTransplant (Abolition) Order

23 09/09/2005 01/10/2005 2531 NHS Blood and Transplant (Gwaed aThrawsblaniadau’r GIG) Regulations

23 10/03/2005 01/04/2005 500 Health and Social Care Information CentreRegulations

23 10/03/2005 01/04/2005 502 Special Health Authorities Abolition Order23 10/03/2005 01/04/2005 503 National Health Service Litigation Authority

(Establishment and Constitution) AmendmentOrder

23 10/03/2005 01/04/2005 504 National Patient Safety Agency (Establishment andConstitution) Amendment Order

23 10/03/2005 01/04/2005 499 Health and Social Care Information Centre(Establishment and Constitution) Order



8 November 2005


23 10/03/2005 01/04/2005 519 Colours in Food (Amendment) (England)Regulations

23 09/09/2005 01/10/2005 2529 NHS Blood and Transplant (Gwaed aThrawsblaniadau’r GIG) (Establishment andConstitution) Order

23 10/03/2005 01/04/2005 647 Commission for Healthcare Audit and Inspection(Fees and Frequency of Inspections) (Amendment)Regulations

23 10/03/2005 01/04/2005 641 National Health Service (Pharmaceutical Services)Regulations

23 10/03/2005 01/04/2005 604 National Health Service Liabilities SchemesAmendment Regulations

23 10/01/2005 01/02/2005 6 Retained Organs Commission (Abolition) Order23 10/03/2005 01/04/2005 575 Commission for Social Care Inspection (Fees and

Frequency of Inspections) (Amendment)Regulations

23 10/03/2005 01/04/2005 576 National Health Service (Dental Charges)Amendment

23 10/03/2005 01/04/2005 518 General Medical Services and Personal MedicalServices Transitional and Consequential Provisions(Amendment)

23 08/06/2005 30/06/2005 1520 Medicines (Sale or Supply) (MiscellaneousAmendments) Regulations

23 10/03/2005 01/04/2005 497 National Institute for Clinical Excellence(Establishment and Constitution) AmendmentOrder

23 08/06/2005 30/06/2005 1507 Medicines for Human Use (Prescribing)(Miscellaneous Amendments) Order

23 10/03/2005 01/04/2005 483 National Health Service (Optical Charges andPayments) and (General Ophthalmic Services)Amendment Regulations

23 10/03/2005 01/04/2005 491 Care Standards Act 2000 (Relevant Registers ofSocial Workers) Regulations

23 10/03/2005 01/04/2005 475 Road TraYc (NHS Charges) AmendmentRegulations

23 10/03/2005 01/04/2005 498 National Institute for Clinical Excellence(Amendment) Regulations

22 13/12/2005 03/01/2006 3435 General Dental Services and Personal DentalServices Transitional Provisions Order

22 17/03/2005 07/04/2005 764 Medicines (Sale or Supply) (MiscellaneousProvisions) Amendment Regulations 2005

22 15/03/2005 05/04/2005 661 National Health Service (Pension Scheme andInjury Benefits) Amendment Regulations

22 24/03/2005 14/04/2005 893 National Health Service (Primary Medical Services)(Miscellaneous Amendments) Regulations

22 07/04/2005 28/04/2005 1099 Miscellaneous Food Additives (Amendment)(England) Regulations

22 10/03/2005 31/03/2005 631 Health and Social Care (Community Health andStandards) Act 2003 (Commission for HealthcareAudit and Inspection) (Transitional Provisions)Order

22 07/04/2005 28/04/2005 1096 Carers (Equal Opportunities) Act 2004 (Isles ofScilly) Order

22 11/01/2005 01/02/2005 26 National Health Service (Travel Expenses andRemission of Charges) Amendment Regulations

22 18/01/2005 08/02/2005 50 Blood Safety and Quality Regulations



8 November 2005


22 21/03/2005 11/04/2005 775 Contaminants in Food (England) (Amendment)Regulations

22 04/03/2005 25/03/2005 408 Health Protection Agency Regulations22 17/03/2005 07/04/2005 766 Medicines (Pharmacy and General Sale—

Exemption) Amendment Order 200522 17/03/2005 07/04/2005 768 Medicines for Human Use (Marketing

Authorisations Etc) Amendment Regulations 200522 26/10/2005 16/11/2005 2979 Medicines for Human Use (Fees Amendments) (No

2)22 17/03/2005 07/04/2005 765 Medicines for Human Use (Prescribing) Order22 23/09/2005 14/10/2005 2603 National Health Service Estate Management and

Health Building Agency Trading Fund (Revocation)Order

22 04/02/2005 25/02/2005 209 Poultry Meat, Farmed Game Bird Meat and RabbitMeat (Hygiene and Inspection) (Amendment)(England) Regulations

22 16/03/2005 06/04/2005 688 Welfare Food (Amendment) Regulations21 10/10/2005 30/10/2005 2787 Medicines (Advertising Amendments) Regulations21 10/10/2005 30/10/2005 2788 Medicines (Advisory Bodies) (Terms of OYce of

Members) Regulations21 10/10/2005 30/10/2005 2789 Medicines for Human Use (Manufacturing,

Wholesale Dealing and MiscellaneousAmendments) Regulations

11 01/03/2005 11/03/2005 325 Plastic Materials and Articles in Contact with Food(Amendment) (England) Regulations

6 24/03/2005 29/03/2005 898 Materials and Articles in Contact with Food(England) Regulations 2005

4 02/12/2005 05/12/2005 3277 National Assistance (Assessment of Resources)(Amendment) (England) Regulations

4 04/02/2005 07/02/2005 208 Food (Pistachios from Iran) (Emergency Control)(England) (Amendment) Regulations

2 12/01/2005 13/01/2005 28 National Health Service (General Medical ServicesContracts) (Personal Medical Services Agreements)and (Pharmaceutical Services) (Amendment)Regulations

2 01/06/2005 02/06/2005 1442 Food (Chilli, Chilli Products, Curcuma and PalmOil) (Emergency Control) (England) Regulations

2 31/03/2005 01/04/2005 1015 National Health Service (Pharmaceutical Services)Amendment Regulations

2 07/04/2005 08/04/2005 1098 Blood Safety and Quality (Amendment)Regulations

Total SIs for Dept of Health Transport % 115

Department of Trade and Industry


268 07/10/2005 01/07/2006 2748 Restriction of the Use of Certain HazardousSubstances in Electrical and Electronic EquipmentRegulations

130 25/05/2005 01/10/2005 1401 Textile Products (Indications of Fibre Content)(Amendment) Regulations

126 02/08/2005 05/12/2005 2114 Civil Partnership Act 2004 (Amendments toSubordinate Legislation) Order



8 November 2005


92 05/01/2006 06/04/2006 3558 Enterprise Act 2002 (Merger Fees) (Amendment)Order

88 06/07/2005 01/10/2005 1803 General Product Safety Regulations85 12/01/2005 06/04/2005 37 Supply of Extended Warranties on Domestic

Electrical Goods Order83 11/07/2005 01/10/2005 1871 Employment Appeal Tribunal (Amendment) Rules83 11/07/2005 01/10/2005 1865 Employment Tribunals (Constitution and Rules of

Procedure) (Amendment) (No 2) Regulations80 11/02/2005 01/05/2005 280 Gas Act 1986 (Exemption) (No 2) Order75 23/06/2005 05/09/2005 1654 Nuclear Industries Security (Fees) Regulations74 20/07/2005 01/10/2005 1989 Limited Liability Partnerships (Amendment)

Regulations74 20/07/2005 01/10/2005 1984 Bank Accounts Directive (Miscellaneous Banks)

(Amendment) Regulations74 20/07/2005 01/10/2005 1985 Insurance Accounts Directive (Miscellaneous

Insurance Undertakings) (Amendment) Regulations74 20/07/2005 01/10/2005 1987 Partnerships and Unlimited Companies (Accounts)

(Amendment) Regulations66 31/01/2005 06/04/2005 148 Unsolicited Goods and Services Act 1971

(Electronic Commerce) (Amendment) Regulations62 03/02/2005 05/04/2005 435 Employment Tribunals (Constitution and Rules of

Procedure) (Amendment) Regulations57 07/12/2005 01/02/2006 3352 The Employment Rights (Increase of Limits) Order53 08/02/2005 01/04/2005 223 Copyright (Educational Establishments) Order48 15/08/2005 01/10/2005 2281 Companies (Summary Financial Statement)

(Amendment) Regulations48 07/12/2005 23/01/2006 3347 Competition Act 1998 (Public Transport Ticketing

Schemes Block Exemption) (Amendment) Order48 15/08/2005 01/10/2005 2282 Companies (Revision of Defective Accounts and

Report) (Amendment) Regulations43 21/07/2005 01/09/2005 2001 Dangerous Substances and Preparations (Nickel)

(Safety) Regulations43 23/02/2005 06/04/2005 358 Statutory Maternity Pay (General) and Statutory

Paternity Pay and Statutory Adoption Pay(General) (Amendment)

40 23/08/2005 01/10/2005 2340 Enterprise Act 2002 (Bodies Designated to makeSuper-complaints) (Amendment) Order

40 23/08/2005 01/10/2005 2339 Community Design Regulations39 24/03/2005 01/05/2005 831 Supply of Machinery (Safety) (Amendment)

Regulations39 24/03/2005 01/05/2005 830 Equipment and Protective Systems Intended for Use

in Potentially Explosive Atmospheres(Amendment)

37 26/08/2005 01/10/2005 2365 Specified Body (Consumer Claims) Order37 09/11/2005 15/12/2005 3103 Monopolies and Restrictive Practices (Dental

Goods), (Imported Hardwood and SoftwoodTimber) and (Estate Agents) (Revocation) Order

37 26/08/2005 01/10/2005 2364 Compromise Agreements (Description of Person)Order

35 28/09/2005 01/11/2005 2670 Restriction On Conduct (Specialist AdvertisingServices) (Revocation) Order

32 30/12/2005 30/01/2006 3524 Insolvency Practitioners and Insolvency ServicesAccount (Fees) (Amendment) (No 2) Order

32 31/08/2005 01/10/2005 2417 Companies (Disclosure of Auditor Remuneration)Regulations



8 November 2005


31 31/08/2005 30/09/2005 2418 Enterprise Act 2002 (Part 8 CommunityInfringements Specified UK Laws) (Amendment)Order

31 01/09/2005 01/10/2005 2420 Employment Code of Practice (Industrial ActionBallots and Notice to Employers) Order

31 01/09/2005 01/10/2005 2421 Employment Code of Practice (Access and UnfairPractices during Recognition and DerecognitionBallots) Order

29 04/03/2005 01/04/2005 440 Community Trade Mark (Designation ofCommunity Trade Mark Courts) Regulations

29 15/12/2005 12/01/2006 3442 Companies Act 1985 (Operating and FinancialReview) (Repeal) Regulations

29 02/11/2005 30/11/2005 3041 Electricity (Exemption from the Requirements for aGeneration Licence) (Scotland) Order

27 23/02/2005 21/03/2005 355 Restriction on Agreements (Manufacturers andImporters of Motor Cars) (Revocation) Order

26 14/11/2005 09/12/2005 3153 Renewable Energy (Designation of Area) (ScottishMinisters) Order

26 11/08/2005 05/09/2005 2243 Company Auditors (Recognition Orders)(Application Fees) and the Companies Act 1989(Recognised Supervisory Bodies) (Periodical Fees)(Revocation) Regulations

25 08/03/2005 01/04/2005 488 Electricity (Class Exemption from the Requirementfor a Licence) (Amendment) Order

25 07/11/2005 01/12/2005 3098 Films (Exclusivity Agreements) (Revocation) Order25 08/03/2005 01/04/2005 490 Electricity Act 1989 (Uniform Prices in the North of

Scotland) Order25 11/11/2005 05/12/2005 3135 Civil Partnership Act 2004 (Overseas Relationships)

Order25 07/09/2005 01/10/2005 2467 Employment Equality (Sex Discrimination)

Regulations25 07/09/2005 01/10/2005 2464 Public Interest Disclosure (Prescribed Persons)

(Amendment) Order25 08/03/2005 01/04/2005 523 Insolvency Practitioners and Insolvency Services

Account (Fees) (Amendment) Order25 07/09/2005 01/10/2005 2483 Energy Administration Rules25 07/12/2005 31/12/2005 3346 Cosmetic Products (Safety) (Amendment) (No 2)

Regulations25 08/03/2005 01/04/2005 524 Insolvency Practitioners Regulations25 11/11/2005 05/12/2005 3137 Civil Partnership Act 2004 (Relationships Arising

Through Civil Partnership) Order25 08/03/2005 01/04/2005 528 Energy Act 2004 (Assistance for Areas with High

Distribution Costs) Order25 04/03/2005 28/03/2005 443 Trade in Goods (Control) (Amendment) Order25 04/03/2005 28/03/2005 445 Trade in Controlled Goods (Embargoed

Destinations) (Amendment) Order25 07/10/2005 31/10/2005 2751 Supply of Relevant Veterinary Medicinal Products

Order25 11/02/2005 07/03/2005 281 Electromagnetic Compatibility Regulations25 08/03/2005 01/04/2005 527 Insolvency (Amendment) Rules25 08/03/2005 01/04/2005 544 Insolvency Proceedings (Fees) (Amendment) Order25 08/03/2005 01/04/2005 512 Insolvency (Amendment) Regulations25 04/03/2005 28/03/2005 468 Export of Goods, Transfer of Technology and

Provision of Technical Assistance (Control)(Amendment) Order



8 November 2005


24 30/03/2005 22/04/2005 917 Enterprise Act 2002 (Part 8) (Designation of theConsumers’ Association) Order

24 03/10/2005 26/10/2005 2718 OYce of Communications (Membership) Order24 08/09/2005 01/10/2005 2496 Patents (Amendment) Rules24 08/06/2005 01/07/2005 1516 Insolvent Partnerships Amendment Order23 09/02/2005 03/03/2005 263 End-of-Life Vehicles (Producer Responsibility)

Regulations23 18/01/2005 09/02/2005 53 Enterprise Act 2002 (Judicial Pensions and

Retirement Act 1993) (Consequential Amendment)Order

23 22/06/2005 14/07/2005 1646 Electricity and Gas Appeals (Designation andExclusion)

23 06/07/2005 28/07/2005 1815 Cosmetic Products (Safety) (Amendment)Regulations

23 29/09/2005 21/10/2005 2705 Consumer Protection (Code of Practice for Traderson Price Indications) Approval Order

22 16/03/2005 06/04/2005 699 Companies (Defective Accounts) (AuthorisedPerson) Order

22 16/03/2005 06/04/2005 692 Reporting Standards (Specified Body) Order22 16/03/2005 06/04/2005 684 Companies Act 1985 (Power to Enter and Remain

on Premises: Procedural) Regulations22 16/03/2005 06/04/2005 696 Community Designs (Designation of Community

Design Courts) Regulations22 16/03/2005 06/04/2005 713 Certification OYcer (Amendment of Fees)

Regulations 200522 16/03/2005 06/04/2005 689 Consumer Protection (Distance Selling)

(Amendment)22 16/03/2005 06/04/2005 715 Supervision of Accounts and Reports (Prescribed

Body) Order 200522 11/08/2005 01/09/2005 2242 Electricity (Exemption from the Requirement for a

Generation Licence) (England and Wales) Order22 11/01/2005 01/02/2005 16 Gas Act 1986 (Exemption) Order22 15/08/2005 05/09/2005 2280 Companies Act 1985 (Investment Companies and

Accounting and Audit Amendments) Regulations22 16/03/2005 06/04/2005 687 Patents (Translations) Rules22 23/03/2005 13/04/2005 879 Insolvency Act 1986 (Amendment) Regulations22 25/02/2005 18/03/2005 391 Electricity (Fuel Mix Disclosure) Regulations5 30/12/2005 03/01/2006 3525 Noise Emission in the Environment by Equipment

for Use Outdoors (Amendment) Regulations2 25/11/2005 26/11/2005 3257 Export Control (Uzbekistan) Order1 09/02/2005 09/02/2005 232 Export Control (Iraq and Ivory Coast) Order1 27/06/2005 27/06/2005 1677 Export Control (Democratic Republic of Congo)

OrderTotal SIs for Dept of Trade and Industry % 88

General Synod Office


160 26/07/2005 01/01/2006 2016 Parochial Fees Order160 26/07/2005 01/01/2006 2018 Legal OYcers (Annual Fees) (No 2) Order160 26/07/2005 01/01/2006 2020 Ecclesiastical Judges, Legal OYcers and Others

(Fees) Order137 16/11/2005 01/04/2006 3202 Payments to the Churches Conservation Trust Order



8 November 2005


-47 18/02/2005 01/01/2005 336 Legal OYcers (Annual Fees) Order26/07/2005 2022 Clergy Discipline Rules21/11/2005 3201 Clergy Discipline Appeal Rules

Total SIs for General Synod OYce % 7

HM Customs and Excise


17 16/03/2005 01/04/2005 762 Value Added Tax (Amendment) Regulations 200517 16/03/2005 01/04/2005 759 Landfill Tax (Amendment) Regulations 2005

Total SIs for HM Customs and Excise % 2

HM Revenue & Customs


186 03/10/2005 06/04/2006 2691 Income Tax (Pay as You Earn) (Amendment)Regulations

113 15/12/2005 06/04/2006 3448 Registered Pension Schemes (Relief at Source)Regulations

113 15/12/2005 06/04/2006 3449 Registered Pension Schemes (Prescribed InterestRates for Authorised Employer Loans) Regulations

113 15/12/2005 06/04/2006 3458 Registered Pension Schemes (Restriction ofEmployers’ Relief) Regulations

113 15/12/2005 06/04/2006 3450 Registered Pension Schemes (MinimumContributions) Regulations

113 15/12/2005 06/04/2006 3453 Employer-Financed Retirement Benefits Schemes(Provision of Information) Regulations

113 15/12/2005 06/04/2006 3451 Registered Pension Schemes (Prescribed Schemesand Occupations) Regulations

113 15/12/2005 06/04/2006 3454 Registered Pension Schemes (Accounting andAssessment) Regulations

113 15/12/2005 06/04/2006 3455 Registered Pension Schemes and Employer-Financed Retirement Benefits Schemes(Information) (Prescribed Descriptions of Persons)Regulations

113 15/12/2005 06/04/2006 3452 Registered Pension Schemes (Discharge ofLiabilities under Sections 267 and 268 of theFinance Act 2004) Regulations

113 15/12/2005 06/04/2006 3456 Registered Pension Schemes (Audited Accounts)(Specified Persons) Regulations

113 15/12/2005 06/04/2006 3457 Taxes Management Act 1970 (Modifications toSchedule 3 for Pension Scheme Appeals) Order

94 30/06/2005 01/10/2005 1727 Gaming Duty (Amendment) Regulations44 20/07/2005 01/09/2005 1979 Excise Duties (Road Fuel Gas) (Reliefs)

Regulations33 30/11/2005 01/01/2006 3290 Value Added Tax (Input Tax) (Reimbursement by

Employers of Employees’ Business Use of RoadFuel) Regulations

28 05/12/2005 01/01/2006 3320 Hydrocarbon Oil Duties (Reliefs for ElectricityGeneration) Regulations

26 06/06/2005 01/07/2005 1449 Tonnage Tax (Further Opportunity for Election)Order

26 07/12/2005 01/01/2006 3371 Statistics of Trade (Customs and Excise)(Amendment) Regulations



8 November 2005


26 16/12/2005 10/01/2006 3472 Hydrocarbon Oil (Registered Remote Markers)Regulations

24 08/06/2005 01/07/2005 1524 Denatured Alcohol Regulations23 10/08/2005 01/09/2005 2231 Value Added Tax (Amendment) (No 2) Regulations22 19/12/2005 09/01/2006 3474 Income Tax (Building Societies) (Dividends and

Interest) (Amendment) Regulations22 06/12/2005 27/12/2005 3338 Lloyd’s Underwriters (Tax) Regulations22 13/07/2005 03/08/2005 1907 Pension Protection Fund (Tax) (2005–06)

Regulations22 05/09/2005 26/09/2005 2462 Taxes (Interest Rate) (Amendment) Regulations22 11/07/2005 01/08/2005 1869 Tax Avoidance Schemes (Information)

(Amendment)22 14/12/2005 04/01/2006 3441 Inheritance Tax (Double Charges Relief)

Regulations22 11/10/2005 01/11/2005 2790 Donations to charity by individuals (Appropriate

Declarations) (Amendment) Regulations22 08/08/2005 29/08/2005 2200 Tax Credit (Payment by Employers, etc)

(Amendment) Regulations22 01/07/2005 22/07/2005 1716 Climate Change Levy (Miscellaneous Amendments)22 11/07/2005 01/08/2005 1868 Stamp Duty Land Tax Avoidance Schemes

(Prescribed Descriptions of Arrangements)Regulations

11 22/07/2005 01/08/2005 2009 Value Added Tax (Disclosure of AvoidanceSchemes) (Amendment) Regulations

25/07/2005 2045 Income Tax (Construction Industry Scheme)Regulations

Total SIs for HM Revenue & Customs % 33

HM Treasury


242 08/08/2005 06/04/2006 2209 Income Tax (Car Benefits) (Reduction of Value ofAppropriate Percentage) (Amendment) Regulations

139 20/07/2005 05/12/2005 1997 Registration of Births, Deaths and Marriages (Fees)(Amendment) Order

139 20/07/2005 05/12/2005 1996 Registration of Civil Partnerships (Fees) Order128 24/02/2005 01/07/2005 382 Investment Recommendation (Media) Regulations116 08/06/2005 01/10/2005 1518 Financial Services and Markets Act 2000

(Regulated Activities) (Amendment) (No.2) Order105 17/11/2005 01/03/2006 3203 Cash Ratio Deposits (Eligible Liabilities)

(Amendment)103 21/06/2005 01/10/2005 1644 Financial Services and Markets Act 2000

(Administration Orders Relating to Insurers)(Northern Ireland) Order

65 01/02/2005 06/04/2005 166 Social Security (Contributions) (Amendment)Regulations

56 10/02/2005 06/04/2005 272 Financial Services and Markets Act 2000(Disclosure of Information by Prescribed Persons)(Amendment) Regulations

56 10/02/2005 06/04/2005 274 Financial Services and Markets Act 2000 (Service ofNotices) (Amendment) Regulations

55 08/08/2005 01/10/2005 2211 Friendly Societies Act 1992 (InternationalAccounting Standards and Other AccountingAmendments) Order



8 November 2005


55 08/08/2005 01/10/2005 2210 Friendly Societies (Accounts and RelatedProvisions) (Amendment) Regulations

47 20/10/2005 05/12/2005 2919 Civil Partnership Act 2004 (Tax Credits, etc.)(Consequential Amendments) Order

47 16/03/2005 01/05/2005 722 Value Added Tax (Consideration for Fuel Providedfor Private Use) Order

44 20/07/2005 01/09/2005 1978 Excise Duties (Surcharges or Rebates)(Hydrocarbon Oils etc.) Order

36 27/05/2005 01/07/2005 1433 Prospectus Regulations33 30/11/2005 01/01/2006 3291 Value Added Tax (Input Tax) (Person Supplied)

Order33 01/09/2005 03/10/2005 2422 Social Security (Contributions) (Amendment No 5)28 05/12/2005 01/01/2006 3329 Value Added Tax (Reduced Rate) (No 2) Order28 10/03/2005 06/04/2005 594 Financial Services and Markets Act 2000

(Stakeholder Products) (Amendment) Regulations28 10/03/2005 06/04/2005 609 Individual Savings Account (Amendment)

Regulations28 10/03/2005 06/04/2005 593 Financial Services and Markets Act 2000

(Regulated Activities) (Amendment) Order27 02/12/2005 28/12/2005 3311 Revenue and Customs (Complaints and

Misconduct)25 11/11/2005 05/12/2005 3130 Social Security (Contributions) (Amendment No 6)25 15/03/2005 08/04/2005 698 Pensions Increase (Civil Service Injury Benefits

Scheme) Regulations25 11/11/2005 05/12/2005 3132 Social Security Contributions (Intermediaries)

(Northern Ireland) (Amendment) Regulations25 11/11/2005 05/12/2005 3133 Social Security (Categorisation of Earners)

(Amendment) Regulations25 11/11/2005 05/12/2005 3134 Social Security (Categorisation of Earners)

(Amendment) (Northern Ireland) Regulations25 11/11/2005 05/12/2005 3131 Social Security Contributions (Intermediaries)

(Amendment) Regulations24 08/12/2005 31/12/2005 3376 Research and Development Tax Relief (Definition

of “Small or Medium-Sized Enterprise” ) Order24 08/12/2005 31/12/2005 3375 Overseas Life Insurance Companies (Amendment)

Regulations24 14/03/2005 06/04/2005 680 Financial Services and Markets Act 2000 (Variation

of Threshold Conditions) (Amendment) Order23 10/03/2005 01/04/2005 645 Finance Act 2003, Section 66 (Prescribed

Transactions) Order23 10/03/2005 01/04/2005 592 Financial Services and Markets Act 2000

(Exemption) (Amendment) Order23 21/07/2005 12/08/2005 2014 Friendly Societies (Modification of the Corporation

Tax Acts) Regulations23 09/06/2005 01/07/2005 1529 Financial Services and Markets Act 2000 (Financial

Promotion) Order23 10/03/2005 01/04/2005 644 Energy Act 2004 (Nuclear Decommissioning)

(Exempt Activities and Further Conditions)Regulations

23 16/03/2005 07/04/2005 726 Value Added Tax (Reduced Rate) Order23 25/10/2005 16/11/2005 2967 Financial Services and Markets Act 2000

(Consequential Amendments) Order23 09/06/2005 01/07/2005 1532 Financial Services and Markets Act 2000 (Promotion

of Collective Investment Schemes) (Exemptions)(Amendment)



8 November 2005


22 06/12/2005 27/12/2005 3350 Individual Savings Account (Amendment No 3)Regulations

22 18/01/2005 08/02/2005 57 Financial Services and Markets Act 2000 (CollectiveInvestment Schemes) (Amendment) Order

22 02/03/2005 23/03/2005 425 Crime (International Co-operation) Act 2003(Exercise of Functions) Order

22 12/12/2005 02/01/2006 3422 Loan Relationship and Derivative Contracts(Exchange Gains and Losses using Fair ValueAccounting) Regulations

22 30/11/2005 21/12/2005 3289 General Insurance Reserves (Tax) (Amendment)Regulations

22 08/12/2005 29/12/2005 3383 Loan Relationships and Derivative Contracts(Change of Accounting Practice) (Amendment)Regulations

22 06/12/2005 27/12/2005 3348 Personal Equity Plan (Amendment No 2)Regulations

22 21/01/2005 11/02/2005 83 Finance Act 2003, Section 66 (Prescribed Persons)Order

22 24/02/2005 17/03/2005 381 Financial Services and Markets Act 2000 (MarketAbuse) Regulations

22 04/02/2005 25/02/2005 191 Child Trust Funds (Non-tax Appeals) Regulations22 08/12/2005 29/12/2005 3374 Loan Relationships and Derivative Contracts

(Disregard and Bringing into Account of Profits andLosses) (Amendment No 2) Regulations

22 01/03/2005 22/03/2005 409 Finance Act 1993, Section 86(2), (Single PaymentScheme)

22 16/12/2005 06/01/2006 3465 Insurance Companies (Corporation Tax Acts)(Amendment)

22 07/03/2005 28/03/2005 486 Whole of Government Accounts (Designation ofBodies) Order

22 21/01/2005 11/02/2005 82 Stamp Duty Land Tax (Consequential Amendmentof Enactments) Regulations

22 10/02/2005 03/03/2005 270 Financial Services and Markets Act 2000 (FinancialPromotion and Promotion of Collective InvestmentSchemes) (Miscellaneous Amendments) Order

22 06/12/2005 27/12/2005 3349 Child Trust Funds (Amendment No 3) Regulations22 16/03/2005 06/04/2005 725 Landfill Tax (Site Restoration, Quarries and Pet

Cemeteries)22 01/09/2005 22/09/2005 2424 Capital Allowances (Energy-saving Plant and

Machinery) (Amendment) Order22 08/04/2005 29/04/2005 1133 Revenue and Customs (Inspections) Regulations22 28/06/2005 19/07/2005 1709 Recovery of Duties and Taxes Etc Due in Other

Member States (Corresponding UK Claims,Procedure and Supplementary) (Amendment)Regulations

22 14/11/2005 05/12/2005 3168 Marriages and Civil Partnerships (ApprovedPremises)

22 06/06/2005 27/06/2005 1479 Recovery of Taxes etc Due in Other Member States(Amendment of Section 134 of the Finance Act2002)

22 08/06/2005 29/06/2005 1525 Terrorism (United Nations Measures) Order 2001(Amendment) Regulations

22 14/11/2005 05/12/2005 3167 Registration of Civil Partnerships (Fees) (No 2)Order

22 08/06/2005 29/06/2005 1526 Burma (Financial Sanctions) Regulations



8 November 2005


22 16/06/2005 07/07/2005 1634 Stamp Duty (Consequential Amendment ofEnactments) (Northern Ireland) Regulations

22 01/09/2005 22/09/2005 2423 Capital Allowances (Environmentally BeneficialPlant and Machinery) (Amendment) Order

22 16/03/2005 06/04/2005 724 Charge to Income Tax by Reference to Enjoymentof Property Previously Owned Regulations 2005

22 15/09/2005 06/10/2005 2561 Individual Savings Account (Amendment No 2)Regulations

22 16/03/2005 06/04/2005 728 Social Security (Contributions) (Amendment No 2)22 08/06/2005 29/06/2005 1527 International Criminal Tribunal for the Former

Yugoslavia (Financial Sanctions Against Indictees)Regulations

22 15/09/2005 06/10/2005 2562 Personal Equity Plan (Amendment) Regulations22 18/10/2005 08/11/2005 2899 Exemption From Income Tax For Certain Interest

and Royalty Payments (Amendment to Section97(1) of the Finance Act 2004 and Section 757(2) ofthe Income Tax (Trading and Other Income) Act2005) Order

22 18/03/2005 08/04/2005 828 Tax Credits Notification of Changes ofCircumstances (Civil Partnership) (TransitionalProvisions) Order

22 21/03/2005 11/04/2005 858 Pensions Increase (Review) Order22 04/11/2005 25/11/2005 3071 Financial Services and Markets Act 2000

(Disclosure of Confidential Information)(Amendment) Regulations

22 23/03/2005 13/04/2005 889 Corporation Tax (Instalment Payments)(Amendment)

22 10/06/2005 01/07/2005 1538 Lloyd’s Sourcebook (Amendment of the FinanceAct 1993 and the Finance Act 1994) Order

22 21/07/2005 11/08/2005 2013 Exchange Gains and Losses (Bringing into AccountGains or Losses) (Amendment) Regulations

22 16/03/2005 06/04/2005 723 Retirement Benefits Schemes (Increase in PermittedMaximum in Transitional Cases) Order

22 20/07/2005 10/08/2005 1993 Value Added Tax (Refund of Tax to Museums andGalleries) (Amendment) Order

22 20/07/2005 10/08/2005 1998 Insurers (Reorganisation and Winding Up)(Lloyd’s)

22 21/07/2005 11/08/2005 1990 Stamp Duty and Stamp Duty Reserve Tax(Extension of Exceptions relating to RecognisedExchanges) Regulations

22 21/07/2005 11/08/2005 2005 Friendly Societies (Modification of the CorporationTax Acts) (Amendment) Regulations

22 21/07/2005 11/08/2005 2012 Loan Relationships and Derivative Contracts(Disregard and Bringing into Account of Profits andLosses) (Amendment) Regulations

21 17/03/2005 06/04/2005 770 Section 318C Income Tax (Earnings and Pensions)Act 2003 (Amendment) Regulations

21 17/03/2005 06/04/2005 769 Working Tax Credit (Entitlement and MaximumRate) (Amendment) Regulations

21 17/03/2005 06/04/2005 778 Social Security (Contributions) (Amendment No 3)18 14/12/2005 31/12/2005 3440 Finance Act 2002, Schedule 26 (Parts 2 and 9)

(Amendment No 3) Order17 16/03/2005 01/04/2005 727 Value Added Tax (Increase of Registration Limits)

Order 200514 24/03/2005 06/04/2005 915 Social Security (Contributions) (Re-rating)

Consequential Amendment Regulations



8 November 2005


14 08/12/2005 21/12/2005 3392 Financial Services and Markets Act 2000 (FinancialPromotion) (Amendment) Order

14 24/03/2005 06/04/2005 909 Child Trust Funds (Amendment No 2) Regulations9 06/01/2005 14/01/2005 1 Financial Services and Markets Act 2000

(Gibraltar) (Amendment) Order2 06/04/2005 07/04/2005 1114 Energy-Saving Items Regulations2 27/07/2005 28/07/2005 2082 Finance Act 2002, Schedule 26, Parts 2 and 9

(Amendment No 2) Order2 05/12/2005 06/12/2005 3328 Value Added Tax (Betting, Gaming and Lotteries)

Order2 05/12/2005 06/12/2005 3330 Excise Duties (Surcharges or Rebates)

(Hydrocarbon Oils etc) (Amendment) Order1 16/03/2005 16/03/2005 646 Finance Act 2002, Schedule 26, Parts 2 and 9

(Amendment) Order 200510/06/2005 1539 Reporting of Savings Income Information

(Amendment) RegulationsTotal SIs for HM Treasury % 101

Home Office


62 09/02/2005 11/04/2005 248 Private Security Industry Act 2001 (Repeal andRevocation)

33 01/09/2005 03/10/2005 2412 Immigration (Eligibility for Assistance) (Scotlandand Northern Ireland) (Revocation) Regulations

32 14/01/2005 14/02/2005 46 Extradition Act 2003 (Parties to InternationalConventions)

32 11/02/2005 14/03/2005 271 Misuse of Drugs (Amendment) Regulations31 01/09/2005 01/10/2005 2400 Accession (Immigration and Worker Registration)

(Amendment) Regulations30 24/02/2005 25/03/2005 347 Police Act 1997 (Criminal Records) (Amendment)29 04/03/2005 01/04/2005 386 Proceeds of Crime Act 2002 (References to

Financial Investigators) (Amendment) Order28 16/08/2005 12/09/2005 2251 Private Security Industry Act 2001 (Designated

Activities) (No 3) Order27 07/04/2005 03/05/2005 1107 Private Security Industry Act 2001 (Designated

Activities) (No 2) Order27 06/10/2005 01/11/2005 2702 Police (Retention and Disposal of Motor Vehicles)

(Amendment) Regulations27 23/03/2005 18/04/2005 869 Prison (Amendment) Rules27 16/03/2005 11/04/2005 738 Asylum Support (Amendment) (No 2) Regulations

200527 19/10/2005 14/11/2005 2864 Misuse of Drugs and the Misuse of Drugs (Supply

to Addicts) (amendment) Regulations26 07/12/2005 01/01/2006 3343 Crime and Disorder Act 1998 (Responsible

Authorities) (No 2) Order26 23/06/2005 18/07/2005 1652 Misuse of Drugs (Designation) (Amendment) Order26 07/12/2005 01/01/2006 3308 Royal Patriotic Fund Corporation (Transfer of

Property, Rights and Liabilities) Order26 07/07/2005 01/08/2005 1789 Crime and Disorder Act 1998 (Responsible

Authorities)26 24/03/2005 18/04/2005 897 Young OVender Institution (Amendment) Rules26 23/06/2005 18/07/2005 1653 Misuse of Drugs (Amendment) (No 2) Regulations25 08/12/2005 01/01/2006 3372 Misuse of Drugs (Amendment) (No 3) Regulations



8 November 2005


25 11/02/2005 07/03/2005 267 Disqualification from Working with Children(Scotland) Order

25 08/03/2005 01/04/2005 470 Police Authorities (Best Value) PerformanceIndicators Order

25 11/11/2005 05/12/2005 3138 Forensic Science Service Trading Fund(Revocation) Order

25 10/03/2005 03/04/2005 595 Asylum Support (Interim Provisions) (Amendment)25 08/12/2005 01/01/2006 3389 Serious Organised Crime and Police Act 2005

(Powers of Arrest) (Consequential Amendments)Order

24 09/12/2005 01/01/2006 3396 Victims of Violent Intentional Crime (Arrangementsfor Compensation) (European Communities)Regulations

23 10/03/2005 01/04/2005 654 Immigration (Leave to Remain) (Fees)(Amendment)

23 14/01/2005 05/02/2005 7 Asylum Seekers (Reception Conditions)Regulations

23 10/03/2005 01/04/2005 651 British Nationality (Fees) (Amendment)Regulations

23 12/10/2005 03/11/2005 2798 Criminal Justice Act 2003 (Mandatory LifeSentences: Appeals in Transitional Cases) Order

23 07/02/2005 01/03/2005 178 Police (Promotion) (Amendment) Regulations23 22/11/2005 14/12/2005 3204 Sports Grounds and Sporting Events (Designation)

Order23 24/05/2005 15/06/2005 1379 Displaced Persons (Temporary Protection)

Regulations23 10/03/2005 01/04/2005 584 Police Authorities (Lay Justices Selection Panel)

Regulations23 10/10/2005 01/11/2005 2785 British Nationality (General) (Amendment)

Regulations23 09/11/2005 01/12/2005 3106 National Police Records (Recordable OVences)

(Amendment) Regulations23 14/01/2005 05/02/2005 11 Asylum Support (Amendment) Regulations23 10/03/2005 01/04/2005 627 Immigration Employment Document (Fees)

(Amendment) Regulations23 10/03/2005 01/04/2005 602 Police and Criminal Evidence Act 1984 (Codes of

Practice) (Revisions to Code C) Order23 23/06/2005 15/07/2005 2692 Criminal Procedure and Investigations Act 1996

(Code of Practice) (Northern Ireland) Order23 10/03/2005 01/04/2005 653 Travel Documents (Fees) (Amendment) Regulations22 01/06/2005 22/06/2005 1439 Police Pensions (Part-time Service) Regulations22 11/01/2005 01/02/2005 15 Immigration (Procedure for Marriage) Regulations22 25/08/2005 15/09/2005 2358 Immigration (Leave to Remain) (Prescribed Forms

and Procedures) (No 2) Regulations22 23/02/2005 16/03/2005 348 Immigration Services Commissioner (Designated

Professional Body) (Fees) Order22 01/04/2005 22/04/2005 1016 Asylum (Designated States) (Amendment) Order22 24/10/2005 14/11/2005 2917 Immigration (Procedure for Formation of Civil

Partnerships) Regulations22 14/03/2005 04/04/2005 673 Detention Centre (Amendment) Rules22 14/03/2005 04/04/2005 581 Penalties for Disorderly Behaviour (Amount of

Penalty) (Amendment) Order22 17/01/2005 07/02/2005 47 Immigration (European Economic Area)

(Amendment)22 10/03/2005 31/03/2005 572 Charities (Accounts and Reports) Regulations



8 November 2005


22 14/03/2005 04/04/2005 643 Criminal Justice Act 2003 (Sentencing) (TransitoryProvisions) Order

22 14/03/2005 04/04/2005 648 Criminal Justice (Sentencing) (Licence Conditions)Order

22 11/08/2005 01/09/2005 2241 Working Time Regulations 1998 (Amendment)Order

22 11/08/2005 01/09/2005 2240 Part-time Workers (Prevention of Less FavourableTreatment) Regulations 2000 (Amendment) Order

22 17/10/2005 07/11/2005 2834 Police (Amendment) Regulations22 14/03/2005 04/04/2005 671 Immigration (European Economic Area)

(Amendment) (No 2) Regulations22 14/03/2005 04/04/2005 679 Criminal Justice Act (Retrial for Serious OVences)

Order22 10/06/2005 01/07/2005 1537 Serious Organised Crime and Police Act 2005

(Designated Area) Order22 07/02/2005 28/02/2005 210 Sexual OVences Act 2003 (Prescribed Police

Stations)22 15/06/2005 06/07/2005 1606 Road TraYc Act 1988 (Retention and Disposal of

Seized Motor Vehicles) Regulations21 14/12/2005 03/01/2006 3438 Young OVender Institution (Amendment) (No 2)

Rules21 10/03/2005 30/03/2005 563 Discharge of Fines by Unpaid Work (Pilot

Schemes) (Amendment) Order21 14/12/2005 03/01/2006 3437 Prison (Amendment) (No 2) Rules20 09/02/2005 28/02/2005 235 Private Security Industry Act 2001 (Duration of

Licence)20 09/02/2005 28/02/2005 234 Private Security Industry Act 2001 (Designated

Activities)20 09/02/2005 28/02/2005 237 Private Security Industry (Licences) (Amendment)

Regulations19 01/08/2005 19/08/2005 2118 Private Security Industry (Licences) (Amendment)

(No 2) Regulations16 17/03/2005 01/04/2005 771 Immigration (Leave to Remain) (Prescribed Forms

and Procedures) Regulations15 10/03/2005 24/03/2005 630 Penalties for Disorderly Behaviour (Form of

Penalty Notice) (Amendment) Regulations11 08/04/2005 18/04/2005 1129 Bail (Amendment) Act 1993 (Prescription of

Prosecuting Authorities) (Amendment) Order11 08/04/2005 18/04/2005 1130 Crime (International Co-operation) Act 2003

(Designation of Prosecuting Authorities)(Amendment) Order

6 30/03/2005 04/04/2005 902 Crime and Disorder Act 1998 (Service ofProsecution Evidence) Regulations

5 23/02/2005 27/02/2005 361 Private Security Industry Act 2001 (DesignatedActivities) (Revocation) Order

2 05/12/2005 06/12/2005 3310 Immigration (Designation of Travel Bans)(Amendment) Order

2 08/03/2005 09/03/2005 492 Immigration (Passenger Transit Visa) (Amendment)Order

Total SIs for Home OYce % 76



8 November 2005

Inland Revenue


58 02/02/2005 31/03/2005 186 Controlled Foreign Companies (ExcludedCountries) (Amendment No 2) Regulations

58 02/02/2005 31/03/2005 185 Controlled Foreign Companies (ExcludedCountries) (Amendment) Regulations

29 18/02/2005 18/03/2005 343 Child Benefit and Guardian’s Allowance(Miscellaneous Amendments) Regulations

27 16/03/2005 11/04/2005 719 Guardian’s Allowance Up-rating Regulations 200522 21/03/2005 11/04/2005 844 Stamp Duty Land Tax (Electronic

Communications)22 18/01/2005 08/02/2005 66 Tax Credits (Provision of Information) (Function

Relating to Employment and Training) Regulations11 08/04/2005 18/04/2005 1131 Delivery of Documents (Procedure) (Amendment)

Regulations11 08/04/2005 18/04/2005 1132 Stamp Duty Land Tax (Administration)

(Amendment)2 04/04/2005 05/04/2005 1086 Social Security (Contributions) (Amendment No 4)2 18/03/2005 19/03/2005 826 Income Tax (Incentive Payments for Voluntary

Electronic Communication of PAYE Returns)(Amendment) Regulations

Total SIs for Inland Revenue % 10

Ministry of Defence


104 19/12/2005 01/04/2006 3447 Serious Organised Crime and Police Act 2005(Designated Sites) Order

42 22/12/2005 01/02/2006 3478 Armed Forces Proceedings (Costs) Regulations36 29/12/2005 02/02/2006 3487 Summary Appeal Court (Navy) (Amendment)

Rules36 29/12/2005 02/02/2006 3485 Courts Martial (Royal Air Force) (Amendment)

Rules36 29/12/2005 02/02/2006 3484 Courts Martial (Royal Navy) (Amendment) Rules36 29/12/2005 02/02/2006 3488 Summary Appeal Court (Air Force) (Amendment)

Rules36 29/12/2005 02/02/2006 3486 Summary Appeal Court (Army) (Amendment)

Rules36 29/12/2005 02/02/2006 3483 Courts-Martial (Army) (Amendment) Rules32 31/05/2005 01/07/2005 1388 Unfitness to Stand Trial and Insanity (Royal Air

Force) Regulations32 04/11/2005 05/12/2005 3032 War Pensions Committees (Amendment)

Regulations32 04/11/2005 05/12/2005 3031 Personal Injuries (Civilians) (Amendment) (No 3)

Scheme32 31/05/2005 01/07/2005 1389 Unfitness to Stand Trial and Insanity (Royal Navy)32 31/05/2005 01/07/2005 1390 Unfitness to Stand Trial and Insanity (Army)

Regulations25 11/11/2005 05/12/2005 3118 Reserve Forces (Provision of Information by

Persons Liable to be Recalled) (Amendment)Regulations

24 14/03/2005 06/04/2005 439 Armed Forces and Reserve Forces (CompensationScheme)

24 14/03/2005 06/04/2005 438 Armed Forces Pension Scheme Order24 14/03/2005 06/04/2005 660 Armed Forces (Pensions and Compensation) Act

2004 (Transitional Provision) Order



8 November 2005


24 14/03/2005 06/04/2005 655 Personal Injuries (Civilians) (Amendment) Scheme24 14/03/2005 06/04/2005 437 Armed Forces Early Departure Payments Scheme

Order23 23/03/2005 14/04/2005 859 Reserve Forces (Call-out and Recall) (Financial

Assistance) Regulations23 23/06/2005 15/07/2005 1639 Personal Injuries (Civilians) (Amendment) (No 2)

Scheme22 10/06/2005 01/07/2005 1536 Summary Appeal Courts (Amendment) Rules22 10/06/2005 01/07/2005 1535 Courts-Martial (Amendment) Rules22 10/06/2005 01/07/2005 1534 Standing Civilian Courts (Amendment) Order

Total SIs for Ministry of Defence % 24

Northern Ireland Office


23 24/03/2005 15/04/2005 901 Public Processions (Northern Ireland) Act 1998(Code of Conduct) Order

23 24/03/2005 15/04/2005 905 Public Processions (Northern Ireland) Act 1998(Guidelines)

23 24/03/2005 15/04/2005 904 Public Order (Prescribed Forms) Regulations(Northern Ireland) 2005

23 24/03/2005 15/04/2005 903 Public Processions (Northern Ireland) Act 1998(Procedural Rules) Order

1 14/09/2005 14/09/2005 2558 Northern Ireland (Sentences) Act 1998 (SpecifiedOrganisations) Order

Total SIs for Northern Ireland OYce % 5

Office of Communications


43 20/12/2005 31/01/2006 3481 Wireless Telegraphy (Inspection and Restrictions onUse of Exempt Stations and Apparatus)Regulations

Total SIs for OYce of Communications % 1

Office of National Statistics


277 29/03/2005 30/12/2005 924 Adopted Children and Adoption Contact RegistersTotal SIs for OYce of National Statistics % 1

Office of the Deputy Prime Minister


130 28/11/2005 06/04/2006 3208 Housing Health and Safety Rating System(England)

81 31/01/2005 21/04/2005 85 Town and Country Planning (General PermittedDevelopment) (Amendment) (England) Order

72 22/03/2005 01/06/2005 714 Local Authorities (Functions and Responsibilities)(Amendment) (England) Regulations

72 22/03/2005 01/06/2005 711 High Hedges (Appeals) (England) Regulations



8 November 2005


71 23/06/2005 01/09/2005 1635 Home Loss Payments (Prescribed Amounts)(England)

52 20/10/2005 10/12/2005 2866 Council Tax (Civil Partners) (England) Regulations52 20/10/2005 10/12/2005 2865 Council Tax (Exempt Dwellings) (Amendment)

(England)51 10/02/2005 01/04/2005 205 Town and Country Planning (Timetable for

Decisions) (England) Order30 27/10/2005 25/11/2005 2935 Town and Country Planning (General Permitted

Development) (England) (Amendment) (No 2)Order

27 07/12/2005 02/01/2006 3307 Approval of Code of Management Practice (PrivateRetirement Housing) (England) Order

27 10/02/2005 08/03/2005 206 Town and Country Planning (Temporary StopNotice) (England) Regulations

26 10/11/2005 05/12/2005 3069 Local Government Pension Scheme (CivilPartnership) (Amendment) (England and Wales)Regulations

25 08/03/2005 01/04/2005 416 Council Tax (Prescribed Classes of Dwellings)(Amendment) (England) Regulations

25 07/03/2005 31/03/2005 411 Castle Vale Housing Action Trust (Dissolution)Order

24 08/12/2005 31/12/2005 3323 Housing Renewal Grants (Amendment) (England)24 08/12/2005 31/12/2005 3326 Housing Renewal Grants (Prescribed Form and

Particulars) (Amendment) (England) Regulations24 08/09/2005 01/10/2005 2518 Liverpool Housing Action Trust (Dissolution)

Order24 09/03/2005 01/04/2005 406 Town and Country Planning (Blight Provisions)

(England)23 15/06/2005 07/07/2005 1552 North Northamptonshire Joint Committee Order23 14/10/2005 05/11/2005 2863 Social Landlords (Additional Purposes or Objects)

(Amendment) (England) Order23 10/03/2005 01/04/2005 549 Non-Domestic Rating (Communications and Light

Railways) (England) Regulations23 09/12/2005 31/12/2005 3333 Non-Domestic Rating Contributions (Amendment)

(England) Regulations23 10/03/2005 01/04/2005 659 Non-Domestic Rating (Alteration of Lists and

Appeals) (England) Regulations23 10/03/2005 01/04/2005 658 Non-Domestic Rating (Material Day for List

Alterations) (Amendment) (England) Regulations23 10/03/2005 01/04/2005 598 Local Government (Best Value) Performance

Indicators and Performance Standards (England)Order

23 25/10/2005 16/11/2005 2908 Housing (Right to Buy) (Designated Rural Areasand Designated Regions) (England) (No 2) Order

22 31/10/2005 21/11/2005 2980 Firefighters’ Pension Scheme (Amendment)(England) Order

22 13/06/2005 04/07/2005 1509 Residential Property Tribunal (Right to BuyDeterminations) Procedure (England) Regulations

22 10/10/2005 31/10/2005 2721 London Thames Gateway DevelopmentCorporation (Planning Functions) Order

22 21/03/2005 11/04/2005 694 Local Authorities (Categorisation) (England) Order22 25/07/2005 15/08/2005 1995 Housing (Right to Buy) (Designated Rural Areas

and Designated Regions) (England) Order22 23/11/2005 14/12/2005 3199 Local Government Pension Scheme (Amendment)

(No 2) Regulations



8 November 2005


22 07/02/2005 28/02/2005 177 Leasehold Houses (Notice of Insurance Cover)(England) (Amendment) Regulations

22 05/07/2005 26/07/2005 1735 Housing (Right to Buy) (Information to SecureTenants) (England) Order

22 03/08/2005 24/08/2005 2087 Town and Country Planning (General DevelopmentProcedure) (Amendment) (England) Order

22 21/09/2005 12/10/2005 2572 Thurrock Development Corporation (PlanningFunctions)

22 08/03/2005 29/03/2005 419 Local Authorities (Discretionary ExpenditureLimits) (England) Order

22 03/08/2005 24/08/2005 2115 Town and Country Planning (Major InfrastructureProject Inquiries Procedure) (England) Rules

22 10/03/2005 31/03/2005 551 Central Rating List (England) Regulations22 07/09/2005 28/09/2005 2416 Local Authorities (Categorisation) (England) (No 2)

Order22 27/07/2005 17/08/2005 2004 Local Government Pension Scheme and

Management and Investment of Funds(Amendment) Regulations

22 13/07/2005 03/08/2005 1903 Local Government Pension Scheme (Amendment)Regulations

22 01/04/2005 22/04/2005 929 Local Authorities (Functions and Responsibilities)(Amendment) (No 2) (England) Regulations

22 20/07/2005 10/08/2005 1917 Housing (Right of First Refusal) (England)Regulations

22 22/03/2005 12/04/2005 867 Recreation Grounds (Revocation of Parish CouncilByelaws)

7 29/11/2005 05/12/2005 3228 Firefighters’ Pension Scheme (Civil PartnershipAmendments) (England and Scotland) Order

2 08/02/2005 09/02/2005 221 Greater London Authority (Allocation of Grantsfor Precept Calculations) Regulations

2 04/02/2005 05/02/2005 190 Local Authorities (Alteration of RequisiteCalculations) (England) Regulations

Total SIs for OYce of the Deputy Prime Minister % 48

Office of the Leader of the House of Commons


24 26/07/2005 18/08/2005 1924 European Parliament (United KingdomRepresentatives) Pensions (Amendment) Order

Total SIs for OYce of the Leader of the House of Commons % 1

Privy Council Office


157 29/07/2005 01/01/2006 1958 National Assembly for Wales (Transfer ofFunctions) Order

43 24/10/2005 05/12/2005 2761 Civil Partnership (Registration Abroad andCertificates)

40 21/02/2005 01/04/2005 246 Commonwealth Countries and Ireland (Immunitiesand Privileges) (Amendment) Order

40 21/02/2005 01/04/2005 252 Transfer of Functions (Children, Young People andFamilies) Order



8 November 2005


38 25/11/2005 01/01/2006 3181 Proceeds of Crime Act 2002 (External Requests andOrders)

37 25/11/2005 31/12/2005 3179 Criminal Justice (International Co-operation) Act1990 (Enforcement of Overseas Forfeiture Orders)(Northern Ireland) Order

37 25/11/2005 31/12/2005 3180 Criminal Justice (International Co-operation) Act1990 (Enforcement of Overseas Forfeiture Orders)Order

32 01/03/2005 01/04/2005 402 General Medical Council (Constitution of Panelsand Investigation Committee) (Amendment) RulesOrder of Council

32 01/03/2005 01/04/2005 400 General Medical Council (Registration AppealsPanels Procedure) Rules Order of Council

32 21/02/2005 24/03/2005 244 Child Abduction and Custody (Falkland Islands)(Amendment) Order

32 01/03/2005 01/04/2005 401 General Medical Council (Fraud or Error inrelation to Registration) Rules Order of Council

30 22/12/2005 20/01/2006 3430 Parliamentary Commissioner (No 2) Order30 22/12/2005 20/01/2006 3428 Health Service Commissioner for England (Special

Health Authorities) (No 2) Order29 15/08/2005 12/09/2005 2250 Nursing and Midwifery Council (Election Scheme)

Rules Order of Council28 04/04/2005 01/05/2005 852 Copyright and Performances (Application to Other

Countries) Order26 07/12/2005 01/01/2006 3354 Nursing and Midwifery Council (Education,

Registration and Registration Appeals)(Amendment) Rules Order of Council

26 07/12/2005 01/01/2006 3353 Nursing and Midwifery Council (Fees)(Amendment) Rules Order of Council

26 20/06/2005 15/07/2005 1471 Naval, Military and Air Forces Etc (Disablementand Death) Service Pensions (Amendment) (No 2)Order

24 08/06/2005 01/07/2005 1473 General Optical Council (Continuing Educationand Training Rules) Order of Council

23 29/07/2005 20/08/2005 1970 Air Navigation Order23 08/06/2005 30/06/2005 1478 General Optical Council (Registration Rules) Order

of Council23 16/06/2005 08/07/2005 1625 Health Professions Council (Practice Committees

and Registration) (Amendment) Rules Order ofCouncil

23 08/06/2005 30/06/2005 1475 General Optical Council (Fitness to Practise Rules)Order of Council

23 08/06/2005 30/06/2005 1472 Opticians Act 1989 (Transitional Provisions) Order23 08/06/2005 30/06/2005 1477 General Optical Council (Registration Appeals

Rules) Order of Council23 08/06/2005 30/06/2005 1476 General Optical Council (Injury or Disease of the

Eye and Contact Lens (Qualifications)(Amendment) Rules Order of

23 08/06/2005 30/06/2005 1474 General Optical Council (Committee ConstitutionRules) Order of Council

22 24/10/2005 14/11/2005 2763 Air Navigation (Overseas Territories) (Amendment)Order

22 24/10/2005 14/11/2005 2766 European Communities (Designation) (No 3) Order22 21/02/2005 14/03/2005 251 Health Service Commissioner for England (Special

Health Authorities) Order22 21/02/2005 14/03/2005 249 Parliamentary Commissioner Order



8 November 2005


22 29/07/2005 19/08/2005 1971 European Communities (Designation) (No 2) Order22 22/12/2005 12/01/2006 3429 Transfer of Functions (Lord Chancellor and

Secretary of State) Order22 16/11/2005 07/12/2005 3188 Civil Partnership (Armed Forces) Order22 10/06/2005 01/07/2005 1456 G8 Gleneagles (Immunities and Privileges) Order20 04/04/2005 23/04/2005 850 European Communities (Designation) Order15 23/03/2005 06/04/2005 851 Naval, Military and Air Forces Etc (Disablement

and Death) Service Pensions (Amendment) Order11 25/11/2005 05/12/2005 3187 Naval, Military and Air Forces Etc (Disablement

and Death) Service Pensions (Amendment) (No 3)Order

11 25/11/2005 05/12/2005 3189 Ulster Defence Regiment (Amendment) Order11 25/11/2005 05/12/2005 3184 Navy and Marines (Property of Deceased)

(Amendment) Order2 08/06/2005 09/06/2005 1468 Democratic Republic of the Congo (United Nations

Sanctions) (Channel Islands) Order2 10/02/2005 11/02/2005 242 Ivory Coast (Restrictive Measures) (Overseas

Territories)2 16/11/2005 17/11/2005 3183 Overseas Territories (Zimbabwe) (Restrictive

Measures) (Amendment) Order2 10/02/2005 11/02/2005 253 Ivory Coast (United Nations Sanctions) Order2 15/12/2005 16/12/2005 3432 Lebanon and Syria (United Nations Measures)

Order2 08/06/2005 09/06/2005 1517 Democratic Republic of the Congo (United Nations

Measures) Order2 09/06/2005 10/06/2005 1470 Dockyard Port of Portsmouth Order2 08/06/2005 09/06/2005 1469 Democratic Republic of the Congo (United Nations

Sanctions) (Isle of Man) Order2 20/07/2005 21/07/2005 1988 Democratic Republic of the Congo (Restrictive

Measures) (Overseas Territories) (Amendment)Order

2 11/05/2005 12/05/2005 1258 Sudan (United Nations Measures) (OverseasTerritories)

2 08/06/2005 09/06/2005 1462 Sudan (United Nations Measures) (ChannelIslands) Order

2 08/06/2005 09/06/2005 1463 Sudan (United Nations Measures) (Isle of Man)Order

2 08/06/2005 09/06/2005 1461 Democratic Republic of the Congo (United NationsSanctions) (Overseas Territories) Order

2 11/05/2005 12/05/2005 1259 Sudan (United Nations Measures) Order1 21/02/2005 21/02/2005 255 Pensions (Northern Ireland) Order

10/06/2005 1467 Scottish Administration (OYces) Order21/02/2005 245 Pensions Appeal Tribunals (Posthumous Appeals)

(Amendment) Order20/06/2005 1466 Montserrat Reporting of Savings Income

Information OrderTotal SIs for Privy Council OYce % 58



8 November 2005

Department for Work and Pensions


23 10/03/2005 01/04/2005 548 Welsh Local Flood Defence Scheme 1996(Revocation) Order

23 10/03/2005 01/04/2005 550 Public Audit (Wales) Act 2004 (Transfer ofProperty, Rights and Liabilities of the AuditCommission for Local Authorities and theNational Health Service in England and Wales)Order

23 10/03/2005 01/04/2005 552 Public Audit (Wales) Act 2004 (Transfer ofProperty, Rights and Liabilities of the Comptrollerand Auditor General) Order

Total SIs for Wales OYce % 3

32

47

87

20

44

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2005

Statutory Instruments 1995–2005

UK Government National Assembly for Wales Scottish SIs in UK Total number of UK Scottish Statutory Total SIs and SSIs Foot andSIs SIs numbered in UK series series Statutory Instruments Instruments Mouth Orders

1995 3,098 247 3,345 3,3451996 3,035 256 3,291 3,2911997 2,760 197 3,114 3,1141998 3,110 213 3,323 3,3231999 3,330 58 113 3,501 204 3,7052000 3,202 231 3,433 454 3,8872001 3,806 342 4,148 494 4,642 597 (UK)

36 (Wales)65 (Scotland)

2002 2,959 315 3,274 575 3,849 8 (UK)5 (Wales)5 (Scotland)

2003 3,033 321 3,354 622 3,9762004 3,155 297 3,452 565 4,0172005 3,326 273 3,599* 667 4,266

*Note. This is not the last number in the Register as three SI numbers have been cancelled.

32

47

87

20

45

Pag

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-03

-06

23

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ovember

2005

Statutory Instruments Made 1999–05 by Department

Department/Public Authority 1999 2000 2001 2002 2003 2004 2005General Local General Local General Local General Local General Local General Local General Local

Agriculture, Fisheries and Food, Ministry of 110 5 87 38 65 232 – – – – – – – –Attorney General’s Department 1 0 1 0 1 0 0 0 0 0 0 0 0 0Cabinet OYce 2 0 3 0 1 0 2 0 1 0 2 0 6 0Communications, OYce of – – – – – – – – – – 2 0 5 0Constitutional AVairs, Department for – – – – – – – – 42 6 105 9 143 0Culture, Media and Sport, Department for 22 0 16 1 16 0 29 0 26 0 29 0 47 0Customs and Excise, HM 14 0 9 0 20 0 25 0 23 0 20 0 – –Defence, Ministry of 3 0 17 0 10 0 10 0 9 0 11 0 32 0Deputy Prime Minister, OYce of the – – – – – – 38 16 83 29 112 21 71 7Education and Employment, Department for 206 25 150 14 85 6 – – – – – – – –Education and Skills, Department for – – – – 95 5 160 8 130 12 100 24 110 40Electoral Commission – – – – – – 0 66 0 30 0 43 0 16Environment, Food and Rural AVairs,Department for – – – – 78 141 124 2 109 2 131 5 130 15Environment, Transport and the Regions,Department of the 243 1404 294 1472 132 716 – – – – – – – –Finance and Personnel Northern Ireland,Department of 0 0 0 0 0 0 0 0 0 0 0 0 3 0Foreign and Commonwealth OYce 4 0 7 0 4 0 5 0 3 0 4 0 4 0Forestry Commission 1 0 0 0 0 0 0 0 0 0 1 0 0 0Gas & Electricity Markets Authority, OYce of – – – – – – – – – – 3 0 0 0General Synod OYce 6 0 6 0 4 0 3 0 4 0 3 0 7 0Health, Department of 166 0 216 0 403 0 393 1 194 0 158 0 143 0Home OYce 108 9 136 3 121 1 117 2 144 1 144 1 135 0House of Commons—Journal OYce 0 0 0 0 0 0 0 0 0 0 0 0 1 0Inland Revenue 29 0 39 0 27 0 21 0 38 0 25 0 11 0International Development, Department for 0 0 0 0 0 0 1 0 4 0 1 0 0 0Leader of the House of Commons, OYce of 0 0 0 0 0 0 0 0 0 0 3 0 3 0Lord Chancellor’s Department 104 12 110 13 137 14 59 3 65 1 – – – –National Assembly for Wales 16 27 114 103 241 91 197 117 210 111 188 109 189 84National Statistics, OYce of 3 0 1 0 0 0 0 0 0 0 0 0 2 0Northern Ireland OYce 0 0 0 0 20 0 7 0 15 0 10 0 5 0Privy Council OYce 140 1 134 0 117 1 121 0 126 0 147 0 125 2Registry of Friendly Societies 5 0 1 0 – – – – – – – – – –Revenue and Customs – – – – – – – – – – – – 35 0Scotland OYce 161 90 5 0 10 0 4 0 4 0 7 0 6 0Social Security, Department of 89 0 106 0 71 0 – – – – – – – –Trade and Industry, Department of 169 0 134 0 124 0 127 0 139 3 126 1 115 0TraYc Director for London 1 56 0 22 – – – – – – – – – –Transport, Department for – – – – – – 72 623 127 1438 134 1556 135 1667Transport, Local Government and the Regions,Department for – – – – 113 819 84 644 – – – – – –Treasury, HM 95 1 112 0 187 3 91 0 130 0 141 0 136 0Wales OYce 84 64 1 0 4 0 3 0 2 0 3 0 4 0Work and Pensions, Department for – – – – 36 0 96 0 93 0 73 0 162 1

Total 1782 1694 1699 1666 2122 2029 1789 1482 1721 1633 1683 1769 1767 1832Total for UK SIs 3476 3365 4151 3271 3354 3452 3599



8 November 2005

Statutory Instruments by Subject Heading

General Instruments

Heading 1999 2000 2001 2002 2003 2004 2005

Acquisition of Land 0 0 0 0 0 1 1Acquisition of Land, E 0 0 0 0 1 1 1Acquisition of Land, E & W 0 0 0 0 0 3 0Adults with Incapacity 0 0 0 0 0 0 2Aggregates Levy 0 0 2 4 3 2 0Agriculture 43 8 15 6 8 11 7Agriculture, E 0 15 20 16 11 19 16Agriculture, E & W 2 2 4 2 2 3 3Agriculture, NI 0 0 1 0 1 1 1Agriculture, S 0 0 0 0 0 0 1Agriculture, W 1 0 1 0 0 0 0Ancient Monuments, W 0 0 0 1 0 0 0Animal Health 0 0 0 0 0 1 0Animals 7 15 14 2 0 0 0Animals, E 1 0 49 33 28 12 19Animals, E & W 2 4 1 0 2 0 1Animals, W 0 1 0 1 0 0 0Animals, NI 0 0 5 0 0 0 0Anti-Social Behaviour 0 0 0 0 0 0 2Antarctica 0 1 0 1 1 1 0Arbitration 1 0 0 0 0 0 0Architects 0 0 0 1 0 1 0Arms and Ammunition 0 2 0 1 1 0 1Atomic Energy and Radioactive Substances 0 0 0 1 5 4 5Bankruptcy 1 0 0 0 0 0 0Bankruptcy, S 0 0 0 0 1 0 0Banks and Banking 2 2 1 1 1 1 2Betting, Gaming and Lotteries 5 9 9 12 3 3 11Betting, Gaming and Lotteries, E & W 0 0 0 1 1 0 0British Nationality 0 0 1 1 6 2 2British Overseas Territories 0 0 0 1 0 0 0Broadcasting 6 2 2 0 13 16 4Building and Buildings 1 0 0 0 0 0 0Building and Buildings, E & W 0 3 2 3 3 4 0Building Societies 6 1 2 0 1 3 0Business Names 0 0 2 0 0 0 0Canals and Inland Waterways, E 0 0 0 0 0 0 1Canals and Inland Waterways, E & W 0 1 0 1 0 0 0Capital Gains Tax 0 0 0 0 0 0 5Caribbean and North Atlantic Territories 0 4 1 1 2 2 1Census, E & W 4 0 0 0 0 0 0Channel Islands 1 1 1 0 0 0 0Channel Tunnel 0 3 3 1 2 2 0Charities 2 5 2 2 1 2 4Chemical Weapons 0 1 0 0 0 1 1Child Trust Funds 0 0 0 0 0 1 8Child Trust Funds, NI 0 0 0 0 0 0 1Children and Young Persons 4 3 3 1 3 5 4Children and Young Persons, E 0 3 16 10 12 7 28Children and Young Persons, E & W 0 10 10 4 10 5 14Children and Young Persons, NI 0 0 0 0 1 0 0Chiropractors 6 8 1 3 0 2 0



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Christmas Day Trading 0 0 0 0 0 1 0Chronically Sick and Disabled Persons 0 0 0 1 0 0 0Cinemas and Films 4 3 2 3 2 3 2Civil Aviation 23 18 21 8 8 13 6Civil Aviation, E 0 1 0 0 0 0 2Civil Contingencies 0 0 0 0 0 1 4Civil Partnership 0 0 0 0 0 0 25Civil Partnership, E & S 0 0 0 0 0 0 1Civil Partnership, E & W 0 0 0 0 0 0 8Civil Partnership, NI 0 0 0 0 0 0 4Clean Air 1 1 0 0 0 0 0Clean Air, E 0 0 2 1 1 0 2Clerk of the Crown in Chancery 1 1 0 1 1 0 0Climate Change Levy 0 1 10 1 7 0 4Coal Industry 0 0 0 0 0 2 0Coast Protection, E 0 0 0 1 0 0 0Coinage 1 0 0 0 0 0 1Common Investment Funds 1 0 0 0 0 0 0Commonhold, E & W 0 0 0 0 1 3 0Commons, E 0 0 0 0 1 0 0Community Charges, E 0 1 1 0 0 0 0Community Charges, E & W 1 0 0 0 0 0 0Companies 8 8 7 13 9 7 18Companies, E & W 0 0 1 0 1 1 0Competition 8 12 5 2 18 15 12Constitutional Law 71 20 18 13 14 18 13Constitutional Law, W 0 0 0 0 1 0 0Consumer Credit 3 3 1 0 1 7 0Consumer Protection 6 8 1 8 29 15 12Continental Shelf 1 1 1 0 0 0 0Contracting Out 2 2 3 4 3 1 1Contracting Out, E & W 0 0 0 0 0 0 1Contracts 1 3 0 0 0 1 0Contracts, E & W 0 0 0 3 0 0 0Contracts, NI 0 0 0 1 0 0 0Control of Fuel and Electricity 0 8 0 0 0 0 0Copyright 3 0 0 1 7 0 4Coroners 3 0 3 4 2 5 1Coroners, E& W 2 0 0 0 0 0 1Corporation Tax 0 0 0 0 1 0 24Council Tax, E 1 6 2 1 11 5 4Council Tax, E & W 7 0 0 0 0 0 0Council Tax, S 2 1 0 0 0 0 0Countryside 1 1 1 0 0 0 0Countryside, E 0 0 0 0 0 0 6Countryside Agency 1 1 0 1 0 0 0Countryside, E 0 6 3 2 4 6 3Countryside, S 0 0 0 0 1 0 0County Courts 17 16 0 0 1 0 0County Courts, E & W 0 16 15 4 17 17 22County Courts, NI 0 0 0 0 1 0 0Court of Sessions, S 8 0 0 0 0 0 0Courts-Martial (Appeals) 0 1 0 0 0 0 3Cremation, E & W 0 1 0 0 0 0 0Criminal Law 0 0 4 6 8 11 13Criminal Law, E 1 0 0 0 0 1 0



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Criminal Law, E & W 24 21 26 21 8 42 29Criminal Law, NI 1 8 6 5 0 11 6Criminal Law, S 9 5 3 1 1 1 1Criminal Procedure 0 1 0 0 0 0 0Criminal Procedure, E & W 0 0 2 1 0 0 0Crown Proceedings 0 0 0 0 0 0 1Cultural Objects 0 0 1 0 0 0 0Currency and Banknotes 1 0 0 0 0 0 0Customs 0 0 0 0 0 0 1Customs and Excise 21 17 19 22 21 28 8Customs and Excise, E & W 0 0 0 0 0 0 1Customs and Excise, NI 0 0 0 0 0 0 1Damages 0 0 0 1 0 0 0Damages, E & W 0 0 1 1 0 0 4Damages, NI 0 0 1 0 0 0 4Dangerous Drugs 3 3 5 0 6 1 9Data Protection 0 17 2 2 0 1 4Deep Sea Mining 0 1 0 0 0 0 0Defamation 1 1 0 0 0 0 0Defence 5 4 6 7 8 7 19Dentists 1 0 1 6 2 2 1Dentists, E 0 0 1 0 0 0 0Deregulation 4 0 0 3 0 0 0Deregulation, E & W 0 1 1 1 0 0 0Derelict Land 0 1 0 0 0 0 0Designs 4 2 5 0 1 1 2Development Board for Rural Wales 1 0 0 0 0 0 0Development Commission 1 0 0 0 0 0 0Development Commission, E & W 0 1 0 0 0 0 0Devolution 0 0 1 0 1 0 0Devolution, E 0 0 0 0 0 1 0Devolution, NI 0 0 1 0 0 1 0Devolution, S 49 14 10 9 6 11 10Devolution, W 15 4 4 1 1 2 1Diplomatic Service 2 1 1 2 2 0 3Disabled Persons 16 22 14 23 12 15 15Disabled Persons, E 0 0 0 0 0 0 1Disabled Persons, E & W 0 2 0 0 0 2 0Disabled Persons, S 0 1 0 0 0 0 0Disclosure of Information 0 0 0 0 2 1 0Distress 3 0 0 0 0 0 0Distress, E & W 0 2 0 0 2 0 0Doctors 0 0 0 0 6 10 9Ecclesiastical Law 0 0 0 0 0 0 1Ecclesiastical Law, E 6 7 4 3 5 3 6Education 0 2 1 3 0 2 6Education, E 95 91 126 119 103 72 52Education, E & W 128 41 35 32 16 16 15Education, NI 0 1 0 2 0 0 2Education, S 12 1 1 1 0 2 0Education, W 10 0 4 4 1 0 0Electoral Commission 0 0 3 1 0 0 0Electricity 1 8 18 8 4 9 10Electricity, E 0 0 2 0 0 1 0Electricity, E & W 0 2 2 3 2 1 2Electricity, S 0 0 0 0 1 0 1



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Electromagnetic Compatibility 0 0 0 0 0 0 1Electronic Communications 0 1 0 10 22 20 12Emergency Powers 0 4 0 0 0 0 0Employment 0 0 0 0 0 1 2Employment Agencies, etc 0 0 0 0 1 0 0Employment and Training 0 0 2 2 6 6 2Employment and Training, E 0 3 0 0 0 0 0Employment and Training, E & W 0 2 1 0 0 0 0Employment Tribunals 0 2 2 0 0 3 3Employment Tribunals, E & W 0 0 2 0 0 0 0Employment Tribunals, S 0 0 2 1 0 0 0Energy 0 0 0 0 0 1 0Energy, E & W 0 0 0 0 1 0 0Energy Conservation 3 2 2 0 2 1 2Energy Conservation, E 0 0 0 1 2 1 1Environmental Protection 12 8 6 10 8 16 11Environmental Protection, E 1 3 5 7 5 7 6Environmental Protection, E & W 0 4 4 6 4 6 13Environmental Protection, NI 0 0 0 0 0 1 1Environmental Protection, W 0 0 1 0 0 0 0Equal Opportunities 0 1 0 0 1 1 0European Communities 12 7 8 7 8 17 4European Communities, E 0 0 1 0 0 0 0European Communities, W 0 0 1 0 0 0 0European Parliament 1 0 0 0 0 0 0Evidence 0 0 1 0 0 1 0Exchequer 2 0 0 0 0 0 0Excise 0 0 0 0 0 0 7Export and Investment Guarantees 0 1 0 0 1 0 0Extradition 1 1 3 8 18 2 4Family Law 9 15 8 4 10 2 4Family Law, E & W 0 1 6 2 0 0 7Family Law, NI 0 0 2 0 0 0 3Family Law, S 0 0 1 0 0 0 0Family Proceedings 3 1 0 0 2 0 7Family Proceedings, E & W 0 3 3 0 3 3 10Fees 2 1 0 0 0 0 2Fees and Charges 6 3 3 7 7 9 5Financial Services 9 1 7 0 2 0 1Financial Services and Markets 0 1 88 15 19 14 21Fire Precautions 1 0 0 0 1 0 0Fire and Rescue Services 0 0 0 0 0 1 1Fire and Rescue Services, E 0 0 0 0 0 3 1Fire and Rescue Services, E & S 0 0 0 0 0 0 1Fire and Rescue Services, S 0 0 0 0 0 2 0Fire Services, E & W 0 0 1 0 0 2 0Fireworks 0 0 0 0 2 3 0Fish Farming 2 0 0 0 0 0 0Fish Farming, E 0 0 1 0 0 0 0Food 24 5 3 3 3 9 8Food, E 0 0 13 22 29 7 21Food, E and S 0 0 0 0 1 0 0Food, E & W 3 4 0 1 0 0 0Forestry, E & W 1 0 0 1 0 0 0Freedom of Information 0 0 1 4 3 10 6Friendly Societies 1 2 3 0 0 0 2



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Gas 4 9 7 5 3 5 7Geneva Conventions 3 0 0 1 0 0 0Gender Recognition 0 0 0 0 0 0 3Gender Recognition, E & W 0 0 0 0 0 0 2Gender Recognition, NI 0 0 0 0 0 0 2Government Resources and Accounts 0 2 0 1 5 4 2Government Trading Funds 3 1 3 3 3 2 4Hallmark 0 0 0 1 0 0 0Harbours, Docks, Piers and Ferries 2 0 0 1 0 0 0Health and Personal Social Services, NI 0 4 1 0 0 0 0Health and Safety 22 8 9 15 9 8 20Health and Safety, NI 0 1 0 0 0 0 0Health Care and Associated Professions 0 1 2 10 22 28 20Health Care and Associated Professions, S 0 0 0 0 0 1 0Health Professions 0 0 0 1 2 0 0High Court of Judiciary, S 5 0 0 0 0 0 0Highways, E 0 6 4 6 5 7 5Highways, E & W 5 0 0 0 0 0 0Hong Kong 1 0 0 2 0 0 0Horticulture 0 0 0 0 0 1 0Horticulture, E & W 0 0 0 0 1 0 0Housing 0 0 1 0 3 1 6Housing, E 8 10 13 12 8 9 16Housing, E & W 0 1 3 1 0 0 1Housing, NI 0 1 0 0 0 0 0Housing, S 5 2 2 2 0 0 0Human Fertilisation and Embryology 0 0 1 0 1 1 0Human Rights and Equal Opportunities 5 0 0 0 0 0 0Human Rights 0 1 4 0 0 1 1Human Tissue 0 0 0 0 0 0 3Immigration 3 31 15 24 42 29 30Immigration, E 2 0 0 0 0 0 0Immigration and Asylum 0 3 5 3 1 5 3Immigration and Asylum, NI 0 0 0 0 0 0 1Immigration and Asylum, S 0 0 0 0 0 0 1Immigration, E & W 0 0 0 0 0 0 1Income Tax 43 52 36 27 40 40 59Industrial Development 0 2 0 1 1 0 0Industrial Organisation and Development 2 1 0 2 1 1 0Industrial and Provident Societies 2 2 3 0 2 1 0Inheritance Tax 6 7 2 5 2 3 5Injuries in War Compensation 1 1 1 0 0 0 0Inquiries 0 0 0 0 0 0 1Insider Dealing 0 1 0 1 0 0 0Insolvency 4 1 3 6 11 10 5Insolvency, E & W 0 0 9 7 2 3 5Insolvency, S 0 0 2 3 3 0 0Insurance 3 5 1 0 0 3 1Insurance Premium Tax 0 1 1 0 2 2 2Intellectual Property 0 0 0 0 0 1 0International Criminal Court 0 0 4 0 0 2 0International Criminal Court, E & W 0 0 1 1 0 0 0International Criminal Court, NI 0 0 1 1 0 0 0International Development 0 0 0 3 4 1 0International Immunities and Privileges 6 3 8 4 2 3 6International Organisation and Development 0 1 0 0 0 0 0



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Investigatory Powers 7 14 4 5 6 2 3Isle of Man 1 0 0 0 0 0 0Judgments 0 1 2 0 1 0 0Judgments, E & W 0 0 1 0 0 0 2Judgments, NI 0 0 1 0 0 0 1Judicial Appointments and Discipline 0 0 0 0 0 0 1Judicial Appointments and Removals, NI 0 0 0 0 0 0 2Judicial Committee 2 3 0 0 2 0 1Justices of the Peace, E & W 5 8 6 2 2 1 5Justices of The Peace, NI 0 0 1 0 0 0 0Land Authority for Wales 1 0 0 0 0 0 0Land Charges, E & W 0 0 0 0 1 0 1Land Drainage 1 0 0 0 0 1 0Land Drainage, E 0 0 0 0 0 3 0Land Drainage, E & W 0 0 0 0 0 0 1Land Registration, E & W 3 7 3 1 14 2 4Landfill Tax 2 1 1 1 3 1 2Landlord and Tenant, E 2 2 1 6 12 7 3Landlord and Tenant, E & W 3 0 0 0 2 2 0Landlord and Tenant, W 0 0 0 0 1 0 0Lands Tribunal, E & W 0 1 0 1 1 0 0Landmines 1 2 1 0 0 0 0Legal Aid and Advice 0 0 1 0 0 0 0Legal Aid and Advice, E & W 23 13 12 3 1 0 2Legal Aid and Advice, S 5 0 0 0 0 0 0Legal Profession 1 1 0 0 0 0 0Legal Profession, E & W 1 2 3 0 0 2 1Legal Profession, NI 0 1 1 0 0 2 0Legal Services Commission, E & W 0 8 19 7 10 10 11Legal Services 2 2 0 0 0 0 0Legal Services, E & W 3 0 5 2 3 4 4Libraries 3 2 1 1 2 3 2Licenses and Licensing 0 0 0 0 1 4 17Licensing (Alcohol) 0 0 0 0 2 0 0Licensing (Liquor) 0 0 4 0 0 0 1Local Authorities, E 0 0 0 0 0 1 0Local Government 0 0 0 0 2 3 4Local Government, E 6 29 42 17 23 21 11Local Government, E & W 28 2 6 7 4 11 2Local Government, S 4 0 1 0 0 1 0Local Government, W 2 2 1 1 0 1 0London Government 3 76 9 5 7 4 3Magistrates’ Courts 17 8 2 3 1 4 3Magistrates’ Courts, E & W 5 5 22 5 12 20 24Maintenance of Dependants 1 0 3 4 1 1 0Marine Pollution 2 2 2 0 0 0 1Marriage, E & W 0 0 0 0 1 0 0Medical Profession 3 12 2 2 1 0 0Medical Profession, E 0 0 0 1 0 0 0Medical Profession, E & W 0 2 0 0 0 0 0Medical Profession, E, W & S 0 0 0 0 0 0 1Medical Profession, NI 0 1 0 0 0 0 0Medicines 6 15 12 10 11 17 21Mental Health 0 0 0 0 1 0 1Mental Health, E & W 0 1 0 3 1 1 5Merchant Shipping 25 11 10 9 17 22 7



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Metropolitan and City Police Districts 0 2 0 0 3 2 0Ministers of the Crown 7 1 4 4 3 0 2Monopolies and Mergers 2 0 0 0 0 0 0Multilateral Investment Guarantee Agency 0 1 0 0 0 0 0Museums and Galleries 0 1 0 0 0 1 1National Assistance Services 1 0 0 0 0 0 0National Assistance Services, E 0 3 8 2 3 2 2National Assistance, E 0 0 3 0 0 0 0National Debt 5 6 2 1 1 6 0National Election Expenditure 0 0 3 0 0 1 0National Health Service 0 0 2 12 0 3 2National Health Service, E 40 137 330 293 88 70 44National Health Service, E & W 114 17 10 17 13 14 21National Health Service, NI 2 0 0 0 0 1 0National Health Service, S 30 4 0 0 0 1 0National Health Service, W 3 0 0 1 0 0 0National Lottery 7 3 2 2 4 2 6New Forests 0 0 0 0 1 0 0Notaries Public 1 0 0 0 0 0 0Northern Ireland 38 14 19 18 35 30 30Nuclear Safeguards 0 0 0 0 0 5 0Nurses and Midwives 0 0 0 4 1 9 2Nurses and Midwives, S 0 0 0 0 0 1 0Nurses, Midwives and Health Visitors 1 1 1 3 0 0 0Nurses, Midwives and Health Visitors, E 0 0 0 1 0 2 0Oaths 1 0 0 0 0 0 0OVshore Installations 3 3 4 2 3 4 4Open Spaces 1 2 0 0 0 2 0Open Spaces, E & W 0 0 0 0 0 0 2Opticians 4 0 2 1 1 3 9Opticians, E 0 0 0 0 0 0 1Osteopaths 5 8 1 2 0 0 0Overseas Development and Co-Operation 1 3 1 0 0 0 0Overseas Territories 0 0 0 3 1 12 3Parliament 3 1 3 2 0 2 2Parliamentary Commissioner 2 2 0 0 1 1 2Partnership 1 3 7 6 1 1 2Patents 7 3 3 2 3 5 3Pensions 20 49 26 24 15 12 98Pensions, E 0 0 0 0 1 1 1Pensions, E & W 0 1 9 7 6 7 9Pensions, NI 0 0 0 0 0 0 3Pensions, S 0 1 1 0 0 1 0Pensions, W 0 0 0 0 1 0 0Pensions and Social Security 1 0 0 0 0 0 0Pesticides 2 1 4 1 1 3 2Pesticides, E & W 0 0 4 5 4 4 5Petroleum 3 1 1 0 0 3 1Petroleum Revenue Tax 0 0 0 0 0 0 3Pilotage 0 0 0 0 0 0 1Pipe-Lines 1 3 0 0 0 0 0Pitcairn Islands 0 2 0 2 0 1 0Plant Breeders’ Rights 1 0 1 2 0 0 0Plant Breeders’ Rights, E 0 0 0 0 0 0 1Plant Breeders’ Rights, NI 0 0 0 0 0 0 1Plant Health 0 0 3 4 0 4 1



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Plant Health, E 1 2 1 4 1 4 5Plant Health, E & W 0 0 0 1 0 0 0Plant Health, W 4 0 0 0 0 0 0Police 18 5 10 18 4 8 4Police, E 0 0 0 0 0 1 0Police, E & W 0 0 5 16 32 25 19Political Parties 0 0 3 0 0 1 1Post OYce 2 0 0 1 0 0 0Postal Services 1 2 10 3 2 0 0Powers of Attorney 1 3 1 0 0 0 0Powers of Attorney, E & W 0 0 0 2 0 0 3Prevention and Suppression of Terrorism 3 4 15 6 6 3 2Prices 1 0 0 0 1 1 0Prisons 4 3 3 2 3 1 3Probation 0 1 3 0 0 0 0Proceeds of Crime 0 0 0 6 16 3 3Proceeds of Crime, E & W 0 0 0 0 0 0 1Proceeds of Crime, NI 0 0 0 0 0 0 1Professional Qualifications 1 1 1 4 1 0 2Professions Supplementary to Medicine 4 1 1 0 0 0 0Protection of Vulnerable Adults, E & W 0 0 0 0 0 1 0Protection of Wrecks 2 0 1 0 0 0 0Protection of Wrecks, E 0 0 0 1 0 3 1Public Audit, E & W 0 0 0 0 0 0 3Public Health 1 0 2 1 1 4 5Public Health, E 0 1 5 8 7 5 1Public Health, E & W 6 1 0 2 2 4 0Public Health, NI 7 2 0 0 0 2 0Public Health, S 7 1 0 0 0 0 0Public Health, W 0 1 0 0 0 0 0Public Order 1 0 0 0 0 0 0Public Order, NI 0 2 1 0 2 1 1Public Passenger Transport 3 3 1 6 3 5 6Public Passenger Transport, E 0 0 1 3 1 1 2Public Passenger Transport, E & W 0 0 0 2 0 3 1Public Procurement 0 1 1 0 1 0 0Public Records 3 1 2 0 1 1 1Public Records, E & W 0 0 1 0 1 0 0Public Sector Information 0 0 0 0 0 0 1Race Relations 1 0 3 2 4 2 0Radioactive Substances, E & W 0 0 1 0 0 0 0Railways 0 0 0 0 0 0 1Rating and Valuation 5 0 0 0 1 2 0Rating and Valuation, E 3 18 11 3 8 11 5Rating and Valuation, W 0 0 0 0 0 0 1Recovery of Taxes 0 0 0 0 0 3 2Referendums 0 0 2 0 0 3 0Regional Development 0 1 0 0 0 0 0Regional Development Agencies 1 0 0 0 0 0 0Registers and Records 1 0 0 0 0 0 0Registration of Births, Deaths, Marriages 0 2 0 2 3 0 1Registration of Births, Deaths, Marriages, 3 2 0 0 0 0 7etc, ERegistration of Political Parties 1 1 5 1 0 0 1Regulatory Reform 0 0 1 6 6 3 5Regulatory Reform, E 0 0 0 1 0 0 0



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Regulatory Reform, E & W 0 0 0 0 1 0 2Regulatory Reform, W 0 0 0 0 0 1 0Rehabilitation of OVenders 0 0 1 0 0 0 0Rehabilitation of OVenders, E & W 0 0 1 1 1 0 0Representation of the People 23 6 18 6 13 22 6Representation of the People, E 0 0 0 0 0 0 1Representation of the People, E & W 0 0 0 0 0 4 0Representation of the People, NI 0 0 0 0 0 2 0Representation of the People, W 0 0 0 0 0 2 0Restrictive Trade Practices 1 0 0 0 0 0 0Revenue and Customs 0 0 0 0 0 0 4Revenue and Customs, E & W 0 0 0 0 0 0 1Rights in Databases 0 0 0 0 1 0 0Rights in Performances 1 0 0 0 2 0 1Rights of Way, E 0 0 0 1 1 1 0River, E 0 0 0 0 1 0 0River, E & W 1 1 0 1 0 0 0River, S 2 0 1 0 0 0 0Road TraYc 57 76 67 59 66 57 62Road TraYc, E 0 2 0 2 0 0 0Road TraYc, E & W 0 0 0 6 1 0 3Roads and Bridges, S 1 0 0 0 0 0 0Savings Banks 4 1 1 0 1 0 0Scottish Parliamentary Standards 0 0 0 0 1 0 0CommissionerScottish Public Services Ombudsman 0 0 0 0 0 1 0Sea Fisheries 11 2 1 2 0 1 0Sea Fisheries, E 0 0 8 3 5 6 3Sea Fisheries, E & W 0 2 0 0 2 1 1Sea Fisheries, NI 0 10 4 2 0 0 1Secure Training Centres, E & W 0 0 0 0 1 0 0Securities 2 0 0 0 0 0 0Security Industry 0 0 0 1 1 1 0Security Industry, E & W 0 0 0 0 0 0 12Seeds 11 0 0 3 0 1 0Seeds, E 0 7 1 6 1 7 6Serious Organised Crime Agency 0 0 0 0 0 0 1Sex Discrimination 3 0 1 0 4 1 1SheriV Court, S 10 0 0 0 0 0 0Social Care 0 0 2 2 1 3 0Social Care, E 0 0 10 13 12 13 14Social Care, E & W 0 0 0 0 3 4 5Social Care, W 0 1 0 0 0 0 0Social Security 98 110 107 88 92 71 77Social Security, E & W 0 0 0 0 1 0 1Social Security, NI 4 19 12 8 5 2 5Social Services, E 0 1 4 0 10 0 1Special Roads 0 0 0 0 1 1 0Sports Grounds and Sporting Events 5 8 2 3 4 2 3Sports Grounds and Sporting Events, E & W 0 0 1 3 0 3 0Stamp Duty 0 0 0 0 0 0 3Stamp Duty, NI 0 0 0 0 0 0 1Stamp Duty Land Tax 0 0 0 0 0 0 4Stamp Duty Reserve Tax 0 0 0 0 0 0 1Statistics of Trade 1 1 1 1 1 1 1Succession 1 0 0 0 0 0 0



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Sugar 1 0 0 0 0 0 0Summary Jurisdiction, S 3 1 0 0 0 0 0Summer Time 0 0 0 1 0 0 0Supreme Court of England and Wales 23 21 19 10 29 33 30Supreme Court of Northern Ireland 0 0 3 0 1 2 2Tax Credits 0 0 0 13 21 8 9Tax Credits, E 0 0 0 0 0 0 1Tax Credits, NI 0 0 0 0 0 1 0Tax Credits, S 0 0 0 0 0 1 0Taxes 25 19 28 21 20 23 13Taxes, NI 4 1 12 7 1 0 0Telecommunications 70 26 20 13 2 0 0Telegraphs 6 7 4 4 12 0 0Terms and Conditions of Employment 29 20 14 22 17 22 12Terms and Conditions of Employment, E & W 0 0 3 0 1 0 0Terms and Conditions of Employment, S 0 1 0 0 0 1 0Territorial Sea 0 0 0 1 0 0 0Territorial Waters 0 0 0 1 0 0 0Terrorism 0 0 1 2 0 0 0Town and Country Planning 0 0 1 0 0 1 2Town and Country Planning, E 0 6 3 6 7 14 11Town and Country Planning, E & W 10 2 0 1 0 1 0Town and Country Planning, S 1 0 0 0 0 0 0Town and Country Planning, W 0 0 0 0 0 1 1Tractors 0 1 1 1 0 0 0Trade Descriptions 0 0 0 0 0 0 1Trade Marks 4 4 1 3 0 6 1Trade Unions 0 0 0 1 0 0 2Transport 16 23 22 14 12 20 25Transport, E 0 0 6 10 4 2 9Transport, E & W 0 1 0 0 3 1 0Transport, NI 0 0 0 0 1 0 0Transport, S 0 0 1 0 0 0 0Transport and Works 1 1 0 1 1 0 0Transport and Works, E 0 2 5 6 2 2 10Transport and Works, E & W 0 2 0 2 0 0 0Treasure 0 0 0 1 0 0 0Tribunals and Inquiries 1 4 1 4 1 0 1Tribunals and Inquiries, E 0 2 0 0 3 2 1Tribunals and Inquiries, E & W 0 0 0 0 0 2 0Tribunals and Inquiries, W 0 0 0 0 6 1 0Trustees 1 1 1 0 0 0 0Trustees, E & W 0 0 1 1 1 1 1Trusts, E & W 0 0 0 0 0 1 0United Nations 10 21 22 10 12 13 10Unsolicited Goods and Services 0 0 1 0 0 0 1Urban Development 0 0 1 0 0 0 2Urban Development, E 0 0 0 0 0 1 0Urban Regeneration Agency 1 0 0 0 0 0 0Value Added Tax 24 15 17 16 18 25 15Veterinary Surgeons 2 2 2 2 3 5 3Water 0 0 0 0 0 1 2Water, E 0 0 0 2 0 0 0Water, E & W 1 2 0 0 1 1 3Water, S 0 0 0 1 0 0 0Water Industry 0 0 0 0 0 0 1



8 November 2005

Heading 1999 2000 2001 2002 2003 2004 2005

Water Industry, E 0 0 0 0 0 0 2Water Industry, E & W 4 4 1 0 1 2 8Water Resources, E 0 0 1 0 3 1 0Water Resources, E & W 4 0 0 0 3 0 0Water Resources, S 0 0 0 0 0 1 0Water Supply 0 0 0 0 0 1 1Water Supply, S 0 0 0 0 0 0 1Weights and Measures 1 4 6 0 4 0 1Welsh Language 2 2 0 0 0 0 0Wildlife 1 0 0 0 0 1 1Wildlife, E 0 0 0 0 0 1 0Wireless Telegraphy 0 1 0 0 0 0 0Young OVenders Institutions, E & W 2 4 0 1 0 0 2Young OVenders Institutions, S 1 0 0 0 0 0 0Youth Courts and OVenders 0 1 0 0 0 0 0Zoos, E & W 0 0 0 1 0 0 0

Local Instruments

Subject 1999 2000 2001 2002 2003 2004 2005

Administration of Justice 12 7 14 5 7 9 0Agriculture, Fisheries and Forestry 3 11 366 1 0 2 0Air Navigation (Restriction of Flying) 5 8 252 83 101 86 124Charities 2 1 1 0 1 1 0Customs and Excise (Free Zones) 1 0 3 0 0 0 0Derelict Land 0 0 0 1 0 0 0Disabled Persons 0 0 0 0 0 0 1Education 4 2 11 8 12 24 40Electricity 0 0 0 0 3 1 0Housing 0 0 0 0 0 0 1Land Drainage 0 0 0 0 0 0 3Local Government 53 67 110 99 58 64 25OVshore Installations 0 0 0 0 3 1 0Public Passenger Vehicles 1 1 0 0 0 0 0Railways, Tramways and Trolley Vehicles 0 1 7 3 1 2 0Rivers and Inland Waterways 7 2 5 0 1 2 7Roads, Bridges, Road TraYc and Rights 238 168 1,160 1,154 1,333 1,461 1,538of WaySea Fisheries 0 0 0 0 0 0 1Shipping, Harbours, Docks and Ports, etc 5 4 8 10 4 7 5Town and Country Planning, Open Spaces, 0 0 1 1 0 0 0Access to CountrysideWater Supply 1 3 0 0 1 1 2



8 November 2005


Witnesses: Mr Anthony Inglese, Director-General of Legal Services, Mr Mitchell Leimon, Director,Better Regulation and Mr Bryan Welch, Legal Director (Consumer Protection), Department for Trade and

Industry, examined.

Q132 Chairman: Would you introduce yourselves on it, the Joint Committee reports on it. Thelegislation for which we are responsible covers aby name and role?

Mr Inglese: Thank you, my Lord Chairman. I am broad front—Chairman: I should have explained that we haveAnthony Inglese, and I am the Solicitor and

Director-General of Legal Services in the divisions taking place in the House, and I am afraidone has just been called. We will ask you to pause atDepartment for Trade and Industry. Perhaps I could

say a little more about what I do after the team have that point. We will go oV and vote and the world willbe a better place when we come back.introduced themselves.

Mr Leimon: Mitchell Leimon, Director of BetterRegulation in the DTI for the last two months. The Committee suspended from 5.17 pm to 5.26 pm forMr Welch: Bryan Welch, I am head of one of the two a division in the Houselegal branches which deal with consumer protection.

Q135 Chairman: Do carry on, if you can rememberQ133 Chairman: You wanted to amplify a little onwhere you were.your role, Mr Inglese?Mr Inglese: I was beginning to aim to give theMr Inglese: I have been the solicitor and Director-Committee a flavour of the subjects we cover in theGeneral of Legal Services in the Department forDTI. We cover a broad range of subjects comparednearly four years. I have worked in other governmentto lots of other departments—company law,departments as well. I am a member of the DTIinsolvency, competition law, consumer law,Board and I am the Board member withconsumer protection, communications, weights andresponsibility for what I call the Statutorymeasures and other standards, trade union law,Instrument process—the quality of drafting; theemployment law, equality and discrimination,quality of lawyers doing the work; the managementintellectual property, electricity, oil, gas, coal,of those lawyers; coaching; the recruiting of lawyersnuclear. And a significant amount of our workto work in the team—where we look for people withinvolves implementing EU Directives. That gives agood analytical powers, creative powers, practicalflavour of the sorts of things our lawyers and policypowers; the training of lawyers and training acrossoYcials are doing.the Department in work on Statutory Instruments

and then handling issues as well. So, for example, ifthere are points on bunching of Statutory Q136 Chairman: Could you develop the process aInstruments, those points would be my responsibility little more? Is there a process of active managementto do something about. I am also chair of a board in the Department across the making of SIs, both towithin the Department called the Legislative Board ensure they are well done when they come beforeand that board helps the Secretary of State to Parliament, that they are as sound as you can makeprioritise all bids across the Department for primary them, that they are properly timetabled, that there islegislation. We monitor progress on all the proper consultation, et cetera?Department’s Bills through the draft stage and we Mr Inglese: A lot of what I am going to say relates toaim to educate the Department through that process that system, so we may take it in chunks as we goin legislation and in supporting that legislation, in through the session, but can I start with someparticular subordinate legislation which is needed to strategic comments about how we monitor SIs underimplement our primary legislation. When we are that system? We take SI work very seriously. We lookdoing that we look for project management at the progress of the larger Statutory Instruments onapproaches and an approach to risk management our risk registers, and my current risk register, forand, above all, quality of work. May I say a little example, looks at progress of the Age Regulationsmore about the approach of the DTI to give you a and any problems with Working Time. Anythingflavour— that is that serious gets on to the register, which I look

at every week with my top team. I ask for monthlyreports from the senior lawyers who are responsibleQ134 Chairman: Yes, that would help. It will

probably spare you from lots of questions. for the drafters, and those monthly reports tell meabout the progress of every significant StatutoryMr Inglese: I would say the DTI is no diVerent from

any other government department in the sense we see Instrument which we run as a project. So once amonth I can sit down and look at a group of smileysubordinate legislation as important for our

reputation. A lot of what we do is public, you report faces or frowny faces as to whether something is on



8 November 2005 Mr Anthony Inglese, Mr Michell Leimon and Mr Bryan Welch

administrator will come together, it is a team eVort,track. We have a balanced scorecard which we use asand words will appear from the lawyer and the eVorta tool to enable us to keep on top of this area of workis often called an iterative eVort as the lawyerand the scorecard looks at, amongst other things,challenges the policy and the policy oYcial challengeslegal quality; is the quality of the work really good.the legal drafting and they both ask questions like,What helps us to feed information back into that“Do we really need to do this? Are there better waysbalanced scorecard is the feedback we get from theof doing this? Is there a non-legislative way of doingMerits Committee, the Joint Committee, if any of ourthis?” This is all considered at the beginning.cases are ever in court and they feature one of our

Statutory Instruments, how did the case go, what didthe judge say. The last time we were in court we had Q137 Chairman: Can you give us an example wherea judicial review on one of our Statutory Instruments this has actually led to an SI being stopped becauseand the S.I was upheld. I see it as very important to you found an alternative way of achieving the policykeep the quality traYc light on that scorecard green. objective?It really is important for us to be doing that work Mr Inglese: I have noticed that previous witnesseswell. We have a lot of internal guidance that we use have not been able to answer this question in quitefor the preparation of Statutory Instruments, so the detail you would like them to either. The best Ipeople do this work under guidance, and the can do with this one is say how that sort of work hasguidance comes from lawyers, policymakers, moderated or modified things which were going to beparliamentary clerks. It is on our intranet. We also done. For example, in negotiating the Electricitylook at the Cabinet OYce’s intranet, and the Security of Supply Directive, the DTI persuaded theGovernment Legal Service has an intranet called European Commission to drop a regulatoryLion, which again has a lot of guidance on Statutory provision requiring Member States to haveInstrument procedures. That is the background interconnector capacity amounting to 10 per cent ofagainst which we do the work. When it comes to the installed electricity generation capacity. We lookedwork itself, the starting point is when a policy idea at alternative ways of doing this and we successfullycomes forward that needs to be taken up into a promoted the benefits of the market place approach

to energy infrastructure without the need forStatutory Instrument. That policy comes from aspecific targets.number of sources, implementation of international

commitments, European Directives, sometimes weare simply putting flesh on a Parliamentary Bill which Q138 Chairman: Maybe you would care to give us ahas just passed and we are implementing that Bill. It supplementary note on that because it is of interest tois an important part of the process on Statutory us, not necessarily the examples but also to get intoInstruments that the policy administrators and the the skin, by what process you stimulated that tolawyers work closely together in developing policy happen, because that is the diYcult bit, is it not?and drafting right from the very start. If there is one Mr Inglese: I do have one or two other examples Ithing which characterises the work, it is that can give.formation of a team right at the beginning and theidentification of that piece of work as a project, which Q139 Chairman: Can you drop us a note becauseenables us to form a timetable and look at when it is that will allow us to absorb them. This is extremelygoing to come into eVect and count back, look at the interesting stuV and very much what the Committeevarious stages as we define the project and take is interested in exploring. But the Committee wouldaccount of the need to give guidance, the need to like to have a go at asking questions as well, so if youconsult and the length of time it takes to produce a could bring it to a conclusion, I will give you a chancegood draft. We always aim to draw up a timetable, at the end to say anything you feel we have notand any Statutory Instrument which is of a properly explored with you.significant size is normally run as a project, and in the Mr Inglese: I will skim quickly. We have aDTI we have a project centre that gives guidance on consultation with stakeholders. Consultation can behow to run things as a project for those people who and always is formal but we also have informalare coming new to the concept for the first time. One methods of bringing stakeholders together and weof the key things is to identify the stakeholders in the can say more about that later. Once the consultationprocess early on. We consult them at an early stage. is over and there is further drafting, we haveFor example, with our Statutory Instrument on the occasionally consulted again if we have to go back toSupply of Extended Warranties on Domestic the people, but usually at that point we have got theElectrical Goods, the oYcials met the key Statutory Instrument together in the Department.stakeholders to discuss the policy proposals and We seek and obtain ministerial approval, we linklistened to their concerns before even the first draft of with our parliamentary unit to discuss how to takethe Statutory Instrument was prepared. When the forward the making and laying of the Statutory

Instrument, and we also finalise the Regulatoryfirst draft is put together, the lawyer and the




Mr Inglese: May I say two or three sentences beforeImpact Assessment and the ExplanatoryMemorandum with a view to putting all of that answering that about Common Commencementtogether and showing it to the Committee and Dates? I think everybody in this room is probably inpublishing where appropriate. favour of the notion of Common CommencementChairman: Thank you very much indeed for that Dates for Statutory Instruments which have anextremely interesting introduction. There is much we impact on business. When Government consultedwant to explore. businesses there was a very high level of response in

favour from businesses; I think 83 per cent of thoseconsulted were in favour. It is worth saying that we

Q140 Earl of Northesk: Your observation about the are not questioning the idea of Commonbroad range of your legislative responsibilities Commencement Dates, which Government will rollsparked a thought in my mind. Of course, the ambit out into other areas as well; but what is beingof your legislative responsibility is rather wider than questioned is the bunching of Statutory Instrumentswithin your own Department in that you are made in the run-up to a Common Commencementguardians of the Technical Standards Directive. Date?What suddenly occurred to me is that, if you areguardians of those particular directives which reachacross government department boundaries, what Q143 Viscount Colville of Culross: Yes.mechanisms do you have for liaising with other Mr Inglese: In preparation for this hearing I havedepartments in respect of SIs relating to or touching tried to find out some of the basic facts about DTIon the cusp of the Technical Standards Directive? Instruments, to explain what happened with them inMr Inglese: I cannot answer for the Technical the run-up to the 6 April date of this year and the 1Standards Directive but I can give an answer about October date. May I give some figures? On 6 April wehow we consult other departments on other things. had 11 DTI Statutory Instruments coming into force

which had a Common Commencement Date of 6April. Of those 11, one of those was laid in January,Q141 Earl of Northesk: That would be extremelytwo of those were laid in February and eight of themhelpful.were laid in March. There were two others whichMr Inglese: There is a lot of cross-departmental workwere made in March but they were not subject to anyon legislation and supporting legislation. Forparliamentary procedure. So one, two, six. If youexample, I know because it happens all the time,compare that with DTI’s overall output of otherlawyers speak to other lawyers in other departments,Statutory Instruments during that period, we laid fiveshow them drafts, ask them if those drafts work inin January, 10 in February, including three whichthose other departments, often show them draftswere not subject to parliamentary procedure, and inwith some sketched-out wording or gaps and askMarch—and I realise I am leading with my chinthem to fill in those gaps insofar as they relate to thehere—we laid 27, including seven which were notresponsibilities of other departments. A very goodsubject to parliamentary procedure. So I think we,example of that is something we have recently doneand possibly other departments, helped to produceon implementing the Civil Partnerships Act, which iswhat has been called a spike in March. Can I sayone of those Acts which covers legislation in all sortssomething about October?of other departments and that has involved a lot of

collaborative work—Earl of Northesk: We have noticed! Q144 Chairman: If it got better, we would be pleased

to hear it.Mr Inglese: Yes, I would say that, but I think there isQ142 Viscount Colville of Culross: We know!still room for improvement. In October there wereCommon Commencement Dates: I quite understand14 Common Commencement Date Statutorythere is a great deal to be said, particularly if you areInstruments coming into force on 1 October. Three ofdealing with businesses, for having a commonthose 14 were laid in July, eight were laid in Augustcommencement date for groups of Statutoryand three were laid in September. If you then look atInstruments. It does cause a major traYc jam, itDTI Statutory Instrument output during that periodcauses one at the HMSO but it certainly causes onewith other Instruments which were not Commonhere. Is there any reason why you cannot plan aheadCommencement Dates, in June we made and laidso that, although they are all going to come into forceseven, in July we laid ten, in August we laid 14 and inat the same time, which will help the businesses, youSeptember we laid eight. If you look at that in thecan nevertheless get them in front of Parliament andform of a graph, there was a big spike in March, butall the other people concerned in smaller numbersthe thing in June, July, August, September was moreover a period of time beforehand? I think it would be

a huge help if you could. of a hill.




be to reduce the bunching. But I think it would beQ145 Chairman: The conclusion we draw from thatis that with active management there is no reason true to say there will always be some bunching.why one cannot with common commencement datesget an even flow. You would agree with that, would Q148 Viscount Colville of Culross: That is veryyou not? helpful, but to judge by what you said about theMr Inglese: I would. I think Mr Welch would like to preparation of Statutory Instruments, which is veryadd something on that as well. considerable, you must know fairly early on whichMr Welch: What I would like to add to that, my Lord are the ones which are going to be subject to aChairman, is that we have an increasing number of Common Commencement Date.steps that we have to go through before making Mr Inglese: Yes.Statutory Instruments. To begin with, we have athree month consultation period, we have twelve Q149 Viscount Colville of Culross: For the rest ofweeks to provide guidance to business before it comes them it does not actually matter all that muchinto force, and obviously the 21 days minimum to the probably when they come into force and when theyJCSI. This means we are already talking about are laid. Why do not you concentrate on thehaving to start seven months before the Instrument Common Commencement Date ones and get themcomes into force. When we add to that the possibility down quickly so they can come out in a series?of the notification to the Technical Standards Otherwise the system just does not cope with it,Directive and the possibility of AYrmative particularly, if I may say so, in September.Instruments debates, we end up with quite a Mr Inglese: I think the figures I produced show thatcomplicated and elongated timetable, and of course actually it is the other ones which out-number theat the beginning of that is the question, what does the Common Commencement Date ones. Because theminister want to do and when does he or she want to Common Commencement Date ones seem to bedo it by, which overlays that. This is the diYculty of more significant to us in planning terms, in the sensesaying we can simply make the spike disappear, that we tell the world about them and we put them inbecause it depends how far back we start and we our annual Statement of Statutory Instruments, it isalready have to start really quite a long way back more likely we are going to be running them more asfrom the coming-into-force date. part of a programme of Statutory Instruments. It is

probably the other stuV which could be the issue. I doQ146 Chairman: I am not persuaded that that means not have as much visibility as to what the other stuVit is impossible or even diYcult. is, to be able to say that a lot of that can easily wait.Mr Welch: Indeed no. The best thing I can say is that this hearing, if I can

speak frankly, has concentrated the mind and hasenabled me to go away and think there is somethingQ147 Chairman: It requires one to plan it like awhich needs to be done, but I would be foolish if Iproject which you have described and start it earlierpromised to make it go away entirely.in the process rather than leaving it later in the

process, does it not?Mr Inglese: The spike in March may have had Q150 Lord TunnicliVe: Do you analyse the

outcomes of the Statutory Instruments you have laid,something to do with other sectoral commencementdates—the start of the financial year, the general whether they achieve their policy objectives, whether

they create a disproportionate burden, et cetera?election—so I think that gives you a challenge fornext March. We ought in departments to take on the There is an awful lot which goes into the creation of

a Statutory Instrument. How much learning do youaim of minimising bunching but I think it would befoolish for us to volunteer to eliminate bunching take from its actual impact afterwards?

Mr Inglese: We have recently set up an advisorybecause, as Bryan says, there will always be someslippage in some projects. Sometimes key people are forum on the impact of employment policies, and the

aim of that forum is to assess the impact of theaway sick, as occasionally has happened to us;sometimes policy discussions go to the wire—rather regulatory framework on employment. So that is

looking at all Bills and Statutory Instruments. Inlike Fireworks, for example. We made FireworksRegulations late, but people can imagine there is a lot some of the fields in which the DTI works, we have

people who are actually users of the supportingof discussion going on in the run-up to the fireworksseason. But the aim we should have is to produce a legislation and primary legislation in the

Department. So, for example, the Insolvency Servicesmoother picture, and not just to run each StatutoryInstrument as a project but to find a way of running is a continuous user of insolvency legislation, and

that is currently carrying out a review of thea group of Statutory Instruments more as aprogramme. I would love to say that is very easy and eVectiveness of the Enterprise Act and the Statutory

Instruments made under it. Similarly, withwe will go away and do it, we will certainly go awayand try and do something about it, and the aim would intellectual property law we have the Patent OYce




not doing it because we do not take it seriously, butwhich does the same. I might say something laterabout consolidation. Then it is general DTI policy to trying to ensure we have a disciplined and structured

approach to evaluation. I am sure we can do more.review regulations after implementation where therehas been a Regulatory Impact Assessment. That is There are two factors going on at the moment which

will help us on this. The Cabinet OYce-led Betterour general approach to evaluation.Mr Leimon: I think the Committee has heard Regulation programme, the cross-departmental

programme, has launched firstly the Admin Burdenspreviously from others about the value of standingconsultative bodies which structure a continuing Review, which is a Domesday Book-exercise across

Government which we are going about. That indebate. There is plenty of evidence, within DTI, ofthe regulatory round; of legislation like the theory will give us a calculus of all the administrative

burdens laid on businesses as a steady state againstEnterprise Act having settled down, coming up forrethinking and evaluation by stakeholders. So the which we can measure the increases and decreases of

burdens on business. So that will give us a calculuswork plan in large areas of the DTI is, like the ForthRailway Bridge, around the continuous maintenance going forward for evaluation of what we do and

whether it delivered more or less positive andof legislation. Secondly, all of us must schedule—inthat point of post-evaluation by instinct so far as the negative benefits than we anticipated. Secondly, DTI,

following the Cabinet OYce, is leading on thepoints of post-evaluation are concerned, and theyare often anticipated by general debate about calculation of cumulative burdens, not just of the

administrative burdens but of the policy cost, andenforcement in the business communities of what hasworked and what has not. That debate is lively, and that very intellectually significant exercise should

come through in about 18 months. That may lead usfeeds into the better regulation debate, of which Iam part. towards the concept of regulatory burdens. So all of

this I think will lead towards a more disciplinedcontext of looking at the impact of regulation.Q151 Lord TunnicliVe: Your answer seems to say to

me that it happens but it does not seem to say, asdirectly as I wish it did, that it is structured. In other Q153 Baroness Morgan of Drefelin: I am wondering,words, is there a paragraph in your project having listened to the last couple of answers, whetherprogramme which says, “After the SI we will look at as a result of preparing for this Committee you mightthe impact. It may happen somewhere, so we can be looking at your risk register or your risk mapsteal that. But we will guarantee every SI is looked at again thinking about a more systematic approach tofor what its impact is and what we can learn about the evaluation and assessment of burden?process which led to that SI”? Mr Leimon: It has certainly been a salutaryMr Leimon: Every RIA, which also cover SIs and experience for me. Having joined the Department asother forms of secondary legislation which have a a professional project manager, I was not expectingbusiness impact, sets the point at which the impact to find myself in front of a Committee of thiswill be assessed. So there is an absolute commitment seriousness. We are looking hard at what we have tothat post-implementation assessment is scheduled. do. DTI as a department takes very seriously theFor example, the RIA on the Voluntary Provision of better regulation initiative. We have to be veryDirectors’ Remuneration we are evaluating in 2008. committed to it. Our new permanent secretary, SirThe key thing is that evaluation goes into the full Brian Bender, has stressed that DTI must be in theworking plan of the Department, and is scheduled. premier league on better regulation. For us,

secondary legislation is just as important as primarylegislation. Looking forward, we are tasked withQ152 Lord TunnicliVe: What have you learntbringing forward a culture change. As I say, I thinkthrough that process?the DTI has in many respects a very good story onMr Leimon: In preparing for the Committee we didbetter regulation—and we should have, should wenot automatically find lots of directly resultingnot? It would be very embarrassing if we did not. Butevaluation analysis. As was said earlier, in the workwe do see the need for a significant leap forward inin the Department people are constantly engaged invarious aspects of it. If I can re-interpret your pointfixing previous legislation and bringing forward theslightly, I would say the thing I take from it is thenext stage and the natural developments thereof.challenge we have in getting foresight of forwardWithin the Better Regulation team, I have a studentyears of the work programme. The challenge is ofas part of an MBA doing an analysis of thewhether it will be diYcult or even sensible for us toDepartment’s approach to evaluation, because weimpose a central bureaucracy of great grip andsee it as part of the loop of policy formation which isstrength. Nobody likes that, and it can causeat the heart of better regulation, and those findingsperformance to deteriorate rather than to improve. Iare interesting. We will have to, as part of the Betterthink our challenge of looking at how better foresightRegulation programme, plan some more activity and

improve our game on evaluation. But, as I say, we are can be maintained across the regulatory activity of




to why this should be? Is it that some sections withinthe Department is one of the things we will be lookingfor in the coming months, and looking at the the Department are not as conscious of what theyscorecard and making Best Practice guidance. ought to be doing as others? Is it the Legal

Department, which pays more attention to things insome instances and not in others? Could you explainQ154 Chairman: Can I leave with you a questionthis patchiness? The second question I want to ask isfollowing on Lord TunnicliVe’s question on thiswith regard to the, I can only describe it as, sloppyarea? It sometimes appears to us as if departmentsway in which some departments draft Statutorymake regulations without much of a thought aboutInstruments. Your Department much irritated thehow they would retail those, without much of aCommittee last year because you succeeded inmodel of how they would incentivise compliance withhaving, of the 60 Instruments you laid, five of themthem and with a very weak understanding of howwhich were corrections from previous mistakes, andthey would actually track what has happened inthat particular thing really does make us very cross.practice. I am generalising. What is characteristicAcross the whole of government, you were the fourthoften is that there appears to be no feed-backworst department. This year we are very pleased.mechanism, to know whether that regulation hasAgain there is patchiness but this year you have laidworked, and then no collective feed-back mechanism46 Instruments, none of which were corrections. Iwhich learns across government or acrosswonder if you could tell us, when you saw those verydepartments when you have regulated in certain waysbad figures from last year, what did you do in theand in certain circumstances to get better complianceDepartment to create a situation this year wherewith the policy outcomes, which is what it is all about.things were infinitely better? I think we would be veryDo not feel you have to answer that now, but weinterested to know what you did in your Departmentwould welcome, perhaps building on your student’sbecause in dealing with other departments, and I amnote, some further thinking on this, how you thinkthinking particularly of the OYce of the Deputyyou as a department will be taking this forward. YouPrime Minister, which had an absolutely disgracefulunderstand the argumentation; I am sure, without merecord over two years, we might feel inclined on thelabouring it?basis of what you could tell us to see if that deviceMr Inglese: Can I just respond on one point there? Itmight be usefully implemented.is important for us to work closely with ourMr Inglese: I would like to be able to say that we didstakeholders in the DTI. We see ourselves as athree things and they had immediate impact, but Idepartment which has to be closely linked withthink it is not quite as simple as that. I will do my bestbusiness, and a lot of our SIs are being inflicted onto answer both questions. The first thing is whetherbusinesses. When we consult our stakeholders, 74 perwe get this right or wrong. We do take this work verycent of them tell us that they are involved in policy-seriously. We value people who do it well and thatmaking by the DTI, which I believe is quite a highcomes up, for example, in the way we give outfigure, and that is something where we think we havebonuses to people for doing good work and the waya dialogue with them. If they think we are not doing itwe appraise staV. We regard good drafting as anright, they certainly will push back. One of the things

which senior civil servants in the DTI do is every year important part of the skills of a DTI lawyer. When weto spend a week in the world somewhere, which we recruit people, we are looking for analytical skills,call a week-in-business, and a number of us choose to creativity and the practical nature, so they can turngo where there is a lot of regulation, so people can that into a good draft. One of the things we ask newgive us the benefit of their opinion on the regulation recruits in a written question which they will have towe do. answer is a little drafting point to see if they are theChairman: Let me leave the question with you, and if kind of people who will come to grips with draftingthere is some further evidence, we would welcome it. or will somehow shy away from it. So that is

something we do take very seriously. What we havedone since last year is that we have set up twoQ155 Lord Jopling: I would like to ask two questionsStatutory Instrument co-ordinators within the Legalwhich arise from the general impression I think weServices Group, who have the job of dispensing feed-have that the DTI’s handling of Statutoryback from this Committee and the Joint CommitteeInstruments is somewhat patchy. We find sometimeson our Statutory Instruments and giving peoplethat you lay Instruments with plenty of time, otherguidance. That sort of thing went on before but it wastimes you do not, and we would be critical that timenot done by these two individuals. We have alwaysis very low. I will not get on to consultation becausehad a system of checking Statutory Instruments inwe are going to talk about that later, but the samedraft by a second pair of eyes, and the thing we havecould apply, that consultation varies—sometimes itdone since last year in one of the three directorates Iis good and sometimes it is much less than good.have which draft statutory instruments is that theAgain the matter of Explanatory Memoranda varies

considerably. Could you give us some explanation as head of the directorate now acts as a third pair of eyes




Q158 Lord Methuen: SIs can have a significantwhich he says has been very helpful because, amongstother reasons, it has given him a greater professional impact on industry. How eVective is your machinery,

ie the Small Business Service, for assessing suchcontact with the junior lawyers doing drafting. So athird pair of eyes has come into it as well. But impact before the event?dissemination of critical reports from Committees Mr Inglese: The Small Business Service itself and thedoes act collectively on us as a wake-up call because Small Business Council are there to work acrosswe do not like to get it. We know that other people government, as I think you have hinted, to representread it and may think less of us and it is one of the the views of small business and impact onthings which keeps you on your mettle. So one of my Government proposals. One of the particular piecesmessages is, please do continue to give us feed-back of work they do is improving the impact of regulationbecause we find that helpful even if it is painful. Other and policy insofar as they relate obviously to smallthings we have done are that the Statutory businesses. All Regulatory Impact Assessments haveInstrument co-ordinators have arranged Statutory to undertake a thing called the small firms impact testInstrument training within the Legal Services Group to see if the proposed new regulation will have anand, since last year, we have extended training to our impact on small businesses and then any burden onnewest lawyers, our legal trainees, who previously did small businesses identified needs to be reflected in thenot have training in Statutory Instruments. I do not options that are submitted to ministers in the full andknow if that is genuinely significant. We have had a final RIA. It makes those small business issues muchtalk from the Joint Committee lawyer who came a more visible across government than they mightfew months ago and gave us the benefit of direct feed- otherwise have been.back from the Joint Committee, which was helpful tous. Those are some of the things we have done and I

Q159 Lord Methuen: Do you not find problems withcould not honestly say what the impact of them hasthe relative size of the CBI mandate versus the smallbeen except maybe the proof of the pudding is inbusinesses?the eating.Mr Leimon: The Small Business Service is a two-waystreet, of course, it does lobby across government on

Q156 Lord Jopling: Could there be a connection behalf of small businesses. Also, it is extremely handybetween the fact that you have got three groups having them physically very close to us in the DTI towhich you talked about in drafting Statutory channel back what they are hearing from theirInstruments and the patchy impression that your stakeholders to take the small business point of view.Department gives us? We have just set up a Ministerial Challenge Panel toMr Inglese: As Head of the Legal Department I be the top of the DTI pyramid of consultation andwould like to know more about the patchy challenge within the Department. That involves aimpression in order to understand how that really minister chairman, the Minister for Betterworks but I do not think that the three groups come Regulation, chairing the panel, with the Cabinetinto it. The lawyers in my Legal Services Group, on OYce Better Regulation Executive and Herthe whole, are going to be working in one post for Majesty’s Treasury represented on one side of thethree or so years and moving to another post, and as table, and then an array of business representation—they move posts they are turning themselves into picking up your point, the CBI is present, thegood all-round lawyers whose drafting skills improve Employers’ Federation, but also Small Businessbecause they are deploying those skills against a Council and then small business representativesdiVerent background. Some of the law that we do is forming a phalanx of business representation.heavily detailed and statute-based, some of it is Against that star chamber line-up, oYcials bring theimplementing EU Directives, and the more diVerent measures they are in development of to the panel, andkinds of experiences you get the better you get at they have to give a short, sharp presentation on whydrafting. There is quite good information-sharing it is good, what problem it is setting out to resolve, thebetween lawyers at all levels. I do not think the fact extent to which alternatives to heavy-handedthere are three directorates doing this makes any regulation, have been looked at where the benefits ordiVerence. costs to businesses will lie, and, above all, what their

plan is for consulting all aspects of business. If,heaven forefend, they have a CBI—heavyQ157 Chairman: I wonder if there is anything youconsultation strategy, we would expect the smallhave missed—and do not cover it now because timebusiness people to speak up loudly. We set that panelis tight—in terms of your processes of trying toup in the summer. It has met once already. It provedimprove the quality of Statutory Instruments andto be a formidable experience, and the challenge wasimproving the outcome of them? Could you let usrobust and vigorous. It has now set a forward agendahave a supplementary note on that? We are interestedof things it will wish to challenge and see back. We areto know how you are attempting to address the

improvement. hopeful that will cap the routine consultation,




well. But, if every other department still essentiallymeasure by measure, and also send a strong messageto oYcials about the vibrancy of challenge in DTI. thinks more about their policy rather than its impact

or does not think about a participative process, it willnot be a better world, will it?Q160 Chairman: That is extremely interesting.Mr Leimon: It is not a helpful answer, Chairman, butTherefore, does it look at any regulation that willDEFRA, for example, also have a challenge panel—aVect business or only DTI’s regulations?diVerent in style perhaps from the DTI’s—and we,Mr Leimon: It is a DTI panel.the DTI, and other departments are represented on it.So there is a move to some degree to sectoralQ161 Chairman: I knew the answer. Why not gointerlinking.wider?

Mr Leimon: It is an extremely good question,Chairman I think the first point I would make is that Q165 Viscount Colville of Culross: Trade andit has just been set up. It has had its first outing over Industry—yes, of course that is what the Departmentthe course, and we are seeing where it wants to go. is called. But what about the public? Lots of the tasksThe panel members have very much been set up with that you told us about at the beginning have a directthe terms of reference; they have the power to call in impact on the public and they are not very easy towhat they want to see. A halfway house to what you consult and it can be quite expensive for thempropose is, as Anthony mentioned earlier, that we sometimes. Have you got any views about howhave Business Relations people in DTI who look consultation could be improved? There must beacross government to lobby for the business interests better, proactive regulation, Mr Leimon?that have been tabled with us. They can be called in Mr Leimon: I think there are two agendas going on.on what they are doing to influence other There is Better Regulation, whose critical focus is ondepartments. the reduction of burdens on business and, therefore,

in theory, that excludes the consumer agenda as such.In fact, for Better Regulation to make sense and to beQ162 Chairman: Can I leave you with a thought?justifiable it has to fit within an agenda around betterOne of the things which strikes us is that all sorts ofpolicy-making per se. My own passionate beliefgovernment departments are making legislation forwould be that, if oYcials are good at betterall sorts of stakeholders out there and there seems toregulation, ie if they are planning, addressing theus to be little collective tracking, let alone collectiveskills required in the team delivering regulation,impact assessment or collective improvement ofthinking through creative structures for proactiveprocess. Surely, you could make an argument that,consultation, then you cannot be competent at allbusiness with DTI, local government with ODPM,that and then exclude the consumer view, the tradethe voluntary sector with the Home OYce orunion view, the equalities—orientated view, and sowherever, you could do with processes like that whichon. I see better regulation as a core part of betterwould allow the stakeholders to grip and be part ofpolicy-making, which takes us there. The betterthe process irrespective of which departmentregulation theology is still evolving, because I do notgenerates it? Would you agree? Assuming your panelthink across government yet we have fully thoughtworks, is that not the logical direction of travel ofthrough what it is and what the objectives are. Ourgovernmental process?permanent secretary has talked about the focus forMr Leimon: The Prime Minister’s Panel forDTI going forward as being about addressing theRegulatory Accountability of course has a cross-issues arising from globalisation. Better regulationgovernment review.must be about a lighter touch and therefore market-based solutions. And we do not see a natural tensionQ163 Chairman: Indeed but this is more focused, isbetween market-based solutions and consumerit not, onto the impact on sectors and on how sectorsinterests. We all gain from a vibrant consumeras part of the consultation process in a very dynamiceconomy, with as much self-regulation, as much lightway leads to better regulation and better SItouch and as much risk—based enforcement, notproduction?heavy-handed state-based enforcement, as possible.Mr Inglese: I think it is very dangerous if I speculateTherefore are major areas of convergence betweenaloud, but we all agree there has got to be challenge.the better regulation agenda and the consumerSo do you want the challenge to be sectoral-based?agenda. The better we are at consultation, the betterOr do you want the challenge to be back in thewe will be at taking evidence-based consumerdepartments making the regulations.consultation. But they are subtly diVerent things.

Q164 Chairman: Do you think, if there was not sucha process, business, whom you are trying to protect Q166 Lord TunnicliVe: Do you have a responsibility

across government to challenge regulation as it werefrom bad regulation, will have a rich experience, wehope, from DTI, if all of what you are doing works as a representative of industry?




of the market. Secondly, with the Gershon-type staVMr Leimon: On the Prime Minister’s Panel forRegulatory Accountability, or the Regulatory reductions—and the DTI has taken its fair share of

staV reductions—the reduced extent to which weBurdens Panel, our Secretary of State sits there asthat business representation, and the head of the have the resources to do command and control

regulations will also push us towards lighter-touchSmall Business Council sits there as well, so those aretwo ex-oYcio posts within the DTI family, because of regulation. The point from the Hampton Report was

lighter touch enforcement until the risk assessment orthat business connection.a fault says you deserve a particularly heavy touch. Itis about the strong arm of enforcement beingQ167 Lord Boston of Faversham: As Lord Joplingproperly targeted. Are reputable and decenthas indicated, our reaction has been somewhatbusinesses which are doing their best to comply,mixed, but we have been favourably impressed insuVering a routine and consistent overly heavy levelmore recent times and felt therefore you have set, inof inspection, versus being trusted to get on with itsome ways in the ways indicated, a favourableuntil there is intelligence or evidence that they areexample. Is there any sign that other departmentsdoing something wrong, whether from a consumerhave followed or are following this favourablecomplaint or market analysis, at which point moreexample? If they have not, have you any reason toserious penalties are then deployed? So you areknow why not? Is there a way of encouraging othercreating a risk regime which moves the touch into adepartments to follow the good practices which havefew heavy punches, rather than a consistent patternbeen established like that?of interference.Mr Inglese: That is a question which is very diYcult

for me to answer and possibly would be foolish forme to answer with my other colleagues looking at Q169 Chairman: Could you give us your assessmentwhat I say. The best answer I can give is that in all the of the scope there is for either market-baseddepartments where I have been, people do take this regulatory approaches or self-regulatorywork very seriously and sometimes there are areas approaches? Sir David Arculus gave us the goodwhich do not quite go right—sometimes people have examples of the Advertising Standards Authority ora bit of bad luck—but sometimes everything is emissions trading. But we all use those sameworking so well the results are good. I have never examples and, whilst it is nice to think there would beworked in a place where people pooh-pooh this sort a lot more which could be shoved into that territory,of work or where they relegate it to the final thing is that true? If so, give us a flavour of what you thinkthey do in their in-tray. Normally, when my is the volume of potential alternative ways of gettingcolleagues in other departments resource this sort of policy outcomes without requiring SIs which can atwork, they make sure it is covered by— times be burdensome?Chairman: I do not think that is our experience. I do Mr Leimon: I feel like asking for at least a minute ornot think we would expect to see examples where two to think about that. It is a tough question.oYcials pooh-poohed this work, but in manydepartments we sense, from what we see in terms of

Q170 Chairman: If so, by all means. It is relevant tothe end result, that it is dealt with a long way downus because it would lead to fewer SIs coming beforethe food chain and does not have a deal of seniorus, and indeed better SIs coming before us, andattention given to it. So I do not think you havehopefully will lead to more compliance. The policypersuaded us that that is the case at all, which is whydebate is how much, how do you do it and when doof course the question was asked in the first place. Letyou do it?me not be beastly to you. Viscount Eccles? We haveMr Inglese: This is something we would gladlycovered quite a lot of your question already, havecontribute further on over the next few days.we not?

Q168 Viscount Eccles: We have done quite a lot of it. Q171 Viscount Eccles: Would I be right in thinkingBefore consultation do you think the concept of a that the Department has always pursued anlighter touch is helpful? and how would you define it? appropriate level of regulation and that actually thatMr Leimon: First of all, there are aspects around is what you are going to go on pursuing? Or is therebuilding market-based solutions. For example, the going to be some discernible and describable changeDTI merged three years ago the Consumer Policy in policy?and the Competition Policy Directorates—Under- Mr Inglese: It is really hard to disagree with aSecretary commands—because of the interaction question which has the word “appropriate” in it.between those two dimensions. The extent to whichyou need consumer protection varies according to the

Q172 Viscount Eccles: You can always say it has notextent to which you have a vibrant competitiveenvironment, protecting the consumers by the hand been appropriate.




can be very transparent about the extent to which weMr Inglese: I think I would say it has beenappropriate. I would also say that the work that Mr follow the points David Arculus made to you last

week about 1:13.Leimon has been describing of looking at the overallregulatory burden is something that gives everybodya chance to reassess what we mean by “appropriate”, Q176 Viscount Eccles: Do you have a method forand so it has come at a good time. calculating how confident your stakeholders are that

they been properly consulted?Q173 Viscount Eccles: On consultation, you Mr Leimon: Mr Inglese’s DTI MORI survey means itmentioned the figure of 74 per cent. 74 per cent is 74 is very important, I think, at DTI board level.per cent of what? Stakeholders’ views of our openness to business andMr Inglese: This was 74 per cent of the DTI our listening skills and therefore how well they feelstakeholders whom we consulted in 2004. consulted is high level.

Mr Inglese: We see that as a very important part ofour reputation and we want our stakeholders to beQ174 Viscount Eccles: How do you identify the 100going round saying, “The DTI is eVective at engagingper cent?with us, it is a good place to go to if we have issues”Mr Inglese: I think I would have to pass on that but Irather than “We do not want to go to the DTI at all”.am assuming it is the result of a sort of survey ofAt board level we regard it as very important to be anour stakeholders, a MORI survey of the DTIengaging department.stakeholders.

Q175 Viscount Eccles: I ask because we have quite a Q177 Lord Boston of Faversham: I would like to askyou about consolidation in relation to insolvency,lot of trouble, when we read the paragraphs about

consultation, when trying to assess the weight of the and you will recall the correspondence which we hadwith your ministers earlier this year. We were toldevidence you were given. Where did it actually come

from and what did you think about the level of that it would be a matter of some priority for theInsolvency Service to be asked to bring forwardresponse? We were talking earlier about small

business. When we see small business is consulted, do proposals about this and we would be interested toknow where your Department stands in relation towe mean we consult somebody who represents small

business? It might be the CBI. Is that what we mean this and also whether you can draw from thatparticular example any general policy approachby consulting small business?

Mr Leimon: The learning point for us all over recent which you would wish to see.Mr Inglese: May I answer that by giving some detailsyears has been that consultation is an art as well as a

science. I hope we are seeing a move away from—and of the insolvency consolidation and also talkingabout patterns as well. It is quite instructive to havethis is maybe unfair in some ways—an internally-

drafted consultation document which can be chucked two cases of consolidation on the go at the moment.The state of play on insolvency is that our Secretaryout into the public arena and comments come back

in and are duly assessed by the machine according to of State, Alan Johnson, wrote to Lord Huntinforming him that he had instructed oYcials in thepotentially-not-transparent criteria. Of course, there

will always be reasons why some of that is necessary Insolvency Service, and I would say the LegalServices Group as well, to bring forward proposalsin certain circumstances. But I am conscious, looking

round the Department, of much creative and for work to begin on the consolidation project. InJuly 2005 our Minister for Employment Relationsdynamic practice around working and staYng

potential consultation, through the creative use of and Consumer AVairs, Gerry SutcliVe, wrote to LordFilkin to detail the Statutory Instruments that wouldworkshops which are sectorally constructed, which

bring businesses of diVerent sorts together, to think be considered within the scope of this project. Wehave now started the project, and if you wanted to Ithrough what the consultation should be seeking to

achieve. Secondly, consultations in which you could brandish a GANT chart which shows how weare approaching it. It is a very big project in terms ofactually engage as good a cross-section as possible;

then the third stage, when you have the consultation consolidating subordinate legislation and we startedit with guidance from our internal project centre. Oneback, where we are open and transparent about the

conclusions we draw rather than perhaps just picking of the lessons that we have learned right from thestart is that we are going to get on better with thethe usual suspects and listening to the loudest voices.

So we see good practice around the Unfair project if we divide it into chunks. We may be able toconsult on various chunks and get moving quickerCommercial Practices Directive, which we are

working on at the moment, the transposition of it rather than proceed at the pace of the slowest. Wehave a project initiation document, we have got ourinto UK law, which is showing good creative practice

around really dynamic consultation. A formal public GANT charts, and the aim of the project is to reviewthe subordinate legislation to consolidate it—but notconsultation starts in the next few weeks, and then we




that better than starting afresh with a newsimply to consolidate it, to simplify it, to moderniseit and modernise the style of the drafting as well as the Insolvency Act?content of the subordinate legislation. There are Mr Inglese: Yes, it is, because the practitioners havevarious points that I can make about the technical to use the subordinate legislation now, and it couldtask which may be instructive. The insolvency rules, and should be better. At the moment I do not knowas the Committee knows, have been amended 14 whether we need a new Insolvency Act but I do knowtimes since they came into force 19 years ago. I have the Insolvency Service is looking at that whole area ofto say we are probably going to need to amend them law and at some point may come back anda couple more times before the consolidation takes recommend in favour of something like that. That iseVect. The project is also looking at a further nine not what is being said at the moment. It is importantInstruments that are associated with the insolvency to get the subordinate legislation right. I suspectrules. They will all be reviewed and amended or some people are wondering why it is 44 down to 10consolidated as part of the project and overall we will and not 44 down to one. The other nine are a mixtureprobably be able to turn 44 Statutory Instruments of related orders, rules and regulations that cannotinto ten. One of the aims of the project is to simplify actually be put together all in one because they arewhat we have got and to modernise our procedures, diVerent strands of subordinate legislation and theyfor example to bring our insolvency enforcement do not fit together. You cannot consolidate ordersprocedures in line with the civil procedure, the Woolf with regulations but the aim is to get the thing downReforms. That would save judicial time as well as to a minimum.making it easier for users. Another of ourmodernising strands is that we are going to introduce

Q179 Chairman: EVectively, it is one big one with athe possibility of electronic communication in thefew subsidiaries?field, which will again cut down on forms andMr Inglese: Yes.paperwork and, all being well, will save a lot of

money. Currently, we are consulting with membersQ180 Lord TunnicliVe: If there were to be anotherof the insolvency and legal profession and otherAct, would the work you are doing create a base suchstakeholders—for example, banks—and we have setthat that would be a much clearer and smootherup a small working group of consultees and we areprocess? Or would the work you are doing eVectivelygoing on visits. We are starting the consultationbe aborted?process by identifying the people who can help best atMr Inglese: It would not be aborted but—and I amthis stage. The aim is to meet the Common

Commencement Date of 1 October 2007. That is that not trying to duck the question—I think it is aparticular piece of work. And, while that is going on, hypothetical question. It is very often the case thatwhich I think I ought to be briefer on, we are also subordinate legislation carries through into a newconsolidating the patent rules which go back to 1978 regime even where there is a change at Act ofand have been amended 10 times already. They are Parliament level; and, if we are modernising ourdrafted in a style that people would now see as quite subordinate legislation, then if there ever were to be aold fashioned, some rather large rules, some hefty change at primary legislation level one would assumeprovisos, lots of blocks of text. The aim is to break a that modernised procedures would be a good fitlot of that down, make it more thematic, avoid under the new primary legislation as well. I think thatduplication, again bring it in line with the civil could be a hypothetical question as well.procedure rules so that we can have better tribunalprocedures. For that one we are aiming for the Q181 Chairman: Thank you. I think we haveCommon Commencement Date of October 2006.

probably done Common Commencement Dates. IYou asked if there are any lessons learned. I thinkthink, Lady Morgan, your section is probably donethere are some lessons. One of the lessons for meas well. Is there anything else—if this is not toopersonally is that I now realise, more than I didencouraging a comment—that you would like to saybefore, that consolidation fits the better regulationover and above the invitation to send us furtherand the lifting of burdens agenda much better than Iinformation as we have marked or anything else inused to, frankly. I used to think consolidation washindsight you wish to add to it?very diYcult—I have done consolidations in my timeMr Inglese: I ought to oVer to review the SIs whichand worthy but dull, and I now realise it is much moreneeded to be amended and corrected, to see if therethan that and there are significant gains which can beare any lessons which can be drawn from that. Ifmade from good consolidation work. I have becomethere is anything worth troubling this Committeea convert to consolidation.with further on that, then I could do that.Chairman: On that positive note, shall we draw a line?Chairman: That is a good oVer. Could we thank allthree of you for presenting extremely interesting andQ178 Lord Armstrong of Ilminster: Could I ask onethought-provoking evidence. I think Sir Brian hassupplementary on that. You said you were

consolidating 44 on insolvency, 44 SIs down to ten. Is been well-served by sending you into battle.



8 November 2005

Supplementary letter from Anthony Inglese, Department for Trade & Industry (DTI)

Annexes A-D to this letter give answers to Questions 137, 154, 157 and 169 of the unedited transcript of thesession.

I also promised (Question 181) to review the SIs which the DTI needed to amend and correct during 2004 andlook at what lessons we could learn. This we have done. Four of the five instruments involved the correctionof minor drafting errors. One of these was spotted by the JCSI, but the other three were spotted (after laying)by my lawyers. This willingness to identify errors and correct them as soon as possible is something which Ivery much want to foster in my teams. While clearly the Departmental culture has very firmly to be to avoiderrors in the first place I would certainly not want that approach to produce a situation where lawyers avoidedadmitting to mistakes, which otherwise might not be picked up.

We do of course strive to avoid any kind of drafting error, and I can assure you that all of my lawyers willcontinue to aim to get things right first time. Our statutory instruments cover a very wide range of subjects.The great majority of them call for original drafting (as opposed to simply following an earlier precedent).These are on the whole drafted to a high standard.

The fifth error was the result of a less sophisticated early version of the SI template, which was in no way thefault of the drafting lawyer. We are playing our part in the development of the template to ensure that it worksas well as possible.

We are of course ready to answer any further questions which you or the Committee may have.

7 December 2005

Annex A

Q.137. (Page 29) of Transcript

Following Anthony Inglese’s description of two-way challenge of SI by lawyer and policy oYcial, theCommittee asked:

“Can you give us an example where this has actually led to an SI being stopped because you foundan alternative way of achieving the policy objective?”

General Line

The application of better policy making principles—a rigorous risk and options appraisal, together witheconomic input early in the process should allow for the examination of alternatives and for these to be fedinto the negotiating process where applicable. It should also expose non-viable options, and show whetherthere is a valid business case for taking a measure forward. Non-viable options should be discounted at thisearly stage.

Examples of where Intervention has Led to Reduced costs to Business

Electricity security of supply directive

In negotiating the Electricity Security of Supply Directive, DTI’s Energy Group persuaded the EC to drop aregulatory provision requiring member states to have inter-connector capacity amounting to 10 per cent ofinstalled electricity generation capacity. DTI explored alternative approaches and successfully promoted, incollaboration with other Member States, the benefits of a market-based approach to energy infrastructurewithout the need for specific targets. This involved high-level interventions with other member states,sustained and co-ordinated influencing in EU meetings of oYcials and use of informal networks. Changes tothe Directive brought about a UK saving of £750 million, on the assumption that half the cost of the inter-connectors would have been met by another Member State, otherwise total UK costs would have been around£1.5 billion.



8 November 2005

Electromagnetic compatibility (EMC) directive

The proposal produced by the EC for amendment of the EMC Directive contained provisions which couldhave increased costs for UK industry by a total of £40 million. During the course of Council negotiations theDTI successfully gathered support for amendment, including removal, of aspects contained within the ECproposal. DTI was thereby able to ensure the impact of the new EMC Directive will be cost neutral.

Emissions legislation

An RIA produced by DTI, with the Department for Transport on emissions legislation (Euro 5 tailpipeemissions), was used in EU negotiations to lobby for cost-eVective standards: statistical modelling indicatedthat proposals to reduce emissions to the very lowest levels appeared disproportionately costly—for onlymarginal environmental gain.

EU end of life vehicles directive

This required manufacturers to dispose of vehicles they produce at the end of their life-cycle. The RIA led toa light touch, market-based approach to transposition. This reduced costs to business from £100–£150/car toaround £25/car, and should reduce the overall costs from £200 million to £40–80 million a year (based on2 million end-of-life vehicles per year) without prejudicing the environmental objectives.

Annex B

Q.154. (Page 38 of Transcript) Taking Forward Evaluation

“It sometimes appears to us as if departments make regulation without much of a thought about howthey would retail those, without much of a model of how they would incentivise compliance withthem and with a very weak understanding of how they would actually track what has happened inpractice. . . . What is characteristic often is there appears to be no feed-back mechanism, to knowwhether that regulation has worked and then no collective feed-back mechanism which learns acrossgovernment or across departments . . . We would welcome, perhaps, building on your student’s note,some further thinking on this, how you think you as a department will be taking this forward.”

DTI Workstreams on Evaluation of Legislation

The DTI Strategic Policy Analysis Unit leads a Cross Whitehall Economist Group on Regulation, which isdeveloping a methodology for evaluating the costs and benefits of regulation. In connection with this SQW(economic development consultants) produced a report for DTI on how these costs and benefits can be bestassessed before and after regulations have been introduced, identifying areas of improvement for the UKpractice of RIA (both ex-ante and ex-post).

DTI is to undertake a follow-on study, that will develop a test methodology using the area of Consumer andCompetition Policy as a pilot, from which lessons will be drawn for the whole of the Department and the restof HMG.

Employment Relations Research Series

The Employment Market Analysis and Research unit (EMAR) is a multi-disciplinary branch of economists,statisticians and researchers located within the DTI’s Employment Relations Directorate. EMAR publishesa Research Series to disseminate the results of its ongoing programme of evaluation and research. The seriesaims to inform and encourage public debate and dialogue between the social partners.

Recent publications include a review of research, commissioned to a team of academics, on the impact ofemployment regulations legislation, and a Review of research into the impact of employment relationslegislation and Employment Relations monitoring and evaluation plan 2005. Both of these documents can befound at http://www.dti.gov.uk/er/inform.htm

The Small Business Service (SBS) commissioned Kingston University to undertake a study on the impact ofregulation on small business growth. The first stage has now been completed and SBS are going ahead withthe implementation of the Research Programme identified in stage 1.



8 November 2005

Description of MBA Project Looking at Evaluation Within DTI

DTI recognises that evaluation is an important element in evidence-based policy-making. We are currentlycarrying out a research project (which is being undertaken by a DTI MBA student) to examine how theDepartment evaluates regulation, and specifically the role that evaluation can play in the Department’sprogramme to simplify regulation.

The objectives of this project are:

— To document the range of methods and approaches used within DTI to evaluate regulation.

— To describe a set of hypotheses concerning the “success factors” which enable evaluations tocontribute to regulatory simplification.

— To investigate a small sample of recent evaluations in DTI, in order to explore the extent to whichthey contributed to regulatory simplification and the success factors which enabled them to do so.

— To make recommendations to DTI about how its evaluation practices might be improved, in orderto contribute eVectively to the department’s programme of regulatory simplification.

The project takes a wide view of evaluation, recognising that evaluations should be “fit for purpose” and thata variety of diVerent approaches may be useful in diVerent situations. Useful evaluations can include, forexample, internal assessments informed by consultation with stakeholders, as well as independent evaluationsby outside experts.

The project will enable DTI to improve its approach to evaluation, allowing us to learn from experience inorder to improve future policy making.

Example of DTI Evaluation in Practice

Monitoring of the flexible working law

“The new laws were developed as a collective endeavour with trade unions, family groups and largeand small business. It is vital to continue this partnership to ensure that the laws work eVectively.Sharing experiences will help us ensure that employers and working parents can identify flexibleworking solutions that suit them both.”

Patricia Hewitt, Secretary of State, June 2003

Introduction

On 6 April 2003 a new law was introduced to enable parents with a child under 6 or a disabled child under 18to make a request for flexible working, placing a duty on employers to seriously consider such requests andonly reject them for good business reasons. It was part of a package to provide parents with more choice andsupport to help balance their work and childcare responsibilities in ways that benefit everyone: employees,their children and employers. The measures also included improved maternity pay and leave, paid paternityleave, and adoption pay and leave.

As the flexible working law was new in concept and approach it was vital that we measured its impact. Wewanted to ensure that the policy itself and the targeted, “light touch” approach was working for employersand employees. Alongside this there was a commitment to not make any changes to the laws before 2006, togive suYcient time for the impact of the legislation to be assessed.

Objectives of the Monitoring Strategy

1. The objectives are:

— To have a sound base of evidence to inform the development of policies aimed at working families.

— To provide early warning of unforeseen diYculties or gaps in the support for employers, employeesand their representatives; and to enable well targeted and timely publicity, guidance and awarenessraising activity.

— To actively engage stakeholders and intermediaries in the monitoring process to encourage supportfor the flexible working law and the promotion of best practice.



8 November 2005

2. The monitoring process also provided the opportunity to ensure that employer and employee stakeholdersand intermediaries were actively involved in assessing the impact of the new law, and to put in place eVectivecommunication channels allowing policy oYcials better and more timely access to the reality of how the lawis being used. This dialogue has led to broad support for the proposals on flexible working recently announcedas part of the Work and Families Bill.

Measures of Success

3. DTI’s role is to help business succeed because the stronger our economy, the stronger our society. Jobs andprosperity go hand in hand. The flexible working law aims to provide parents with greater choice and supportabout how they can best balance caring and work responsibilities, whilst being compatible with, and beneficialto, employer practices.

4. Increasing use of the new law will contribute to greater participation of parents, who want to work, withinthe workforce and help prevent children being raised out of poverty. Employers gain through a betterenvironment for business success. Employers who implement family friendly policies report: improvedproductivity; improved customer service; reduced staV stress and absenteeism; reduced recruitment costs;retention of skilled staV and improved morale. The benefits to employers and employees take forward DTI’sambition of delivering prosperity for all. The monitoring has sought to establish whether these benefits arebeing achieved.

5. Key measures of success of the new laws will be:

— Increased availability of flexible working practices in the workplace.

— Increased participation in the workplace of parents who want to work.

— Increased satisfaction with work-life balance and personal choice.

6. Business benefits have been a key theme during the development and promotion of the law, and its successcan also be measured by a change in employer and employee attitude towards flexible working, and an increasein the voluntary adoption of best practice models across the workforce, not just for parents of young anddisabled children.

Specific Research

7. The strategy committed the Department to undertake substantial formal research, surveying bothemployers and employees. Reports on each of the surveys will continue to be published and be available onthe Department’s website.

8. Prior to the new laws coming into force in April the Department carried out two extensive surveys to serveas a baseline for later comparison. These Work-life balance surveys covered both employers and employeesand addressed actual working practices as well as attitudes towards work-life balance and the new flexibleworking laws. The detailed reports for each survey were published by EMAR. Both surveys will be repeatedin 2006.

9. Questions relating to flexible working have also featured in a repeat Workplace Employment RelationsSurvey (WERS), a major survey of workplaces with 10 or more employees. First findings have been released,with detailed results available 2005–06.

10. Questions concerning the flexible working law were commissioned to appear in the monthly OYce ofNational Statistics Omnibus Survey of employees. This evaluated the impact of the law in the first twelvemonths of operation, and was published on the first anniversary.

11. A second, stand alone survey was commissioned to evaluate awareness and take up of flexible working inthe two years after implementation, with the results available for the second anniversary.

12. Questions have also featured in the British Social Attitudes Survey on an annual basis since 2004.

Stakeholder Input

13. Active engagement of stakeholders has been crucial in the gathering of qualitative evidence, as they haveprovided a direct link with target groups and acted as a conduit for feeding back key issues on the lawoperating in practice. Crucially they also provided a direct avenue to establishing employers’ experiences of



8 November 2005

the new rights, reasons why it has not been possible to accept a particular request, positive case study examples(we have more readily picked up cases of where the employee is unhappy about an outcome), and how thebusiness grounds for declining a request have been used in practice.

14. In the first year we supplied grant funding to a number of organisations including One Parent Familiesand Maternity Alliance, to support monitoring activity including survey work and focus groups, and collecteda range of qualitative feedback.

15. Just after implementation we printed an overview of the monitoring strategy and circulated this widely tostakeholders to underline the Government’s commitment to keeping the law under review, explain the broadapproach, and further encourage others to share their experiences. The leaflet was also available at a numberof organisation’s conferences which we attended as part of the associated awareness raising activity.

16. The CBI has published its Employment Trends Surveys in 2003, 2004 and 2005, all of which consideredthe impact of the flexible working law.

17. We have worked closely with the CIPD in the development of survey work. They carried our research intothe use of the flexible working law during its first six months, and have followed this up with a survey inFebruary this year.

18. British Chambers of Commerce, the Federation of Small Businesses and the Engineering EmployersFederation have all provided anecdotal feedback.

19. Employee organisations who have contributed experiences of the operation of the law include WorkingFamilies; Council for Disabled Children; Equal Opportunities Commission; Fathers Direct; Contact AFamily; and the Trades Union Congress.

20. We have also have periodic updates from Acas and the Employment Tribunal Service which highlight thenumbers of cases going to full hearing, and settled by Acas.

Additional Activity

21. Prima Baby magazine sought the Department’s input in surveying its readership. The Department alsoundertook specific monitoring of the awareness of the new laws either side of the adverts placed in the nationalpress and on the internet around the implementation of the new law. This ensured that subsequent awarenessraising activity was able to target those groups where awareness could have been higher. These were smallemployers, and parents who may lack confidence or opportunities to exercise their rights ie lone parents,parents of disabled children, parents whose first language is not English, fathers.

Future Proposals

22. In seeking to build on the success of the whole package of new laws launched in April 2003, theDepartment carried out a series of roundtables around the country, and held a Citizen’s Jury to consider whatmore could be done to help working families. Retaining the commitment to make no changes before 2006, thework fed into proposals put forward in the Work and Families consultation launched in February 2005.

23. The consultation asked whether there were other groups who might benefit from an extension in the law,such a parents of older children, and/or carers. The consultation produced broad consensus that carers faceparticular diYculties, and should be the next group to benefit. The case for parents was less clear, and takingon board business concerns about the ability to manage an increasing number of requests from a wider sectionof the workforce, and retaining the targeted nature of the law, the Work and Families Bill announced thedecision to extend to carers only at this time. The exact definition of which carers will be included will be thesubject of a further extensive consultation in early 2006.

24. Further to this, Stakeholders identified a number of other issues during the consultation, includinglooking more closely at tribunal cases relating to flexible working, how the right interacts with other legislationsuch as discrimination legislation, unfair dismissal and the right to be accompanied, and whether individualswho had their requests accepted were subsequently suVering some kind of detriment.

25. Planning is underway to carry out the third work-life balance surveys of employees and employers in 2006.The results will be directly comparable with the baseline surveys carried out before the legislation wasintroduced.



8 November 2005

26. DTI will produce a compendium of evidence early in 2006, bringing together in one place all the datacurrently available on flexible working. This will include a review of tribunal cases, and disputes which ACAShas resolved before going all the way to a tribunal hearing. Alongside the results of the third work-life balancesurveys, this work will provide a baseline against which the eVect of extending the scope to carers can bemeasured.

Annex C

Q.157. (Pages 41-42 of the Transcript) Improving the Quality and Outcome of Statutory

Instruments

I wonder if there is anything you have missed—and do not cover it now because time is tight—in terms of yourprocesses of trying to improve the quality of Statutory Instruments and improving the outcome of them?Could you let us have a supplementary note on that? We are interested to know how you are attempting toaddress the improvement.

Answer

DTI has a wide and varied workload and the range of issues covered by our SIs reflects this. DTI has a numberof good systems in place to ensure that our SIs are properly managed. Key to the whole process is good projectmanagement and the drawing up of a realistic timetable that allows for significant time for policy formulation.Failure to do this is likely to lead to the production of SIs of an inferior quality.

Outline

— Policy that leads to SIs emanates from a number of sources eg the implementation of internationalcommitments; adoption of European Directives; bringing new primary legislation into force to namebut a few.

— DTI administrators and legal advisers work closely together on the development of SIs, using theprocedures set out below.

Steps

— Identified stakeholders are consulted at an early stage of policy formulation eg on the supply ofextended warranties on domestic electrical goods order oYcials and legal advisers met with keystakeholders to discuss the policy proposals and listen to concerns before preparing the first draft ofthe SI.

— Consultation documents drafted—DTI consultation template used. Before drafting, discussionstake place with DTI’s consultation co-ordinator on process. Consultation guidance available onDTI’s “Better Policy Making” intranet site. Draft put together in conjunction with legal adviser.Consultation document includes a draft Regulatory Impact Assessment and may include a draft SI.The draft SI will have been produced by the legal adviser following discussion and receipt ofinstructions from the lead policy oYcial. The draft SI will have been discussed and proof-read by thelegal adviser’s line manager. This provides an opportunity to identify any errors or legal diYcultiesand to improve drafting.

— The consultation document will also include key questions to elicit views and information regardingthe impact or otherwise on stakeholders. A summary and copy of the primary legislation or copy ofthe Directive, for example, will also be included in the consultation.

— All documentation will be cleared with the Better Regulation Unit, Small Business Service,Competition Assessment Unit etc. Ministers are then asked for clearance before going out for formalconsultation.

— Once Ministerial approval is obtained, the consultation document is circulated for a three monthconsultation period. DTI tries to ensure that this is a pro-active process rather than a formal writtenprocedure—meeting with key stakeholders and OGDs to discuss proposals.

— Once the three month consultation period is completed responses will be considered. A summary ofresponses will be placed on the DTI Website.



8 November 2005

— Parliamentary Unit will be consulted about the timetable for making and laying the SI.

— The legal adviser will be instructed to revise the SI as appropriate.

— The RIA will be finalised in liaison with the Better Regulation Unit and Legal Services Group.

— Legal will revise and finalise the SI.

— The Joint Memorandum to the JCSI and House of Lords Merits Committee, transposition note (forEC regulations) and submission to Ministers will be drafted. These will be cleared by Legal.

— All documents—final version of the SI for Ministerial signature, final RIA, Joint ExplanatoryMemorandum for the JCSI and House of Lords Merits Committee and transposition note ifrequired—will be sent to Parliamentary Unit who will then submit all documents to the Minister forapproval and signature of the SI and RIA.

— Once the SI and RIA are signed and the Explanatory Memorandum is approved by the Minister itwill be sent to HMSO for registration/numbering and publication. Parliamentary Unit will lay theSI, Ex Memo and RIA/TN once they have the registered SI returned from HMSO. After LayingParliamentary Unit will provide copies of the SI, Ex Memo, RIA and TN to the JCSI, MeritsCommittee, Vote OYce and Printed Paper OYce as soon as possible. Copies of the RIA and TN willbe deposited in the House Libraries.

Policy

— Better policy making intranet site: site guides oYcials in producing workable, deliverable, andcoherent policy solutions. Includes guidance on what good policy is; project management on risk;evidence based policy making; and the evaluation of policy. Other elements of the site includeguidance on producing Regulatory Impact Assessments; developing consultation documents; oVersalternatives to regulation; the importance of carrying out as small firms’ and on how postimplementation measures should be evaluated.

Legal

— DTI ensures that legal advisers who will be drafting SIs are subject to supervsion appropriate to theirexperience and are trained in SI drafting and are kept up to date on current procedures. They willattend the three day GLS Drafting Statutory Instrument course at the National School ofGovernment. In addition, internal workshops on SI practice are held on a regular basis. Theaudience at these workshops includes a mix of experienced DTI legal advisers as well as those whohave recently qualified. Two workshops took place last month and focused on plain English draftingand, in particular, on the new drafting styles that are being imposed by SI Practice Circular No. 4(05) which comes into force in the New Year.

— DTI Legal also fields tutors for two half-day slots on the GLS Drafting Statutory Instrumentscourse, which runs 5 times a year.

— The Department’s Legislative Board (responsible for the oversight and co-ordination of theDepartment’s bids for the Legislative Programme) organises training on Statutory Instruments forlawyers and policy oYcials.

— DTI legal advisers work closely with policy oYcials to develop the instructions to draft SIs. Legaladvisers will then produce the draft SI using the guidance made available on the LION website (theLegal Information Online Network, a Whitehall-wide legal intranet for the Government LegalService), for example, HMSO’s Statutory Instrument Guidance including the recent guidance onmodernising SI drafting. Within Legal, draft SIs are subject to the “two pairs of eyes” principle thatno SI is submitted for laying in draft or for signature by Ministers unless it has been vetted by theline manager of the legal adviser with drafting responsibilities or by some other person designatedto carry out the task by the line manager or the Directorate head. A pilot scheme involving a thirdpair of eyes has recently been trialling in one of our advisory Directorates.

— Legal Services has two legal SI co-ordinators. Their role is to:

(i) provide advice to DTI legal colleagues on SI drafting best practice.



8 November 2005

(ii) disseminate guidance on SI drafting best practice—currently they are engaged in preparing aDTI Legal SI Procedure Guide, which will comprise step-by-step desk guidance for DTI lawyersto ensure that best practice is adopted consistently within DTI Legal in preparing SIs. TheGuide will cover internal auditing requirements (eg 2nd pair of eyes procedure), the preparationof supporting documents (eg Memoranda for the Parliamentary Committees which scrutiniseSIs) and how to work with Counsel to the scrutinising Committees, the DTI Parliamentary Unitand The Stationery OYce.

(iii) maintain the SI pages on the DTI Legal Group intranet.

(iv) Membership of the Whitehall LION SI Site editorial team.

The SI Coordinators report to a Director of Legal Services (Rachel Sandby-Thomas, or in her current absenceon maternity leave, to Anthony Inglese)

Annex D

Q.169. (Pages 47/48)

“Could you give us your assessment of the scope there is for either market-based regulatory approaches or self-regulatoryapproaches? Sir David Arculus gave us the good examples of the Advertising Standards Authority or emissions tradingbut we all use those same examples and, whilst it is nice to think there would be a lot more which could be shoved intothat territory, is that true? If so, give us a flavour of what you think is the volume of potential alternative ways ofgetting policy outcomes without requiring SIs which can at times be burdensome?”

Non-Legislative Governance by External Bodies

The professional accountancy bodies regulate their members in relation to matters such as qualifications,monitoring, complaints and discipline—requiring them to observe appropriate regulations and byelaws,including a code of ethics. A professional body may take disciplinary action against a member who fails tomeet the requirements on him or her. The sanctions available to the bodies include fines and/or exclusion frommembership. Statutory rules govern accountants and/or accountancy firms in their role as a statutory auditor.

A professional accountancy body may act as a recognised supervisory body and/or oVer a recognisedprofessional qualification where it has been duly authorised to do so by the Secretary of State. The recognisedbodies have day to day responsibility for ensuring appropriate supervision of auditors and audit firms. Therequirements which the bodies must observe in carrying out this supervision role are set out in Schedules 11and 12 to the CA89.

FRC

The Financial Reporting Council (FRC) is the UK’s independent regulator for corporate reporting andgovernance.

Their aim is to promote confidence in corporate reporting and governance. They are a unified regulator witha wide range of functions:

— setting, monitoring and enforcing accounting and auditing standards;

— statutory oversight and regulation of auditors;

— operating an independent investigation and discipline scheme for public interest cases;

— overseeing the regulatory activities of the professional accountancy bodies;

— promoting high standards of corporate governance.



8 November 2005

Organisation Chart

Board Council

AccountingStandards

Board

AuditingPractices

Board

ProfessionalOversightBoard for

Accountancy

FinancialReporting

Review Panel

AccountancyInvestigation

and DisciplineBoard

Committee onCorporate

Governance

CorporateGovernance

Unit

AuditInspection

Unit

Urgent IssuesTask Force

Accounting Standards Board

The role of the Accounting Standards Board (ASB) is to develop and issue accounting standards which applyto all companies, and other kinds of entities that prepare accounts that are intended to provide a true andfair view.

The Auditing Practices Board

The Auditing Practices Board (APB) sets out the basic principles and essential procedures with which externalauditors in the United Kingdom and the Republic of Ireland are required to comply.

Professional Oversight Board for Accountancy

— independent oversight of the regulation of the auditing profession by the recognised supervisory andqualifying bodies;

— monitoring of the quality of the auditing function in relation to economically significant entities;

— independent oversight of the regulation of the accountancy profession by the professionalaccountancy bodies.

Financial Reporting Review Panel

The FRRP seeks to ensure that the provision of financial information by public and large private companiescomplies with relevant accounting requirements.

Accounting Investigation and Disciplinary Board

The AIDB is the independent, investigative and disciplinary body for accountants in the UK. The AIDBScheme establishes the framework and sets in place the legal formalities of participation between the AIDBand the Participating Accountancy Bodies ie the Institute of Chartered Accountants in England and Wales,the Association of Chartered Certified Accountants, the Chartered Institute of Management Accountants andthe Chartered Institute of Public Finance and Accountancy.



8 November 2005

Cross-Whitehall/Industry Sector Specific Groups

Discussion in these fora can lead to voluntary action by industry, which prevents the need for legislation. Theautomotive sector has voluntarily oVered certain features like antilock brakes, provision of daytime runninglighting and emergency brake assist technologies, aimed at improving safety.

Codes of Practice

The OFT’s codes approval scheme gives consumers the information you need to choose trustworthybusinesses to buy from.

In this area of the site consumers can:

— Search for a business in your area that operates under an approved code of practice.

— Search for a code sponsor—an organisation whose code has been approved by the OFT—and a listof their member businesses.

Travel agents are not yet listed on the OFT codes website but details will be available shortly.

How does the scheme work?

The trade body (such as a trade association) works with the OFT to devise a code of practice that is:

— fair to customers;

— goes beyond what the law asks for;

— easy to understand.

But before the businesses that are in the trade body can use the scheme logo they have to prove to OFT thattheir code of practice is working. The OFT insist on real evidence that their members are using the codeproperly and that their customers are benefiting.

Only when the OFT are completely sure that the code is eVective—by looking at things like mystery shoppingand analysing complaints information—do they give their approval to their code. Their members can thendisplay the scheme logo.

Name Details Options

Direct Selling Website: www.dsa.org.uk List businessesAssociation Code of practice: http://194.203.128.226/code consumer.htm(DSA)

Industry type: Direct selling;29 Floral Street,London,WC2E 9DP

020 7497 1234

Ombudsman Website: www.oea.co.uk List businessesfor Estate Agents Code of practice: www.oea.co.uk/about/code of practice.htmCompany

Industry type: Estate agents;Limited (OEA)Beckett House,4 Bridge Street,Salisbury,Wiltshire, SP1 2LX

01722 333306



8 November 2005

Name Details Options

Society of Motor Website: www.smmt.co.uk List businessesManufacturers & Code of practice: www.smmt.co.uk/consumeraVairs/Traders Limited newcarcode.cfm(SMMT)

Industry type: Motor trade;Forbes House,Halkin Street,London,SW1X 7DS

020 7235 7000

Vehicle Builders & Website: www.vbra.co.uk List businessesRepairers Code of practice: www.vbra.co.uk/docs/code of practiceAssociation Ltd 011204.doc(VBRA)

Industry type: Car body repair;Belmont House,Finkle Lane,Finkle Lane,LEEDS,West Yorkshire,LS27 7TW

0113 253 8333

324787PAG3 Page Type [SO] 21-03-06 23:48:25 Pag Table: LOENEW PPSysB Unit: PAG3



Present Boston of Faversham, L Maddock, BColville of Culross, V Methuen, LEccles, V Morgan of Drefelin, BFilkin, L (Chairman) Northesk, EJopling, L Tunnicliffe, L


Witnesses: Mr Donald Macrae, Director General, Legal Services, Ms Anne Sharp, Head of Fishing IndustryManagement Division, and Mrs Sue Ellis, Head of Waste Management Division, Defra, examined.

Q182 Chairman: Good afternoon. Welcome. Thank to me but it is not something that has ever beenarticulated before. The production of SIs isyou very much for coming to give us evidence. Could

you introduce yourselves and outline your role something that we have always done and just do asopposed to something which is actively managed as asuccinctly in the relevance of statutory instruments?generic process. That has been changing recently.Mr Macrae: I am Donald Macrae, the Solicitor to theWithin the last few years, there has been aDepartment for the Environment, Food and Ruralconsiderable growth of PPM, programme andAVairs. I have various other capacities as well whichproject management, as a way of doing business.I will come round to in answering the first question,That has been applied to the production of individualbut in the meantime can I introduce my twoSIs. Many SIs are run on proper project terms, butcolleagues? Sue Ellis is Head of the Wastewhat we have been tending to lack is the programmeManagement Division and Anne Sharp is from theelement of looking at a collection of projects. WhatFishing Industry Management Division.we certainly lack is one single overview of the entirelegislative output. That is something which has been

Q183 Chairman: Could you explain how the overall brought to a head by your initiative and somethingresponsibility within DEFRA is managed for which we are still trying to grapple with and decideensuring that SIs are well laid, eVective, free from how best to implement, but we can see that we doerrors and proportionate? have some deficiencies in that area.Mr Macrae: I said that I would explain further mycapacity in being here. In addition to being the

Q184 Chairman: If you are playing what is called theSolicitor for DEFRA and therefore I suppose theSt Augustine defence, could you amplify a little onperson accountable for the legal, technical quality ofwhat you think would be the characteristics of such athe legislation, I am also the Director General on thebetter system that you are intending to put in place?Board who is responsible for regulation. I am

referred to as the Regulation Champion. Therefore, Mr Macrae: It can be seen in what is happening in onepart of DEFRA, in the Environment DirectorateI am also accountable for the quality of the

regulation in DEFRA. If I am responsible for the General. That is an area where we have someextremely complex legislation to deal with becausequality of the regulation and the technical quality of

the legislation, I think I am probably the appropriate we are implementing European directives. These giverise to all sorts of problems. The legal team inperson to answer the questions this afternoon. I hope

to do so to the best of my ability. In these capacities, particular has an interest in better qualitymanagement of the process because they are the onesI welcome this initiative by the Committee because

DEFRA turns out a considerable amount of who produce the deliverable, the actual document.Therefore, they have a de facto interest in thelegislation, as you will be aware. It is something

which we deem almost as second nature. It is so much betterment of the process. A lot of the pressure forPPM has come from the legal team in order to makepart of the culture that there are lots of questions that

we just do not ask about what we do. It takes an their job easier to do. Two years ago I agreed with theDirector General for Environment that we wouldexternal body such as yourselves to ask the simple

and obvious questions, once we see them, about how systematically apply PPM to the implementation ofall environmental legislation. In approaching that,we are doing it. My answers to quite a lot of your

questions may well be “Not yet” in terms of how we we first of all devised a separate methodology withinthe overall delivery of PPM for the implementationdo things, because you are asking questions about

how we manage SIs in ways that we simply have not of directives. This is a generic function that manydepartments have. All departments that have tothought of. In terms of who has overall responsibility

for managing and controlling SIs, probably that falls implement directives have to find some way of doing



22 November 2005 Mr Donald Macrae, Ms Anne Sharp and Mrs Sue Ellis

think. Not all of the SIs have gone according to theit, so we devised that particular methodology and itis now being looked at by the Department for original plans. There are many that have strict

transposition dates that we have to hit. These willEducation and Skills, the Department for Transportand the Department of Trade and Industry as a tend to take priority if there is pressure on resources

because we would be breaking the law if we are latepossible way forward in standardising this genericactivity. To that extent, we have been starting to try in transposition and we could be accused gold plating

if we were early in transposition. We do our best toand get a handle on the management of the SI processbut in addition in the Environment DG they are also try and stick to the timetables. The idea of having

project planning helps that, but it is still somethingapplying the programme element. There are regularmeetings of myself as DG for Legal Services and Bill which tends to be quite variable. I am not sure

whether the Committee has had the benefit of seeingStowe as DG for Environment looking at the overallprogramme of environmental legislation. That is the our statistics on SIs?model we have in one of the DGs. That is somethingwhich we are actively looking at in terms of spreading Q186 Chairman: I think some of us have. We areacross the rest of the department. It is certainly a aware you have a lot.good place to start. Mr Macrae: We do. We look at it in terms of the

monthly figures to see how things have worked out interms of bunching. It has tended to be the case thatQ185 Lord Jopling: We have been concerned as athere is some bunching around March and Decembercommittee about the uneven flow of orders. I wonderwhich arises from the need for various bits ofif you can tell us to what extent you try and plan outlegislation to come into force at the start of thethe year in advance and how does that work? Howfinancial year or at the start of the calendar year. Thatdoes it work as the various divisions within theis a seasonal thing which we have always had. It wasDepartment prepare their SIs? You must know a yearparticularly aggravated this year because of thein advance, with new legislation in particular andcalling of an election, because that also leads to awith other matters, roughly where you are going to behuge amount of activity to clear the decks before thein terms of quantity of secondary legislation. To whatelection. Beyond that, the spread tends not to be allextent is there an overall plan of timing? Do you everthat uneven. 11, 10, then a bunch of 24, 10, 13, 15, 7,look as a Department as to whether you are going tothe summer recess, 17, 15 and so far it is 5. That is acreate logjams and uneven flow? Particularly, whatfairly even spread but that is not by design orcontrol do you have from the centre, from the top,planning. In terms of Ministers, we have to specifyover each of the divisions within the department inthe Minister who is signing the SI and there can be SIstrying to coordinate the production of thesewhich are signed by the Secretary of State. Theydocuments? I wonder if you could also tell us if SIs gowould be specified as the Secretary of State. The workto only junior Ministers? Do they go to the Secretarythat goes into the accompanying submission alongof State or do they happen to go to whoever happenswith the SI is something which is part of the qualityto be in the Department conveniently, so somebodyassurance process. It is not a matter of trying to findshoves it in a box and hopefully he will look at it thean available Minister to initial an SI. It is veryfollowing morning?carefully planned.Mr Macrae: One of your questions has the answer

“Not yet” in terms of overall management and tryingto avoid bunching. We plan out the work of the legal Q187 Baroness Morgan of Drefelin: If SIs areteams and there is very detailed business planning coming into force on a couple of key dates, is itwhich is done each year in order to justify the possible to spread the work throughout the year soresource we are going to need for the following year. you do not have the bunching? You were talkingEach of the legal divisions will work closely with the about project versus programme. If you look atpolicy divisions in trying to anticipate how many everything as a project, you would work everythingregulations or bills or whatever sorts of legislation are back and have the same start date for all the SIs thatgoing to be needed. What we have not done is pull came into force. The issue we have concerns about isthat together into a coherent programme. It is that that makes scrutiny very diYcult. Do you agreeobvious once it is pointed out but it had never it is possible to spread the work to promote greaterappeared to be obvious to us before. I am grateful to scrutiny?the committee for raising the issue. We will be Mr Macrae: This year it has been a fairly even spreadlooking more closely in the future at what the overall apart from the election. It is one of the functions ofimpact is. It is also our experience that, as we are programme management that it should be possible todoing our business planning for one year, we look manage all the diVerent projects in order to meet anyback on how good our planning was in the previous particular deadlines. In theory, yes, we can do that,year. What we tend to find is that this is not as but in practice it is another matter. We have

enormous pressures on us, particularly where we arepredictable a production line as some people may




eVective but not very original. It would be useful ifimplementing European obligations. Our pressuresare aggravated by the fact of devolution, which is you could not say “Not yet” to this question andvery real. It means that the other governments or indicate what is going to happen in the future. Myassemblies very often want to implement in their own specific question is on the issue of quality control.way but they also want to find out what England is There is sometimes a feeling that an SI grows anddoing. Very often there is pressure on us to try and somehow ends up a bit like Topsy. Do you have someaccelerate what we are doing in order that they can process for a final quality check by a second pair oftake that into account. The real complication is, eyes that works with a checklist, something like: doesalthough we have devolution within the UK, it is still it achieve its policy objectives? Is it enforceable? Is itthe UK government that is answerable for any late intelligible? Was there proper consultation? Finally,transposition. If we were to try to take a few months the key issue: is it proportionate?oV our timetable for transposition, we would find Mr Macrae: In answer to the “Not yet” question—there would be quite severe problems. As it is, the what it is we propose to do—that is something whichtime we normally have for transposition is barely unfortunately I cannot give you much clarity on. Theenough to do a thorough job, particularly with committee’s initiative is forcing us to examine thesecomplications of having to liaise with other issues and to try and see what possibility there wouldassemblies and parliaments. My simple answer to be in getting management of the overall spread of SIs.your question is, in theory, yes but, in practice, it That is just one aspect. There are other things whichtends to be more diYcult. are already in train which will help to deliver that

overall objective. That does come down to some ofthe aspects of quality assurance. Let me deal first withQ188 Lord Methuen: You have mentioned Commonthe technical quality assurance from the legal side,Commencement Dates, and one of the things whichand then I will move on to the quality assurance onworries us is giving adequate time for scrutiny ofthe regulation side, because a lot of criteria that youthese SIs, particularly at the beginning of the longmention do not relate to the quality of drafting andrecess. We had to have a meeting in September tothe thinking behind the intervention. In terms of theclear the backlog. Do you try and make sure thatlegal quality control, we have a lot of verythere is adequate time for the laying of these so thatexperienced draftsmen and they will work withour Committee can look at these things and they canteams. Although there will be one draftsmanbe debated if necessary?responsible for drafting, that person will still beMr Macrae: First of all, on Commontalking to colleagues and have a very close workingCommencement Dates, they do not tend to aVect ourrelationship with policy colleagues as well. Thatwork much. This year we have only had five SIs thatlawyer’s line manager will be the person who “keys”have required Common Commencement Dates.the SI. The keying process is quality assurance inCommon Commencement Dates do not apply toterms of checking the vires, checking the drafting,European legislation, just to domestic legislation.checking that it makes sense, checking it againstGiven that most of our legislation is European, ourinstructions. There is a very thorough qualityCommon Commencement Dates are not a major

factor in our business management. In terms of assurance check. The SI is also subject to a third pairallowing enough time for laying, one of the statistics of eyes from the specialised SI drafting division thatthat we put together was the number of times that we we have. The process of keying and the third pair offailed to comply with the 21 day rule. I am pleased to eyes will tend to happen before an SI goes out tosay that over the last five years the percentages have consultation and will happen before an SI goes up fordropped from 19 per cent, which was largely as a signature. It may also happen at other points.result of foot and mouth disease, down to 11 per cent, Sometimes it will be repeated, depending on what thethen 5, 5 again and this year 3. When we gave you quality assurance process finds. If it finds mistakes, itthese figures we did not have any benchmark figures will go back through the process. We have thatacross government, so we do not know how that professional process which would include thecompares with other departments but we were criterion of whether the wording is readily intelligiblepleased to see that trend. If we can manage to meet but it does not look at whether it will deliver thethe 21 day rule in 97 per cent of cases, then outcomes that the intervention is intended to achieve.professionally I am very satisfied about that. It still In looking at that, DEFRA has done a lot in terms ofleaves three per cent where we have not made it. the Better Regulation agenda, to get a lot better grip

on its work as a regulator. We are fully signed up tothe better regulation programme which tries toQ189 Lord TunnicliVe: In your opening statementreduce the unintended impact on business, but weyou said, “It probably falls to me”, which was a littlealso look to regulation as something which is andisappointing because responsibility tends to be a biteVective way of delivering policy. We use regulationmore eVective if people are clear whether they have it

or not. You used the answer “Not yet”, which is in order to try and deliver public goods, better quality




‘thinking check’ at the end? Is there a policy to say—water, air and environment, and better control onanimal disease outbreak. We use regulation for a yes, all these inputs have come together and producedpurpose and we have to be good at eVective a good SI? Secondly, I hear all these initiatives, but doregulation as well as trying to avoid placing an you have a plan to draw them together into a single,unnecessary burden on business. We probably holistic management for the SI process?produce more regulation than any other department Mr Macrae: In terms of the final check, it is called theand therefore we take the better and eVective Minister because there has to be a check on theregulation agenda extremely seriously. We have a overall quality of what the Minister is about to sign.Better Regulation Unit which carries out checks on That is supplemented by the submission that is put upall the regulatory impact assessments of all the to Ministers. That submission has a lot of priorityproposals for any sort of intervention and that may and resource put into it because that is summing upbe before it ever gets to the stage of an SI. The RIA the entire process. It is what you are referring to aswill be there even if we do not contemplate using the final check. Before it goes up for signature, weregulation, to try and see if there are alternatives to have to be sure that that is what we want to do andregulation. We have also instigated the Ministerial that it will meet the Minister’s requirements. That isChallenge Panel for Regulation, which is a quality part of our professionalism in serving Ministers. Theassurance check on various dossiers. That committee check would be a combination of the Minister’smeets every six weeks and will look at maybe four perspective on what he or she is about to sign and thedossiers. Before that, a filter committee of myself as work in doing the submission. The Minister may alsoRegulation Champion and one of the Non-Executive want to discuss it with other advisers and Ministers.Directors on the Board examines 10 to 15 dossiers It certainly does not stop at the technical check bythat have been prepared for us by the Better lawyers. It depends on the regulation, how much timeRegulation Unit. We filter that down to four going to there is, what other pressures there are. As regardsthe Ministerial panel. That has been on the go for just your other question about pulling it all together, weover a year now and has proved to be very eVective are trying to pull together as holistically as possiblein terms of getting out messages on a better focus on what we are doing in terms of the regulationregulating for outcomes and being more mindful of programme. Whether we will try to ensure that ourthe impact on business. We are also preparing a new legislative programme is coherent will take a bit ofBetter Regulation programme where we intend to

further thinking because we do legislation at so manyextend that quality assurance process. We intend todiVerent levels. What would be valid in response totry to develop a more methodical Gateway Reviewthese initiatives in looking at the management ofSystem for any legislative proposal, all the way fromsecondary legislation would also be valid in terms ofinitial inception through to the enforcement on thelooking at primary legislation. At present, we areground. There are a lot of things that we have in trainincreasingly getting involved in primary legislationto try to ensure that our regulation is eVective.but we also have a considerable number of directives,DEFRA last year made a public declaration that weregulations and decisions on the go in Brussels. Wewill reduce administrative burdens of DEFRAare also heavily involved in international law. On theregulation by 25 per cent over five years. This isenvironment side, if you think of the Kyotosomething which all other departments are looking atagreement, the environment is very much dominatednow as a result of the Better Regulation Task Forceby international law. We have legislativereport in March. Last December, Defra volunteeredprogrammes at international, EU, primary andfor this 25 per cent target, so we have to deliver that.secondary level; and there is a need to ensure theTherefore, that also puts much greater focus on theinterdependence of all these—is it not just a matter ofmanagement of our legislative programme. I mentionlooking at the secondary legislative programme.all these things in saying that we have not looked at

it simply as: do we have a grip on the secondarylegislative programme itself? That is not a question Q191 Lord Boston of Faversham: I should like to askwe have been asking and we can see benefits in better you about any guidance on best practice which youquality management of that, but in terms of the have within the department in producing SIs. If yousubstance of what we are trying to do, in terms of have, what means do you have for distributing andtrying to be more eVective at regulation, there is a disseminating that within the department? If you dohuge amount on the go.

that as well, what form does that take? Do you makeany guidance of that kind subject to amendment,particularly in the light of your own experienceQ190 Lord TunnicliVe: You have described awithin the department on the management of SIs? Donumber of benign objectives and I accept those. Theyou take into account any observations which thisessence of my question was—is there a final check oncommittee might make on any of your SIs? I mightthe SI. You said there is a whole series of inputs that

should display better thinking in the SI. Is there a need to follow up with a supplementary, depending




Chairman: It can be sent electronically to our clerk.on Mr Macrae’s answer, with your permission, myLord Chairman. Lord Boston of Faversham: I was interested in what

you said about the GLS because one of the things weMr Macrae: In terms of best practice, I hope this doesare interested in is any consultation that there mightnot embarrass my colleagues in the room but our firstbe between departments on these matters. We werestep in ensuring best practice is ensuring best lawyers.interested, for example, last week to hear from MrWe have some of the best draftsmen in thePawsey of HMSO that there ARE a number ofGovernment Legal Service working in DEFRA. I saygroups consulting with each other throughoutthat not just as the current Solicitor in DEFRA,government departments. I wonder what you thinkwhere I have been for three years. This is my ninthabout the value of that consultation. He mentioned,department in government. The quality of draftingfor example, a legal group and no doubt you are aamongst the experienced drafters in DEFRA is of amember of that or in touch with it at the very least. Ivery high standard. Therefore, we have best practiceam wondering whether there are any other groups ofthat we want to spread. We recently created a specialwhich you have experience and whether you feel thatSI Drafting Division, so we have focused some of ourthat sort of interdepartmental consultation is—best experience into that SI Drafting Division which

performs the third pair of eyes check. It also can takeon some particularly diYcult exercises and it is also Q193 Chairman: Would you mind if we stored thatresponsible for disseminating best practice. In terms question until later on? Mr Macrae, you said thatof identifying and disseminating best practice and regulation is for a purpose, to achieve a policykeeping guidance up to date though, that does not objective. Could you describe what, if any, is thetend to be done within DEFRA legal; that tends to be mechanism for assessing the outcomes of statutorydone collegiately across the Government Legal instruments that the Department makes and lays?Service. Therefore, if we have some best practice, we Mr Macrae: It depends very much on the area ofdo not simply feed it into the other divisions in legislation. There is a lot of environmental legislationDEFRA. We feed it into the intranet that the which is measurable. The purpose of the legislation isGovernment Legal Service uses. Until recently the to improve the quality of air, water, bathing water,head of our Statutory Instruments Drafting Division drinking water or whatever. Therefore, that includeswas also the editor of the practice site on that very strict enforcement and measurement activities.intranet. He has now moved on to work with the That is one area where valuation is most definitelyHouse of Commons Legal Service. We had that built in and done. We also get feedback fromquality of expertise, and our dissemination of best enforcers of regulations and we always take accountpractice was spread across the GLS. The GLS works of the experience of the diYculties in delivering orcollegiately in trying to develop skills in drafting. In enforcing a regulation. In the field of animal disease,terms of spreading best practice on regulation, that is we have a very keen interest in whether we have thesomething which we try to do through the DEFRA right tools to deal with an animal disease outbreak.Regulation Unit on the DEFRA website. We also At present, we are doing a lot of work in respect ofhave another panel, which was set up at the same time avian influenza. It is a very wide range of legislationas the Ministerial Challenge Panel, which is called the and we have diVerent things that we are trying toissues panel. It is a workshop on regulation topics, a achieve, diVerent outcomes. There are some that arehalf day workshop which we run every two or three easily measurable. There are some which it is verymonths. It will take topics such as consultation. We important for public health that we eVectivelyget quite a considerable turn—out at these measure. There are others where it may be a bit moreworkshops. What comes out of the Ministerial diVuse and it is more a matter of trying to influenceChallenge Panel does go wider than just the behaviours and that is more diYcult to measure.particular dossiers.

Q194 Chairman: Is there a systematic process indeciding which ones you will try to evaluate or not?The Committee suspended from 4.48 pm to 5.56 pm forIs there any methodology that you use? or is it all

a division in the House happenstance?Mr Macrae: In the Regulatory Impact Assessmentwe will be required to build in proposals for review.Q192 Lord Boston of Faversham: I take it that the

guidance you distribute is in written form. Would itbe possible for us to see that if it is not too long? Q195 Chairman: I am talking about the past.Mr Macrae: The guidance tends to be in electronic Mr Macrae: I regret to say, No. The reason for thatform. We tend to work from the intranet. It is tends to be simply resources. There is so muchreducible to writing but we have internal DEFRA pressure to create further regulation and give eVect toguidance and GLS guidance on SI drafting. I can further policies that it does become very diYcult to

get the resource to deal with something which issupply you with a printout of both.




Q200 Chairman: Having all these pieces of paperalready happening. The way that we deal with thestock of regulation in the past tends to be when from the smaller boats, what is then going to happen

to save the fish?something new is happening in that area. If we haveto address an area of regulation again, we do not Ms Sharp: The fishermen do not have to do anything

apart from help their buyers. If the fishermen sellsimply overlay that on the past; we will look at whatis there and try and see if we can make sense of what their fish to an auction market, the auction trader has

to provide a sales note to the Marine Fisheriesis there. In terms of looking at areas that are notsubject to new regulation, that is not something we Agency. If the fishing vessel sells its fish directly to a

restaurant, the restaurant, for example, has todo.provide a sales note to the Port OYce. Theinformation on the sales notes enables us to get aQ196 Chairman: The answer is that Less is More, asproper handle on the amount of fish that is beingwe have been advised.landed by those small boats, for which at the momentMr Macrae: Yes.we have a limited amount of information. Severalthings have pointed us to the need to improve the

Q197 Chairman: Can I take one specific example we information on these smaller boats. I will notstruggled to understand, which was the regulation mention the EU, but the Prime Minister’s strategyabout the registration of fish buyers and sellers? If I unit report on a sustainable and profitable future forunderstand it, this is a regulation that says that, when the UK fishing industry pointed to the need to havesmall boats caught more than 25 kilograms worth of a high transparency system following the sales of fish.fish and sold it on the market, there had to be a Because we are very concerned about the burden ondocument that went from seller to buyer, and, when the buyers of fish—in particular from these smallthe buyer had that document saying his catch of fish vessels—we now have an electronic sales note on ourhad been bought from Fred Bloggs, it was then sent website that can be despatched directly to the correctto the fisheries register or something. We understood Port OYce and we are exploring the methods ofthat this was in some way about trying to ensure that further automating the system.there were some fish left in the sea, which is a perfectlysensible policy objective. But I think we were

Q201 Chairman: I think we understand that thisstruggling as a committee to understand how thiseVectively allows you to have better informationpaper chase was going to do that. We would beabout what is being fished by small boats—or at leastinterested to know what has happened to all thosebetter information about those who fill the forms in,pieces of paper, I think 100,000 documents a yearwhich is not necessarily the totality. What isfrom recollection, going into this paper factor. Whathappening as a consequence to protect over-fishing?has happened since? and how has the world becomeMs Sharp: It does two things. One, it enables thea better place?scientists to make better estimates of what is being

Ms Sharp: If I go back to what the regulationscaught and landed. At the moment, the scientists arerequire, the under-10-metre boats, which is the areaaware that there is quite a high proportion of fishthat you are particularly interested in, at the momentillegally landed, and that makes it very diYcult forare subject to fewer controls on landing of fish, sothem to make proper estimates of how much thethere is much less paperwork associated with thestocks are under threat.under-10-metre boats than with the larger boats.

There are EU requirements in place for sales notes inQ202 Chairman: If the purpose is essentiallyrelation to all landings with—estimation—to get an idea of volumes, there aremany other ways that that could have been achieved

Q198 Chairman: Could you answer the question rather than simply asking, every single fish that iswithout falling back on the EU? Ministers signed up caught, to have a little piece of paper put in a centralto the EU, so there must be a good purpose. What is warehouse. There could have been sample checks andthe fundamental purpose that is being sought to be estimations done at all sorts of landing points to getachieved by this pile of paper? a better picture.Ms Sharp: The fundamental purpose is to ensure Ms Sharp: That has been done in the past but theresustainability of fish stocks and better information are additional requirements to cross check data fromthan we have at the moment. diVerent sources so that you get information on the

sale of the fish as well as on the landing. That is whythe information is coming from two diVerent sources.Q199 Chairman: How does the information help

sustain the fish stocks? The other thing that the information will enable us todo in practical terms is to have a much clearer idea ofMs Sharp: Because at the moment we do not have

information on landings by these smaller boats in the where we are in terms of the uptake of the UK quotaand what is being landed. It is quite important thatsame way that we do for the larger boats.




purchasers have to provide the information to thewe have that in order to help conserve and sustainstocks. enforcement agency.

Q203 Chairman: What is your estimation of the Q207 Chairman: If we were completely masters inscale of compliance by fishing boats and buyers and our own court with what you know now, would yousellers? do it this way again? or would you find a better way?Ms Sharp: The regulations have only been in force Ms Sharp: If we were completely masters in our ownsince the beginning of September fully. In that period court, we would be looking at ways of improving itwe have had 6,000 extra sales notes over and above along the lines that we have already suggested to thewhat we would have had—that would be mostly the EU—for example, reducing the frequency with whichsmaller boats—of which 3,000 included cod and sole, the information has to be provided and a greaterwhich are stocks that are particularly vulnerable and aggregation. That is what we have suggested to them.under recovery plans. We are not yet in a position toestimate the compliance because we think it is still

Q208 Lord Jopling: I hear what you say. I wonderquite early days. What we are looking at is the dutieswhether you can give me an estimate, before theseon the buyers, educating them as to what they areregulations came in, as to what the margin of errorrequired to do.was with regard to reporting catches and what themargin of error is with these regulations, because you

Q204 Chairman: You see the thrust of the question. said there is illegal landing. I remember in my time asWithout being experts in this, we would doubt

Fishing Minister the Dutch Minister had to resignwhether you would get total compliance. There arebecause of landings on the beach, which you mayplenty of other methods for estimating fish depletionrecall. Apart from those estimates of the margin ofand it is imposing a burden on lots of people anderror, my question leads me to ask whether you thinkgenerating mountains of paper. Do you think it is thethat there is any other country in the EU that is goingbest way of getting to that objective?through this bureaucratic palaver. Or is it that we areMs Sharp: It is slightly diYcult to answer thegold-plating what are EU suggestions and that thequestion without reference to EU requirements.Dutch, French and Spanish as usual take very littlenotice at all? You will know as well as I do that there

Q205 Chairman: If you are saying, “It is because the have been allegations of corruption among fisheryEU told us to do so”, we will not feel very happy inspectors and blind eyes have been turned to illegalabout it. landings. It was for that reason that the UK proposedMs Sharp: I understand that, but we want to achieve many years ago that there should be a majorthe outcome in terms of better information to help us strengthening of the inspectors of inspectors and thatwith sustainability of fish stocks and enforcement of non-nationals should go and make sure that the localthe requirements. inspectors were doing their job because there were

very serious suggestions that they just were not andthey were turning blind eyes. Is it not that we areQ206 Chairman: Are you really saying that youpursuing this with this sort of vigour but nobodythink there probably was a better way but the EUmuch else is?told you to do it this way and therefore you had toMs Sharp: In terms of estimates of the margin ofcomply?error, if I turn to the first part of your question, it isMs Sharp: No. This was useful information that wediYcult for us to estimate that at the moment becausehad for the over-10-metre boats and not for thewhat we are going to be doing is looking at theunder-10-metre vessels. There are lots of other waysinformation we are getting now and comparing itin which the under-10 do not have to fulfil thewith what we had prior to the regulations. In fact, onedocumentary paper trail that the over 10 vessels do.of the commitments that we have made to theThis is one of the only sources of documentaryindustry is to review—this goes back to one of theinformation that we have in respect of that. I thinkearlier questions as well—the initial application ofthe EU requirements could be improved, so I agreethe regulations and how they are working. We saidentirely about that. Simplification of the EUwe will do that in three months, which is quite earlyrequirements on fishing control is one of our topdays but we think it will be very useful at that pointpriorities during the presidency. We have written toto look at the quality of the data we are getting andthe Commission about simplification and we havewhat it shows in comparison with the previousidentified the burden falling on the purchasers of fishsituation. The other thing we are doing at thedirectly from the smaller boats. We have suggestedmoment, again going back to points which weresimplification in this area, more particularly to allowmade in the earlier question, is looking at what we areaggregation of the sales information so that it reduces

the burden on the frequency with which the getting in and assessing how reliable and complete it




small percentage of that. Is your analysis likely tois in order to see how best it can be used in ourstatistical time series. throw up a statistically interesting result in relation to

the stocks of cod in the North Sea, for example?Ms Sharp: I would not like to pass a judgment, notQ209 Lord Jopling: You forgot to give me thebeing a statistician, but the person who will makemargin of error previously before these regulationsthose judgments is from our statistical unit, so we arecame in.working very closely with them. We would not drawMs Sharp: I think we will not know that until we see

what information we get. The margin of error will be any inappropriate conclusions from the informationin part indicated by the comparison between what we that we receive from the diVerent sources.are getting now and what we estimated we were Chairman: I think Viscount Eccles has put his fingergetting before, and then the diVerence between the on our concerns. Viscount Colville, can I pass over totwo will give us an indication of the margin of error. you on waste management licensing.We need to have something to compare it with in Viscount Colville of Culross: Can I include in thisorder to make that judgment. question consultation?Chairman: There are a number of areas that we Chairman: That was going to be a question led bywould like to explore on waste management Baroness Morgan.licensing. We saw this as a specific example where the Baroness Morgan of Drefelin: I am very happy for myCommittee was troubled by what we saw. question to be consolidated.

Viscount Colville of Culross: We had before us today,Q210 Lord Jopling: I did not get an answer to—are and I do not know whether any of you knowwe the only people who are doing this? anything about this, three sets of regulations aboutMs Sharp: Basically, the answer is—No, we are not the supply of water and the various fittings and thingsthe only people. We have used our personal contacts which have to be installed. Evidently this was a veryand, indeed, our embassy contacts to explore what is successful exercise. It began with a consultationdone in other Member States. We have made paper in 2002 and it has led to further consultation,enquiries in Denmark, the Netherlands, Sweden, and it has arrived at a scene where you continue theGermany, Portugal and Spain. We made enquiries in consultation. There are not very many peoplerather more Member States but those were where we concerned—I think, the water undertakers for thegot the replies back from. We have been told that the main part and larger users. There was feedback andpattern of purchases is diVerent there because in all you changed the regulations and, as I understand it,those countries much more use is made of auctions all is well. Plainly that has not been so with wasterather than direct sales. But they do have systems in management. You have had the questions that weplace for the same information to be provided as we were going to ask you, so you know what theare now requiring. The only derogation that they references are. It is very plain that this has not gonehave in place is the same one that we have for small smoothly and I wonder why. First of all, is it becausepurchases for personal consumption. you do not consult the right people? or they do not

tell you the answers? or you do not incorporate theirQ211 Lord Boston of Faversham: When are you answers in your Statutory Instruments? or what? Aslikely to be in a position to make that comparison? In an addition to the waste management ones we areother words, when will the definitive answer be talking about, last week we had the duty of care uponavailable in reply to Lord Jopling? householders—Ms Sharp: In terms of the margin of error? Chairman: You pinched Baroness Morgan’s

question. I do not think you should pinch BaronessQ212 Lord Boston of Faversham: Yes? Maddock’s as well. Can we let the witnesses have a goMs Sharp: I do not want to over-promise and then at those very diYcult questions to start with?fail to deliver. I think we will be making our initialexamination of that around about February. ThediYculty for us is that we do see that there is still quite

Q214 Viscount Colville of Culross: It is thea programme of education to be done. I cannot beconsultation that I want to know about. Whom dosure when we will have the fullest picture of directyou consult? How do you decide who is going to bepurchases coming on board. Certainly within a yearconsulted? What do you do with the results?of the regulations being in place we ought to be in a

sound position to be able to see what the comparison Mr Macrae: If I may, I will hand over to my colleagueis between our previous estimates. in a moment. But can I say, generally, on these SIs on

waste management that, whilst all legislation isimportant, there is some legislation which is evenQ213 Viscount Eccles: This is sensitive analysis stuV.more important than others. A lot of what has beenIf we take cod as an example, the small boats land in

total 10 per cent of whatever is landed and cod is a dealt with here in waste management licensing relates




Q216 Baroness Maddock: I will not bother to read itto exceptions, this is not the mainstream theme.out. You have read the questions. I think the thingMainly what we have been dealing with here on thesethat was interesting for us was that this aVects everySIs are, as I say, exceptions to the main rules andsingle person who has a house in England—they getbecause of that are less likely to get the same degreea new duty, which is a pretty big thing. After thereof priority as some other projects within DEFRA. Iwas a press release from the Minister we found a pieceshould say, also, before my colleagues put in morein some of the newspapers—I found another one thisperspective, this is something where we recognise weweekend. But as a householder my local authoritycould have done better. We find it diYcult to arguehas not informed me at all about this duty that iswith the committee in terms of the overallabout to appear. I wonder what care has been takenperformance here. We put through an awful lot ofto tell the people who needed to be told, to tell thoselegislation, including a lot more legislation on waste,who needed to get this duty, what care you took andso it is not just that we are bad on waste. That is nothow long ago local authorities might have been toldthe case at all, but this is one instance where it isthat this was coming down the line?probably more at the bottom end of our performanceMrs Ellis: The initial consultation on extending dutyleague than some other things. Having said that, Iof care, as we call it, to householders was undertakenwill hand over to Mrs Ellis to deal with your specificin 2002. Local authorities did respond to that, andcomments about consultation.quite favourably, because the issue is that localauthorities are dealing with a large amount of fly-

Q215 Chairman: Do not feel the need to amplify if tipping—you do not want to because, in a sense, the acceptancethat this was not good is helpful to the committee Q217 Baroness Maddock: We know the issue.because it matches our perception. Mrs Ellis: That was followed by two subsequentMrs Ellis: I think we have learnt a number of lessons consultations. The last one followed on from anfrom this particular exercise. The committee was adverse judgment in the European Court of Justice inasked to look at three separate Sis, which is not December 2004, which required us to put a duty onsatisfactory. I would say that we were consulting on householders—they had formerly been exempt. Weexemptions. We had been asked by a Commons select have been working with the LGA to make sure thatcommittee to tighten up considerably because they they know what is going on and what is required, andwere concerned about abuse of those exemptions indeed they have alerted local authorities to the factwhich covered in the main land spreading and that this requirement is now in statute. I would say itcomposting. The problem was that this was quite a does not require responsible householders to docomplex set of proposals; it covered a large number anything other than what they do at the moment withof diVerent types of waste and it covered a number of their domestic waste—that is, they should be handingdiVerent activities, so there was complexity there. it over to the local authority for recycling or disposal.There were a number of diVerent industries with They can do that either by their domestic wasteinterests and I think we did consult the right people. collection or they can take their rubbish down to theBut the trouble was that under the Waste Framework local civic amenity site or tip or dump, or whateverDirective we are required to develop general binding people call it, or they can ask the local authority torules. The devil, as usual, was in the detail of those take away bulky items. Local authorities do eithergeneral binding rules, remembering that the select free or subsidised systems. Really there is nocommittee had asked us to tighten up the existing change—rules which were there. It was that tightening up andthe complexity which led to the problems. I think you Q218 Chairman: There is a change, surely. If myhad noted that it had taken some time from the start builder takes away materials and I fail to ask myof the exercise to when we considered the first SI, and builder “Are you properly registered?” I haveI would say that was because we were having quite committed an oVence. That is what the regulationextensive and intensive discussions with various does, if I am not mistaken?industries on the detail of those exemptions to make Mrs Ellis: Yes, that is right. You are quite right.sure that we did deliver the policy outcomes we werelooking for—which was to encourage the proper

Q219 Chairman: Do not tell us there is no change,recovery of waste rather than it going for disposal, itquite clearly there is a change.was going to be used in a beneficial way. Does thatMrs Ellis: You should ask them if they are registeredhelp?waste carriers.Chairman: I think that helps, yes. I wonder if

Baroness Maddock would like to pursue the theme ofwaste by a regulation which concerned us recently Q220 Chairman: Indeed, and when they are not I

have broken the law.about the Household Waste Duty of Care.




Q226 Viscount Colville of Culross: You put out aMrs Ellis: If not, you should not be using them.Baroness Maddock: That is the point. I have builders legislative paper, I did not read it, my fault. You

consulted the Local Government Association, youin my house at the moment, this is about to come intooperation and nobody has informed me that that is a probably consulted LACORS?

Mrs Ellis: Yes, I think they were on the list.new responsibility. The whole point of my questionwas—how long in advance did you tell them?Viscount Colville of Culross: It came into operation Q227 Viscount Colville of Culross: Do you knowyesterday. what happened in terms of the Environmental HealthBaroness Maddock: Yes. How long in advance did Department in the District Council getting down tothose responsible for getting out the information— realising that something has to be done about this?LGAs and then down to local authorities—know For instance, did they issue a little leaflet to be putthat it was going to come into force yesterday? inside the dustbin when it is collected (which is what

our one does in Norfolk, to tell people)? How farQ221 Chairman: If I could add to that, how will you down the chain do you go in order to check up thatmeasure what proportion of households are aware of something is happening?this responsibility? Mrs Ellis: LGA have sent out one of their briefingMrs Ellis: We did put out a press notice in October, notices to chief executives in local authorities. It is forwhich was part of a Government drive to highlight the local authority to decide whether they are goingfly-tipping issues, and we did publicise it at the time. to use the power to enforce this particular duty orWe put out a further press notice on 14 November not. The likelihood is that some local authorities willwhich included the Environment Agency advice to decide to enforce more than others and they havehouseholders. That advice on what householders been asked to make sure that householders are awareshould do is held on our website, so people should be if the local authority is likely to take enforcementable to find it. There they will find, also, the telephone action in particular circumstances.number and website reference. Chairman: I think we have got the picture. Could IChairman: You are implying the rest of us should move on to Lord Methuen, who is going to ask atrawl a government website to find if there is a new question on secondary legislation.obligation that government is imposing on us.Lord Jopling: It is cloud cuckoo land, totally Q228 Lord Methuen: Secondary legislation can haveunrealistic. a significant impact on industry. How eVective is

your machinery for assessing such impact onQ222 Baroness Maddock: My question was—when industry? Do you make use of the Small Businessdid you tell LGA, therefore local authorities, that this Service? What use do you make of that?was coming? How long ago? That is the key thing. Mr Macrae: The impact on industry is dealt withMrs Ellis: The work with the local authorities started through the Regulatory Impact Assessment and wein 2002. make considerable use of the Small Business Service.Baroness Maddock: I want to know when they knew It is part of the RIA that we should check with SBSthe regulations were coming in. and it is something that we do make very active use

of.Q223 Chairman: Can you focus on the specificquestion. Q229 Baroness Morgan of Drefelin: To some extentMrs Ellis: The formal consultation was— some of my question has been picked up but if I might

very quickly ask: do you have specific standardsQ224 Baroness Maddock: What I want to know is— regarding consultation that you adhere to across thehow long ago did LGA tell local authorities? Department that you can describe to us?Mrs Ellis: The specific proposals were published in Mr Macrae: For consultation we follow the Cabinetthe summer. OYce guidance on consultation. We are very careful

about trying to observe the 12-week period and ourstatistics for that are reasonably good. In terms of theQ225 Chairman: Can you answer my question on

how you test what proportion of households is aware eVectiveness of our consultation there is always morethat we can do. We have some examples of dynamicof this obligation? If they are not aware of it, the

regulation has failed, has it not? It goes to the heart of consultation. There was one in particular whichinvolved a barn dance as a way of trying to engagethe regulation, perhaps, as to whether the public are

aware they have this obligation. I suggest to you that with the particular community, and I understandthat was highly eVective, or we may have someis a central piece of information testing regulatory

compliance. How are you going to do so? innovation where there is more we can do. Just as anillustration of how we are trying to improve things,Mrs Ellis: We have not got any proposals at the

moment to measure it. we have tried to adopt the five minute rule as a result




extended to look at the public sector and theof discussions with the CBI, where we became awarethat recipients of our consultation papers will voluntary sector as well.probably give us five minutes in reading it to decidewhether this is something they understand,

Q232 Baroness Morgan of Dreflin: I am not suresomething they want to engage with, and if they dowhether it is your policy to publish all the responsesnot want to, it goes in the bin. We are now trying toreceived. Do you do that?apply the five minute rule to our consultation paperMr Macrae: It is our policy. We do do that, yes.and have it redrafted if it does not meet that rule. We

are trying to improve our processes but we have along way to go. An important plank of our Better Q233 Lord Jopling: I am sure you would agree, withRegulation strategy is to engage more eVectively with regard to consultation, that there is nothing morethe people that we regulate. That is not something irritating to the people who are aVected than whenwhich has been the main focus of our regulation in you get these things wrong. When this committeethe past. Increasingly we see, particularly from the started work, you were being fairly good at notexperience of the Danes and the Dutch, that if the serving up a lot of incorrect Orders which needed topeople we regulate understand the purpose of what be corrected. This year you have gone very muchwe are trying to do, if we engage more proactively downhill. Of your eighteen SIs that you have laidwith them, then we can increase compliance and from the current session, no less than eight have beeneVectiveness and also reduce the number of burdens. correcting SIs. You told us earlier you have been inWe see getting smarter on consultation as a very the Department three years, and so your supervisionimportant part of more eVective regulation. of these things has been constant presumably over

those times. Why do you think it is that theDepartment is going through a very bad spell indeed,Q230 Baroness Morgan of Dreflin: Because of thewhich irritates this committee and, I am sure, irritatesvery broad remit that you deal with, how do youthe customers? I know you said earlier that DEFRAensure that your consultations touch on awas the biggest server up of Statutory Instruments.representative sample of those aVected by theActually, that is not quite true because since thisregulation?committee started work, in the year up to March thisMr Macrae: That is very much one for a case-by-caseyear, Constitutional AVairs, Health, DTI andbasis. That largely depends on the level ofTransport had more than you did. I just say that tounderstanding that we have of that sector. Certainly,put the record straight. There are other departmentswith a lot of the environmental regulation it couldwho have a bigger flow of SIs than you do. Why is itaVect almost everybody. Sometimes we say that somethat in the last few months you have really not beenof our stakeholders are not yet born! We have to findexcelling yourselves?ways of trying to canvass opinion across as wide aMr Macrae: With respect, I am not sure what therange of the population as we can. Sometimes oneight SIs refer to. We had notice of what theother areas we are looking at very specific sub-committee regarded as correcting SIs, but we are stillsectors, particularly in agriculture or livestock, andtrying to understand your definition of a correctingthere it does become easier because we have got well-SI. If we understand correctly, three of them we hadestablished channels of communication with a lot ofidentified as ones where they were not drafted for thethese sectors.purpose of making corrections that we have recentlydiscovered, they were SIs which had a further

Q231 Viscount Colville of Culross: You have just purpose, and in addition to that we were taking thementioned RIAs. We quite often see in the opportunity to make some corrections to things thatdocumentation that comes with a Statutory had been done many years before. We are not sureInstrument that you have not carried out an RIA whether these were what were referred to asbecause it has no eVect on businesses. The Cabinet correcting SIs. Also, there were two of the SIs that weOYce regulate on the basis of what the eVect is on are dealing with on waste management licensing,businesses. You have just told us that a number of where we explained that it was not so much an erroryour activities have eVects on vastly larger ranges of in the drafting as further evidence that came throughpeople and interests. Are you sure that you have got in terms of the response from various sectors to thethe consultation process right and you do not in fact publishing of the first SI.follow the better regulatory eVect of onlyconcentrating on businesses?

Q234 Chairman: EVectively you are saying you doMr Macrae: Certainly not. We would be looking atnot think you have gone downhill, are you not?the impact on people on whom we would have theMr Macrae: I am still trying to understand exactlyimpact. The RIAs were originally intended to look at

the impact on industry, but they are now being what it is that the committee is complaining of.




meeting of the board—level Better RegulationQ235 Chairman: I think we would have somediYculty then resolving all of the detailed figures in Champions run by the Cabinet OYce and the Better

Regulation Executive, which is meeting as we speak.limited time. All Lord Jopling is putting to you is aview from the committee that it has not seemed to us And there are also networks of the Heads of Better

Regulation networks. So there is quite a lot ofto be a ‘golden year’ in the last 12 months for yourDepartment in terms of the accuracy of its making of collegiate activity across government trying to

explore best practice. That is specifically in terms ofSIs. Do you think that is a broadly fair picture?Mr Macrae: I will have to consider more carefully regulation and drafting. I am probably on about 12

interdepartmental committees of one sort or another,what the committee’s concerns are about the SIs. Ifthe committee could refer me to the specific SIs, I will so there is quite a lot of interdepartmental

consultation. Sometimes departments will jointly becertainly have a look to understand better what is hasgone on. responsible for an SI and there are some areas where

even up to three departments need to work togetheron a particular SI. On your question as to whetherQ236 Chairman: We will ask our oYcials to do that.there would be value in central coordination of theWe would have hoped you would have had an overallprogramme, I am still not sure to what extent the casesense as to whether it was going swimmingly orhas been made out for that. What I am grappling withwhether it has got one or two troubles.just now is the value of central coordination of theMr Macrae: My overall sense is that it has been goinglegislative programme within DEFRA. As Ifairly smoothly. We have had some recent diYcultiesmentioned earlier, it is one thing to look at secondarywhich have been pressures of time.legislation, but we would also need to look at whetherwe were doing something similar for primary

Q237 Lord Boston of Faversham: We have already legislation and for the EU and internationaldealt with consultation so far as SI users and legislation because it goes beyond just secondarystakeholders are concerned. My question is about legislation. I do not think it is for me to comment onconsultation between government departments. It whether it would be useful to have centralwas for the first time this committee learned from Mr management for the whole of government.Pawsey last week of the various groups that exist forconsultation, and you have yourself mentioned the

Q238 Viscount Colville of Culross: You have alreadyGovernment Legal Service itself, Mr Macrae. Whatbeen referred to the minimum residue levels in cropsvalue do you place on this consultation betweenand food and feeding stuVs, which I think largelygovernment departments? Do you think that there iscomes from Europe. It is an ever-changing picture assome scope for further aspects of consultationI understand it, and it must be very diYcult for thebetween departments? Do you feel that, as a result ofuser to follow what is the current state of aVairs. Ithe need for this interdepartmental consultation,would like your comment on that in a minute if youthere is also scope for some central governmentwould be so kind. I want to give you another examplemanagement of the production of SIs?from today. It is nothing to do with Europe, this isMr Macrae: I am very much in favour ofabout water fittings. Statutory Instrument 6 says,interdepartmental consultation. I referred earlier to“The prescribed requirements for the purposes ofDEFRA being my “ninth” department. I amsection 66A of the Water Industry Act 1991 are thesomebody whose career in the Civil Service hasrequirements in regulations 3, 4 and 5(1)(c) of themoved around departments, and I see the value ofWater Supply (Water Fittings) Regulations 1999”—interdepartmental cooperation. The Governmentwhich are a Statutory Instrument in 1999, which wasLegal Service I also said was very collegiate in itsamended about a month later and amended again byapproach and that is illustrated by the number ofanother one in 2005—“in so far as they apply bymoves that I have had myself. There are a variety ofvirtue of Regulation 2 of those Regulations.” How isdiVerent groups within the Government Legalanybody supposed to understand it? What is yourService looking at diVerent aspects of thisapproach to consolidation? Do you like the thing?organisation. In terms of consultation on theMr Macrae: I have every sympathy with yourprofessional practice relating to SIs, that tends to bereaction to that particular example. Consolidation iscarried out through the intranet and the committee ofsomething that in some ways is a counsel ofeditors that populate that website. There will beperfection and certainly we would—occasional coordination meetings looking at a

specific problem, but there is not one single groupthat looks at drafting issues across all departments. Q239 Chairman: Could you focus on what you are

doing about it.In terms of regulation, there are an increasingnumber of groups springing up across departments. Mr Macrae: Wherever possible, we do try to

consolidate. We try to avoid simply adding furtherThe GLS has its own regulatory reform group. If Iwas not here this afternoon I would be attending a layers for precisely the reasons that you said—it is




classic examples of alternatives to regulation is thevery resource intensive and it takes a very largeamount of time. That is the main factor that is Emissions Trading Scheme. In the case of the UK

Emissions Trading Scheme, that was somethingholding back further consolidation. Part of it ishaving the adequate powers in order to really which was a real alternative to regulation in that the

trading scheme itself was a matter of contract rathersimplify a particular area of legislation. Particularlywhere we are dealing with Europe, we have powers than legislation. The EU Emissions Trading Scheme,

on the other hand, is using the notion of a tradingunder the European Communities Act to implementthe Community obligation, but sometimes that will scheme rather than regulation in order to deliver the

outcomes and is an excellent example of that sort ofoverlay a domestic regime and we may not have thepowers to tidy up the rest of the domestic regime that method, but it still requires regulation to set up the

trading scheme itself. That is what we tend to findis left over when we implement the Communityregime. In terms of trying to get a better handle on it, with a lot of the alternatives to regulation—there

may still be an element of regulation as part of theone of our best examples is what we have done in theVeterinary Medicines Regulations 2005. That was package, but we recognise that if we want to change

behaviours eVectively then it has to be a combinationwhere the Veterinary Medicines Directorate inDEFRA took a decision to do exactly what you are of diVerent measures and part of it will be education,

part of it in empowerment, part of it incentivisation;advocating and consolidate all the legislation relatingto veterinary medicines. It has repealed in one SI 45 and, if it is changing human behaviours, then we need

some sort of catalyst in order to get the level ofother SIs and disapplied another 22 and alsodisapplied the Medicines Act 1968, so that everything change. Regulation has to be seen as part of a

package of measures. It may be that we will still havethat you need to know about veterinary medicines isin the one regulation. It has also been done in very small bit of regulation even though we have a broader

spread of other measures. A lot was made of theclose consultation with industry and, because it is aprovision for making changes and fees, we have the success in Ireland of the plastic bag tax. A plastic bag

costs 15 cents. This had an enormous environmentalprospect of revising that SI every year and ourintention is to revoke and re-make every time. impact, it was claimed, but there still needed to be

some regulation about pricing the plastic bag.Having got everything into the instrument, we willcontinue to have only one instrument that is updated Looking at alternatives to regulation does not

necessarily mean total exclusion of regulation, itonce a year. That is what we would love to do witha lot of our regulation. The real challenge is more a means getting regulation into the proper perspective

in terms of how little it can do to try and changequestion of resources than principle.behaviours. In terms of a lot of what we get fromEurope, we would proselytise about alternatives toQ240 Earl of Northesk: In your introduction I think

you said that subordinate legislation is second nature regulation because, when we have Europeanregulations, to implement, jurisprudence from theto the Department; it is part of the culture. You have

also said that the Department is fully signed up to the European Court of Justice precludes using voluntaryregulation or some other self-regulation measures.Better Regulation programme. Given that one of the

major recommendations of the Better Regulation We have to establish to the courts that there is alegally enforceable method of implementing theTask Force is to think outside the box, to consider

alternative methods of delivering policy other than regulation. There may be times when we would prefersomething which is non-regulatory, but we then needregulation, how actively and seriously is this

considered in the Department? Do you have any to consider whether it fits with the ECJ’s case law. Wewould proselytise in Europe for trying to findspecific examples where alternatives to regulation

have been used by the Department? Thinking about alternatives. We have been trying to persuade DGEnvironment that the real issue is not—can we havethis from a pan-European context, to what extent are

you able as a Department to proselytise this more environmental regulation? but can we make theregulation we have more eVective?alternative agenda at the European level?

Mr Macrae: Wherever possible, we do try to think of Chairman: We share that endeavour. Could I thankyou, on behalf of the committee, for your help withalternatives to regulation, but what we are ultimately

trying to achieve is to deliver public goods to further our inquiry. You have had a long session interruptedby a couple of divisions. It has been very helpful to us.outcomes and we will try and see what package of

measures is most eVective in doing that. One of the Thank you very much indeed.




Present Boston of Faversham, L Methuen, LEccles, V Morgan of Drefelin, BFilkin, L (Chairman) Northesk, EJopling, L Tunnicliffe, LMaddock, B

Memorandum by the Institute of Directors (IOD)

1. The Institute of Directors

1.1 The Institute of Directors welcomes the opportunity to contribute to the Select Committee’s inquiry into“managing secondary legislation”.

1.2 The IoD is a non-party-political organisation with some 68,000 members world-wide, including 53,000 inthe UK, whose aim is to help directors to fulfil their leadership responsibilities in creating wealth for the benefitof business and society as a whole.

1.3 The IoD has not conducted detailed research into the processes of formulating and scrutinising secondarylegislation and is not, therefore, in a position to answer all of the questions in the Committee’s “call forevidence”. We do, however, oVer some thoughts on those aspects of particular interest to business.

2. Q.3. Best Practice

What are the Government’s mechanisms for distilling and promoting best practice in relation to the instruction, drafting,laying, revision and repeal of statutory instruments? How is best practice monitored and enforced?

2.1 These mechanisms are essentially internal Government processes and, as such, are little known outsideWhitehall. Although it is diYcult to state this with certainty, we are bound to wonder whether a more openprocess, which would involve business and voluntary groups at an earlier stage, might make for a better endproduct.

2.2 Although business would not wish to be consulted on any and every measure (the burden of consultationis relatively heavy already), there may be instances where greater business input would be of benefit.

3. Q.5. Correction

Why are so many correcting instruments required? What are the repercussions in a department if a correction isrequired? Is there a process of inquiry about why a correction was needed?

3.1 There is a suspicion in the business community—albeit diYcult to substantiate—that the large number ofcorrecting instruments is a by-product of the relatively rapid turnover of personnel in Whitehall departments.If those responsible for drawing up SIs find themselves moved to a new post by the time the instrument takeseVect, there is bound to be less of an incentive for review and lesson-learning.

3.2 This forms part of a wider business complaint about Whitehall processes in general. The development ofa policy and the steering of legislation through Parliament are often seen as separate from the task ofimplementing the policy in practice. OYcials will often move on to new projects as soon as the legislative stagesare complete. It is encouraging to note that a diVerent approach is being taken with the Hampton Review ofinspection and enforcement, where HM Treasury oYcials who have played a leading role in the Review itselfhave been moved to the Better Regulation Executive to oversee its implementation.

3.3 As an aside, it is interesting to note the Committee’s perception of “so many correcting instruments’. Ina major study of SIs over the period 1987–97, Prof Edward C Page assigned just 261 out of a total of 27,999to “errors”—less than 1 per cent of the total number of SIs1. The IoD has not seen more recent figures compiledon a comparable basis; it would be interesting to know whether there has been a significant increase in thenumber of SIs designed to correct earlier legislation.1 Governing by Numbers, Edward C Page, Hart Publishing, 2001.



29 November 2005

4. Q.8. Commencement

We are keen to avoid the bulk laying of statutory instruments in the run-up to each common commencement date. Howwill departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny? Aredepartments developing annual statements on proposed regulation?

4.1 The IoD strongly supports common commencement dates, although it is essential that this very welcomeinnovation does not lead to a “pile-up” of consultations for business organisations or—even worse—a short-term overload of scrutiny work for Parliament.

4.2 Although perhaps easier said than done, departments will simply have to adopt a new modus operandi toensure that the common commencement date approach is a success. This will involve better forward planningof policy development and drafting work in order to spread the burden throughout the year.

4.3 There may be a co-ordinating role here for the Cabinet OYce; we suspect that, unless some authoritypolices the system and checks that departments are getting ahead with their work, a last-minute legislativelogjam is all too likely to result. The Cabinet OYce should be best placed to ensure this does not transpire.

5. Q.10. Consultation

How well observed is the Code of Practice on Consultation? How can the results be best presented in ExplanatoryMemoranda? How do the Government co-ordinate consultations with shared stakeholders, so that they are notoverburdened? What changes could be made to the consultation process so as to lead to better secondary legislation?

5.1 The Code of Practice on Consultation is becoming more widely recognised around Whitehall, but thereis still room for improvement in at least four areas:

5.2 (i) 12 week period. Regrettably, the 12-week recommended consultation period is still flouted. It is tooeasy for oYcials to find excuses (“If we don’t put this through now as an amendment to legislation beforeParliament, we won’t have another opportunity for X years” etc). The 12-week requirement should only beignored in extreme circumstances.

5.3 The Government should consider introducing a requirement that the 12-week rule could only be waivedif a central authority (perhaps the Better Regulation Executive?) agrees to it.

5.4 (ii) Genuine consultation. There is still a perception that some consultation exercises represent little morethan “going through the motions”. At worst, this can mean that consultation responses appear to havebeen ignored.

5.5 The Government should consider requiring departments to publish summaries of consultation responsesin the resulting White Papers or other final proposals.

5.6 (iii) Input from small businesses. Inevitably, it is easier for Whitehall Departments to deal with other largeorganisations (such as large companies or even the IoD) than it is to identify the small businesses, charitiesand voluntary groups who may be disproportionately aVected by new proposals.

5.7 We would encourage the Government to continue to make greater use of Business Test Panels. We acceptthat representative groups such as the IoD have a role to play in this process.

5.8 (iv) High-quality RIAs. Wherever appropriate, consultation papers should contain a Regulatory ImpactAssessment (RIA) or partial RIA. In some cases, these are missing altogether. In rather more cases, the partialRIA is unsatisfactorily cursory.

5.9 We would like to see far more attention to detail in this area. Crucially, Ministers must be prepared tosend poor RIAs back to oYcials before signing them oV.



29 November 2005

6. Q.12. Better Regulation

The Government are committed to implementing in full the recommendations of the March 2005 report from the BetterRegulation Task Force (BRTF), Less is More. What differences to secondary legislation should Parliament and usersexpect to see as a result and by when?

6.1 The “one in, one out” approach promoted in the BRTF report is intended to put a brake on the “flow”of new regulation, as well as promoting a pruning of outdated or burdensome “stock”. We see it ascomplementary to the Better Regulation Executive’s on-line appeal for examples of regulations or governmentforms that would benefit from simplification. We note that the Government is committed to responding tosuch submissions within 90 days.

6.2 We would expect to see two principal diVerences as a result of these policy initiatives:

6.3 (i) We would expect to see a reduction in the number of SIs promoting new regulatory initiatives.

6.4 (ii) Conversely, we would expect to see an increase in SIs designed to revise and simplify existing law.

6.5 So, in theory at least, we should see a switch in the emphasis of secondary legislation from new initiativesto simplification of existing law.

7. Conclusion

7.1 The IoD sees the process of improving the formulation and scrutiny of secondary legislation as asignificant element in delivering “Better Regulation”.

7.2 The IoD would be pleased to assist the Committee with requests for further information on any of thepoints discussed in this submission.

22 November 2005

Memorandum by the Confederation of British Industry (CBI)

Introduction

1. The CBI is the national body representing the UK business community. It is an independent, non-partypolitical organisation funded entirely by its members in industry and commerce and speaks for some 240,000businesses that together employ around a third of the UK private sector workforce. The CBI’s membershipincludes 80 of the FTSE 100, some 200,000 small and medium-sized firms, more than 20,000 manufacturersand over 150 sectoral associations.

2. The increasing level of regulation has become one of the main issues of concern for business, with firmsnow reporting that they must spend more time and money complying with government imposed requirements,rather than on actually “doing business”. A recent CBI/MORI survey showed that the nature and level ofregulation aVecting business is the second most important factor—of eleven listed factors—influencing acompany’s investment decisions.2

3. There are over 3,000 statutory instruments (SIs) made each year, and each of these receives a fraction ofthe attention of civil servants, lobbyists and parliament compared to the 30 or so bills that are passed.

4. We very much welcome the day-to-day work of this committee to provide a dedicated examination of SIs.We congratulate the committee on launching this inquiry to take a much-needed look at the system as a whole.

5. We agree with the principle behind making SIs and realise that the purpose of SIs is to do away with thelengthy parliamentary scrutiny that is required for primary legislation. It is nevertheless important that SIsshould be subject to an appropriate level of consultation by government department and scrutiny byparliament. At present this is hampered by a system which, from the perspective of a “user” is confusing andwhere accessing information is cumbersome.

6. The CBI is concerned that so many decisions are passed and that access to information for outside interestgroups on these is so limited. This is relevant both during the “consultation” stage by the relevant governmentdepartment, and the “scrutiny” stage by parliament. In particular we call for:

— An improved explanatory memorandum (paragraph 13).

— An examination of the best method of consultation on SIs (paragraph 14).

2 CBI/MORI (2003), Economic Outlook Survey 2003—Is the UK a Good Place to do Business? MORI, London.



29 November 2005

— More information from government departments on SIs (paragraph 16).

— More information on the parliamentary website (paragraph 19).

Commencement

We are keen to avoid the bulk laying of statutory instruments in the run-up to each common commencement date. Howwill departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny? Aredepartments developing annual statements on proposed regulation?

7. One of the CBI’s suggestions for how to deal with mounting administrative costs faced by business incomplying with regulation was common commencement dates for implementation of domestic legislation.The CBI argued that common commencement dates would minimise the management time spent scanningthe horizon for legislative change; make the total cumulative impact of regulation more transparent; and helpconcentrate government minds on the quantum of regulation facing business.

8. However, there are a number of hurdles to overcome. These include ensuring that parliament and businessis not overwhelmed by the total quantum of changes on any given date, that the quality of legislation is notdamaged, and that implementation dates of EU legislation are harmonised.

9. To avoid the risk that there may be too much legislation for parliament and business to cope with aroundone commencement day, the CBI has suggested that Government should ensure that the total amount oflegislative changes is limited to enable business to manage these changes, for example by focussing on totalcompliance costs. If the total cost exceeds a particular amount, legislative changes should be postponed untilthe next commencement date. Early notification of legislative changes will also be important for avoidingdiYculties related to “bunching’. This could be done by announcing future legislative changes at the same timeas announcing immediate changes, for example, changes that will happen in October should be announced onthe April common commencement date, and vice versa.

Consultation

How well observed is the code of practice on consultation? How can the results be best presented in ExplanatoryMemoranda? How do the Government co-ordinate consultations with shared stakeholders, so that they are notoverburdened? What changes could be made to the consultation process so as to lead to better secondary legislation?

10. The CBI believes that eVective consultation is the prerequisite to eVective policy-making. To bemeaningful, however, genuine consultation should cover the need for action in a particular area and therationale for action being taken. Stakeholders should not just be presented with a fait accompli. EVectiveconsultation also helps to ensure achievement of a regulatory framework that supports, rather thanundermines, competitiveness; with the concomitant eVects of reducing costs and oVering legal certainty.

11. Reasonable timeframes are the most important element of a successful consultation and the CBI is pleasedthat the number one criterion in the Code of Practice on Consultation is that government departments andagencies should allow a minimum of 12 weeks for written consultation.

12. It is our understanding that primary and secondary legislation are subject to similar consultationrequirements. However experience suggests that they are not always followed. Whilst governmentdepartments seem to be improving their record on SI consultation, some have made greater headway thanothers. Proposals for primary legislation are now, in almost all cases, subject to well-managed consultationwith stakeholders, but when it comes to secondary legislation, it is more of a mixed bag. It is not unheard offor key stakeholders to be unaware of proposals, or that consultation is rushed, or only carried out at the 11thhour when problems surface.

13. In their current form, Explanatory Memoranda are a missed opportunity to inform the debate on SIs. Atpresent they are brief, technical notes that provide very little additional information to anyone looking formore in-depth information on a particular SI. Instead Explanatory Memoranda should state, in plain English,what the law is at present, how passing this SI would change the law, and why this is necessary. By giving alittle more detail of the proposal and by making this accessible for the non-specialist, the opportunity for moreeVective scrutiny is thrown wide open.



29 November 2005

14. It is important to acknowledge that good consultation does not always mean more consultation, due tothe problem of overburdening stakeholders. Due to the quantity of secondary legislation this problem is likelyto be most acute for SIs. There could be a number of ways through this dilemma, including, for example, atrigger mechanism whereby full consultation occurs only if the costs of implementing a measure exceeds acertain amount, or a consultation forum where the decision on which SIs require further consultation aretaken by a group representing a broad range of stakeholders. The best way to prevent the overburden ofconsultation is only to introduce changes where absolutely necessary, and where possible to do this within theframework of existing provisions rather than by creating new law.

15. Where statutory consultation exists (for example the Health and Safety Commission) this works well inensuring that there are no “nasty surprises”—where an SI is introduced without the knowledge and againstthe wishes of an interested party—but the level of commitment and resources required for statutoryconsultation means that this may not be appropriate in other spheres.

16. In general terms, not nearly enough information is available to the wider audience and tracking down SIsis prohibitively cumbersome. This means the government is able to choose whether, when, and how to divulgeinformation. An outside interest group seeking information on an SI must rely entirely on the co-operationof the relevant oYcials. Instead there should be much more comprehensive information provision, such as apage on the relevant government department website listing, alongside the original Act, all SIs referring to theAct, dates of implementation, and links to departmental guidance and relevant caselaw.

17. The Law Society, on 23 November published a “Better Law Making Charter” covering a number of issuesthat are relevant to this inquiry, which the CBI thoroughly endorses. The Law Society is sending the committeea copy of the Charter.

Users and Impact

What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone inGovernment (or in the sectors affected) monitor the collective impact of regulations on eg small businesses or localauthorities?

18. For an outside interest group, accessing information about the progress of SIs is of primary importance.This is true whilst the SI is being developed by a government department, as discussed above, and also as it ispassed through parliament. Following an SI through parliament, and identifying who to lobby and when, canbe diYcult—although the establishment of this committee has greatly improved the situation as it provides asingle point of contact. Whilst the vast majority of SIs will be uncontentious, there are significant exceptions,and it is important that interest groups can raise concerns without undue hindrance.

19. The main source of information at present is the House of Lords Notices and Orders of the Day whichlists the date and place that upcoming SIs will be taken. This is a useful tool but more use should be made of itonline—including links to text of SIs, consultation documents, and the appropriate government departmentalwebpage.

20. Occasionally, negative instruments are laid during recess so there is no opportunity to pray against them—which undermines the role of parliament and circumvents any possibility of voicing objection. Unlessabsolutely necessary, this practice should be avoided.

21. A further concern is the growing tendency of government to draft primary legislation as a framework fromwhich many details, and often controversial elements, are lacking. These details are then added at a later datein the form of SIs. This means that interested parties are unable to press issues to the same extent during thepassage of the bill, where these are not mentioned on the face of the primary legislation—and eVective scrutinyis undermined. In this way, important decisions are then delegated to SIs. This is worrying as it adds to thevolume of SIs that are created, and particularly so given the diYculties surrounding the tracking and lobbyingon secondary legislation that have been raised.

22. It is often not individual pieces of regulation that cause concern for business but rather the cumulativeburden of administrative costs related to complying with all regulations that cover a business’ operations. Thisis particularly the case for small and medium-sized enterprises (SMEs).



29 November 2005

23. The CBI welcomed the Better Regulation Task Force recommendation that the government shouldmeasure the total costs to business of complying with regulation and then set a target to cut these costs. TheCBI believes that applying a “What gets measured, gets done” strategy, as set out in the “Less is More” report,will ensure that government is held to account on the delivery of its deregulatory promises.


The Government are committed to implementing in full the recommendations of the March 2005 report from the BetterRegulation Task Force (BRTF), “Less is More”. What differences to secondary legislation should Parliament andusers expect to see as a result and by when?

24. An appropriate regulatory environment provides certainty in the functioning of the market, underpinsinvestor confidence in an economy and is crucial for preventing rogue companies flouting the law and thusundermining the market position of compliant companies. Businesses accept the need to meet a certain levelof regulatory requirement, combined with a commitment to best practice in company operations. The CBI ispleased that better regulation is a key priority for the Government. Real progress on regulatory reform willrequire a long-term commitment to the better regulation agenda and include lessening the overall burden ofregulation on business.

25. The CBI would argue that there are two main strands to consider in any regulatory simplificationprogramme: simplifying existing regulation and ensuring that any new regulation is necessary, light-touch andproportionate to risk, according to the Government’s “better regulation” commitments.

26. The Better Regulation Task Force report “Less is More” provides recommendations for managingregulatory burdens and for how the Government should precede with simplification of existing regulation.However, questions remain as to how this would apply to secondary legislation. In section 4.3 of the report theuse of regulatory reform orders is recommended as a mechanisms for delivering simplification of regulation.However, it is not clearly explained how simplification of secondary legislation will be delivered. The CBIthinks that this could be an area that the Committee may want to explore further.

27. As stated above, the Government has committed to regulating only when necessary and to doing so ina light-touch way that is proportionate to risk. The CBI is of the view that to honour this commitment, theGovernment should use the opportunity that implementation of its better regulation agenda provides toensure that any new regulation created in the UK, including statutory instruments, adhere to the principles ofbetter regulation set out by the Better Regulation Task Force—proportionality, accountability, consistency,transparency and targeting.

28 November 2005



29 November 2005


Witnesses: Ms Antonia Norman, Head of Parliamentary Affairs, Confederation of British Industry, Mr

Matthew Fell, Head of Corporate Affairs, Confederation of British Industry, Mr Stuart Etherington,Chief Executive, National Council of Voluntary Organisations and Mr James Walsh, Head of European and

Regulatory Affairs, Institute of Directors, examined.

Q241 Chairman: Good afternoon. Welcome and with which we are very much engaged. To ourthank you very much indeed for coming to help us knowledge at least, this committee is the only groupwith our inquiry. We are under threat of having that is specifically looking at the involvement ofdivisions, so at some stage you will see us all leave the Statutory Instruments in the Better Regulationroom; we would be grateful if you would not leave the agenda. So that is clearly welcome from our point ofroom also, but wait for our return. I will not go into view. I hope you will have seen from our writtenwhat the inquiry is about, as I assume all of you have evidence that we very much believe that our expertiseread the call for evidence. And thank you both, the is on the broader Better Regulation agenda, and thatCBI and the IoD, for the written evidence you have is what certainly I hope to oVer a few commentssubmitted; we have received that, the Committee has upon. But we do on occasion work with individualread that and it has been most helpful. Before we start government departments on particular Statutorythe first question, could I touch on process, because Instruments as is necessary, to ensure that they are aswith four excellent witnesses there is a diYculty in business–friendly as possible. I think the biggest issueavoiding asking the same question to every single we have here is actually tracking and keeping tabs onperson? What I would like to do—and tell me if this the sheer volume and quantum of those, and we dofeels inappropriate—would be generally to start with find that the work of this committee is very helpful inlooking to the CBI and asking for their comment on a that respect. Antonia, would you like to addparticular question, then asking the IoD if they either anything?diVer from that or have any material issues that they Ms Norman: Specifically on Statutory Instruments,wish to add to it—no obligation to if you do not, but one of our primary concerns is, as Matthew has said,do engage if you do—and then asking Stuart on accessing information, and we face two diYcultiesEtherington from NCVO if he has any perspective on on this issue. The first is during the drafting stage init from the voluntary sector. Does that feel government departments. There is always an optionacceptable, so that we in a sense can focus upon of tracking down a relevant oYcial and ringing themwhere it is diVerent rather than there being an on the telephone, and nine times out of 10 they will beobligation to necessarily repeat if there is no very helpful. But this is quite a cumbersome processdiVerence? and it is very time consuming for each and everyMr Etherington: That is fine. Statutory Instrument–and, equally, whenever youMs Norman: I agree. think that a Statutory Instrument might have

changed in some way. So what we would like to see isa page on the government department websiteQ242 Chairman: I will not, if you will bear with me,detailing Statutory Instruments, any consultationintroduce the committee to you; we all have our namedocuments and a timetable moving forward. Whenbadges on in good primary school fashion, so I hopethe Statutory Instrument is then laid beforethat helps. What I would like to do is start by askingParliament, there are also diYculties. The Minuteseach of you, in the way that I indicated, just to sayand Order Paper is published online and that doeswho you are and where you are from, so that wehave a list of Statutory Instruments that are beforeposition that: and then I will start by asking forthe House, but I think more use could be made ofspecific views to oVer on the Government’s Betterthat, perhaps with again linking it to the text of theRegulation agenda and the fit or the relationship ofStatutory Instrument, the governmental departmentthat to secondary legislation. Could I invite the CBIwebsite and the Explanatory Memorandum. Just onfirst of all to say who they are, and then we will passthat point I would like to say one more thing, whichround the table?is that the Explanatory Memorandum, I think, is aMr Fell: My name is Matthew Fell and I am Head ofbit of a missed opportunity. For a layman reading theCorporate AVairs at the CBI and my responsibilitiesExplanatory Memorandum very little light is shed oninclude the Better Regulation agenda. To my right isthe subject, and what we would like to see is amy colleague, Ms Antonia Norman, who hasstatement in plain English about what the Statutoryresponsibility for our parliamentary aVairs andInstrument is trying to do and what the law is atfunctions, and I will ask her to say a few words aboutpresent, and how it will change and why that needs tothat in a moment. I think we would like to say that webe the case. As Matthew says, the CBI is not aswelcome this investigation by the committee; we do

see it as a key part of the Better Regulation agenda, involved as it might be in the Statutory Instruments



29 November 2005 Ms Antonia Norman, Mr Mathew Fell, Mr Stuart Etherington andMr James Walsh

members, about Statutory Instruments in particular,process and I am sure that from time to time thatmeans that we may miss a trick on behalf of our but I, like my colleagues, welcome the construction of

the link between secondary legislation and the Bettermembers. That is partly our fault but, equally, it is todo with the huge volume of Statutory Instruments Regulation initiative. There are perhaps four that I

could flag. One in particular relates to consultationthat are passed and diYculties in accessinginformation that I have just been explaining. and this really echoes the CBI’s evidence in the sense

that quite often people do not know where to findthis, it is not easy to locate and the extent to which itQ243 Chairman: Thank you very much. We notecan have an impact is not always obvious. And Ithat in your evidence and we will no doubt bethink there is an issue about bringing thesereflecting upon that before we finalise our report.instruments to the attention of those who have anMr Walsh.interest in them appropriately and in a timely way—Mr Walsh: Thank you, my Lord Chairman. I amand I will come on to the timely way in just a second.James Walsh; I am Head of European andSo that is one issue which I think would be generic toRegulatory AVairs at the Institute of Directors. Weeveryone—that we do not know where it is, we arehave 53,000 members across all sectors, most of themnot quite sure when it is passed, we are not quite surefrom SME backgrounds, so that gives you a fairwhat eVect it has. And this will apply to individualappreciation of where we stand and whom wemembers of NCVO who might have a particularrepresent. Like my colleagues in the CBI we are veryinterest in a particular subject. The second area is thatinterested in and very supportive of thethere is a lack of clarity often about the future ofGovernment’s Better Regulation agenda. We findsecondary legislation as the primary legislation isthat the idea of it is very encouraging and we aregoing through. I can cite you a case in relation to theseeing the Government putting a good deal moreChildren’s Act where the NSPCC was not reallyenergy and eVort into better regulation. But, ofaware of the volume of the Statutory Instrumentscourse, the real test will be whether that energyand the secondary legislation that would result fromdelivers some practical outcomes for our members inthat Act and therefore they were really unsure aboutthe form of an actual reduction of the administrativewhat the shape of this would actually look like at theburdens, and we have not yet got to that point, but wetime that the legislation was being passed. The thirdlook forward to that day. On secondary legislationarea I think relates to impact. Often Statutorywe very much welcome the establishment of theInstruments are applied at fairly short notice. Youcommittee and this inquiry and clearly it fills anwill be familiar in your former ministerial career, Myimportant gap in parliamentary scrutiny of theLord Chairman, of the Criminal Records Bureau andlegislative process. It may be that on the business sidecharges that were levied on voluntary organisations.we also need to look again at what we are doing aboutThe use of a Statutory Instrument meant that with 26scrutiny of secondary legislation because, as my CBIdays’ notice the fees were increased from 7.6 millioncolleagues have said, our input to the Government to the voluntary organisations to 9.3 million, so these

through the consultation process is usually at a stage Statutory Instruments can have a very dramaticbefore one gets to the Statutory Instrument—it is eVect on organisations. There is a consultation codeperhaps a Green Paper or some other consultation as part of the contract which the government hasdocument—and there we find that we are very signed with the voluntary sector, and thatengaged, we give a written response, often we go and consultation code pretty much underpins a lot of thehave meetings with civil servants and Ministers and Better Regulation work that is going on, and we seeso on. But it is actually quite rare for us to submit no reason that the code cannot be applied similarly toformal evidence to a government department in these instruments. The final issue, which I think isresponse to the drafting of a Statutory Instrument diVerent but may be echoed in other sectors too, is theitself and it may be, as Ms Norman says, at that stage extent to which Statutory Instruments are used towe allow some things to slip through the net. pre-empt primary legislation. I will give you an

example of that. When the two lottery funds wereQ244 Chairman: Thank you very much indeed. Mr merged, before the Lottery Bill—and the Lottery BillEtherington. has still not been passed to create a new lottery fund,Mr Etherington: Thank you, My Lord Chairman. I it is in eVect operating as a single fund—Statutoryam Stuart Etherington, Chief Executive of the Instruments that would apply to both of the pre-National Council of Voluntary Organisations, which existing funds were applied in order, de facto, tois the umbrella for voluntary and community create a new fund before Parliament had expressed itsorganisations in the UK. I think many of our view about the creation of that fund, and that seemsconcerns would be the same as those of business, but to us to be particularly bad practice. So there arethere are one or two that are slightly diVerent, I think. some examples, some of which echo what colleagues

have said and some which go a little further.Four issues emerged from our consultation with our




generally I think that 12 weeks is plenty of time for usChairman: Thank you very much, that was veryhelpful in all respects. to respond.

Mr Etherington: I concur. I think three months isfine, and it is also written into the Compact Code, but

Q245 Lord Boston of Faversham: I would like to turn there are too many opportunities where this is notto consultation generally and there are several

adhered to. The CRB case that I gave you is a case inquestions I would like to put to you. The first one is:point, and it is not stuck to enough—there are toodo you feel that you get enough warning, enoughmany exemptions.time, for proposed new secondary legislation and

that you have an ample opportunity or not to feed inyour worries to the departments concerned? Also, do Q246 Lord Boston of Faversham: The secondyou think you have enough time to prepare question really deals with the form that theyourselves for the impact that proposed new consultations take and whether you think that theysecondary legislation will have? are suYciently eVective. Does it usually take the formMs Norman: Part of this is to do with the access to of written consultation and does it include oralinformation that I was talking about earlier, in that discussion? does it include appropriate meetings, forconsultation is much more likely to be successful example, with the relevant departments? and do youwhere information is put out there and available to have workshops with departments, or more than onekey stakeholders. It becomes much harder if you have department, if appropriate, to try to sort out theseto start untangling the web about which statutory things? When I ask if they are eVective enough, doinstrument is where, and when it is going to pop up you feel that they are not just going through thenext. Broadly speaking, I would say that the CBI is motions? We note that the IoD’s memorandum, forconsulted, but I am also aware that we may be in a example, referred to the undesirability of goingprivileged position on that. In preparation for this through the motions only. One other limb of thissession I got in touch with some of our Trade question is whether the consultation goes so far as toAssociation members and got a pretty mixed seeking your views on other forms which could befeedback. One of our members in the transport taken instead of through secondary legislation toindustry had a lot of diYculties with the Department achieve the desired aims? There is just one subsidiaryfor Transport where they found that they were only point I would ask about this. We have heard duringtold about a consultation exercise through their own

the course of the inquiry that there are several cross-monitoring rather than directly from the Departmentdepartment groups—for example, the Governmentfor Transport. Even when they had responded to theLegal Service is involved in one? with lawyers fromconsultation they were then not kept up to date withvarious departments where it is appropriate. Do youinformation as the debate progressed, and this madeget involved in those or that particular one and, if so,it very diYcult for them to keep their membersdo your own lawyers get involved in them?informed of any preparations that they would need toMs Norman: Normal practice is for consultation tomake for when the Statutory Instrument was passed.have a written element and then laid on top of thatMr Walsh: My Lord Chairman, I think in general wethere may or may not be additional consultation byfeel that we do have suYcient time for consultationway of discussion groups and that type of thing. Bestbecause broadly speaking the Code of Practice onpractice would obviously be where consultation isconsultation is adhered to, now we get a 12-weekmore dynamic. I could give you one example of whereperiod of consultation. So as long as that is followedthis has worked fairly well, which is on the Agewe find that is plenty of time. The diYculties of courseRegulations, which are currently being consulted on,arise when the 12-week period, for one reason orand the DTI has had a conference on this. And theyanother, is disregarded and sadly that does stillalso launched an Age Advisory Group to facilitatehappen. OYcials usually have quite a good excuse fordiscussions and to try and drill down on some of thedoing so; they will say, “Here is an opportunity to getissues. On the question of whether departmentssome amendment into a Bill that is already on its waymerely go through the motions, we do get thethrough Parliament and, if we do not do it now, weimpression that that is sometimes the case. Howeverwill not be able to make this useful change to the lawsometimes that may be because the instrument isfor some years because of pressure and diYculties inimplementing European legislation. In this instancegetting items into the Queen’s Speech,” and so on. Sothere is not a great deal of latitude in the matter, thethere is often quite a plausible excuse. But we thinkconsultation happens but there is only one directionthat Ministers and Permanent Secretaries just have tothat it can go. This is particularly relevant to yourbe a bit tougher about this and say that the 12 weekspoint about whether there are other forms that couldhas to be adhered to, and that may mean betterbe used instead of a Statutory Instrument—when it isforward planning in departments in order to ensure

that last minute crises simply do not occur. But a case of implementing European law it will have to




have to be a process that just goes on in London. Wego on the statute and therefore another form wouldnot be possible. encourage government oYcials to get out of London

and visit our members, to go and spend some time inMr Fell: If I could just add that I think where thebenefit of informal discussions can really play a part a factory or a shop or whatever it is and say to a real

life businessperson, “How will this change in the lawin this is at the early compensation stage, to say: whatis it we are trying to achieve out of this, what is the aVect you?” We accept that takes a lot of time, and of

course resources are limited in Whitehall and it is notpolicy objective? I think if we can have some of thoseearly soundings and informal discussions with always possible, but on the occasions that I have

managed to marry up, if you like, our members withoYcials at that stage, when it is in the gestationperiod, then we can say, “OK, we see what you are Whitehall oYcials, I think both sides have found it a

very worthwhile process.trying to achieve, but from our point of view, thebusiness community, this is how we would deliver Mr Etherington: If I could add to that, my Lord

Chairman, I think it is quite important that there isthat outcome for you in a way that is leastburdensome to us.” I think that the early stage proportionality in consultation as well as

proportionality in regulation. If it is fairly standardinformality of those discussions is what can reallylead to benefits. stuV, then I think the approach that you can take to

consultation does not have to be as wide. Also, Ithink it is quite important that the Government is

Q247 Chairman: We are extremely interested to hear clear about what is changeable and what is notthat because that is an argument that Sir David changeable. There is nothing more frustrating thanArculus and others have put to us. It is only by that being consulted about an Instrument which yousort of process, whereby you are having an informal know you have really no chance of changing. This isdiscussion with those who are to be regulated about really an expansion of the European point but itthe policy objectives, that you get a dynamism about applies domestically too. So I think it is important.alternative ways, and unless that happens we are The other point is that, where there is a reallydoubtful whether you are going to see much less extensive piece of work—and childcare, as Iregulation or much better regulation. Is that a view mentioned earlier, obviously relates to that—then itthat the IoD shares, that you need to get into the is important that those responsible do actually getprocess early rather than downstream? out to the organisations that are aVected. That in ourMr Walsh: Absolutely, my Lord Chairman, I agree sector can mean not only the large players, who arevery much with my colleagues’ comments. It is very pretty well equipped to lobby both on primary andimportant to get into the process early, and of course secondary legislation, but also small and medium-achieving that requires constant eVort on the part of sized voluntary organisations that are often outsideorganisations such as ours. It requires developing a London and will be aVected by any changes, andrelationship with oYcials and with Ministers, rather getting hold of those means that government needs tothan just expecting that they will pick up the phone to have a decent mechanism for getting in touch withyou out of the blue when an issue comes up that is of them and giving them the time to be able to respond.concern. So you have to work at it and I find that a So the first thing would be to distinguish betweennumber of government departments are very good at where you can change things and where you cannot;this. On the Better Regulation side the Cabinet OYce and the second is where there is a significant changeand the DTI are getting a lot better and make a real as a result of Statutory Instruments that thoseeVort to seek our views from businesses and to organisations that are aVected, who are not theconsult with us informally. Of course, some of that normal suspects, are also engaged in theactivity necessarily happens below the radar, so the consultation.public do not necessarily see it: and there is merit in Chairman: I think we take many of those points. I amhaving consultation processes which are open and not sure that we would be totally sanguine to thinkvisual, so you have to do both the informal activity that there are some regulations that cannot beand also the public level of consultation as well. If I changed where the departments are open enoughcould add one point on the form that the early enough. Not open about their policy objectivesconsultations take. Generally we find that, if it is because in a sense government has a right to pursueconsultation on a fairly small-scale Statutory its policy objectives subject to Parliament, but aboutInstrument or Order, it is probably just a matter of how it gets there, because I think that is where real lifeprocess, and sometimes there is a feeling of going will actually inform it most eVectively.through the motions—there is no doubt that is thecase. But good consultations are those that are, as MsNorman said, much more imaginative and dynamic, Q248 Lord Boston of Faversham: Just before putting

my final question, which is quite a short one, there isthey should certainly involve meetings, but also takethe process beyond Whitehall. Consultation does not a linked point relating to the ones you have just




the path that they are going to take and instead it isanswered. From all of your own practical experiencesand the clear need for a certain amount of going to be administered by the department. So thatconsultation between government departments, do is an example of where ours and 96 per cent of theyou feel that there is any case at all for—at least to a respondents concerns were not listened to. Equally, Idegree—central government management of SIs, can give you an example of one where they were,secondary legislation? which was the Occupational Pensions SchemesMr Fell: My instinct is that it goes back to our (Cross-Border Activities) Regulation, which appliedopening remarks about accessibility and to businesses with secondees overseas, & how longtransparency, bearing in mind the sheer volume that that secondee can be overseas before the businessthere is, and I think that the kind of facility that qualifies for steeper funding requirements. We wereAntonia Norman was referring to, very much that concerned that this was only going to be a year thatcentral repository, so that we are able to tap into that the secondee could be overseas, we fed in thatand have knowledge of what is going on at the concern and we have recently heard that that is goingcurrent state of play, and I think that that is what we to be increased to five years now. So sometimes theywould visualise as being much more valuable rather listen and sometimes they do not.than necessarily a hands-on management role, if youlike, but some sort of central repository where wecould keep up to speed with exactly what the state of

Q250 Chairman: As ever.play is in the legislative process.Mr Walsh: If I could give one positive example, myMr Walsh: I agree with that, and I also think thatLord Chairman, but it does not necessarily relate towhere a central coordinating body could play a rolea Statutory Instrument, to demonstrate thatis in ensuring that we do not get a last-minute suddensometimes a consultation process does work. Werush of consultation for businesses or voluntaryhave a debate on at the moment over the workinggroups in the run-up to legislative milestones. Wetime directive at EU level. We have been lobbying thenow have this system of Common CommencementGovernment hard with our views and our concerns—Dates, which business would strongly support, but ofand perhaps this is not the time to go into some of thecourse one of the problems it generates is thatspecific points of policy detail—and it may suYce toconsultation can come all at the same time of year,say that we have been impressed with the way that thesuddenly dropping on the desks of business

organisations in a matter of weeks. So there is DTI has taken those points on board. We feel thatcertainly a role for a coordinating that body that they have been genuinely representing our view at thespreads that out and manages the timing of the European negotiating table. Interestingly, that hasprocess so that it is easier for both Whitehall and the been a process where as well as a written exchange ofconsultees. views we have also been closely involved in attendingMr Etherington: I would concur with that, My Lord meetings with the department and have had plenty ofChairman. opportunities to put our views forward.

Mr Etherington: One success story which involves thisown committee’s work, the Leonard CheshireQ249 Lord Boston of Faversham: When you haveorganisation campaigned in relation to the Disabilityexpressed your worries about proposals, do you feelDiscrimination Act and there were exemptionsthat they are being taken into account? Can you giveallowed in the secondary legislation for trains andus any examples, good or bad, giving an indication toother operating companies to be exempt fromwhat extent, if at all, they have been taken intoconditions of the Act by a negative procedure, so theyaccount?all went through it and nothing much happened. ButMs Norman: To be honest this is a diYcult questionLeonard Cheshire lobbied quite hard with theto answer. It is very much a mixed bag. I can give yousupport, as I understand it, of this committee, anda couple of examples, if that would help? Wethat has been changed now and they require anresponded to a consultation, WEEE Directive, onaYrmative decision and therefore subject to muchWaste Electrical and Electronic Equipment. I thinkmore scrutiny. So that is an example of how thethere have been three consultations on implementingprocess can be used. That is also an example of howthat directive. The final one was at the end of lastit operates the other way around and in the voluntarysummer, and in that consultation the Department ofsector sometimes campaigning for slightly moreTrade and Industry suggested that there should be aeVective regulation rather than just less regulation inNational Clearing House to administer the recyclingorder to support is constituents. But there is anof electrical and electronic equipment. The CBI,example of how a department did react both toalong with 96 per cent of respondents, according topressure from a voluntary organisation and also tothe DTI, agreed that that would be a good thing, but

the latest information is that that is not going to be parliamentary scrutiny




horizon scanning, looking out for new regulatoryChairman: Thank you very much.problems and keeping up to date. So this is a realbrake on Britain’s enterprise culture. Some of the

Q251 Lord Methuen: I would like to ask about the initiatives that the government is now pursuingburden that secondary legislation puts on should help to address this. The Hampton Review,organisations. It is obviously a very diVerent matter which the Chancellor is now pushing forward, isfor a large firm with a big legal team as opposed to an encouraging inspectors to be much more risk-basedSME or a small voluntary organisation. Would you and is turning the culture of organisations such as thecare to comment on the load? Environment Agency and Health and SafetyMr Fell: Clearly putting a costing on this is very, very Executive into being the advisers and helpers ofdiYcult, to say what is the burden specifically on business, rather than heavy-handed enforcers. Thatbusiness. The independent Regulation Task Force will do a great deal to help SMEs keep themselvesearlier this year in a report they published estimated abreast of the latest developments. So that is verythat the form filling requirements, if you like, on important. The other thing which we welcome andbusiness were anything between £20 billion and £40 which we hope will be a significant success is abillion per annum on business across the piece. I programme on measuring and then, we hope,think, more than that, what our members would reducing administrative burdens on business.report is actually the diversion of management time Sometimes, whether we like it or not, a governmentwhich they spend scanning the horizon making sure policy imposes a burden upon business and, if thethat they are on top of all the legislative change and government is committed to it, then they are notthe opportunity costs that that involves. We have had going to change it. But let us see if we can reduce thereports that some of our members in the financial admin, form-filling, the paperwork that often sitsservices sector estimate that something like 15 per alongside the policy; that is often where the quickestcent of their total IT spend each year is due just to wins are to be had.making sure that their systems are up to speed and Mr Etherington: I suppose the situation is slightlycompliant with legislative changes, and something diVerent in terms of the scale in the voluntary sector.like a third of all the training that they do is due to It needs to be remembered that, whilst the largermaking sure that the staV are aware that they are household-name charities are well known, the vastcompliant with legislative change again. So it is a majority of voluntary organisations have no staV atsignificant number there. The uncertainty point, I all and our community-based volunteer-ledthink, is another one that is drawn out. If you do not

organisations probably do not know anything aboutknow what the rules of the game are, then quite oftenthis. So whether or not they are aVected by it is anwe hear that investment is held up, and certainlyinteresting and moot point because they do notinternational investment, where occasionallyactually know what is going on.decisions are impacted upon if there is disruption in

the legislation field, because they do not know whatthe rules of the game are going to be and whether they Q252 Lord Methuen: I was going to ask you that.should choose to invest on the back of that. We Mr Etherington: I think the organisations that wouldwould certainly agree with the view that there is have principal diYculties here are organisations ininevitably a disproportionate impact on the small the middle range that do employ some staV but havebusiness community, and I think that again comes no specialist functions, do not have any specialistback down to the management time. What they do legal advice and would have diYculty in complying.not enjoy the benefits of, which larger companies do, The other point is, we wrote a recent report onis in-house expertise and specialism, so it is quite regulation which drew the distinction—whichoften the management team, the classic image of the voluntary organisations often do not draw a“Jack of all trades”, the manager of a small business distinction—between general regulation and thosetrying to keep track of everything that is going on obligations enforced on voluntary organisations byacross numerous areas of the various legislation. So nature of, for example, a public sector contract. It iswe would certainly agree that they have a quite an important distinction between the two: onedisproportionate impact. is voluntarily taken on, if one signs a contract, andMr Walsh: I agree. These are diYculties which are the other is of a much more general nature. But formuch more severe for SMEs than large companies. large numbers of voluntary organisations they justAs Mr Fell rightly says, very often in small companies simply will not know anything about it.the burden will fall on the owner/manager who is,after all the entrepreneur who ought to be the person

Q253 Lord Methuen: And they ignore them in total?really driving the development and progress of theMr Etherington: They ignore them because they dobusiness. It is particularly disappointing that it is that

person’s time which usually is taken up by doing the not know anything about them.




possibly this is a question more for the voluntaryQ254 Lord Methuen: Can I go on from that? Wehave been talking about the quality of SIs, and I sector—and the business world is very much inwould like to ask Ms Norman—Are you certain that favour of Common Commencement Dates, as youyou are talking about Explanatory Memoranda and probably know. But is there an issue there for thenot Explanatory Notes, which I think are almost voluntary sector? Then a question for everyone:totally useless? apart from the issues around bunching ofMs Norman: Yes, I am sorry, I was talking about consultation that we have all heard about, are thereExplanatory Notes. any other undesirable eVects of Common

Commencement Dates that we need to beconcerned about?Q255 Lord Methuen: You were talking aboutMr Etherington: I think that the voluntary sectorExplanatory Notes?

Ms Norman: Yes. views this as double-edged, as I implied, I think, inthe Disability Discrimination Act issue-which is, onthe one hand, of course, we are aVected in the sameQ256 Lord Methuen: Because we have attempted inway that business is by over-regulation, by lack ofthis committee to ensure that Explanatoryclarity in relation to Statutory Instruments and byMemoranda are written in plain English and arethe diYculties in interpretation and all of the otherintelligible, and we believe that we have had somestandard regulatory issues. However, of course,success there.many of my members will have been pushing forMs Norman: I am sorry. I was talking aboutsome of these regulatory requirements in relation toExplanatory Notes.business to comply more eVectively with disabledconsumers or whatever the particular issue wouldQ257 Lord Methuen: Thank you. One of the otherhave to be in relation to the environment or anythingthings is that the quality of these SIs, a lot of them Ielse in which voluntary organisations are engaged. Sofind are totally unintelligible because they merelyyou may well find on that side of the fence that therefer to sections of the Act with vast quantities ofvoluntary sector would be pushing forcross references, which are almost, particularly to acommencement dates as soon as practically possiblesmall firm, totally unintelligible. So something likein relation to many of these things. But I think thatconsolidation is absolutely essential, I would havethere is a divergence of opinion. We can be seen in athought, for the average person, for the average firm.sense as a sector in our own right but we are alsoTo what extent do you consider that to be true?campaigning for change in the activities of the stateMr Fell: I would wholeheartedly agree with thoseand in the activities of business and increasingly insentiments, certainly.the activities of business, so I would have thoughtthat from that perspective the idea of delayingQ258 Lord Methuen: I am an IT person, so I wouldcommencement or having extensive exemptionhave thought that it was comparatively easy for thecriteria would be something that we would be muchwebsite to be put up the latest version, and somebodymore anxious about.must have it anyway somewhere. Can I come backMr Fell: If I could turn to the perhaps broader issuefor another question on the EMs? We have beenof bunching, that you say might be a downsidetalking to the various government departmentsproblem for Common Commencement Dates. Ourabout including EMs as part of the SI, and there aremembers would certainly take the view that thedepartments that are refusing to do that because ofupside benefits of Common Commencement dates, inthe cost of so doing. Would you be prepared to payterms of the clarity that it brings them and themore if such a thing was available? It is available onmanagement time that it saves them in scanning thethe Internet, on the website. What are yourhorizon, would far outweigh the downside risks ofcomments on that?bunching. I think what they would like to see if theMr Walsh: I think my suggestion would be that, if wesystem is working really well is that early notificationhad less legislation coming forward, fewer new laws,is as important if not more important than the actualas we ought to get under the new, one-in, one-out,commencement date of the legislation. I think whatprocess that the Government is committed to, then

perhaps we could have fewer but better explained and we can see helpfully developed to build in the systembetter quality Statutory Instruments? here is almost a virtuous circle, if you like. So at six-Chairman: Touche. Thank you. monthly intervals, before all the legislation actually

comes into force on the commencement date, that theprevious six-monthly interval, if that was wellQ259 Baroness Morgan of Drefelin: We havesignalled and that was notified to all the people whotouched on this question already, so feel free to movewould be impacted by it, they could use that time toon quickly if you want to. You have already

mentioned Common Commencement Dates—and start to phasing in, planning, putting the systems in




that front. The real jewel in the crown, if you like, isplace to deal with the new legislation. So I think if youhad that virtuous circle built into the process and the the talk of a risk based approach to regulation, and I

think if you get that right that will be the mostnotification that one was actually coming into being,I think that would go a long way to addressing any fundamental change that this whole agenda will bring

about, the correct targeting and proportionateconcerns around bunching and would givecompanies suYcient time to put systems and approach to regulation, so that when in the future

there will be regulation only where there is risk, andprocedures into place to comply with the newlegislation. I think that will be a really key area. The fourth

strand is one that we identify as one where there willMr Walsh: I very much agree with that. I do thinkthat the pros outweigh the cons by quite a significant be a rationalisation in the number of national

regulators across the piece, and we can quite clearlymargin. One of the pros that perhaps we do not talkabout often enough on the business side is the eVect see that there are eYciency gains to be had here,

single points of interface with business to deal withthat, I imagine, it has on Whitehall oYcials. If youhave to prepare a list of all the regulations about to them and again increased regulation of the regulator.

A caveat to that which we have stressed is that it istake eVect in your department or across governmentas a whole, it makes the burden on business very plain very important that, because of the sheer scale of

what might come about by that rationalisation, theto see and should, I hope, concentrate the mind. OnediYculty that we do have of course is that at the regulators do not lose touch and lose knowledge of

the industries that they are actually regulating. So Imoment this regime applies to UK legislation andideally we ought to find a way of extending it to EU think there are four key strands of activity there

which we see as all very positive. Clearly businesslegislation as well.would judge all of that activity on delivery at the endof the day and how it perceives the regulatory

Q260 Viscount Eccles: On the question of policy we environment. One thing, I think, that is perhapshave been talking about policy background to missing from that, that we are stressing above all else,individual Statutory Instruments rather more than is the need to bring about culture change withinthe whole picture. What do you see as the outcome of Whitehall and within the individual regulatorsthe Better Regulation Task Force and the Better themselves to carry out the enforcement and theRegulation Executive and the Government campaign inspection. I think if we can get that culture changeto achieve some diVerent outcome to the one we right, coupled with the risk-based approach toexperience at the moment? Can you see that picture regulation, that will really bring about a diVerence,clearly? and are you confident that we could predict but time will tell, of course.an outcome?Mr Fell: I think, if we were to attempt to distil the

Q261 Chairman: What do you mean by culturecurrent initiative for the work that is going on rightchange?across government to pursue the Better RegulationMr Fell: Culture change of oYcials within Whitehallagenda, there are four key strands that we would seedepartments who are actually drafting the legislationas positive indications. One is the approach that weand culture change within individual regulators as tohave adopted that has been pioneered by the Dutchtheir knowledge of business, their willingness toadministration, which is all about measuring thisadopt a risk–based approach, so that they need realoverall quantum that I referred to earlier on andknowledge of the business and the industry that theygetting a handle on the total administrative burden. Iare regulating, to say, “OK, I can see what isthink that unless we get that precise measure we dohappening there; is there a proportionate approachnot have a chance of reducing it. Until we know whatto regulating that area?” So it is really industry-basedis out there and that is measured and then there areknowledge and a willingness to use the risk-basesystematic targets set to reduce that, I think thatapproach rather than a safety-first approach.would be a beneficial step for the transparency that

we have around that, and the parliamentary Mr Walsh: I very much agree with that, especially MrFell’s last point. I feel that this prize of culture changeaccountability will be extremely useful. So that is

strand one, the measurement and target setting is the real prize that we are all working towards andthat all the Government’s individual policy initiativesapproach we would find useful. James Walsh referred

to the “one-in one-out” approach, which I think are a means towards that end. In fact that is how wesee the role of the Better Regulation Executive, theshould at the very least hold steady the overall stock

of legislation that is impacting on business and other Better Regulation Task Force and the Commission.It is, I think, about promoting culture change, flag-stakeholders, and I think that would be particularly

important. We are certainly doing our bit to push waving around Whitehall to raise the profile of theBetter Regulation agenda and to change mindsets.that there should be as close as possible a pound-for-

pound approach in terms of the cost to business on This is, of course, a slow and gradual process, it




Mr Walsh: You have perhaps spotted a littlecannot be achieved overnight, but I think there isscepticism in my remarks. We would like to see thegradual progress being made. Perhaps if I can put inoverall burden of regulation reduced, and thea little more perspective, my Lord Chairman. YouGovernment is about to set the target for reducingsaid to Mr Fell, “What do you mean by culturethe administrative burden of regulation and we hopechange?” The sort of things that we would mean fromthat they will deliver on that. But as yet we have notthe Institute of Directors would be getting oYcials toseen the delivery, so we remain a little sceptical andtreat regulatory solutions to problems as very muchwe hope that our scepticism will not be justified. Ithe last resort, so that first you would ask them tothink it is also important to note that theconsider whether there is a possibility of self-Government is explicitly not talking about de-regulation, Codes of Practice or other lighter touchregulation but about better regulation. That is theiralternatives, and also getting Whitehall departmentsmindset, so we are working with them and trying toto abandon decades of the traditional Whitehall/push further down that road.Westminster virility test, which is all about how many

Bills can you get into next year’s Queen’s Speech,how much legislation can your department get Q265 Viscount Eccles: If we could ask you if you hadthrough, and allied to that how much money can you any examples where you thought something could bewin in the spending round? While we have those done which would reduce the burden but not themeasures of political success of course those all lead eVectiveness of the regulation, would you let usto more government legislation and more know?government intervention and so more regulation, Mr Walsh: Certainly. Shall I give an example now,and we need to reverse that mindset. It is diYcult; My Lord Chairman?perhaps pie in the sky, but that is what we need to do. Chairman: Why not drop us a note, if you can bear

to, that would be most helpful. And it is open seasonfor any further thoughts, which we would welcome.

Q262 Chairman: Can we press you a little on self- Baroness Maddock.regulation? We have seen examples, have we not–ofthe Advertising Standards Authority, maybe more

Q266 Baroness Maddock: I want to look particularlyquestionably the Press Complaints Council,at the European Union dimension, which has alreadyEmission Trading Standards. Those are the threebeen mentioned this afternoon, and in the CBI’sthat are trotted out. Can you give any examplessubmission to us they have been very critical of goldwhere you think that self-regulation could have beenplating, particularly DEFRA, I think. Can you givedone but instead the traditional model was used?us any specific examples of gold plating and also letMr Walsh: There may be a role for expanding it in theus know whether your criticisms have had any eVect?Health and Safety field. We do not necessarily wantLastly, do you think that enough is being done, whento turn the clock back completely, but if one were toapplying EU regulations, to try and minimise thego back to the Victorian age, for example, the mainburden on business, on individuals and on charities?impetus for raising standards in health and safetyMr Fell: If I could turn to the first point of yourthen came from insurance companies, who would sayquestion, on gold plating and the EU dimension?to the factory operator, “If you comply with this setCertainly, some work I did on behalf of the CBI in theof good standards, your insurance premiums arelatter half of 2004 on financial services threw up alower.” We have exactly the same thing nowadayscouple of examples. Perhaps one could mention the

with domestic insurance, after all—if you fit better Consumer Credit Directive where the originallocks on your household windows, then you pay less directive was aimed very much at consumers butin insurance. I think that that is the sort of market where the UK chose to include sole traders andmechanism that we can exploit a good deal more in partnerships within the scope of that legislation. Weterms of balancing standards in health and safety, also had a lot of work to do on the Insuranceenvironmental protection, and so on. Mediation Directive, where we found that that was

designed to protect retail investors but the FinancialServices Authority proposed requiring parentsQ263 Viscount Eccles: If you sum that up, bettercompanies to be registered to protect theirregulation entails less regulation, from your pointsubsidiaries. So there are a number of examples in theof view?financial services sector, which I would be happy toMr Walsh: Ideally, yes, but not always.drop you a note about on those in a little more detail.I think that, when we talk about gold plating more

Q264 Viscount Eccles: Does that mean that you do generally than that, it is a classic criticism that isnot really believe that there is going to be such a thing thrown at the UK government. I think the way that

gold plating quite frequently occurs is whereas less regulation?




Q268 Baroness Maddock: Can I follow up on the lastlegislation is poorly crafted and it leads topoint that I put to our representatives today? Do youuncertainty for business. It means that it racks upthink in general, given that there is this discussionwhat business does to make absolutely sure that it isaround gold plating, that departments are trying tocomplying with legislation and applies a belt andmake an eVort when they look at an EU regulationbraces approach. So whether it is gold plated,coming forward, to try and think more carefullywhether it is regulatory creep, unless there isabout how it will impact and what the practicalitiesprecision in what businesses are required to do toare for people? and is there another way of doing it?comply with legislation, I think that perhaps is one ofand are you involved in this?the most common complaints and a root cause ofMr Fell: I believe there is an increasing awareness ofgold plating taking place.the need to do just that. I also believe, although I doMr Walsh: It is a little more diYcult to find examplesnot have the details exactly to hand, that theof gold plating than is popularly supposed, but theyChancellor of the Exchequer recently announced thatdo exist. One example from one of our members, aall forthcoming legislation will be scrutinised to makefarmer, related to the IACS, the Integratedsure that it does not get gold plated, and is scrutinisedAdministration and Control Systems, which is aand reported on; but I need to get back to you withsystem of agricultural payments. In the UK, DEFRAmore details on that.implemented this by requiring every farmer to submit

detailed maps of every field on the farm. One of ourQ269 Lord TunnicliVe: You have yourmembers complained that he had to purchase 22constituencies, and when consultation happens,maps, some of which had to be speciallypresumably you ask at any rate a representativecommissioned from the Ordnance Survey at somecollection of the membership, whichever of yourexpense. It seems that this has been a very heavy-three organisations it is. Can you help us at all abouthanded and overly intensive way of implementing thehow one gets through to the general public? It is notsystem. Our member tells us that the French IACSvery often that there is not some organisation whichmaps were hand drawn by the farmer and did not costis the target of the regulations, but it does happen.anything except time.We had one the other day about throwing out waste,which laid a duty upon individual members of thepublic. Can you think of any way in which one could

Q267 Chairman: It is just as well Lord Jopling is not consult better with members of the public as such;here! Thank you very much indeed. and perhaps, if there were an analogy here, it wouldMr Etherington: Just briefly, my Lord Chairman, it is be the way in which you cascade down your ownamazing how many of these cases involve DEFRA! consultation to the various constituent members ofAgain, there was a case which was basically a your constituency. This is quite a problem to us andregulatory requirement in relation to submission of you might be able to help us?very, very detailed receipts that you would not expect Mr Fell: My immediate reaction is that there areon the basis of these particular types of funding quite clearly a number of consumer lobbies and theirprogrammes, and we can send you details of that. It representative organisations, that might be a sourcewas successfully overturned by the Compact to do that. My colleague James Walsh madeAdvocacy Programme in that it breached several reference to policy makers getting out and aboutaspects of the Compact between the sector and the around the country to speak to businesses, and IGovernment, and DEFRA agreed to change the would imagine that that would equally be possible tobasis of that, and actually advising the Union public meetings and hearings on other occasions asregarding that. So we can find you details of a well. The other strand of thought on that is to say thatsuccessful case. Can I raise one point, if I may, my perhaps in actual fact there is a bit of an artificial line

between what is the interest of business and what isLord Chairman, made on the previous discussion.the interest of the public. At the end of the dayNot all regulation is a bad regulation. It seems to mebusiness is seeking to serve its customers andthat regulation risks are clearly related but regulationtherefore would want to have their interests veryis also an aspect of social policy. You can usemuch as part of the mix, if you like. So I think that isregulatory regimes in order to achieve policya route that will be taken on board in their thinking,outcomes that you would not otherwise be able towhen we are responding, to make sure that it is goingachieve, and many of my members would be notto make markets work better and it will benefitclaiming that we should regulate absolutelycustomers as well, otherwise it is not in their interests.everything, but would be looking to eVective

regulation to change behaviour in companies andother institutions. It is just worth pointing out that Q270 Lord TunnicliVe: Mr Etherington might be

able to help as well on this.there are counter arguments.




that diYcult for the criminal or the miscreant to findMr Etherington: Obviously there is a consumer lobby,which my colleague has already identified. A lot of ways to evade the obligation, and yet the burden sitssmall voluntary and community associations are in on the rest of the sector which is undergoingessence citizens’ groups of various kinds, which can administrative processes or other issues. That worrybe organised locally—rarely nationally—and is reinforced as departments often do not make muchobviously we can access them. The important issue eVort to promote or even to monitor whether thefor them would be how they made any sense of this, regulation achieves its policy objective or not. Is thatthat actually, if you are a local group which is an unfair set of comments?thinking about a very local community, an estate or Mr Fell: I do not think it is an unfair set of commentseven smaller than that, then getting some sense of at all. I think the solution again lies in getting thiswhat this means and how you structure a dialogue risk-based approach right. Clearly the philosophywith them is extremely tricky. You have to be out underpinning that is to target rogue traders to makethere with things that are relevant to them, otherwise sure that there is a risk based approach to inspectionthey will find it quite diYcult to respond. There are and enforcement on businesses and therefore the300,000 voluntary agencies in the UK and possibly companies with a good regulatory track record ofmore below the radar, and getting to them is diYcult. complying are rewarded accordingly with a lighterIt is possible, but you have to ask questions which are touch regulatory approach, and then the scarcemeaningful, otherwise they just will not respond. But resources are able to concentrate on those that arecertainly we can help access those groups, if you flouting the regulation.would find that helpful. Mr Walsh: I very much agree with your analysis, myMr Walsh: On this question of how one finds out Lord Chairman, which is at one with the Hamptonwhat the general public think across the board, Review, all about focusing the inspection andconsultation does not just have to be done by

enforcement eVort on those who are most likely totraditional processes of calling a meeting with policyabuse the system. Of course, in every sector there arepeople or sending out a consultation paper. I see nocowboy or rogue traders and of course they should bereal reason why the Government should not use thedealt with very severely indeed, and the flip side ofsame techniques that businesses use for marketthat should be a much lighter touch, much moreresearch when they want to find out what theintermittent inspections for companies that haveconsumer thinks, and that might meandemonstrated a consistently good track record.opinion–polling, focus groups, and why not? There

may be issues where public meetings will work,especially if there is some particular local issue, but it Q272 Chairman: And a strong whacking of thoseis not always easy to motivate people to come along that do not?to a public meeting. There is always a risk of getting Mr Walsh: Certainly.the people who feel particularly strongly one way orthe other rather than the person with more typicalviews. Of course, ideally in the 21st century one Q273 Chairman: Mr Etherington?would make as much use as possible of email, Mr Etherington: I think that is probably true.Internet and other means of electronic Regulation can be and clearly is a part of the policycommunication to tap into what people think, but I framework. I think you are trying to reward thoseam no expert on those techniques. It is easier said who are culturally going in the direction you wantthan done because you have to get people to log on to and to be slightly more aggressive with those who areyour website or you have to have their email address not. Would we really have changed attitudes toin order to contact them. But I am sure that there are disabled people in the workplace, would we haveplenty of people out there with marketing and changed environmental policy, would we haveresearch expertise who are better placed to advise changed human rights issues for companies andabout what should be done. others, had we not had a legislative framework that

was enforceable? You could argue that—yes, theywould have all got there in the end; but I wouldQ271 Chairman: Can I put one final question to yousuggest that public policy-making is aboutwhich is–as Mr Etherington said, quite clearlyencouraging people to get them in the direction youregulation is part of policy making generally and itwant them to go slightly faster. So I think it is abouthas some policy objectives lurking behind it.that and I think that there is a way of achieving thatSometimes it seems to us that it is a rather simplisticobjective. It is not always best achieved just by lawor naıve delivery model that the departments operateand regulation, but that can work when you areon, that they believe passing a regulation whichtrying to eVect behavioural change over the longcreates a duty leads to compliance. We have seen a

number of examples where, it seems to us, it is not term.




a number of places. Or if there were further evidenceChairman: Thank you all very much indeed, that hasbeen extremely helpful. Do feel at liberty to come you wanted to submit that you felt was germane, we

would welcome that. Thank you very much indeed.back with further evidence, as we have signposted in

Supplementary evidence from The Confederation of British Industry (CBI)

EXTRACT FROM THE CHANCELLOR’S SPEECH TO THE CBI NOVEMBER 2005

“And for some time I have been concerned about what is called the goldplating of European regulation wherein the process of translation into our own UK laws we end up with additional and unnecessary burdens. SoI have asked Neil Davidson QC, the former Solicitor General for Scotland, to work with departments and thebetter regulation executive to conduct a full audit of all areas where gold plating of European regulation hasin fact led to additional burdens so they can be addressed and where possible removed. And going forwardwe will rigorously enforce guidelines prohibiting goldplating”.

30 November 2005



TUESDAY 17 JANUARY 2006

Present Armstrong of Ilminster, L Jopling, LBoston of Faversham, L Maddock, BColville of Culross, V Morgan of Drefelin, BEccles, V Northesk, EFilkin, L (Chairman) Tunnicliffe, L


Witnesses: Mr Martin Bryant, Head of Strategic Policy Issues, Mr Richard Clayton, Assistant LegalAdviser and Mr Graeme McCabe, Better Regulation Team, Home Office, examined.

Q274 Chairman: Good afternoon and welcome. onwards—we produced 19 SIs. Of these six wereThank you for coming to help us with our inquiry. I commencement orders—that is orders bringing intoam Lord Filkin, the Chairman. You can probably all force Acts of Parliament—and as they were notsee who we all are by our name badges so I will not subject to any parliamentary procedure they wouldgo round the table and introduce everyone. If you not come before your Lordship’s Committee. Thiscould just say very crisply what each of your role is in year we have only produced one so far. The Legalthe Department that is relevant to the Committee’s Adviser’s branch is divided into nine teams whichinquiry. reflect the structure of the Home OYce. The teamsMr Bryant: My name is Martin Bryant. I am would deal by reference to topic, such asDirector of Strategy for the Home OYce and a immigration, prisons, the criminal law, the police,member of the Group Executive Board. serious crime, terrorism, extradition and mutual legalMr Clayton: My Lord Chairman, I am an Assistant assistance. In addition, one of the teams in the LegalLegal Adviser. I head one of the teams which reflects Adviser’s branch advises the Northern Ireland OYcethe topics in the Home OYce, about which I will because we are responsible for legal advice to theexplain a little more a little later, and I also have a role Northern Ireland OYce as well as the Home OYce.in looking at the drafting of SIs generally with a view The lawyers within each team are responsible for allto their vires and drafting points. aspects of those particular topics, so that means thatMr McCabe: My Lord Chairman, I am Graeme they will be working on Bills and any important andMcCabe and I head up the Home OYce Better significant litigation as well as on drafting theRegulation Team. secondary legislation. The advantage of a member of

the team drafting the secondary legislation ratherthan perhaps having specialist draftsmen is that theywill then be more likely to be aware of the particularpitfalls. For example, calculation of sentences is oneQ275 Chairman: Thank you very much indeed, thatof those ghastly subjects, which are full of errors tois all very clear. You have some understanding offall into, and a member of the prison team is morewhat the Committee is about so I will not talk aboutlikely to be aware of these than somebody who justour terms of reference; I am sure you have had a lookdoes specialist drafting; and of course there areat some of our previous evidence sessions so youdiVerent ways and diVerent approaches throughknow some of our areas of interest. If I could start oVdiVerent departments. But the benefit at present isby asking if you would outline the arrangements thatthat one produces all-rounders, people who can dealexist within the Home OYce for the preparation andwith litigation, people who can deal with Bills andlaying of Statutory Instruments?people who can deal with subordinate legislation.Mr Clayton: My Lord Chairman, the Legal Adviser’sThe importance of drafting is recognised, and as partbranch is responsible for both drafting and layingof their induction each new lawyer would spend aStatutory Instruments. They are laid once they havethree-day course at Sunningdale on drafting andbeen returned to the administrator who will then puttraining in drafting.them to the Minister for approval or making, as the

case may be. The Statutory Instruments are draftedon policy instructions from the relevant

Q276 Chairman: Thank you, that was clear. Couldadministrators. It possibly might help if I put it inyou clarify for us that there is no one individualcontext by saying that the Home OYce does notwithin the Home OYce who has overallproduce a large number of SIs. Taking, as anresponsibility for the management of the process ofexample, the six weeks after the end of the summer

recess last year—so that will be from 10 October preparing and laying SIs?



17 January 2006 Mr Martin Bryant, Mr Richard Clayton and Mr Graeme McCabe

departments of state, which are more centralised inMr Clayton: That is correct.their operation.

Q277 Chairman: Why is that so, because it is notQ281 Chairman: I do not want to spend much morenormal across Whitehall from what we havetime on this but delegation does not mean abdication,experienced?does it? You may delegate finance functions within aMr Clayton: I think because one cap does not alwaysstructure but you still have some ability to bring tofit all.account the quality of finance functions being carriedout, for example, amongst those to whom it has been

Q278 Chairman: What is diVerent then about the delegated. I think you posit them as a false dichotomyHome OYce compared to other departments? between the two.Mr Clayton: Nothing is particularly diVerent but is Mr Bryant: I was simply explaining how we organisethere any reason why one should just have one our management structure and to support Richard’sparticular method of doing something? point that we do not then have a single individual

taking responsibility for the totality of secondarylegislation work.Q279 Chairman: Because there is clear

accountability if there is one person responsible forthe totality of the process—not for executing it all but Q282 Chairman: That is what I was pointing to. Youat least having a leadership responsibility for are going further, you imply that because it isensuring it is well done. That is why you normally delegated you do not need someone and that washave one person responsible. what I was really raising with you, whether that wasMr Clayton: The head of the team would be in fact true?responsible for Instruments within his team, but the Mr Clayton: My Lord Chairman, I certainly wouldteams reflect the structure of the Home OYce and act not be suggesting that myself, but because the area isin response to administrators. Martin was going to quite varied a single person might not necessarily bemake some general comments on the structure of the aware of all the aspects of policy. The people who areHome OYce and I do not know whether it would closer to the aspects of policy are the team who workassist if he made them? with particular administrators and they know what

needs to be delivered. If there is one additionalperson, I am not sure that that person would be inQ280 Chairman: It might because, whilst I acceptquite the same position. I also think that perhaps onewhat you say, that in terms of an individualof the diVerences of Home OYce subordinateInstrument there may be clarity, the issue is widerlegislation and subordinate legislation of otherthan that; there is how the Home OYce performs asdepartments is that, with exceptions which I willa department in terms of the totality of makingcome on to, a great deal of it is rather moresecondary legislation in an eVective and good policydetermined by the primary legislation. Quite often wemanner.are merely putting flesh on the bones that are thereMr Bryant: Would it help, my Lord Chairman, if Iand our scope for that is really quite limited. So thegave a very brief outline of the structure of the Homeperson doing the quality control is not actuallyOYce, because I think the characteristic that Richardbringing added value for his pay.was referring to is that we are a very devolved

organisation, with the power and the responsibilitiespushed down to the major operating parts. Q283 Chairman: I must move on to other questions

because there are plenty of areas where otherEssentially we organise ourselves around threeministerial pillars, as we call them internally, so they members want to come to, and I will call on Lord

Jopling in a second. But every department alwayswould be responsible for immigration, nationalityand citizenship, which is one pillar; a second one thinks it is unique. This is part of life, is it not—and

one understands that. Our point is essentially—nowould be to do with crime, security and soundcommunities; and the third pillar is to do with disagreement with what you say about informing the

individual—that departments need, in our judgment,oVender management and the criminal justicesystem. Each operating part of the Home OYce has to ask the question, to have some capacity to look at

the totality of how they manage and make secondarya Director General in charge of it and they form theGroup Executive Board alongside some of the central legislation, and the Home OYce appears to have no

such process, responsibility or system that we cansupport functions. Essentially the way we operate isthat the policy accountability is pushed down to the detect, and you have confirmed that to us.

Mr Bryant: Can I come back to the planning aspectsoperating arms of the business through thoseDirector Generals and then obviously reporting of that, where in our research for appearing here we

indicated ourselves that one of the areas where we arethrough their ministerial pillar. That is one of thereasons why we may be diVerent from some other not as strong as we need to be is around the planning




Q286 Chairman: It was not the question I asked,of secondary legislation and making sure that we dohave a more complete deal. One of the proposals I because I understood that Ministers sign oV SIs. Ithave discussed with my colleagues at the Board is was a question about whether there was anythat we should push up the responsibility for looking Minister, perhaps one who has a responsibility foracross the secondary legislation to at least the Better Regulation, who looks over the piece to seeDirector General level and have a conversation once how the department is performing on makinga quarter at our Executive Board about the upcoming secondary legislation.programme. That at the moment is something which Mr McCabe: My Lord Chairman, we do have awe do not well enough. Better Regulation Minister, Andy Burnham, who hasChairman: We would share that view and be pleased overall responsibility for the whole Better Regulationto hear that you have that at least in your sights. agenda, but his responsibility is more about theLord Jopling. aspects of Better Regulation, which involves good

public consultation, producing Regulatory ImpactAssessments and that sort of thing, rather thanfocusing specifically on SIs.Q284 Lord Jopling: It seems to me, listening to theChairman: Thank you. Lord Armstrong.replies we have had to this fairly soft first question,

that Yes, Minister lives. You say that the Home OYceis diVerent because you are in three pillars and that Q287 Lord Armstrong of Ilminster: I perhaps oughtyou are putting flesh on the skeleton. I should have to start by declaring an interest as a formerthought that you could describe Statutory Permanent Under Secretary of State at the HomeInstruments in general as putting flesh on the OYce, but it is so long ago that, if I knew then howskeleton, and other departments are divided into SIs were dealt with in the Home OYce, I havethree or even more pillars in this way. You have not completely forgotten. I think you have indicated thatbegun to try and answer the question of why you stick

you are beginning to think about having a kind ofby this attitude not to have somebody in charge when

plan for Statutory Instruments over the years, butmost of the other departments think to the contrary.that is in its infancy, if that is the right word. WhatHow you can justify that?happens now? Does one of the policy divisions say,Mr Bryant: Again, back to the organisational“We need a Statutory Instrument on this,” and thenstructure about devolving accountability, I think it iswork out what the Instrument needs to do and thenpart of the operating process that we use. As I havetalk to the lawyers?said, in our planning we think that that can beMr Bryant: My Lord Chairman, as of today we havesubstantially improved by having Director Generalsa quarterly trawl for future SIs, which is initiated byforward look. But the actual management then of theour parliamentary section. So we are looking oneindividual SIs and instruments across the whole ofquarter in advance in order to try and anticipate whatthe Home OYce we have devolved to the relevantwould be required. As I said earlier, that, I think, ispolicy oYcials working with our colleagues in theonly partially successful and therefore to elevate thislegal branch.to a more senior level is something that we would liketo do and we very much welcomed your insights onthat. As many of you will know, very often the Home

Q285 Chairman: We were not arguing it should not OYce’s business is sometimes dictated by eventsbe so—the latter; we were arguing that over and outside of our own control and therefore the degreeabove that there needs to be a capacity of an to which we can be authoritative in planning all oforganisation to look at the totality of the matter and this is somewhat mitigated by our need to be able tothe process, the quality by which they make policy respond to external events. So I am not promisingthrough secondary legislation. We will not get any that we would ever have a system that is as watertightfurther I think today, but I hope you have on forward planning as all of us would wish it to be,understood what we have said and we leave the door simply because of the nature of the business we haveopen for you if you wish to put further thoughts. to deal with.Ministerial scrutiny: clearly presumably Ministers dosign oV SIs. Is there any ministerial scrutiny about the

Q288 Lord Armstrong of Ilminster: We used to calltotality of the SI process or not?them banana skins when I was in the department!Mr Clayton: The Home Secretary of course is inYou have this trawl every quarter. Is there anyoverall control of his department and mightmechanism for, as it were, monitoring the progresspersonally sign some particular SIs, but Ministers, asagainst the trawl—how is that SI or this SI doing? areMartin would explain, have areas of responsibilitywe up to speed with it? is it coming forward at theand the Minister who has the area of responsibility is

the one who will make the SI by signing it. right time? and so on?




Mr Bryant: My Lord Chairman, if we could double-Mr Clayton: My Lord Chairman, the trawl is verymuch directed at aYrmative resolution instruments hand the answer to that? I would like to start withbecause they are the ones which will take time in the how we review the eVectiveness of policy becauseHouse. So it is putting in a forward bid for time for Instruments are only there to make sure we deliverdebate. eVective policy. And then I will ask Graeme to pick

up some specific examples of how we then review thedetail of the regulation. On the policy front, as most

Q289 Chairman: Do you wish to pursue, Lord of you are aware, we commit ourselves to delivering aArmstrong, why not negatives as well? They are number of public service agreement targets which weclearly of potential interest and relevance to the monitor on a frequent basis, and they wouldHouse, and how they are managed aVects certainly normally come in front of the Permanent Secretary ofour scrutiny function and may aVect the interests of the Home OYce on a monthly review basis in orderthe House. to assess how well we are performing against thoseMr Bryant: My Lord Chairman, we absolutely policy objectives. Then quarterly we would equallyaccept that. That is something which is probably part review right across the piece the type of performanceof expanding our capacity for forward planning by each of the pillars I referred to. Both of those typesshould take into account.

of review would tackle the issues: do we have theappropriate legislation in place and is what we haveworking in order to deliver the policy outcomes weQ290 Lord Armstrong of Ilminster: The otherexpected? So I believe that, yes, we do have at thequestion that would interest me on this is whethersenior level in the oYce a pretty complete andthere is any kind of reference to demands oneVective mechanism for monitoring performanceparliamentary time in the way you bring Statutoryagainst the policy outcomes. I will ask Graeme to pickInstruments forward. Or are they just broughtup specifically on some of the examples aroundforward for parliamentary scrutiny just before theyregulation.are due to be implemented? It would be helpful to thisMr McCabe: My Lord Chairman, I think somecommittee and perhaps to the House generally if they

did not just wait until they nearly had to be previous witnesses have spoken about the adminimplemented but were brought forward in good time burdens project that is being led by the Cabinetso that both this committee and, if necessary, the OYce. This is aimed at looking at burdens thatHouse of Lords could look more evenly, if you like, regulation imposes mainly on business but alsoat the flow of Statutory Instruments and give better charities and the voluntary sector. The Home OYceattention to them. is fully engaged in this exercise and as part of that weMr Bryant: My Lord, we accept that we do have have had to identify all the regulation that impacts onsome bunching as a consequence of inadequate business. We are clearly not a big player in thisplanning processes and that is something we would particular field; we only have about 40 regulationsseek to significantly improve upon. So, the answer is which actually impose such a burden compared withyes, we accept that point. many hundreds by DEFRA, the DTI and otherBaroness Morgan of Drefelin: My Lord Chairman, departments, for example. As part of that exercise wewould it be appropriate to follow on with my have set up a steering group which involves membersquestion because we are talking about planning at the from the banking sector, the airline sector and frommoment, and I wanted to ask about whether or not the voluntary sector to make sure that we are actuallyyou actually in your planning process look at viewing looking at the appropriate regulations and doing athe eVectiveness of Statutory Instruments, which I proper analysis. The results of that exercise willthink is government policy at the moment. actually be published fairly soon, but I am not reallyChairman: Why not? We have a division; please do able to give you too much detail at the moment othernot go away, we will be back shortly. than to say that we are working on developing the

information that we need to make a publicannouncement about it. The other area that I thinkThe Committee suspended from 4.33 pm to 4.44 pm forwe are beginning to make some progress on is in the

a division in the House production of Regulatory Impact Assessments. Partof the impact assessment process now requires ourpolicy oYcials to describe both how policies and theQ291 Baroness Morgan of Drefelin: Would you likelegislation flowing from that are going to beme to repeat my question? We were talking aboutdelivered, and also how they are going to go aboutplanning and my question is about whether or not thereviewing it. It is still early days for us, I am afraid,Department reviews the eVectiveness of the Statutorybut I think we are starting to show a much betterInstruments and if you could give us an example ofunderstanding and awareness of how the wholedoing such a thing and, if not, what your view is

about the merits of doing such a thing? delivery chain works and how things are actually




we produce. Previously most of those focused on theworking on the ground and how we are going to goabout reviewing them. private sector but since about the middle of last year

the Cabinet OYce now requires us to produce themChairman: Lord Jopling.in relation to the public sector a well. So we arestarting to get to grips with a much better analysis ofQ292 Lord Jopling: As you know, you are supposedthe full range of impacts of policy proposals onto lay SIs at least 21 days before they are designed toorganisations like the police. The Home Secretarycome into operation and I would like to ask you howactually has a police bureaucracy adviser and weyou think you have done over that. I am told that fivehave a police bureaucracy steering group which hasof the last 59 Instruments breached the 21-day rule,police oYcers on it, and they are involved in theand there is a case that has been drawn to ourpolicy–making process and advise us on the impactattention of immigration regulations in the sessionthat it will have on the ground.2003/2004 where you actually laid regulations on 29Chairman: Lord Armstrong, have we finished withApril which came into eVect on 1 May 2004. How doyour questions on departmental planning?you think you do over this 21-day rule?Lord Armstrong of Ilminster: Thank you, yes.Mr Clayton: My Lord Chairman, in the case ofChairman: Lord Boston.immigration regulations which relate to visas, the

breach of the 21-day rule is deliberate so as to avoidpersons travelling to the United Kingdom before the Q294 Lord Boston of Faversham: Thank you, Lord

Chairman. Perhaps I should also declare an interest,additional restriction comes into play. That isexplained in the memorandum that is supplied with having been at the Home OYce, like Lord

Armstrong, some years ago—it goes back to 1979the Instrument. There was one of those in December.One of the Instruments breached the 21-day rule by and in a comparatively minor role. We had pillars but

they were diVerent pillars in those days. My Lordone day and the reason for that was given in anExplanatory Memorandum. Of course a breach of Chairman, I should like to turn to the question of

central coordination throughout departments ofthe 21-day rule is always regretted. You will assessyour own view on the basis of the statistics given on Statutory Instruments. Can you tell us what role, if

any, the Cabinet OYce plays in coordinating thehow you feel we do on it, but I fear that departmentsdo breach the 21-day rule occasionally and I fear that programmes of departments? And whether you

consider that at least some degree of centralwe are amongst the departments that do occasionallybreach it. management or orchestration of Statutory

Instruments should be carried out; and, if you do,Chairman: Baroness Maddock.how you think it should be carried out?Mr Bryant: The Cabinet OYce does not have aQ293 Baroness Maddock: My Lord Chairman, stillcoordinating role in the management of secondaryon planning, which is where we were. You willlegislation at the moment. It does have a veryremember, my Lord Chairman, that we had evidencepowerful role in terms of making sure that standardsfrom a lady working in Kent for the police force,are adhered to, so it publishes extensive guidance, thewhere she was drawing to the attention of the policeStatutory Instrument Practice manual, which we seekwhen various bits of legislation were coming intoto adhere to. There are codes of practice aroundforce. She made a particular point, and I wonder if itconsultation and the way in which the consultationsis one of the things you considered when you areshould be conducted and how they should be put intoplanning this—in fact she made several points buteVect. So that guidance part of the responsibility weone particularly sticks in my mind—which is, how athink is absolutely critical and important and we seeStatutory Instrument can perhaps aVect thethat is the primary responsibility of the Cabinetoperations of a police force if they have to change theOYce, but we see that the responsibility forway they operate. When you are making the SIs andlegislation, whether primary or secondary, should sitplanning ahead, are these the sorts of things you takewith the appropriate Secretary of State, the Homeinto account?Secretary.Mr Bryant: The answer is yes, we should, and that is

why we embed the responsibility for these in thepolicy areas where the expertise resides. That is not to Q295 Lord Boston of Faversham: Thank you very

much. Departments have to prepare every January asay that in every case we succeed adequately, but theanswer is yes, we should take into account all of the statement about SIs with common commencement

dates. Do you do this yourselves in the Home OYce?impacts of that particular Statutory Instrument onthe operation of our business and the others that and, if you do, what does the Centre—the centre of

government I mean—do with your report about that?interact with us.Mr McCabe: Might I just add something, which Mr McCabe: Cabinet OYce again has issued very

helpful guidance in combination with the Smallmight be quite helpful? I mentioned that we are tryingto improve the Regulatory Impact Assessments that Business Service on how departments should try and




Q299 Lord Boston of Faversham: That is one sourcebrigade together the regulations and SIs that they arebringing forward which are going to impact on of guidance, yes.business. The Home OYce will be publishing a Mr McCabe: What that actually does is to pointstatement by the end of this month, and it is people in the right direction of other guidance thatsomething that we are currently in the process of might be available. So part of the template addressescollating. We are following a similar sort of process consultation, so somebody who is completing ato the one that Richard described earlier, about Regulatory Impact Assessment would look at thistrawling all of our policy contacts in the Home OYce, part and it points them in the direction of thebut so far we are not getting an awful lot of guidance. Somebody may be fully familiar with allinformation that is likely to be relevant to the the requirements of consultation and so need notannouncement because, as I said, we are not a big look any further, so it is fairly easy for them to followplayer in things that have a burden on business. the template. But, if they want more guidance, it

points them in the right direction, which seems toQ296 Lord Boston of Faversham: Does what you work reasonably well within the Home OYce.have just said mean that you have some thoughtsabout that sort of coordination throughout SIs, not

Q300 Lord Boston of Faversham: Does the Centrejust ones with common commencement dates then?itself take an interest in your enforcement ofMr McCabe: I think it was something that wasregulations? and, if so, how does it do that as far asdiscussed when the guidance on commonthe codes of practice are concerned in particular?commencement dates was being considered, aboutMr McCabe: At the risk of shooting myself in the footwhether the Cabinet OYce should have a greater roleI think that the Centre may sometimes take too greatin coordinating the whole thing and perhaps havingan interest, but that is only to be expected. They wanta central announcement. But I think the feeling wasto ensure that we follow their guidance; that wethat by giving it to each individual department theyfollow best practice, that we are planning properlywould accept greater responsibility for their duty to

make sure that they were aware of what was coming and that we are fully supporting the Betterforward and to make a suitable announcement. Regulation agenda. So they certainly do hold us to

account; we have to report to them regularly, theygive us guidance on what we need to publish in ourQ297 Lord Boston of Faversham: Turning to codesannual report. The Better Regulation Executive andof practice, there are various forms of guidance whichthe Better Regulation Task Force, which is now theare issued, and you have already mentioned in aBetter Regulation Commission, drag us over thediVerent context the Small Business Service, andcoals frequently where we fail.there are several others as well. Do you feel that it

would be helpful if all of those forms of guidancewere under one roof?

Q301 Lord Boston of Faversham: I do not want toMr McCabe: My Lord Chairman, I think that is quiteembarrass you but does that mean that you wouldappealing that it would be in one place for ease ofrather be left to yourselves, on the whole?reference, and it would certainly help my team inMr McCabe: No, not really, you need somebody topromoting this guidance because currently ifhold you to account.somebody is going to carry out a consultation weMr Clayton: My Lord Chairman, there may be quitehave to point them in a particular direction and ifa wide range of codes of practice, and some codes ofthey are bringing forward a legislative proposal wepractice may aVect the regulated sector and otherhave to point them in another direction for guidance,codes of practice are in diVerent areas. For example,and so on. But the diYculty with drawing it allthere are extensive codes of practice under the Policetogether is that you then may end up with a hugeand Criminal Evidence Act and prior to issuing a newcompendium that people would struggle to actuallycode of practice the Home OYce has to discharge itsget to grips with. I think there is a good argument forstatutory duty of consulting with the Association ofkeeping it in fairly small, separate manageable

chunks. Chief Police oYcers, the Bar Council, the LawSociety and quite a wide range of bodies. A code ofpractice of that sort is a code that aVects people’sQ298 Lord Boston of Faversham: So just going onliberty and aVects the way in which the police behave.from there, does that mean that you would notAnd in terms of changing it, in connection with thefavour central management of that guidance asTerrorism Bill there is an undertaking to issue apossibly one element of central management of SIs?special code in connection with detention underMr McCabe: I think there is probably already a fairlySchedule 8 to the Terrorism Act—that is, people whogood mechanism in place which is through theare detained prior to charge when they are suspectedRegulatory Impact Assessment process, which is a

standardised template about good policy–making. of terrorism.




the need for the Statutory Instrument, that it isChairman: Baroness Maddock, quality control.written in layman’s language. We fully accept thatthis is something which we need to be better at. At the

Q302 Baroness Maddock: Obviously part of our moment you have highlighted one of our deficiencies,investigation is looking at what arrangements which is that we do not have a separate view of thisdepartments have for quality control. When you are outside the line of drafting and we have a proposal,drawing up Instruments is there anybody outside the which has been agreed by my colleagues, thatchain of drafting—in other words, a second “pair of

we would make sure that each Explanatoryeyes”—that is there to vet the various processes? YouMemorandum in the future is signed oV by the headhave already touched on making sure that it fulfils itsof unit, so that a senior civil servant looks at this afterpolicy objectives, that the burden on whomever it willthe individual policy executive has signed it oV, andland is not disproportionate. Also of particularit is looked at from that perspective with a view tointerest to us is that the Explanatory Memorandummaking sure that that best practice guidance isexplains very clearly what the Instrument is for, andapplied.so on. So do you have arrangements for somebody

else other than the drafter to do these sorts of things?Mr Bryant: My Lord Chairman, if Richard could Q303 Lord Jopling: I am concerned, with regard topick up our quality control around the drafting of the quality of the service which the Home OYce givesStatutory Instruments, and I will pick up about the to Parliament, that you seem to have what I canExplanatory Memorandum and how we link that describe as a totally dismissive attitude. I will giveinto the policy side. you a number of examples why I say that. Our clerkMr Clayton: Just looking firstly at the processes, it is wrote a letter to the Home OYce on 4 October,for the administrator to determine that he is satisfied asking questions about four particular orders. Thewith the Statutory Instrument which was drafted by Home OYce thought fit to wait for 20 days before itthe Legal Adviser’s Branch before he puts it forward condescended to respond. It said—and I will quoteto the Minister to make it, or to approve it in the case parts of the letter—“The Home OYce parliamentaryof a draft Statutory Instrument, so that is a quality briefing delivery unit play no part in the drafting orcontrol. The administrator needs to be satisfied that laying of delegated legislation. This is dealt with bywhat the lawyer has drafted is what he wanted. There the Legal Adviser’s branch and our role is to arrangeis, I think, a rather wide range of cases. For example, and oversee the parliamentary debates required forif you were just doing an Instrument that increases aYrmative orders or prayed against negative ordersfees it is to be hoped that the legal adviser can draft after they have been laid”. And the letter ended bysomething and send it back to the administrator and saying, “Having now received”—and this is 20 daysone hopes that in that case it is all perfectly later—“advice from the Legal Adviser’s branch onstraightforward. In the case of an Instrument that is

this I am advised that it is to these oYcials you shouldlong or complex, or in the case of one which exercisesbe approaching for the information sought.” That isa power for the first time, there are likely to betotally dismissive –to wait 20 days when it must haveextensive exchanges between the administrator andbeen known perfectly well that this Committee is onthe lawyer before the thing is settled. The lawyera very tight time lapse between the laying of an ordermight perhaps say, “Are you sure that this is theand it coming into eVect so it can report it to thepolicy that you want?” and perhaps there is this, thatHouse of Lords. As a result of that the Chairman ofand the other disadvantage. Or he might askthe Committee—and the Committee was extremelyquestions more fully to ascertain quite what theirritated by this impertinent letter, and I can only putpolicy is. Again, at the end of the day it is theit that way,– wrote a letter to the Minister, Mradministrator, subject of course to the Minister beingBurnham, on 11 October explaining the Committee’ssatisfied, that what is produced is what they want.irritations and he ended his letter by saying, “TheThis consultation might also involve consultationCommittee has recently launched an inquiry into theoutside the Home OYce. If you have an Instrumentmanagement of the secondary legislative process andthat aVects the prosecutions or the court, theshall be taking evidence from Home OYcials on 17Crown Prosecution Service, the Department forJanuary.”—and that is three months ago, I mayConstitutional AVairs then the courts are likely to besay—“I do hope that, by then, your oYcials will beconsulted at various stages of the drafting.able to oVer a more constructive response.” I may sayMr Bryant: If I can carry on with the Explanatorythat neither your Minister nor anybody in theMemorandum side, on which this Committee hasdepartment has given our Chairman the courtesy ofvery helpfully brought to our attention some specifica reply; we have not had that information. That isexamples of where really we have not applied thewhy I think that your department’s attitude to thegood practice set out in the practice circular? TheHouse of Lords is reprehensible and dismissive and Iissue, as we are all aware, is to make sure that this is

a clear, straightforward explanation of the policy and would like you to comment on that.




rule that answers should come within two weeks. IMr Bryant: My Lord Chairman, all I can do isapologise on behalf of the Home OYce; it is certainly have here this morning’s Order Paper, which lists all

the outstanding questions. If you leave aside thenot our intent to behave like that at all. We take theaVairs of this Committee very seriously. We believe Northern Ireland OYce, which has particular

problems because of the suspension of Stormont,that you have raised many good points which webelieve we can do better on, which we have tried to there are 50 questions which remain unanswered for

a period of between four and 11 weeks—that isexplain in our evidence this afternoon. I can onlyapologise as to the tone of the letter and, where you starting at twice the House of Lords’ rule. Of those 50

no less than 26 are from the Home OYce, exactly thehave not received a reply, I will go back and makesure that a reply is forthcoming. same amount as has come from the Northern Ireland

OYce. Can you understand why some of us feel thatthe Home OYce particularly is a highly idle, dilatory

Q304 Chairman: It is because we felt that there was department? All I can say is it is a great pity that Lordan absence of a quality of control function in the Armstrong is not still the Permanent Secretary!Home OYce that the question was originally raisedby our clerk, and the response saying, “It is nothing

Q305 Chairman: Let us leave the thrust of theto do with me, ask some other oYcial,” reinforcedquestion with you. It is slightly outside our terms ofour view that there was not a guiding spirit overall. Ireference but in a sense Lord Jopling is emphasisingtherefore wrote to your Minister on 11 Octoberperhaps some of the concerns in the Committeeasking who is responsible for taking an overview ofreinforced by these other points. Feel free to makeexercise of quality control. At every briefing sessionany comment if either of you wish to, but it is slightlyfor about two months I asked my oYcials, “Have weoutside our scope.had a response?” and they said, “No, there is still aMr Bryant: I understand, my Lord Chairman.debate going on within the Home OYce about what

the answer is to that question.” And after a while IQ306 Lord Armstrong of Ilminster: Can I take onegave up asking because I was told, “We will tell youpoint, my Lord Chairman? You said that a seniorif ever there is a sign of response.” The point of mycivil servant at the top of the chain reviewedstory is that our oYcials have repeatedly asked thea Explanatory Memorandum. Would there beHome OYce, “Please can we have an answer to thesomething to be said for having somebody who wasletter?” and we were repeatedly told, “It is not readyright outside the chain for that particular Instrument,yet.” This beggars belief that a department canwho would then read the Memorandum and wouldbehave in this way to a proper parliamentarybe able to say as a novice, as you might say, “I still docommittee.not understand what all this is about”? I yield to noneMr Bryant: My Lord Chairman, I only give myin my respect for senior civil servants but they are notapologies on behalf of that and I will go back and youalways able to have that degree of detachment, as itwill get your response.were, which enables them to look at the document asChairman: It beggars belief that you come to us nowcold, as it were,—that they comment on it as if theyunaware even that this row has been going on forhad never seen it before.three months when we are, as you can see, somewhatMr Bryant: My Lord Chairman, we do not have thatexercised about it and your department has beenproposal in place but I would certainly take that backreminded about it numerous times. You are provingto my colleagues. At the moment the proposal is toour point that no one is in overall charge of theget senior civil servants to sign oV the Explanatoryquality of secondary legislation because you, whoMemorandum to make sure that it meets thehave, as far as we can see, some of that role, have norequirements of this Committee in terms of clarity,understanding that this is even going on with ause of plain English and the correct explanation ofproper committee in Parliament. I will leave thatpolicy.comment with you. Lord Jopling.Chairman: Viscount Colville, consultation.Lord Jopling: I will give you another example of your

department’s dismissive attitude to the House ofLords. There was a reply from the Leader of the Q307 Viscount Colville of Culross: My Lord

Chairman, I have to declare the same interest as LordHouse of Commons the other day about answeringparliamentary questions—and I know this is slightly Boston has done, only quite a long time before

him. I do not remember ever signing Statutorywide of this Committee’s remit but it is all about thesame thing—and the Leader of the House of Instruments in those days; I think it was done by the

Secretary of State. Consultation, we are continuallyCommons made a statement in the Commons justbefore Christmas when he said that Ministers should told by other departments, leads to changes in the

draft of the Statutory Instrument in order to meet thehave a duty to Parliament to respond to writtenquestions in seven working days. The House of Lords responses that have been given. That is all very well

for instance, as you have said, in the case of the DTIhas, for some reason I do not understand, a diVerent




Instrument in place in order to ratify the Unitedor similar ministries, which is dealing with coherentNations Convention against corruption.bodies with whom to consult, and that is the Better

Regulation system which we were told about; it isreally all about businesses and now the voluntary

Q308 Viscount Colville of Culross: My Lordsector. By contrast your type of Statutory InstrumentChairman, none of these answers seem to be to theimpinges upon the general public and probably notpoint of how do you consult the citizen.very much on businesses or even on the voluntaryMr Clayton: I prefaced my remark, and I was invitingorganisations. I only want to illustrate this—and Iyou to interrupt me.am not making any comments about the thing—byMr Bryant: From the regulation point of view wethe Identity Cards Bill which is going through at theundertake a great deal of consultation with a varietymoment. We have been told that there are going to beof audiences with regard to what is the appropriatedozens of Statutory Instruments in order to put thepolicy response to the issue that has been identified,flesh upon the skeleton of that, and one draft code ofand if we come to that now I think that leads exactlypractice is available now in the Second House forto your question.members to look at whilst the Bill is going through,

but all the other ones are still in limbo and I do notknow whether they have been thought about. Even if Q309 Chairman: Exactly so because there is ayou know what sort of thing the Statutory diVerence between consulting on a draft order and aInstrument is going to contain—and you must do consultation about the objectives which the policy iswith the Bill at the stage it has now reached—how do addressing and what is the most eVective way ofyou set about consulting the members of the public? achieving it.There was an amendment yesterday which said, in Mr McCabe: To try and be as helpful as possible, Ifact, that you have to say where you have lived over mentioned earlier that the Cabinet OYce issuethe last period of time—and it was cut down to six guidance on consultation and we seek to follow thatyears as opposed to birth. That is the sort of thing guidance as closely as we can, and it requires athat I would have thought would have warranted minimum period of 12 weeks’ public consultationconsultation if it were going to be in a Statutory and we have recently revamped the Home OYceInstrument. How would you do this? I think it is website to make it more accessible to stakeholders.terribly important because that is the only way that So all the consultations that result in the productionthese things are ever going to be able to be amended of SIs can go through a long gestation period. Forbefore they are made. What is the mechanism? It is example, the Home OYce announced today somenot the same as the Better Regulation department in proposals in relation to prostitution. There was athe Cabinet OYce. consultation a year ago that involved a huge range ofMr Clayton: My Lord Chairman, I do not think that stakeholder events, Ministers going out to meet withwhat I would say would be of a great deal of use to the public, and there was a special website address setthe noble Lord’s question. I could if you wish explain up which received something like 200 specifichow there is a statutory requirement for consultation comments. So all of that information from the publicin relation to quite a lot of Instruments, for example helps develop policies which the Home OYce thenrelated to drugs or related to the police or related to puts forward and the document that was issuedthe private security industry. I could also explain the today—I have not had a chance to read it yet, it isextent to which there is informal consultation. When about 60 or 80 pages—which describes all of theyou are concerned with people who are perhaps not proposals sets out some of the legislation that we arein the United Kingdom or perhaps diYcult to planning to change. So all of that has to be thoughtidentify in the United Kingdom, there is consultation through by policy oYcials and Ministers before wewith the independent Sir Bernard Crick’s Life in the actually get to the stage of instructing our lawyers onUK Advisory Group on what the citizenship, the the SI that we want to draft to put that into eVect.British-ness test should be. Quite a lot of our stuV is Following on from Richard’s point there are certainenabling. Under the Criminal Justice Act 2003 we SIs that we must consult on and we do our best toneeded to make a provision about mandatory life comply with that, but it would be quite diYcult, forsentences and on that there was extensive example, if we were introducing something to do withconsultation with the Department of Constitutional prison rules; how do you consult the ordinaryAVairs, the Criminal Proceedings Rule Committee members of the public? Do they have a great deal ofand the Court of Appeal OYce. Under the Proceeds interest? Do we actually want to consult theof Crime Act 2002 we have made a very long order to prisoners, and so on? So there is a whole raft of issuesa large extent replicating various parts of the Act so that we have to think through and I think we wouldthat we can give eVect to external requests and orders freely admit that we do need to do better in terms ofrelating to the proceeds of crime which were made public consultation and, again, it is something that

the Cabinet OYce hold us to account on and we haveoutside of the United Kingdom, and we need the




Mr Bryant: Certainly we believe that the greaterto report on how well we are doing it. So there ispublic engagement in the development of the policyscope for improvement there.that Statutory Instruments were designed to eVectshould produce therefore better policy and a better

Q310 Viscount Colville of Culross: Of course I Statutory Instrument as a result. So the answer is yes,understand that, when you are going to amend the going to understand the responses and views of thePACE code or something like that, there are audience within sensible limits. As we said, onrequirements to consult certain people and you terrorist Statutory Instruments you would not go andalways do. I am not at the moment concerned about consult widely with terrorists, of course; but yes,that. When you talk about stakeholders—this broadly speaking we believe that consultationterrible modern phrase—everybody is a stakeholder produces a better outcome in terms of the policy.under identity cards. There is not a single person inthe UK who is not involved in this somehow, and

Q312 Earl of Northesk: There is an onus ofthat is what I am interested in. That is not unique, byresponsibility on you. That is the point I am trying toany means. The Cabinet OYce system for Bettermake. And you accept that?Regulation consultation simply does not take a gripMr Bryant: Yes, indeed.on that type of Statutory Instrument. It is totallyViscount Colville of Culross: If there is any progressirrelevant because the people concerned are quitemade on this subject by the Home OYce before wediVerent from those with whom the Bettercome to report I think it would be very helpful if weRegulation organisations normally deal. At thecould be told. We have concentrated the minds of ourmoment I think I am understanding that you find itwitnesses on this point and I think probably myvery diYcult, although you try. What I would like tocolleagues are in agreement with me that it is anknow is whether you see any progress, any methodimportant issue—how to consult the public. Ifwhereby you could do it rather better because that, Ianything turns up by way of improvement, we wouldthink, would be of great interest to us and we shallbe very grateful to know before we report.look for the results in your Explanatory Memoranda

as they come out because that is where we findthem—“We have amended the thing because of the Q313 Chairman: Thank you very much, Viscountconsultation.” Colville. Can we leave that thought with you? YouMr Bryant: I think the answer is yes, we believe we might of course find it interesting just to read thecan do them better; we believe that the code of transcripts of some of the previous evidence whichpractice is something which sets out a sound basis for has been given to us, from which you will understandconsultation. Clearly conforming to the best practice in part some of the issues that are in our heads aswith regard to the Explanatory Memoranda, you are a result of—without mentioning names—somequite right, we should start to see what we have done departments’ proposals on how they manageand what we have changed as a consequence of secondary legislation and how they consult. It mightconsultation. be at least food for thought.Lord TunnicliVe: Could I build on this point and not Mr Clayton: My Lord Chairman, at one stage inreally ask for an answer but invite you to write to us? previous sessions I think there was an indication thatYou do have this very concrete example of the by the time something had reached being a Statutoryidentity cards. If this legislation is to be successful, it Instrument it might be rather too late to changehas to be introduced in a way where the average significantly the policy behind it. I must say I agreecitizen feels comfortable with it. I think you have a with the point that was made. Quite often theparticular challenge under that Bill to set up a system enabling powers may be quite narrow and yourof consultation that does get to the average citizen Lordships’ Delegated Powers Scrutiny Committeeand allows its smooth introduction. The DTI under quite rightly ensures that powers are addressed atthe Enterprise Act 2002 have super complainants, what they are perceived to do at the particular time.where they say particular bodies that are closely But if one is taking a wider view, the wider view needsassociated with the public will be consulted, and we to be taken before the legislation itself is finalised.would commend that to you and perhaps it mightform part of your answer.

Q314 Chairman: I think it is both rather than either,if you follow me? I strongly agree with what you are

Q311 Earl of Northesk: My Lord Chairman, just saying in principle because some thoughtfulnessquickly on this particular subject. Do you think in about the deliverability of the policy objectivefact that greater public engagement at an individual through various options is crucial, but there is also alevel with Statutory Instruments should in theory serious process of consultation around the specific

Instrument itself, which needs dealt with.give rise to better Statutory Instruments?




recognises the importance of consolidation and it isMr Clayton: My Lord Chairman, I was merely tryingto register the point that obviously some powers are something that we try to do. At the time when the

noble Lord, Lord Armstrong, was Permanentmore widely drafted than others and the wider thepower is the more scope you will have in what you do. Secretary it was necessary to consolidate the police

regulations fairly frequently because there wereChairman: Lord Boston, you wanted to come in.about four changes per year to them, partly reflectinginflation at the time and a series of allowances. Now

Q315 Lord Boston of Faversham: Thank you very a lot of it has settled down rather more, although themuch, Lord Chairman. Just one additional quick police regulations were consolidated in 2003 and it ispoint on consultation. As Lord Colville has something that needs to be accessible. Work is inindicated, the question of identity cards is so progress on consolidating the police pensionswidespread for consultation that everybody in the regulations. You refer to resources and I fear thatcountry almost would have a view. Apart from resources are the problem with it. Although oneconsulting, as appropriate, clearly identifiable might think that consolidations ought to just bespecific bodies interested in particular policy matters, scissors and paste and therefore not take very long,do you also aim to consult much more widely and they do quite often involve rather more complexamongst the public generally, who may not be issues, particularly if an allowance, for example,members of particular bodies, using in particular which was available is withdrawn and you then needrandom samples, and you will recognise that I use the to put in rather complicated transitionalword random in its scientific sense. It would be useful arrangements. The regulations may be technical into have thoughts on that when you give your written the sense that they rely on primary legislation and thereply, but there may be something you wish to primary legislation itself may have been altered in theindicate now? interim and possibly the consequences of it have notMr Bryant: My Lord Chairman, I have to say that on been spotted. I would certainly agree that the factthe more general point about how we gather opinions that it is diYcult makes it all the more important thatfrom a wide group of the public about the policy one does it and that one does aim to keep the SIs up todirection, we do talk with focus groups and we do date; and it is true, I think, that the more frequently ithave those kinds of events. The statistical is done the easier the process is. One of themethodology I will have to come back to you in Instruments made in December absorbedwriting on, but our policy oYcials are encouraged to amendments that had been made to a schedule toget as much contact and understanding from some 2000 regulations and just substituted a newmembers of the public about the issues they are schedule. So it was then available in consolidatedseeking to address. This is several stages upstream form. It is important but on occasions it can be timefrom the drafting of the Statutory Instrument, so this consuming.is really the policy formulation end rather than whenit comes down to the more technical legal drafting

Q317 Lord TunnicliVe: It is very diYcult for a mereand then testing those words on individuals that, ascitizen to see why it is not cut and paste, i.e.we have said, we probably do not do as well as weparticularly the amending ones, which are the mostought to.confusing to read. I cannot see how the lawyer thatChairman: Lord TunnicliVe, consolidation.creates the amending document other than writes outthe whole paragraph to understand what he is doing.

Q316 Lord TunnicliVe: Legislation is almost So at some point in the process of creation theimpenetrable to the average citizen because it is a amended paragraph or clause presumably exists andStatutory Instrument, and then a Statutory why can we not capture that? Instead of, “Put theseInstrument upon an Act that amends an Act. Clearly three words in there and move them to there,” whythe way out of this is consolidation. I believe we have can we not just say, “Take this paragraph out and put

this one in,” so that much, much more of it isasked you one or two times about possibleconsolidation and you have responded that there is a readable. Why can that not take place?short of resources. Do you have a general comment Mr Clayton: My Lord Chairman, that is somethingon the Home OYce’s point of view on consolidation? that I encourage and it does happen and it has

happened; as I said, there is an immigrationMr Clayton: My Lord Chairman, this is not really ananswer but I hope that with commercially available instrument. We do bear in mind the importance of

keeping them under review. In relation to the Privatecopies of statutes and Statutory Instruments thosewho need to see them, those who need to see the Security Act it was done as well. The diYculty is the

longer the consolidation the worse it becomes, butactual wording, will have access to that, and they areoften available in a marked-up form, in a form that is when you are updating short bits that is probably the

best way of doing it.actually up to date. But the department very much




all departments were meant to be having a forwardQ318 Lord TunnicliVe: You have what seems to mea superb middle ground on the immigration rules plan for consolidation to try to rationalise some of

the plethora of secondary legislation. Am I right inwhere I understand you keep a live copy on thewebsite of where they stand. my recollection?

Mr McCabe: Yes.Mr Clayton: Immigration rules are not statutoryinstruments as such. They are more loosely draftedbut they are of particular importance. Q322 Chairman: If so, what are you doing about it

because it sounds from what, with great respect, MrClayton has said that the answer is you are not doingQ319 Lord TunnicliVe: Is there any reason why thatvery much about it.website approach should not be extended to moreMr McCabe: It is probably because the Home OYcelegislation and more statutory instruments?has such a wide range of business and responsibilities.Mr Clayton: In the case of the website approach, allAs I mentioned earlier—that one would be oVering is the department’s view of

what the law is and ultimately it is a matter for thecourts to determine what the law is. What matters is Q323 Chairman: Come on, lots of departments havewhat the Minister has made, or in the case of a wide range of business.something that needs to be approved by Parliament Mr McCabe: As I mentioned earlier, the adminwhat Parliament has approved of a law a Minister burden project, which is looking at the burden thathas made. So the website is not a complete answer. As regulations create, we only have 40 items. When weI say, there are commercially available websites—but get the information from that exercise we will bethis may not be a complete answer. I suspect that with publishing a simplification plan, like othera certain amount of Home OYce legislation people government departments, as to how we will beare rather more inclined to look at the circulars rather implementing the things that do actually createthan work their way through the intricacies of legal burdens and I anticipate that that will requiredrafting, but I may be wrong on that. changes to Statutory Instruments to put into eVect,

and we would be describing that in our simplificationplan, and I will certainly take all the messages that IQ320 Viscount Colville of Culross: My Lordhave heard to day to make sure that that process isChairman, the longer these things are left the worsewell followed.the problem of consolidation. I do not think that

marked-up versions, whether it is of other people’sQ324 Chairman: Is that just part of the obligation ofwebsites or published by Sweet & Maxwell, is athe department or is it part of the government’swholly satisfactory method of telling the public whatwider process?it is that the law has already become; it is not a matterMr McCabe: Yes.of interpretation, it is what the law says and what you

are supposed to know. Statutes do get updated,yearly at any rate by the Halsbury’s Statutes series, Q325 Chairman: Because I was slightly surprised toStatutory Instruments do not, and there is no way of hear that the game was still, “We will do what we canfinding out what is the current state of play on a with the resources we have,” which is arguing thatStatutory Instrument other than getting great you need get more resources on that to get out of thebundles of books down oV the shelf and looking it up, mess—I do not mean that rudely—to get out of theand this is a very unsatisfactory situation. historical problem that one is in.Mr Clayton: My Lord Chairman, I am sure, because Mr Bryant: My Lord, we certainly absolutelymy colleagues use it, that not only are statutes in up understand the importance of consolidation andto date form but Statutory Instruments are as well. I there is clearly an issue about resourcing time,am not actually as good at using computers as some because we are very busy with the primary legislativeof my colleagues, I fear, but they certainly have access programme, but we will improve on that.to the original form. I very much agree with the nobleLord about the importance of consolidating and to Q326 Chairman: You have said that the Cabinetthe extent that we can we do. One of the diYculties is OYce holds you to account. I am unclear about howthat there are a limited number of lawyers and if there they do that, apart from the most simplistic level,is primary legislation we have to concentrate on partly because they do not seem to ask informationprimary legislation. about some of the subtleties; it is fairly basic stuV, is

it not, about 21 days? It is not into the moresophisticated stuV, the quality, for example, of theQ321 Chairman: In a sense what departmental

lawyers, for understandable reasons, have said from consultation process. So (a) how do they hold you toaccount, given they do not know much; and (b) theytime immemorial? I thought, but tell me if I am wrong

because this is from recollection, that the thrust of the do not have any sanctions to exercise even if they didknow much?Better Regulation process by government meant that




OYce Ministers where we have failed in this regard.Mr McCabe: There are probably several angles tothis, but on the Better Regulation side of things I Similarly, at oYcial level we meet regularly with

Cabinet OYce colleagues, who ask us, “What are youthink I mentioned earlier that we are required topublish in our annual report how well we have doing on this particular policy proposal? How are

you undertaking this consultation? How are youcomplied with requirements of consultation, have wefollowed the 12-week rule, for example. going to make sure that you get eVective results from

it?” and so on.Q327 Chairman: Indeed. It is the low level stuV, is itnot, the basic stuV? Q328 Chairman: Thank you, we will note that.

Could I, in conclusion, thank you very much for yourMr McCabe: Yes, and similarly if we have gone outto consultation they monitor how well we have done time. You sense from the vigour of our questioning

that these are issues that we are very interested in andthat and we have to report on whether or not we haveproduced a Regulatory Impact Assessment to they are important to us. I hope you will take the

spirit of that and I think the response that Mr Bryantaccompany it, and they check as to the quality of theRIAs and so on. So they have a number of ways of has made signals that you intend to do so, even if at

times we were rather robust in the ways in which weinteracting with us, and I am sure you will appreciatethat at ministerial level, when Ministers are seeking expressed certain things. Thank you very much for

coming.collective ministerial agreement, for example,Cabinet OYce ministers may well highlight to Home Mr Bryant: My Lord Chairman, thank you.

Supplementary letter from Andy Burnham, MP, Home Office

Thank you for your letter of 11 October highlighting the Committee’s concerns about a number of recentHome OYce Statutory Instruments where you felt that the accompanying Explanatory Memoranda wereneither as clear nor as helpful as they could have been. I know that Home OYce oYcials appeared before theCommittee on 17 January to answer questions about this.

I need to oVer some apologies. Firstly, I am very sorry that I have not been in a position before now to replyto your letter of 11 October—with the result that you did not receive an oYcial written communication beforethe oral evidence session this week. I will ensure that all in the Department who have a responsibility fordealing with queries from Parliamentary Committees are reminded of the importance of responding swiftlyto queries.

I should also apologise for the fact that, in your initial dealings with the Department, you were not providedwith the assurance you were seeking about overall quality control of Statutory Instruments. In response tothe Committee’s concerns, the Department has made some significant changes to procedures. As I understandoYcials outlined to the Committee this week, we are taking steps to ensure that in future ExplanatoryMemoranda are written in plain English and avoid overly-legalistic language. We are placing responsibilityon relevant Heads of Unit (who are Senior Civil Servants) to exercise local quality control and sign oV allExplanatory Memoranda; the Department’s Group Executive Board will exercise central oversight of thepicture across the Home OYce through quarterly reviews of the legislative picture; and David Normington,our new Permanent Secretary, will send a message to the Department about these new arrangements, stressingthe need to improve our game.

As Minister with responsibility for regulatory issues, I will also keep a close eye on how these arrangementsare working. I am conscious that as a Department with a considerable legislative workload, there is areputation issue at stake for the Home OYce in getting things right on primary and secondary legislation.We will, of course, look carefully at any particular recommendations the Committee brings forward on themanagement of the secondary legislative process.

Andy Burnham

3247872082 Page Type [SO] 22-03-06 00:00:11 Pag Table: LOENEW PPSysB Unit: PAG6


TUESDAY 31 JANUARY 2006

Present Armstrong of Ilminster, L Maddock, BColville of Culross, L Methuen, LEccles, L Morgan of Drefelin, BFilkin, L (Chairman) Northesk, EJopling, L Tunnicliffe, L


Witness: Mr Rick Haythornthwaite, Chairman, Better Regulation Commission, examined.

Q329 Chairman: Good afternoon and welcome. about last time. I think that the Better RegulationExecutive shares our view and does not discriminateThank you very much for coming to see us; it is verybetween primary and secondary legislation. We aremuch appreciated. I am Lord Filkin and for my sins Ivery keen to see both looked at. I think we face twochair the Committee. You are probably aware of whoissues at the moment. The first you referred to, whichmost of the Committee members are. We have ouris that we do not have a good means of working outname badges, so you will forgive me if I do not gothe cumulative cost. We tend to see these aspects ofround the room and introduce everybody. If you aresecondary legislation coming through on anhappy, we would like to start straight oV really withincremental basis, therefore they are looked at on anone of the questions that I think is of particularincremental basis, and I do not think we have yetinterest to us. We understand what your role iscome up with a satisfactory solution to that issue.following on from the excellent work done by SirThe second is an issue that I know your Lordships areDavid Arculus, and we had a good initial session withtackling, and that is the fact that they tend to come inhim. What I would like to put to you first of all is thatwaves and as a result quite often they are not gettingSIs, perhaps from our perspective, are an importantthe scrutiny they deserve—because, in particular, ifpart of the regulatory landscape because they are theone takes the example of common commencementmeans by which government actually does a largedates, we have seen a confusion between commonamount of its regulation, and they in practice are thecommencement dates and common laying dates anddefault modes of government legislation andsignificant burdens coming through, and that reallyregulation. We know that the Government is tryinggets in the way of proper scrutiny. So we do notto reduce the amount through alternatives todistinguish, in summary, between primary andregulations, but regulations are going to continue tosecondary legislation. We do believe, that if there is abe the major substance. We are therefore surprisedsignificant impact cost and burden, we must look atthat the remit of the Cabinet OYce and of the BREit and submit it to rigour but there are barriers toappears only to be interested in the instrumentsbeing able to do that in an eVective fashion at present.which have a very significant cost to business. I think

from our perspective that seems to us to be too partialbecause there are costs to others than business and Q330 Chairman: Do I infer from that that you thinkthe eVect of a large number of instruments that have the exclusion of what I will call, for want of a bettera less than £20 million cost is nevertheless very term, the smaller impact instruments from the BRE’sserious on business and on others. Could we have purview is right?your comments as to whether you accept that Mr Haythornthwaite: I think in the end there have toargument and, if so, whether you would share our be priorities set. The first point I would make is thatview that the BRE and the Cabinet OYce should take I think the accountability, ownership, responsibilitya wider view? and burden of proof for all legislation, whetherMr Haythornthwaite: I think I would start from first primary or secondary, must continue to lie with theprinciples, my Lord Chairman, in that the Better departments; they must be accountable. Our aim hasRegulation Commission believes that all legislation, to be not only to curb the worst excesses and poorwhether primary or secondary, if it has a significant disciplines but also gradually to change culture. Iimpact on business, the private sector or the public think it would be a very diVerent proposition if onesector, should be subject to the disciplines of better were seeking to check every piece of legislationregulation and to the procedures that have been laid coming through as opposed to trying to catch thedown. I think all of them really do deserve to be major issues. Certainly at the moment I think thesubject to early impact assessment and continuing Better Regulation Executive are doing a good jobimpact assessment and sensible consultation and exercising a sensible filter, but we have a long way to

go yet.rigorous costing, all the angles that Sir David spoke



31 January 2006 Mr Rick Haythornthwaite

an interest in Statutory Instruments and that is whyQ331 Chairman: Let me agree with the first twolimbs of your response and disagree with the third the BRE gives no guidance on Statutory Instruments.and just explore it slightly more. Accountability for Given how central they are to better regulation weinstruments has to lie with departments because they find that perverse, but perhaps you have said all youhave to make them. There is a massive cultural wish to say on this subject.change but part of the process of cultural change is Mr Haythornthwaite: I have said what I wish to say. Ithe challenge at the centre as to what its form actually would be interested to hear the conclusions of theproposes. To say that the Cabinet OYce or Better Committee upon that. Certainly we will continue toRegulation Executive should have an overview of the push our point with the Better Regulation Executive.totality does not mean that it should inspect every Chairman: Thank you. Lord Jopling?one, but it should have the ability to dip in or to seekto have processes in place to ensure that the stimulusis there. Some departments will do it, I am sure,

Q333 Lord Jopling: You mentioned a few momentswithout stimulus, but our evidence so far is a pictureago the issue of SIs with common commencementthat is extremely varied between departments.dates and, as you will have heard, this Committee isTherefore without some process for challengingunhappy about the overall guidance anddepartments on the smaller instruments as well, Imanagement of SIs. Can I try and tempt you, do youthink we are sceptical that we will see thenot think that it would be better if SIs in particularGovernment achieving its Better Regulationwith common commencement dates, which areinitiative across the piece. There are simple ways ofcurrently overseen and guided by the DTI Smalldoing so—by saying in Explanatory Memoranda, forBusiness Service rather than the Cabinet OYce, wereexample, they must make it clear why this is the onlyunder the ambit of the BRE?way of getting the policy objective and what otherMr Haythornthwaite: I think initial conclusions fromroutes have been explored.the operation of common commencement dates,Mr Haythornthwaite: First, I agree with yourwhich were clearly designed to help businesses,suggestion there. We are completely supportive thatparticularly small businesses, to understand andon any legislation there should be a burden of proofprepare for evolving legislation, would suggest thatwithin the department to have consulted widely and

to have considered all the alternatives and to regard there has been a healthy take-up, and I think the DTIthe imposition of regulation as a last resort, and that has been a good champion of the take-up of commonwhen going through the thinking process there commencement dates and they are welcomed by theshould be impact assessments throughout, and so I small business community. We have seen themdo not think there is any substitute in legislation of extended now to areas of health and safety, companyany scale for high-calibre thinking and to ensure law, pension law, and so on and so forth, so from ourwithin the department that the civil servants, the standpoint the adoption of common commencementBetter Regulation ministers and the champions for dates is moving along exactly the lines that the TaskBetter Regulation really stand for high-quality Force hoped to encourage. We see no reason why oneargument within the departments. I think that is a should take them out of the DTI, particularly thesine qua non. The question is the extent to which the Small Business Service, because they are much closerBetter Regulation Executive and ourselves, the Better than the BRE could ever be to the stakeholders.Regulation Commission, can push that through as a However, this confusion between the commoncultural change. I think the Better Regulation commencement dates and the common laying dates isExecutive, if I might say, is adopting the right initial clearly a big project issue. Someone has got to takestance, but it is early days. I do not regard William ownership within the departments of good, solidSargent as someone who would feel confined by any project management and make sure that the SIs areprocedural or any specific rule. He is very committed, laid at a pace that they can be given due considerationas is Jitinder Kohli, the Chief Executive, to change and that we do not get into these positions ofthe culture. I think he is looking for every possible unrealistic workloads and inadequate time forangle to do that. If that requires dipping into some consideration. It seems to me the issue to deal with issmaller aspects of legislation to make a point, I do not common laying dates as opposed to commonthink he would hesitate to do so. By saying that his commencement dates, and I would far prefer that westarting point is to take the more significant parts is

focus attention on the DTI and ask their oYcials tocode for saying that that is sensible prioritisation, butmake sure that that whole area of projectI do not see it as being applied to the exclusion of allmanagement is addressed. I would very much preferother options.keeping the process with the DTI. We will of coursecontinue to monitor that as it comes through but Ithink that it is far more our role to evaluate and toQ332 Chairman: But that is not what he has said to

us. He has made it clear that the BRE does not take advise.




Q336 Viscount Colville of Culross: So it will develop?Q334 Chairman: We take your point about good,solid project management; you probably therefore and have you got the right people to enable it to

develop?share our view that it is surprising when in one or twoexamples we have found departments who can give Mr Haythornthwaite: We have got the right peopleus no answer to the question “who is responsible for and indeed we have established a rotation ofsecondary legislation and Statutory Instruments?” succession that would allow us to gradually refresh

where we need to refresh within the Commission.Mr Haythornthwaite: That is clearly concerning. Wecome back to the point that from a Better Regulation However, I have to say that I am also encouraged

that as I go around departments and talk to some ofCommission standpoint we need a commitmentwithin every department to an adherence to Better the more enlightened department champions they see

that they need to take on board some of theRegulation principles and discipline. It is agovernance issue within the departments that we technology that is being introduced around

businesses, particularly in costing the administrativeneed to push.burdens and thinking how to take those forward;Chairman: Thank you. Viscount Colville?they are thinking voluntarily about how one canadapt that to the public sector. I think that thosedepartments that are particularly thinking about

Q335 Viscount Colville of Culross: I think the historywhere to go from here and whose administrative

of this started with impact assessments, and thereforeburden is more in the public than the private sector

it seemed logical to begin with business, and it hasare already moving in that direction. Although one

now expanded to the voluntary sector, and that is aswould never describe encouraging better regulation

far as it has got. There are quite a number of otheras pushing on an open door, it is slightly ajar.

aspects of public life or private life in this countrywhich are aVected by legislation and of course as faras we are concerned by subordinate legislation. Are Q337 Lord TunnicliVe: There was a point that waswe going to stop with the business and voluntary missed there and that was the citizen; the citizen issector? or do you see there is any chance that we frequently impacted by regulation. Are you puttingmight eventually cover the entire spectrum of those enough focus into encouraging departments towho are aVected by legislation? We had the other day consult citizens, because it is an area that is verythe question of the Identity Cards Bill, for instance, important in things like ID cards?which aVects all of the general public. Do you think Mr Haythornthwaite: It is an area that is vitallywe are aiming in that direction? important and I would say that stakeholderMr Haythornthwaite: I think we most certainly are. It consultation remains patchy in that area. Myhas been natural over the last year that we have observation is that in this first round of simplificationstarted with business. Although we are performing plans the tendency of the more enlightenedwell as a nation, still there are quite considerable departments has been to go out and think about whocompetitive issues that we face, and so it was very are the people they need to speak to who knowlogical. I think that with the Task Force able to draw something about how to reduce regulation. The lessattention to the potential for a one per cent increase enlightened departments who are going through thein GDP if we can bring down the administrative motions at this stage—and we intend that that shouldburden by 25 per cent, it was most logically focused change in the future but at the moment they are goingon business and that is naturally where the BRE is through the motions—tend to go to the samefocusing its attention. However, I do not sense that stakeholder communities that they consult onthe BRE is focusing its attention on business to the regulation and it is not surprising that it is not aexclusion of the public and private sector. Certainly I particularly fruitful source of ideas, so I think that iscan assure you from the standpoint of the Better important. Again, on my limited experience (I haveRegulation Commission, that we are very not been in this job very long) I find that there are adeliberately comprised of a group of business people, number of areas where the independent regulatorstrade unionists, members from public sector and seem to have close contact with the consumers andvoluntary organisations because our terms of there is a lot of very fertile work going on in that area.

We as the Better Regulation Commission have onereference ask us to look at all the sectors to which yourefer, and we willingly do so. If one looks at our substantive piece of work that we are doing this year

which is to research how the perception, allocationagenda as we more forward, clearly one of our rolesis to think about where this should move next. There and management of risk drives the regulatory

machine and how it can result in unhelpfulis a bias towards the public sector and indeed towardsthe voluntary sector as a whole. So I can reassure you consequences, particularly for the citizen. I think a

lot of our work will be gradually moving to the citizenthat we will be looking in those areas and I think it iscritically important. by virtue of that particular study. So over time it will




Better Regulation Commission, the Executive andhappen, but I would not describe it as adequate asof today. elsewhere, and indeed these Houses, has to be

reinforcing that message.

Q338 Lord Methuen: We are concerned as aCommittee from the evidence we have so far received Q339 Chairman: Could I, with Lord Methuen’s

tolerance, build on his question because whether it isthat the guidance issued by the various limbs of theGovernment’s Better Regulation machine (the BRE, in business or in government it is almost axiomatic

that, if you want something to happen, you do notthe HMSO and SBS) is just that—guidance. We areconcerned that there is not adequate policing of the just ask people to do it or give them guidance. You

have to have some system of intelligence to knowrules laid out in the Statutory Instrumentsprocedures manual. Would you like to comment on what is happening, because particularly in areas

where cultural change is required, you know that itthe fact that they do not actually police the thingproperly to make sure that the rules are obeyed and will not happen without both finding out what is

going on and some system to bring people to accountthe timescales are obeyed?and to incentivise them. From what we haveMr Haythornthwaite: My Lord, the absence of aunderstood from the BRE there does not appear toreference to Better Regulation in the proceduresbe an adequate intelligence system. We are not askingmanual is a disappointing start, I will admit, but letevery department to be able to give informationus step back again from the mechanisms that we haveabout everything they are doing—that would beput in place. If one looks at the impact assessments,nonsense, that would create another regulatoryconsultation, alternatives, common commencementburden. It has to have the ability to sample, to bringdates, post-implementation reviews, all those areto account, to know whether the guidance is beingvery necessary but they are insuYcient conditions forobserved or not, at least at a high level. Why we arechange, and so we do need a number of other areas topressing this point is because, from our own limitedbe working for this to make a diVerence. I amevidence from only three government departments, itencouraged by the appointment of William Sargent.is transparently not being followed in a very largeI think he is a very committed individual in this areanumber of cases, the variability across thoseand has experience and he and Jitinder Kohligovernment departments is quite surprising, and yetbetween them are recruiting a very good team. Theythe centre appears to be unbelievably hands-oV—“itare a very, very important part of policing this wholeis nothing to do with us; it is up to departments”. Ifarea and I think their scrutiny, their coaching of thethat was good enough to change the world, we wouldteams, and their application of the disciplines, ishave had perfection years ago by giving guidance. Itgoing to be very important. However, what they arewill need more than that, will it not?seeking and what we are seeking is clearly cultural

change, and I think there are still some areas that we Mr Haythornthwaite: It will, and to be frank it is tooearly for me to say how hands-oV it is going to be.absolutely have to make progress in. The first is the

fact that still there are a lot of people within There are clearly two parallel systems, there is theformal and the informal. In the informal system theregovernment departments who are enjoying fantastic

careers dreaming up regulation around complex and is a lot of contact involving the members of myCommission and members of the BRE on a day-to-not necessarily important problems and we have got

to change career progress within departments, so day basis. Whether it is sitting formally on championboards or whether it is shadowing the departments inuntil that changes and until the removal of regulation

and the freeing up of various stakeholders, is seen as their stakeholder groups, shadowing the champions,there is a network of informal contact, and I suspectvirtuous, then it is going to be very diYcult to make

any of what we are doing sustainable. That has to be that will be the most fruitful route. In theory, theBetter Regulation Executive has a role and to ansupported—and will be supported, I believe—by the

re-energised Panel for Regulatory Accountability, extent we have, which is to continuously drive thebest leading indicator we have, namely the impactwhich is meeting monthly and which does consider

the significant regulations coming through from a assessment system, and improving the quality of thatso we do see at an early stage the direction of travelbetter regulation standpoint, and I envisage that that

panel will send quite a number of items back and of some of these regulations. Of course I talkedearlier of the domestic aspect. We have the Europeanmake clear points. I very much hope that this

Committee will consider it. Can I just make the point, aspect as well, which is very significant, and thatposes its own issues. In theory I would say that thethat without good argument, without good

consideration of impact assessments, consultation, framework that is in place should be adequate to geta sense of whether we are making progress and toalternatives, these regulations are unacceptable, and

hopefully over time that message will sink in, but I keep the pressure on that. I reserve judgment at thisearly time as to whether that is enough because Ithink it is going to take eVorts from many, many

angles and every signal throughout departments, the completely agree with you that culture change is




board of the departments. Do you have any feeling offirstly about attending at a detailed level andsecondly about being absolutely relentless in that kind? Am I getting it wrong?

Mr Haythornthwaite: I do not think you are, myreinforcing the messages and making sure that whenone sees practices that are unacceptable that they are Lord, but I think that it does not necessarily stem

from the quality of people that have been assignedraised and that people do not benefit from them. It istoo early for me to say whether we are eVective yet, the task of making sure the better regulation

principles and good planning of the programme arebut if we are not what I do promise you is it issomething that I shall pick up personally because I put in place. It is more about the backing that they

can get from the top. The departments that operatebelieve we have to go at this with great teeth andeVectiveness, so I will be watching for it. well are those departments where there is very clear

support from the top for the better regulatoryChairman: Thank you very much. Lord Armstrong?programme and everything else falls into placebecause the Better Regulation ministers and the

Q340 Lord Armstrong of Ilminster: I think that is a Better Regulation champions have a clear mandate ingood point but from the evidence we have heard we the departments themselves and things follow. So Ihave concluded really that there are too wide really do think it comes back to the basics of culturevariations in the way in which departments plan and change, that it has to be seen to be personallymanage their preparation of Statutory Instruments. rewarding and virtuous to be able to deliver thisThere is little or no evidence of department-wide or programme in a well-managed fashion. I do not thinkinter-departmental, as it were, statutory instrument it is going to help greatly just throwing more talent atprogrammes or integrated planning and it within an unwilling department.management. I wonder whether you would agree Lord Armstrong of Ilminster: As a former Permanentwith that and, if you did, what more you thought Secretary, I hear what you say. Thank you.could be done to promote better and more activemanagement of the process right across the board?

Q342 Lord Jopling: My Lord Chairman, can I ask aMr Haythornthwaite: First, I would agree with you, Isupplementary question to Lord Armstrong’s. Youthink the evidence is of punishing and heavysaid that you thought the only sanction was to sendworkloads which one sees around these Statutorythem back. Do you mean by that that ParliamentInstruments. My practical solution would still be toshould be more ready to refuse to endorse them?focus on the departments themselves to try to do this.Mr Haythornthwaite: I think all regulation representsTo have a pan-government solution when one hasa significant imposition and therefore they should

not resolved it locally will, I suspect, be doomed to have had due consideration. It is only reasonable tofailure. I think pressure should be put on all the expect that. If, through poor planning or poordepartments to manage their legislative programmes consideration from the department, you feel that itin a far more eVective fashion and recognise that a has not been given due attention then it is onlysuccessful outcome is one where all items of any reasonable to say, “I really need more work done onsignificance get due consideration as opposed to this and I am not prepared to be pushed into movingbeing rushed through. I think the only way we can at this stage.” I do not think it will take many of thosepush that—and I come back to the point I made instances for the message to get through that it isbefore—is to start sending them back. If they are better to get Instruments coming through oncoming and there is clearly inadequate planning in staggered common laying dates and give thedepartments there has to be a sanction, and the only committees plenty of time to consider those aspectssanction there is is that one does not get the success of legislation, and hopefully over time we will also seethat one sought in the first place. I see no other way. a gradual improvement in the impact assessments forIt is inelegant but it probably will be eVective if one every Statutory Instrument.keeps it up for a while. If one can achieve some sortof programming at a departmental level then perhaps

Q343 Lord Jopling: Can I tempt you to be a littleone could consider something across government butmore precise. There is a tradition in the House ofI reckon we should begin with stage one.Lords that only very, very, very rarely are StatutoryInstruments voted against. Are you saying that you

Q341 Lord Armstrong of Ilminster: We also had an think over the years the House of Lords has beenimpression that there is very wide variation in the unnecessarily supine in dealing with these matters?range of quality of the people who manage these Mr Haythornthwaite: I think clearly the House mustprocesses within departments, and I certainly use the occasions with discretion. However, onewondered whether there should be more attention hopes there can be some sort of process prior to thegiven to having somebody very senior and high absolute date of consideration where it becomes veryquality in the department whose mission it was, clear that, if this particular Instrument appears in this

state, it will not get the easiest of passages. I hope thatwhose duty it was to address this positively across the




impact assessment stage. We have the opportunity tothat dialogue will take place even if it is at theeleventh hour, so that a lot of work can be done on consider any impact assessment which comes

through, which we do. We have the opportunity toit. Whether or not the Lords choose to exercise theirpolitical will to make that particular statement is up express an opinion at the Panel of Regulatory

Accountability. We have the opportunity, onceto you, but I think there needs to be the occasionalexercise of refusal but certainly a very heated debate passed, to propose implementation reviews and feed

them back if there is any secondary legislationin the last stages about the quality of what is beingpresented before your Lordships. attached to it which allows us to feed back into that

process. In certain instances we can pass impactassessments to the National Audit OYce for a secondQ344 Lord Jopling: Otherwise this Committeelevel of scrutiny. We will also take our lead fromcould, maybe in drawing the attention of the Houseconsultation with our stakeholders to think aboutto an Order, say it felt it was better that thewhat areas we need to focus on, but with, correctly, adepartment took it back before it was debated onsmall secretariat and a small commission we have tothe floor?pick our spots, so we do not cover all the ground butMr Haythornthwaite: I think you would get to thewe aim for those areas which we think arestage where the department would find that veryparticularly important, whether for business, private,helpful. Indeed the support of this Committee is notpublic or voluntary sectors.just to the basic tenor of the Instrument, it is also its

quality and preparation.Q348 Viscount Eccles: Would it be your ambition totake what might be described as a holistic view of theQ345 Earl of Northesk: Lord Jopling’s questions aresubject rather than getting too involved in thenot supportive of my case but I gained the impressionminutiae?from much of the evidence we received that thoseMr Haythornthwaite: I think it depends. Certainly wecharged with preparing Statutory Instruments arewould start from a holistic view. I think the issues wepretty ignorant in truth of the process of scrutiny. Dowould be looking at would be driven by a holisticyou think it would help if those charged withconcern. But I think quite often one cannotpreparing SIs on a departmental basis were morecontribute meaningfully to the debate unless oneaware of the way in which scrutiny takes place and itdives into the detail. We have no theology on wheremight actually improve the process within thewe should sit on these but we would generally start atdepartments?the level of principle and systemic issues as opposedMr Haythornthwaite: We would absolutely welcometo symptoms and the detail.the departments being very clear on the process and

indeed very clear about the threshold of qualitywhich is implicit within that process, or even explicit. Q349 Viscount Eccles: As an initial view, do youAny support in that area would be very welcome and expect there to be less or more regulation?indeed we would be very interested in the results of Mr Haythornthwaite: I expect the worst and we willyour inquiry to understand how you might go about work for the best. There is no doubt that, if one werethat and how we might support you in that. to look at the trends, they are not optimistic. Over

time we will see but certainly we are going to have ourwork cut out, not only to reduce the stock ofQ346 Viscount Eccles: We, of course, concentratelegislation but there is a fairly healthy flow of newvery much on Statutory Instruments, that is what welegislation coming through and our aim is to reduceare here for, and we grumble about spelling mistakes,net burdens. But what comes through will comeand we should apologise to you for spelling yourthrough and we will tackle it.name wrong on your name plate.

Mr Haythornthwaite: Thank you. It is not the firsttime. Q350 Chairman: Our remit is not the same as yours,

quite clearly, but one of our remits is to look atInstruments as to whether they adequately orQ347 Viscount Eccles: We should be inclined to send

that back to the department! You mentioned earlier inadequately fulfil their policy objectives and to giveour comments to the House. In some cases it seemsprimary legislation. Would you like to expand on

how you as a commission get involved in considering highly questionable to us whether they will “work”;they have a very crude model of potential. Sometimesprimary legislation as well as supporting legislation?

Mr Haythornthwaite: We get involved obviously, we wonder whether this really was the best way thatthe policy objective could have been achieved. Therehaving laid down the principles of better regulation,

and so as a backdrop to the consideration, the is some overlap therefore with your process of tryingto ensure alternatives to more regulation. Would itcontext of it, we try to make sure in the departments

those principles are adhered to. In terms of specific therefore be helpful to everyone if departments wereexpected in their explanatory memorandums to sayaspects of legislation, we see them largely at the




Mr Haythornthwaite: Coming back to the need in thishow they have explored alternatives to yet one moreprocess for culture change to continuously reinforceStatutory Instrument or regulation, and why was thisthe message, we welcome every time that someonethe only or best way of actually fulfilling that?asks, “Have you really thought about theMr Haythornthwaite: Just as with primary legislation,alternatives?” so we can canvass support there if thatthere should be a very well constructed argumentwas the way forward.from the earliest stages of the impact assessment as to

who has been consulted, what are the clear outcomesQ353 Lord TunnicliVe: You seemed to imply in onerequired, what are the possibilities considered, andof your answers that less regulation was a good thing.why any regulation at all is required, and what are theI am in a minority of one in believing regulatorycosts of that; who is going to benefit and what is going burden is not volume but fit-for-purpose. Do you

to be the return on investment. If there has been carry the same regard to making regulation lesssuYcient change when the secondary legislation burdensome by being good regulation as you do tocomes through, that it is clearly a step away from the the volume of it?primary legislation, I think exactly the same rigours Mr Haythornthwaite: Let me first say that I do notshould be applied. Therefore the answer to your regard regulation as good or bad. There are goodquestion is very much yes, provided there has been a regulations. My belief is, first, if a regulation is goingsubstantive change from the primary to the to be in place then it should be put in in a highlysecondary. If, however, the basic principles were in eVective fashion, and one should start with the desirethe primary and were looked at as part of the primary of policy outcome or potential outcome and thenimpact assessment, then on those occasions one work to minimise the burden thereafter. That is whatcould be less rigorous. we are working for; whatever it takes to get there.

Q354 Viscount Eccles: Is there anything you wouldnot want us to miss in our considerations before weQ351 Chairman: Then, of course, it would take nocome to our report?eVort at all for oYcials to cover the story in theMr Haythornthwaite: I think we have covered most ofexplanatory memorandum because the work willthe ground. Really the critical point for me is that thealready have been done, will it not?principles of better regulation have been very clearlyMr Haythornthwaite: That is very true, you are justcommunicated at a high level. They have yet to get topassing it through, but that is simply transferring the point of deeply influencing the behaviour of the

information rather than starting it again. departments and we would welcome any support thatyour Lordships could give us on that. Equally, wewill be very happy to support you on the

Q352 Chairman: We would then be informed, recommendations which come out. We will watchbecause we would be told in a paragraph, “This is with great interest anything that emerges from thiswhat we did and why this was the best way” and inquiry that is helping to reinforce the message oftherefore we would know that this had been explored better regulation.rather than it had not crossed anybody’s mind at all, Chairman: On that note, thank you very muchwhich of course is what we sometimes, in our evil indeed. We have enjoyed having your evidence, it has

been most helpful.way, suspect.

Memorandum submitted by The Cabinet Office on behalf of HM Government

Co-ordination

1. How is secondary legislation managed across and within Government departments? Who has overall responsibilitywithin each department? Who has co-ordinating responsibility across Government?

The Government does not believe it would be practical to have one Minister responsible for co-ordinatingsecondary legislation across Government. Individual Secretaries of State are responsible for all of theirDepartment’s legislation—primary and secondary.

Secondary legislation is an integral part of the policy making process. Following policy approval fromMinisters, oYcials work closely with departmental lawyers to draft the necessary secondary legislation.

Her Majesty’s Stationery OYce within the OYce of Public Sector Information oversee the arrangements forproduction and publication of all Statutory Instruments.



31 January 2006

In the context of the better regulation agenda, Departments are helped and advised on the development oftheir policy through training and guidance around the Regulatory Impact Assessment (RIA) process and theCode of Practice on consultation. The guidance on Common Commencement Dates includes guidance oneVective project management. This advice and training encourages eVective project management, and coverspolicies delivered by primary and secondary legislation and by non-legislative means.

Drafting—Policy

2. How do departments take decisions on the revision, laying and commencement of linked groups of statutoryinstruments? How is the scope of any individual instrument within a group decided? How is the user’s convenience takeninto account? Is the existing regulatory impact assessment process an effective way to ensure that secondary legislationis made in the least burdensome way?

Decisions on the revision, laying and commencement of linked groups of statutory instruments and the scopeof an individual instrument within a group are taken by the lawyer responsible for drafting the statutoryinstrument(s), in consultation with the policy division.

Factors taken into account might include the date by which the statutory instrument is required to come intoforce; what other legislative changes need to be made in relation to the same or related subject matter; theParliamentary procedures applicable to each instrument; how much advance notice has been given to thoseaVected; consideration of how best to manage a large programme of change in a particular area; and availableresources within the Department.

The Government endeavours to link related statutory instruments when appropriate. How this is done, andthe degree of co-ordination, will depend upon the circumstances.

In some cases, however, it may be easier and clearer for users if strands of amendments are kept separate (andgiven self-explanatory titles accordingly). It may also be helpful for transitional amendments to be put in aseparate instrument because of their relatively short life-span.

The Better Regulation Executive (BRE) promotes the use of Regulatory Impact Assessments (RIAs) for allpolicy changes. The RIA is a framework for analysis of the likely impacts of a policy change and the range ofoptions for implementing it—including “do nothing” and non-legislative options. It is a comprehensive andflexible tool that is central to the better regulation agenda. The Explanatory Note should say that an RIA isavailable, and where it can be obtained.

BRE continues to work with Departments to impove the quality of RIAs.

Best Practice

3. What are the Government’s mechanisms for distilling and promoting best practice in relation to the instruction,drafting, laying, revision and repeal of statutory instruments? How is best practice monitored and enforced?

The Government has produced the Statutory Instrument Practice manual which is issued by Her Majesty’sStationery OYce. This is principally intended for the use of civil servants and others concerned with thepreparation and making of statutory instruments and the parliamentary procedures relating to them.

This is supplemented by specific guidance on the Code of Practice on Consultation, preparation of RegulatoryImpact Assessments and Transposition Notes issued by the Better Regulation Executive and guidance fromthe Department for Trade and Industry Small Business Service on Common Commencement Dates.

Departmental Lawyers can access all of the guidance materials and legal advice on drafting and amendinglegislation through the Government Legal Service’s intranet website—Legal information online network(LION).

The Government Legal Service also provides extensive training programmes to departmental lawyers, dealingwith drafting skills generally and more specialist skills for example the implementation of European law.

Several Departments supplement this with their own internal guidance and training on the preparation ofstatutory instruments.

All of these tools promote best practice and good project management across Departments in the managementof secondary legislation.



31 January 2006

Drafting—Who

4. Who instructs the drafting of statutory instruments? Who drafts them and within what guidelines? Are there cross-government drafting standards?

Statutory Instruments are normally drafted by departmental lawyers based on instructions from policydivisions.

They are drafted according to the available guidance and best practice as outlined in the previous point.

Correction

5. Why are so many correcting instruments required? What are the repercussions in a department if a correction isrequired? Is there a process of inquiry about why a correction was needed?

The Government endeavours to keep the number of correcting instruments to a minimum. We naturally regretthe inconvenience for users and for Parliament when one is required.

In session 2003–04, from 22 March to 18 November 2005, the total number of corrected reprints for allDepartments was 30 out of a total of 568 negative instruments. The figures for 2004–05 were 28 out of 531.In both cases a total of approximately 5 per cent. Although regrettable the Government does not consider thatthis indicates a serious problem.

Corrections may be required to deal with mistakes in drafting or in the printing process. The statutoryinstrument drafting process is technical and diYcult. Every eVort is taken to minimise drafting errors by acareful checking process. But it is inevitable that some errors will arise. When an error is found, the reasonsfor the error are investigated thoroughly and action taken to prevent a recurrence. OYcials are required toprovide Ministers with an explanation for the error and the need to make corrections.

Any correction to an instrument, either by way of the issue of a corrected reprint or a correction slip has tobe approved by the SI Registrar within Her Majesty’s Stationery OYce.

Consolidation

6. How do departments take decisions on the consolidation of statutory instruments; how will consolidation be promotedin future?

The decision to consolidate statutory instruments is always treated on its merits.

A key consideration should be the convenience and ease of comprehension of users.

The Government agree that in some cases consolidation is appropriate and helpful to the reader. However, itshould be recognised that it would be impractical in the case of lengthy statutory instruments, or statutoryinstrument which are amended frequently. In such cases, the benefit to the reader may be disproportionate tothe extra cost which the reader would incur by buying a longer consolidated statutory instrument each timeit was amended.

The Government believes that consolidation can make a contribution to the better regulation agenda and thatsignificant gains can be made from good consolidation work. However, consolidation does have resourceimplications for Departments which must be taken into account before any decision is made.

The Better Regulation Executive is already working with departments to map and measure regulations thatimpose administrative burdens on businesses and other stakeholders and coordinating the development ofdepartmental simplification plans, which will include measures to consolidate and rationalise regulation. Theproposed Regulatory Reform Bill will also help with the consolidation and simplification of legislation.



31 January 2006

Timetabling—Peaks and Troughs in Laying

7. Why are there peaks and troughs in the laying of secondary legislation? How can these be ameliorated to facilitateproper scrutiny?

The Government is aware that peaks exist in the laying of secondary legislation. The Government iscommitted to ensuring Parliament has an opportunity to scrutinise all of its legislative proposals.

The policy formulation, consultation, drafting and preparation of a statutory instrument is undertaken overseveral months, in some cases over a year, prior to the statutory instrument being laid before Parliament. Inthe preparation of a statutory instrument Departments are working towards a coming into force date and awork timetable is prepared based on that.

Departments make every eVort to fit this timetable within the Parliamentary calendar, to take account of theneed for Parliamentary scrutiny and approval. However, significant changes in proposals, further consultationand redrafting can have a significant impact on this timetable. The knock-on eVect can result in “bunching”prior to recess dates as Departments ensure that Parliament is aware of proposals.

Outside events can also have an impact on a Department’s timetable. For example, if changes to legislationneed to be enacted urgently, if a General Election is called or if the Parliamentary calendar is revised.

Commencement—Common Dates

8. We are keen to avoid the bulk laying of statutory instruments in the run up to each common commencement date.How will departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny?Are departments developing annual statements on proposed regulation?

The Department for Trade and Industry’s Small Business Service issues guidance on CommonCommencement Dates.

Under this guidance Departments are required to prepare an annual statement, which is issued in January,listing regulations expected to be commenced on the following 6 April and 1 October. This approach is alreadybeing applied to some areas on legislation, and will be progressively extended across all areas of domesticregulation.

Section 12 of the guidance clearly sets out how Common Commencement Dates should operate with thestatutory instrument process. It clearly states that Departments must allow time for Parliamentary scrutiny.In particular it states that, “Working to a CCD timetable does not prevent you from laying instrumentsthroughout the year, thereby allowing time for parliamentary scrutiny and, if appropriate debate, well inadvance of commencement”1. The guidance also states that departments should avoid laying just before the21 day minimum period before commencement.

Commencement—21 Day Rule

9. How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comesinto force? Should the period be lengthened?

The Government believes that the 21 day rule is well observed.

Departments should ensure that they fulfil the requirement to lay an instrument at least 21 days before theinstrument is due to come into force. However, the Government accepts that some instruments must takeeVect at shorter notice, but subject to that, the rule should be strictly observed.

Where instruments are required to be brought into force at shorter notice Departments must provideParliament with an explanation as to why the instrument could not have been made and laid sooner and whyit had to come into eVect on the day specified.

An updated version of the Statutory Instrument Practice manual will be published shortly. This will emphasizethat 21 days is the minimum time period between the laying and coming into force of an instrument and thatDepartments should, wherever possible, provide longer lead times between laying and commencement.

The Government does not believe the period should be lengthened, as this would be likely to result in greaterpressure to break the rule.1 Page 6, Common Commencement Dates: Guidance for Co-ordinators and OYcials.



31 January 2006

Consultation

10. How well observed is the code of practice on consultation? How can the results be best presented in ExplanatoryMemoranda? How do the Government coordinate consultations with shared stakeholders, so that they are notoverburdened? What changes could be made to the consultation process so as to lead to better secondary legislation?

In 2004, compliance with the 12 week consultation period was 76 per cent, if the Departments and agenciesreporting for the first time in 2004 are taken into account (eg DFID, Planning Inspectorate and RuralPayments Agency). Compliance rates remained at 77 per cent for those Departments and agencies whoreported in both 2003 and 2004.

The Better Regulation Executive (BRE) supports a network of consultation co-ordinators to help supportinformal and formal consultation. A key role of the consultation co-ordinator network is to promote, wherepossible, “joined-up consultation”, in order to reduce overlap with consultations being carried out by otherDepartments and agencies. This means liaising eVectively with policy oYcials to make sure that they haveinvestigated whether other Departments have, or are about to, consult on a similar topic.

The guidance on consultation issued by the BRE is aimed at both Consultation Coordinators—who advisepolicy oYcials—and those making policy. It advises on who should be consulted and when. It explains howto analyse consultation responses and build consensus. It also notes the importance of identifying the mostfrequently expressed views for each question in the consultation document, with weight being aVorded to theresponses that have a sound evidence base. The guidance suggests that particular attention may need to begiven to key representative bodies, such as sizeable business associations and trade unions and that thosecoordinating responses should understand who the diVerent bodies represent and the methodology used togain members’ input into the response. The guidance was recently revised to strengthen these messages.

The Cabinet OYce annual report on consultation includes a section on “lessons learned” with the aim ofdriving up the standard of future consultations. BRE will continue to work with the consultation co-ordinators’ network to ensure consultation best practice is embedded in the policy-making process to improvethe quality of upcoming legislation.

The Government recognises the importance of setting out the results of any consultation exercise which hasbeen undertaken prior to the production of an instrument, and it believes that the present arrangements forinclusion of this information within Explanatory Memoranda fulfils that requirement. The presentarrangements are set out in the existing guidance to departments on preparing Explanatory Memoranda andwhich took account of previous comments by the Committee.

Users and Impact

11. What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone inGovernment (or in the sectors affected) monitor the collective impact of regulations on eg small businesses or localauthorities?

On the method of making secondary legislation users concerns include that in developing secondary legislationGovernment fully consult them on and take account of their views; consider the cost of any amending or newlaws; allow them adequate time to implement the changes; issue eVective and targeted guidance oncompliance. Users would also expect that Government would respond quickly to any identified problems withlegislation which are causing them diYculties.

As part of the Government’s commitment to better regulation, the Small Business Service in the Departmentfor Trade and Industry has set up the Small Firms Consultation Database. This database provides a crosssector and an all region snap-shot of small and medium enterprises in the UK. Through this Whitehall policyoYcials can seek the views of small businesses at an early stage of policy making when undertaking the SmallFirms Impact Test, which is an integral part of the Regulatory Impact Assessment process. The database hasalso been called upon to provide challenge panels, steering groups and participants at review workshops tolook at issues for example, the Hampton Review.

ODPM also works across government to enhance local flexibility in shaping regulations which will impact onlocal government. They are working across Government and with local authorities (as part of work with themlocal area agreements) to reduce bureaucratic burdens. The cost to local authorities of implementingregulations is set out in Regulatory Impact Assessments and the adequacy of funding is scrutinised as part ofestablished arrangements for dealing with new burdens on local government.



31 January 2006

As an integral part of the better regulation agenda, Departments are currently pulling together simplificationplans which will be published by the 2006 Pre-Budget Report. The plans will identify measures forsimplification and to reduce administrative burden reductions. This is being informed by a measurementexercise that is determining the current administrative burdens Government places on the private andvoluntary sector.

The Government also recognises that it is worthwhile doing further research into regulatory budgets as theymight provide a usefully comprehensive overview of all regulatory costs. Building on the work to measureadministrative burdens, the Better Regulation Executive will therefore do more research into developing thefundamental elements of a methodology for assessing the total cumulative cost of regulation. This researchwill be conducted over the next two years and subsequent consideration will be given to the benefits andfeasibility of establishing regulatory budgets.

In addition, work taking place following the Hampton Review is seeking to make the enforcement ofregulations more proportionate to risk, and encourage regulators to be more open and give more advice. Theseare areas where small businesses, in particular, stand to benefit.


12. The Government are committed to implementing in full the recommendations of the March 2005 report from theBetter Regulation Task Force (BRTF), Less is More? What differences to secondary legislation should Parliamentand users expect to see as a result and by when?

By accepting all eight recommendations of Less is More, the Government has defined the better regulationagenda for the next two to three years. Progress is already underway to achieve structural, policy and culturalchanges to secure a rebalancing between regulation and deregulation. For example, departments are currentlypulling together simplification plans which will be published by the 2006 Pre-Budget Report.

Simplification plans will identify legislation for simplification and administrative burden reduction. The BetterRegulation Executive expects a considerable proportion of the proposals in the plans to be implementedwithin the lifetime of this Parliament.

Departments will continue to work closely with stakeholders throughout the development of plans and theirimplementation so that stakeholders understand the timetable for delivery.

14 December 2005

Letter from Jim Murphy MP, Cabinet Office

The Cabinet OYce does not have a co-ordinating role in the management of secondary legislation. Ministersin the Cabinet OYce are only responsible for secondary legislation laid by this Department before Parliament.

Her Majesty’s Stationery OYce (HMSO) operating from within the OYce of Public Sector Information is partof the Cabinet OYce and is responsible for the Statutory Instrument Practice manual to which all departmentsshould adhere. HMSO also has a number of statutory duties in relation to statutory instruments which includethe registration and numbering of all statutory instruments and their subsequent printing and publication.

The Better Regulation Executive (BRE) as part of the Cabinet OYce is responsible for driving forward thebetter regulation agenda across Whitehall. The BRE issues specific guidance to Departments on RegulatoryImpact Assessments, the Consultation Code of Practice, and preparation of Transposition Notes. These helpto inform Departments’ approach to secondary legislation.

I am aware that in the course of its inquiry the Committee has already taken oral evidence from oYcials fromHMSO and BRE. l am of course happy to discuss further any of the issues which arose from those sessions.

I hope that this brief overview of the Cabinet OYce’s responsibilities in respect of secondary legislation ishelpful. I would be happy to discuss with the Committee in the New Year the areas for which the CabinetOYce has responsibility.

14 December 2005



31 January 2006


Witness: Mr Jim Murphy, a Member of the House of Commons, Minister for the Cabinet Office, examined.

Q355 Chairman: Thank you very much for coming common cause and a common purpose in respect ofbetter regulation, and to my surprise for the twoto join us. You may have had the chance to see some

of our previous evidence and I would hope that you hours or so of giving evidence that was absolutely thecase, and we have built quite a strong relationshipwill see, whilst the terms of reference of the

Committee were not the same as the objectives of the since then. That was in December. So I am really keento work in partnership, and the Cabinet OYce is veryGovernment on Better Regulation, (clearly they are

not), nevertheless the objective of the Committee is to keen to try and achieve this. Where we havementioned some of the specifics I hope we will gettry to ensure there is good secondary legislation made

and that secondary legislation is hopefully only made there, but nevertheless work in partnership to seewhere we can advance the cause of better regulationwhen it is necessary for it to be made and not

otherwise. So potentially the Committee may across government. In respect of the BRE’s role, theBetter Regulation Executive of course is absolutelyactually be a support to you in your role. This is

probably the only time you will have heard this said crucial to the delivery of our really quite ambitiousplans for better regulation, but the way in which theywhen you come before a Committee of either House.

I wanted to make that as perhaps an opening are currently configured and the remit they arecurrently given is largely about the regulatory impactcomment. Let me then focus on one area that we are

in a sense scratching our heads on. It is clear that of proposals, regardless of how the legislationdelivers those proposals, whether it is throughStatutory Instruments are the usual means by which

Government actually expresses its regulatory primary legislation, whether it is through SIs orwhatever. The fact is that the BRE was not createdendeavours. It is not the only means, but Statutory

Instruments are enormously important in terms of nor configured nor resourced to monitor or regulatethe internal processes within governmentputting into practice regulations from government,

and the cumulative eVect of them, as we know, is departments as to how they construct or compileStatutory Instruments. They are of course engaged inconsiderable and there is a wide debate about this.

You have seen from our remit that we look at these, analysing the outcome, the policy proposals whichcome from substantial SI proposals, but they are notwe look at the way in which they have been consulted

on, whether they are clear, whether the policy involved at that early stage in drafting andstructuring the SIs. That is largely because, as I say,objectives are transparent, whether they are an

eVective means of fulfilling their policy objectives, their job is about the impact of government proposalsas they aVect the regulatory framework for business,and we work away in our humble way in this

endeavour. What surprises us is that the BRE seems the public sector or the voluntary sector. If we were tochange that role of the BRE, there would be resourceto say that SIs are something separate from the Better

Regulation agenda, whereas to us they seem to be a implications because of the scale of the job involved,but my initial sense—and of course I am happy tovery important part of it. We are surprised because

we would have expected there to be quite a degree of have a conversation with your Lordships about this,and this is something we grapple with across theinterest by the BRE in the whole process by which the

Government makes these mountains of Statutory Better Regulation agenda—is how do we delivereVective change within government departments. Is itInstruments and that it would be keen to ensure they

were better done. Could you help us with this exclusively from an external challenge function? or isit from allowing departments to develop a structureconundrum?

Mr Murphy: First of all, can I thank you for the and culture which delivers the Better Regulationagenda which fits with the organisation of theiropportunity to come here today to give evidence. I

think I am right in saying I am the only Minister with department? It is our sense, at least for the moment,that we need to change the culture withinthat privilege.departments across government rather than give theBRE if you like that challenge function at that earlyQ356 Chairman: You are. You are the only Ministerstage. That is our assessment at the moment.from the Cabinet OYce as well.

Mr Murphy: Also to say that I do welcome the toneof your initial comments about working in Q357 Chairman: Thank you. As we were asking the

previous witness, we find it diYcult to understandpartnership and seeking to advance the BetterRegulation agenda. The only point where there is how the centre of government, by which I mean the

Cabinet OYce and the BRE for these purposes, willslight disagreement is that I had a similar experiencein the Regulatory Reform Select Committee in the know. Its guidance is issued for a purpose, but at

present it does not appear to us they have particularlyCommons, where entirely reasonably they started bysaying they were happy to work in partnership to a eVective ways of knowing whether its guidance is



31 January 2006 Mr Jim Murphy

guidance. That is really the challenge for us at thebeing observed or not, or very much accepted thatthey would wish to do anything about it if it were not. moment.I am being slightly unfair perhaps but there is aflavour of very much a hands-oV approach; in other

Q359 Lord Methuen: We had an early evidencewords the tone is, “It is up to departments”. It is upsession with HMSO, which is within the OYce ofto departments. We are not saying the centre shouldPublic Service Information, and its function seems tobe in charge of all SIs, that would be stupid. But Ibe very limited to providing guidance to departmentsthink we are arguing that somewhere there has to beon preparing and laying Statutory Instruments morea bit of a challenge function. What is being put to usthan anything else. Do you not think there would beis that we are that challenge function, which seems tobenefit in bringing the HMSO function within BREconfuse the executive and the legislature. Clearly, weand giving it a regulatory dimension? My personalare a challenge function but Government itself needsopinion, and it is not necessarily that of theto have the mechanisms to know what is going on andCommittee, is that it adds very little value to theto encourage, if I can use a polite word, those who areprocess.a bit slow about getting the plot to do so. Could I askMr Murphy: I referred in passing to this matter inyou to reflect on that, either now or later?earlier exchanges, but HMSO has this responsibilityMr Murphy: My initial response is that I do not knowto publish this substantial document here—Statutorythe specific evidence you have already heard thisInstrument Practice—and a decision could be takenafternoon of course, but certainly it is our sense thatwithin government of course that the BRE wouldfrom the Secretary of State down there needs to behave responsibility for this but, without reiteratingclear leadership given as to the way in whichthe similar points mentioned earlier, there are clearlydepartments really should meet the challenges of thisfinancial and resource implications for the BRE, andmuch more ambitious Better Regulation agendait is also about the core role of the Better Regulationwhich has been set from the Prime Minister and theExecutive. As I say, the BRE’s responsibilityentire Cabinet. In the sense of the guidance weprimarily is about analysing and challenging thepublish I will look at this again, but the Cabinetregulatory eVect and impact of a policy proposalOYce publishes over a hundred or so diVerent sets ofrather than oVering guidance internally in terms ofguidance—I think it is about 120 or so from 15 or 16the structuring, the page numbering, the layout, thediVerent managing units within the Cabinet oYce—headings, the structure of the text, which HMSOand really perhaps I should provide additionalcurrently fulfils. So it is something which should beevidence to the Committee and additionaldone but it is a significant change in the BRE’sinformation as to where that list is. We do not, if youresponsibility and it has a significant impact onlike, enforce that guidance in very many of thoseresources. I look forward to the conclusions andcases if indeed at all, particularly when it comes to therecommendations the Committee produces but I amstructures and protocols within how departmentsnot sure what it would add in addition to whatrelate to the business community, the voluntaryHMSO already does. If your Lordships havesector or indeed to Parliament. If you wish, I wouldconcerns about the way in which this document iswillingly provide that list of all the diVerentstructured and are concerned that it does not reflectconsultations and whether we do provide an externalthe Better Regulation agenda, I would happily invitechallenge function.oYcials from the BRE and HMSO to discuss the wayin which this document could be improved. As an

Q358 Chairman: I am not sure we need to see all the initial response to the question, I would not beother guidance, but the question is essentially—how inclined to suggest the BRE should takedoes one ensure that change comes about unless there responsibility for the production of this document. Iis some process of bringing, if only in the most will ask if that would be appropriate, if yourfocused way, those to account who are clearly not Lordships would think it would be helpful, I willdoing what it is the Government’s wish they do? certainly ask the BRE oYcials to have a conversationMr Murphy: The sense would be that we publish the with HMSO to see if there are ways in which thisguidance, we then publish publicly the league tables document can better reflect the Better Regulationof the departments’ adherence to those various agenda.targets and guidance, and then it is for—and I amsure your Lordship almost predicted my response

Q360 Lord Methuen: On the same theme, we notewhen you said it is for Parliament and Governmentthe lead in providing guidance to departments oncollectively—Secretaries of State within their ownCommon Commencement Dates lies with the DTI’sdepartments to challenge why it is as a department

they have signed up to a set of guidance on which they Small Business Service. As this is essentially aregulatory function, would it not make sense to bringare consulted but yet in terms of the league tables

have not fulfilled their responsibilities within that this within the BRE’s scope?




providing a challenge function with his links toMr Murphy: Again, this is not a matter where thereis a dogmatic response. It is simply that a very business. Without being party political, successive

governments have tried to address the Bettersubstantial number of Statutory Instruments, andsuch a substantial burden which is created by SIs, Regulation agenda with varying degrees of success.

We have appointed very senior people to importantfalls upon small businesses, that at the moment wefeel that would be the most appropriate place for it to posts and the expectation is that that leadership at a

senior level will impact on leadership withinbe. Again, to give the responsibility to the BREwould stretch its current formal responsibility, but if departments and change the culture within

departments. The culture attaches as much kudosyour Lordships feel that is a substantial change whichwould improve the regulatory regime, I would and credit to the Better Regulation and Deregulation

agenda as it currently does to the new regulationcertainly welcome listening to the recommendationsfrom it. At the moment, based on the fact the Small agenda. This is not on any script but in the time I have

been in the Cabinet OYce, as I listen to businessBusiness Service currently has that responsibilitybecause of the impact on small businesses, that is people around the country and talk to Government

ministers, quite rightly, there is a lot of eVort put intowhere we feel it naturally fits at the moment.implementing new regulations so that they areimplemented eVectively and wisely. It is sometimes

Q361 Lord Armstrong of Ilminster: You said that seen as a career advancement within the Civil Serviceyou provide guidance to departments on good to be on a Bill team. As yet, we are not in a positionregulation but that you have no authority to police whereby being responsible for lightening thethe system and that you were looking to Parliament regulatory burden is in any way considered to be ofto do that. Whether Parliament can adequately do equal validity or importance. That is a reflection ofthat is open to question. It would involve rejecting the culture within departments. If we have to changesecondary legislation and very often statutory the culture, emblematic of that culture would be thelegislation. Very often, it reaches us very late in the way, first of all, ministers and political parties say,day to do that. Unless we are going to get a better, “Vote for me. We have some very substantial ideas tomore even flow, I think it will be very diYcult. It remove regulatory burdens”; and secondly within thewould be better, rather than wait for Parliament to machinery of government proper priority should bepick things up, if there was some way of doing it given to simplification proposals as well as newwithin the Government’s system. I wondered how far recommendations. We feel that is a culture changeyou call departments to account for their rather than a central policing of that change ofperformance in carrying out the guidance. Clearly, culture. The guidance is important. The publishing ofthey have to manage it day to day themselves. But is league tables is important. At the moment, we are nota more robust arrangement for coordinating what is convinced as to the eVectiveness of a central policingdone, policed by the Cabinet OYce, possible? delivering the improvements that we all wish to see.Mr Murphy: In terms of the extent to whichdepartments are challenged collectively by the

Q362 Lord Armstrong of Ilminster: Drawing on mygovernment, the Panel for Regulatoryown experience from a long time ago, I would haveAccountability chaired by the Prime Minister in myfelt that, if you could get Ministers and Permanentexperience provides a very robust challenge functionSecretaries in each department actively on your side,on policy proposals and regulatory proposals acrossyou would achieve a great deal in cultural changegovernment. In respect of the specifics of individualquite quickly. I do not know what is being done nowSIs, the management and policing, our sense is thatbut if the Prime Minister were to put some emphasiseach department has such a myriad of responsibilitieson that as one of the things he expected Ministers andwhich have evolved through time, mostly for goodPermanent Secretaries to do, that might be onereasons. They execute and are responsible for such ameans to a quite quick cultural change.range of policies and regulations that to have eVective

policing of this from the centre would be remarkable Mr Murphy: In my experience, there is nothing tofocus the mind so much as the Prime Ministerin terms of resources, people and time. We await the

outcome and recommendations from the Committee chairing a committee in which Secretaries of Statehave to present new policy proposals and where theto identify how this could happen but, as yet, without

any convincing evidence that it would have the Prime Minister is challenging the impact on theregulatory agenda. That is one lever. We have to findimpact that we all wish to see—that the departments

adhere to the guidance and the Government additional ways in which we can change cultureswithin departments. It is about engaging Permanentregulation agenda is delivered across government—

our preference is setting an example from a very Secretaries, as you rightly say. Some of that is alreadyhappening. William Sargent is doing that work assenior level with the Prime Minister chairing the

Panel for Regulatory Accountability and William well and he has to report directly to the PrimeMinister. I think the Prime Minister announced thatSargent—who I think you have had evidence from—




Mr Murphy: I have not yet found it a healthy careerat the CBI conference. If your Lordship’s Committeehas additional suggestions—I do not know if it is prospect to speculate on what is in the Primewithin the remit of the inquiry you are undertaking— Minister’s mind, particularly when every day heabout ways in which we can change the culture and suggests there should be a ministerial reshuZe. Thethe management of SIs, the Cabinet OYce would be Prime Minister has set the tone for this and givendelighted to hear how we can do that. substantially of his own time and energy in

establishing this new framework within government.It does provide the most senior challenge functionQ363 Lord TunnicliVe: You said culture change is apossible. I know from talking to fellow ministers thatgood idea. We all agree. You said you are not in theit is not an experience that other ministers lookpolicing business which is quite an eVective way offorward to if their department has not made a reallybringing about culture change. Do you have anyserious eVort to meet the challenges set by the BREspecific proposals or programmes to bring aboutand others. The BRE, in advance of the Primeculture change, because my experience of cultureMinister chairing these meetings and challenging thechanges is that they require an enormous amount ofBetter Regulation Executive and others, analyses theeVort and thinking through. It is not just the odd topproposals, and finalising the proposals is a reallymanager—if I can call the Prime Minister the odd topsubstantial piece of work. Departments have tomanager—making a speech; it is about processes andengage in that agenda to the Prime Minister’sprogrammes that go right the way through. Do yousatisfaction. When they do not, it would behave anything of that magnitude in mind?inappropriate to comment on specifics, but I canMr Murphy: One of the substantial vehicles for

delivering this change of culture is the Legislative and assure your Lordships that there is a robust dialogueRegulatory Reform Bill, which is currently expecting and the Prime Minister leaves Ministers under noa Second Reading on 9 February. One of the illusions as to the importance that he, the ChancellordiYculties is that simplification proposals or Law and the rest of the Cabinet attach to this agenda.Commission reports quite often are worthy in intentbut gather dust on shelves because we are not able to

Q365 Lord Jopling: Twice already since thisfind parliamentary slots for them. It has been diYcultCommittee was set up fairly recently, we have drawnto engender parity of esteem to the new regulationattention to the problem which comes to Parliamentand the Better Regulation culture when time is takenwhen instruments come in a rush. It is very diYcultup largely with new regulation. The Legislative andfor everybody. Years ago, I was one of theRegulatory Reform Bill is about providing aGovernment business managers and it was anframework whereby the simplification proposals onabsolute curse when, with a poor Statutorythe Better Regulation agenda can be delivered. As weInstrument, some measures had to be taken on thebegin to see that, of course with the willingness offloor to organise business at certain times of the year.both Houses, if that Bill becomes law, the expectationI wonder if I can tempt you to metaphorically jumpis that that will be the vehicle to deliver a substantialover the table and join us as parliamentarians ratheramount of Better Regulation simplificationthan as a Spokesman for the Executive. The situationproposals. As that happens, that would be anis still unsatisfactory and I am afraid your writtenimportant driver in the change of culture. At theevidence does not give us too much confidence thatmoment, there may be a sense in some departmentsthings can be made better. I wonder whether youthat we are willing to engage in the Better Regulationthink that, if we set our minds to it, we could makeagenda and suggest simplification proposals but, tothings better with regard to this uneven flood,be blunt, they do not expect to find a parliamentarypossibly by a self-regulating limit on the overallslot. If we create an alternative, fast—track means by

which these simplification proposals can be delivered, number of Statutory Instruments which Whitehallthat would be an eVective way to change the culture could submit in any one week. That does not mean aso that there is a purpose to it. Teams within legislative slot. It could be done with an informaldepartments will become responsible for driving that agreement. Do you not think that would encourageculture change because the departments themselves more active management and more centralknow there is an outcome to their eVorts. We expect coordination, which is something this Committeethat to be an important change, building upon the would very much like to see? What do you think we2001 Act but going substantially further. could do to stop these uneven flows being

inconvenient to everybody?Mr Murphy: As I understand it, the most significantQ364 Baroness Morgan of Drefelin: Relating back topeak is in advance of general elections being called,the comments about the Prime Minister chairing theparliamentary recesses and financial year ends. Somecommittee, I wonder what kind of awareness theof that is inevitable and unavoidable and, in respectPrime Minister might have of the volume of

secondary legislation that currently exists. of financial year ends, desirable.




benefit of seeing the grain of what individualQ366 Chairman: Most of the election part ispredictable. It does not mean to say that, because you departments were saying in response to the

Committee’s inquiries. We would not wish tohave to get things done by a due date, it all has to bedone at the last minute. contradict what we have originally said, but we

would find it very helpful indeed if you could allow usMr Murphy: Absolutely. Some are inevitable becauseof the calendar cycle and the political cycle in terms sight of what the individual departments have given

because the process is informed, often in very helpfulof elections. Otherwise, there is no reason acrossgovernment why there are these intermittent peaks ways, by hearing what departments have to say about

this agenda. There has been one department, whichand troughs. We would encourage departments tobehave in such a way that, outside the good reasons will be nameless, which we thought was very

impressive in the way it went about this wholewhich we have already rehearsed, avoids these peaksand troughs. agenda. It has been very valuable to have that on the

record. It would help us to get the flavour of theseother three, if that would be possible.Q367 Chairman: We can bring it to your attentionMr Murphy: As I understand it, it was thewhen we feel that they do not and you will try toDepartment for Constitutional AVairs, Transportredress it for us?and Work and Pensions. I will happily provide thatMr Murphy: We will encourage them to adhere to thecorrespondence to the Committee.guidance. If your Lordships have a specific in mind asViscount Eccles: You were talking aboutto which department, which time of year, we wouldstakeholders. Looked at it from our perspective,welcome what is said in any report that you submitwhen we get explanatory memoranda, it is quite anfor the Government’s consideration and response. Asinteresting challenge to work out what consultationyet, we do not have a central challenge function. Forhas taken place and what weight to give to diVerentexample, the 21 day rule. Sometimes departmentstypes of consultation. We tend to get a percentageneed guidance as to the maximum that they shouldsaying they are wholly in support and anotherdo, rather than the 21 days which is the minimum. Itpercentage saying they have some concerns. How docomes back to this idea about a Better Regulationyou see the whole business of consultation moving onculture within government departments.and, in particular, what about the citizen, the voter,because it seems to us that consultation with bodiesQ368 Lord Jopling: You said that there was not, asis something which is a more comfortable andyet, central control over the management ofrecognisable thing than trying to find out whatStatutory Instruments. Can I take it from those twoindividual citizens think.words that you feel, in conjunction with this

Committee, it might be a rather good thing if therewas? Q370 Chairman: Shall we leave that last part toMr Murphy: What I should have said was “at the Baroness Maddock? Do you want to focus on themoment” rather than “as yet”. What you can take first bit as to how you hope the consultation willfrom my comment would be that the Government improve?would prefer the peaks and troughs not to be Mr Murphy: There is guidance on the 12-weekattributed to the financial year end, summer recesses consultation. The phrase used in the code of practiceand general elections. Those are natural, but we is “bringing the consultation to the attention of allwould like to see departments operate in such a way interested parties.” It is always diYcult to identifythat they enable this Committee and others, who may be interested but departments, includingstakeholders and others, to have ample opportunity the Cabinet OYce when on occasion we haveto comment on their proposals. There are often good legislative proposals, do a scoping exercise as toreasons why proposals have to be brought forward which organisations, individuals and stakeholdersrelatively quickly but, under normal circumstances, would be likely to have a substantial interest in thewe would like to see a system whereby these peaks matter of dealing with a policy proposal. Do theyand troughs are the exception rather than the norm. always get it right? I have a sense that they do in most

cases. A pattern of disquiet about who has beenconsulted, the breadth of consultation and the natureQ369 Chairman: When we initiated the inquiry, we

asked three departments to give oral evidence. We of it has not been brought to my attention. It is thenature of all consultations that those organisationsinvited three others to give written evidence. We also

signalled in our original invitation that we were very or individuals whose opinions have been reflected inchanges or adjustments to government policy arehappy if that was pulled into one consolidated piece

of evidence, which is exactly what the Cabinet OYce always happier with the consultation than thosewhose opinions are not. I am not aware of a commondid. What we found from the evidence was that it was

essentially retelling the Cabinet OYce’s perspective complaint being raised about governmentdepartments, individually or collectively, failing toof what this was all about and did not give us the




understand that at the moment departments areconsult and making a very reasonable attempt toconsult with what are described as “interested expected to publish their consultation on their own

websites on the day on which the consultation starts.parties”.That is an important step forward. The issue then ishow do you drive internet traYc through thoseQ371 Chairman: One in four departments do notwebsites in such a way that there is a substantialabide by the 12 week period. That seemed to us to becitizen interaction with the consultation. There havevery high. Would you agree?been some good examples. In the Health White PaperMr Murphy: I do not want to comment about eachthere was a substantial attempt to engage citizens andand every one of them but they should all adhere topotential future patients on the content of it. Thatthe 12 week rule on consultation except inwas a significant step forward. There was criticismexceptional circumstances.from some of the media that this was unnecessary, awaste of money and ineVective. Nevertheless, theQ372 Chairman: One in four is not exceptional?Government has to continually find ways in which weMr Murphy: I welcome the analysis of yourcan empower individuals in public service reform, forLordship’s Committee as to what the one in four is. Iexample, at a time when we are looking tocould undertake to do research as to what proportionincreasingly personalise the delivery of publicof that is exceptional and what proportion is justservices. It is important that we allow individuals thebecause of human error. That is not acceptable.opportunity to feed into that process. My role is as anThere is an expectation that stakeholders and otherse-Government Minister, but I know that is not whyshould be consulted over a 12 week period. Thewe are here.Cabinet OYce did so in a Bill on Better Regulation

but there are some instances which we all interpret asQ374 Chairman: Do not take us there.exceptional—emergency measures, issues relating toMr Murphy: I will not. There are some very goodimmigration, disease control and others—where 12experiences coming from Canada about citizenweeks would not be appropriate. The response wouldengagement and public service restructuring andbe, “Why are we waiting 12 weeks to do this?” Thereform from the Canadian customer insight panels.normal circumstance would be that 12 weeks is theWe are committed to replicating a UK version of thatminimum. If your Lordships wish to oVer an analysisso that there is direct input from the citizen, not onlyof departments which do not adhere for reasonson consultation but on the restructuring of our publicother than exceptional reasons, I am happy toservices. There is an enormous opportunity aVordedrespond.to us with the use of technology but of course thereare some who do not use technology. We have to findQ373 Baroness Maddock: We know that originallyadditional ways to reach those harder–to-reachthe emphasis was on consulting businesses and othergroups. The Home OYce did something quiteorganisations about better regulation. It has beenchallenging in respect of the consultation onextended to major charities and other voluntaryprostitution. That was criticised in the media butbodies. There are quite a lot of things that aVectnevertheless it was a genuine attempt to have aordinary people, rather than people who are signedmeaningful dialogue with a harder-to-reach groupup to any special interest group. Sitting here, thinkingwhose voices are rarely heard within Governmentabout one or two of them, one that comes to mind iscircles.one that came before this Committee where we, as

individual citizens, suddenly discovered that ourresponsibility for getting rid of our waste was quite Q375 Chairman: I should correct the record. I said

‘one in four departments’ failed to meet the 12 weeks.diVerent from what we thought. We had noinformation about this. That is just one of them. It is ‘one in four consultations’. Could I put before

you what we have heard from David Arculus and theThere is a rather bigger one where there has been a lotof discussion amongst interest groups, something DTI? They talked to us about consultation on SIs.

They were saying that if you consult on the SI itself,that came out of the last Housing Bill, which is homeinformation packs and how they are going to happen. it is too late. You have to consult much before that,

eVectively with expert groups of people who will beIt is not the individual people who are going to beaVected by it who have been asked; it tends to be aVected by this. If you have a discussion with them

about the policy objective, they will often identifyinterest groups. I wonder if you have any ideas abouthow we can do better on consulting individual people better means to get towards the policy objective,

which may not require an SI or, if it did require an SI,about these matters rather than special interestgroups. might lead to a better SI. We are very interested in

this and we are reflective as to whether one wayMr Murphy: One of the great opportunities that wehave is the development of technology, the ability of would be if government departments put in their

explanatory memoranda what they had done tothe internet, e-mail, even text messaging. I




Q378 Viscount Colville of Culross: We wouldconsult in this way before they did the consultationwelcome it enormously. Is there any take-up of theon the detail of the SI, which of course you need asrecommendation of Less is More that you are able towell. Do you have a view?tell us about, because we keep on being told by theMr Murphy: In terms of substantial primarydepartments that we see that they do not have thelegislation proposals, there is recent experienceresources. It does not need much in the way ofwhereby stakeholder engagement consultationresources.discussion and disagreement has strengthened theMr Murphy: The substantial area of progress tocontent of proposals. For example, only last week thereport is that, in line with our public commitments,government published—every government department will have to comebefore the Cabinet Sub-Committee with their

Q376 Chairman: We are on the same side about that; substantial simplification plans. The DTI, DEFRAit is really whether you agree with us that this might and the HSE have come forward already. Those arebe one way of encouraging people towards voting. publicly available documents. Those are developed inMr Murphy: Yes. It is an approach that should be consultation with stakeholders, as you would expect,

but also with the BRE providing a challengecommended.function, trying to quantify the administrativeimpact and the fiscal impact of the simplification

Q377 Viscount Colville of Culross: “Consolidation” plans, so that they do what they say on the tin. If I amis not a popular word in parliamentary circles. It does wrong in saying this I will provide clarification, but Inot have the option of a slot. In terms of Statutory understand that by November of this year everyInstruments, it does not require slots at all. You department will have to have been through thatremember that the Less is More report accepted that process.there should be a rolling programme and, on theother hand, we have been told by some departments

Q379 Earl of Northesk: You referred earlier to thethat they do not have the resources to do it. I do not21-day rule. We have noted so far this session that

understand this because you will have the same something like one in 10 Statutory Instruments failsparliamentary experience as the rest of us. When you to comply with this. Even allowing for exceptionalget a Bill or a Statutory Instrument, it is always occasions when breaching the 21-day rule may bedrafted nowadays by terms of cross reference because appropriate, we feel, I suspect, that that number isthat is the way the Westminster system works. The too many. Do you have any views about how toStatutory Instruments very much fall into that improve this level of performance? Viewed morecategory. Somebody somewhere must have set out widely, do you feel that there is a case for extendingthe text of what it used to be and what it will be when the 21-day laying period, not only to allow morewe have made the amendments we are proposing to eVective parliamentary scrutiny but also to align theput in, so that you can see whether it hangs together. laying period with the 40-day praying period? WouldThat is all consolidation consists of and I imagine, in that not be quite sensible?the light of what you said about the IT revolution, Mr Murphy: The 21-day rule is the minimum. Somethis is done by somebody in the department every departments on occasion see it as the actual day ontime one of these Statutory Instruments is produced. which it has to be done. If they miss it by a day, theyYet, it comes out as a collection of changing what was miss it by a day. Most departments however do takein paragraph one or three or something in whatever it very seriously. There is senior leadership providedregulation, and it is incomprehensible. I am not to make sure they hit the 21-day minimum target. Isuggesting it should happen every single time but fear it comes back to this point about embedding thesurely it is a highly desirable system that we should culture of better regulation across government. I am

not in any way seeking to make a party politicalstart to get on the move, to try and publish thepoint. Each government has its own approach toconsolidated text so that people can understand anddelivering its agendas with varying degrees of successsee what they are meant to be doing—and,but there is a substantial, multi-faceted drive onincidentally, so that the people who are producing ittrying to embed this Better Regulation agenda intosee that they have not made a lot of mistakes. Is thatthe culture of Whitehall and into the culture of localnot a sensible idea?government.Mr Murphy: It does not sound an unreasonable

suggestion. I am not party to the detail of youranalysis in respect of the experience of Q380 Chairman: Could we, almost teasing you,incomprehension and lack of detail but I accept the suggest that some of this is just straightforward bettergeneral point that the use of technology reinforces management? It just requires this issue to be treatedthat opportunity to compare the drafts and so on. I seriously up the departments’ hierarchy and for them

to believe that they do not want to breach these rules.think it would be sensible.




not suggesting the UK goes from 12 to eight, but thereI am advised that there have been 110 breaches of the21-day rule in 2005. 79 of those were less than 10 days. may be an argument for extending the eight. We are

trying to encourage business organisations and othersThere will be some exceptionally urgent reasons but itseems to us that those departments that own this at in the UK, when they have anxieties about an EU

proposal, to go through their trade organisations,senior level will not behave in this way.Mr Murphy: I have a list of some of the 21-day their EU-wide bodies, so that their voice is heard with

the Commission. Quite often, stakeholders andbreaches in 2005.businesses come to the UK government. Of course wewill take up that agenda on their behalf, where we can,Q381 Chairman: You do not need to give us those.but it is also trying to get departments to directMr Murphy: There are exceptions and there are goodstakeholders and those who have concerns to goreasons. I am not aware of the Joint Committee onstraight to their parent or trade organisations.Statutory Instruments raising this as a matter of

concern. If this Committee wishes to make thatrecommendation, we are ready to respond. Q383 Lord Jopling: One thing that this CommitteeEarl of Northesk: This gets to the heart of peaks and has been told about is the existence of gold plating.troughs in some respects, and indeed the issue of I wonder if you share our concerns and whetherparliamentary scrutiny. If we are going to end up with you think there is anything we could do tobetter regulation, it is quite important that the process avoid departments unnecessarily gold-plating EUof scrutiny—ie, the 21-day rule—is adhered to. directives.

Mr Murphy: One of the significant things that hasQ382 Chairman: Turning to the EU, I am told—I happened is that the BRE rightly is now challengingcannot recollect my source—that approximately 69 departments where the BRE assesses that there is evenper cent of all Statutory Instruments originate in law an element of gold plating of directives. I havemade in Europe. One of the issues that has exercised experience in Cabinet sub-committees where that hasus is that, by the time an SI is made as a result of a been very eVective. As we move much more towardsdirective or regulation, there is very little indeed that the risk-based approach to better regulation, where aParliament can do about it. We have previously department seeks to go further than the minimum andwritten to our own EU scrutiny committee drawing gold-plate, it has to be for exceptional reasons and itattention to this fact, saying it seemed to us to make it has to be accompanied by a rigorous impactthat much more important that departments assessment that identifies the perceived benefits butconsulted with those aVected in the UK about a also the administrative and fiscal burdens that it placespotential directive or regulation before it was agreed. upon the business, voluntary or public sector. We areThat is not normally what happens. I speak as a culprit making renewed eVorts on this. There could be somein that respect. One is so busy trying to get the thing debate as to the extent to which gold-plating alreadythrough or agreed. We recently saw an example where exists in the UK. That is sometimes a party politicalit had been done. I cannot remember which debate, but nevertheless we are taking it very seriouslydepartment but it was on the EU procurement rules. across the EU and within government.We were pleased to see this at our last meeting becauseit was where the department consulted those aVected

Q384 Lord Jopling: I wonder if we could see whateverby this very substantial directive or regulation beforeguidance there is to departments on this issue. It mightMinisters signed up to it. That led to better law—also be helpful if we could have what the Governmentmaking, we believe. Should this not be, if onlyperception is of a definition of gold-plating. Forselectively, much more common practice?example, last week we had a debate on the floor hereMr Murphy: It should be more common practice onabout artists’ resale rights, where there was aissues of substance and significance. At the heart ofCommission directive which the Government foughtour EU presidency, we set a Better Regulation agenda.like cats against. The European directive said thatThere was some progress made. Importantly, that hasthese payments became due on sales of works of art tonow been taken up as part of the sixth presidencythe value of 3,000 euros. The Government decided toinitiative. The Commission, who in the past quitereduce it to 1,000 euros, having opposed the wholerightly have been criticised, seem substantially moreconcept. When, on the floor, virtually everybody whocomfortable and proactive on this agenda than theyspoke accused the government of gold-plating, thehave been in the past. You are right in yourMinister got up and said, “It is not gold-plating at all.”observation that this should be more commonplace.The same thing happened today on the floor. ThereOne of the issues is that, as I understand it, the periodwas an accusation of gold-plating and the Ministerof consultation is eight weeks rather than 12 in the UKsaid, “No, it is not.” It would be helpful to know whatguidance. That could be extended because it seemsthe directive to departments is and also what theunusual that there is an eight week time slot for EU

consultation and it is 12 weeks here in the UK. I am government’s definition of gold plating is.




Lord Armstrong of Ilminster: What you are doing isMr Murphy: I will follow up that question with asmuch detail as possible. I have a whole page on artists’ making the law, so that there could be quite serious

importance given to more trivial pieces of legislation.resale rights but I think it would be inappropriate toswap facts and figures on it.

Q387 Baroness Morgan of Drefelin: I was thinkingabout the work of this Committee. I am relatively newQ385 Lord TunnicliVe: We get 1,000-plus Statutoryto this Committee and I have found the level ofInstruments a year. The only things that make themexperience and expertise that sits round this table quitedo-able are the explanatory memoranda. They are, inbreathtaking. The Committee are very committed tomy view, improving but their quality is extraordinarilythe Better Regulation agenda and it would be veryvariable from absolutely superb documents to othershelpful for us to know if there is anything that youwhere you have to ask question after question to get tothink would be helpful for this Committee tothe bottom of them. One department told us that theycontribute. Is there anything else that you would likewere using a second or third pair of eyes to scrutinise.to see going into this inquiry or any final thoughts thatIs this a practice you endorse and, probably morewould be useful for us to understand and include inimportantly, is it a practice you should promote?our deliberations?Mr Murphy: Part of the role of the Cabinet OYce is toMr Murphy: I agree with you in terms of the make-upprovide central guidance and then share best practice.of the Committee. I was given over the weekend theOnce we have a chance to read the evidence, providedCVs of everyone on the Committee. There is a naturalthere are examples of best practice coming forward,synergy about where the Cabinet OYce wishes to getwe have no hesitation in sharing that best practice withto. We may have disagreement about how we get thereother government departments. The brief answerbut, in terms of the Better Regulation agenda acrossis—yes.government, much of Parliament’s time is dedicated togenerating new regulation. Within the parliamentary

Q386 Lord Methuen: We are talking about errors in structure there are very few committees whoseStatutory Instruments. About one in 20 errors are purpose it is to further the Better Regulation agenda.correcting errors in earlier Statutory Instruments. You I am happy as Cabinet OYce Minister to find commonsuggest in your written evidence that you do not cause with each and every one of those committees ifregard this as a serious problem but it results in wasted we can advance the pace of the Better Regulationdepartmental and parliamentary time. Also, you have agenda and embed the culture of better regulationto print these things and they are issued free of charge. within government. I fully expect this Committee toWould you comment? make some challenging recommendations. I wouldMr Murphy: The figures that I have are that 95 per hope that the Committee would acknowledge that thecent are error free. We have to ensure that the drafting, Government might not agree with all the specificstructuring, layout, legal advice and everything recommendations but I would like to see that as anelse that goes into the technical creation of an SI is area of disagreement about tactics rather than aim.going have senior importance within individual Beyond your report, I would be interested to see ifdepartments. I do not wish to comment as to which there are ways in which we can deliver on thedepartments that may not happen in. Generally, it is simplification plans in an eVective way. We have saidour view in the Cabinet OYce that talented and very publicly that the business, voluntary and publiccapable of people appropriately managed should be sectors have heard some of this rhetoric before frominvolved in the drafting of these SIs. In at least 95 per this Government and previous Governments. By thecent of cases that is true. There will be occasional end of this year, those with an interest in the deliveryhuman error. We all accept that. Government of Better Regulation, if they have not looked beyonddepartments have responded to comments made by the rhetoric in a meaningful, tangible way, intothis Committee and others about drafting errors. We delivery, there would be a high degree of cynicism andhave to find ways of minimising the 5 per cent of we are going to be judged on what we deliver rathererrors, but we all know they are often very technical. than on what we say we are going to deliver. If thereIf there are individual departments where the error are areas where we can work together, beyond thislevel is larger, then it is a human resource issue and it inquiry, I would be very happy and enthusiastic tocomes back to the culture issue within that do so.department. I am not aware of the Joint Committee in Chairman: Can we thank you very much indeed forthis House saying that the current error level is your evidence. We have taken a lot of your time. Weunacceptable but we have to continue to find ways of look forward to writing our report and we lookimproving the error free level from 95 per cent much forward to seeing an optimistic lead and a positive

Government response.closer to the 100 per cent.



31 January 2006

Supplementary letter from Jim Murphy MP, Cabinet Office

At the beginning of the session you queried the level of interest by the Better Regulation Executive in theprocess by which the Government makes Statutory Instruments and in ensuring that this was improved upon.

The better regulation agenda aims to reduce bureaucracy for business and for front-line staV in the publicsector—to improve productivity and competitiveness, and to deliver better public services. The betterregulation agenda’s focus is on achieving these outcomes rather than ensuring strict compliance with process.The Better Regulation Executive is responsible for taking forward reforms that will reduce regulatory burdensand simplify inspection regimes. Within this agenda Statutory Instruments are dealt with in exactly the sameway as any other regulation.

Departments have responsibility for assessing the impact of all regulation and looking for ways to reduceburdens. In addition the centre scrutinises regulation (including SIs) with major impact on business, charities,the public and voluntary sectors. Departmental simplification plans are also scrutinised by the centre andthrough the Cabinet Committee. Proposals for reducing burdens placed by all regulation, including SIs, willbe set out in these plans. Departments will have published simplification plans by November, by the Pre-Budget Report.

During the session I undertook to provide the Committee with copies of the contributions to theGovernment’s Evidence from the Department for Constitutional AVairs, Departments of Transport and theDepartment for Work and Pensions. Copies of these are enclosed.

During the session the noble Lord Jopling questioned me on the issue of gold-plating, asked for a definitionof gold-plating and requested copies of guidance to Departments on this issue. Copies of these are enclosed.

The practical definition of gold-plating used by the Government is when implementation goes beyond theminimum necessary to comply with a Directive by, for example, extending the scope of the Directive, nottaking full advantage of any derogations or providing sanctions which go beyond the minimum needed. Afull definition can be found on page 17 of the Transposition Guide. This provides guidance for Ministers anddepartmental oYcials on how to implement directives eVectively and stresses the importance of avoidinggold-plating.

There is no evidence of widespread gold-plating in the UK. It is Government policy not to go beyond theminimum requirements of European directives, unless there are exceptional circumstances, justified by a cost-benefit analysis and extensive stakeholder consultation. Instances of gold-plating must be explained in theRegulatory Impact Assessment and cleared by the Panel of Regulatory Accountability.

However, given concerns about the possibility of gold-plating, the Government has asked Neil Davidson QC,the former Solicitor General for Scotland, to work with the BRE and departments to identify areas whereover-implementation of EU-sourced legislation may have taken place. The Review Team is now in place inthe BRE. It will selectively review areas of UK legislation where EU-sourced rules are most prevalent to helpidentify specific proposals for simplification (where appropriate), as well as drawing out wider lessons for best-practice implementation. The report is expected by the end of the year.

I also undertook to provide some further details on the specific issue of Artist’s Resale Rights. TheGovernment’s view is that the implementing Regulations do not go beyond the Directive. The Governmenthas exercised options within the Directive to ensure that the implementation is the most appropriate for theUK, balancing the needs of the artists whilst protecting the art market. In particular, by setting the thresholdat ƒ1,000 we have ensured that as many living UK artists as possible can benefit from resale right with minimalcost to the art market. Setting the threshold at ƒ3,000 (the highest permitted threshold under the Directive)would primarily have excluded British artists, as the majority of the works sold in the lower price bracket areby British artists. Many of these artists are among the poorest artists most in need of financial assistance.

6 March 2006



31 January 2006

Annex A

Department for Constitutional Affairs

Response to call for evidence from the Select Committee on the Merits of Statutory Instruments—Inquiry into themanagement of secondary legislation

The Committee invited the Department to submit written evidence to its inquiry on the management ofsecondary legislation. The call for evidence consisted of a set of questions covering all aspects of themanagement of secondary legislation. The Committee indicated to the Department that it need only respondto the questions that it wished to. This response does that. All figures quoted in this response are based onDepartmental records. The Cabinet OYce is co-ordinating a Government memorandum to the Committeeand this response will be submitted to the Cabinet OYce as part of that exercise.

1. Co-ordination

1.1 Due to the width of the Department’s responsibilities, there is no single authority within the Departmentwith overall responsibility for the co-ordination of prospective Statutory Instruments (SIs) across theDepartment. There is also “no one size fits all” approach to co-ordination within business areas within theDepartment. Not all SI drafting projects are formally “project managed”, it will depend on the size,complexity and timescale of each instrument. But in all cases there will be close co-ordination between policyoYcials, drafting lawyers and Parliamentary Branch to agree timetabling for all stages (policy instructions,initial drafting, policy scrutiny, drafting revisions, policy clearance (including any rule committee stages, orconsultation requirements), Ministerial clearance and Parliamentary stages).

1.2 Larger volume drafting projects—such as the production of the Civil Procedure Rules or the legal aidregulations—are managed in accordance with a draft programme, looking between 6 to 12 months ahead, andagreed between policy oYcials, drafting lawyers and other stakeholders. Occasionally emerging priorities willmean that an SI needs to be drafted urgently to meet a particular need, but the planning process is meant toprevent any planned legislative requirement from being overlooked, as far as is possible. Where the SIs arerequired to implement Departmental primary legislation, an implementation plan is drawn up, which will takeinto account all the drafting stages.

1.3 The co-ordination of the Parliamentary process, laying before Parliament and ensuring the SI is circulatedand published, is the responsibility of Parliamentary Branch. All liaison with the Parliamentary authorities isdone by Parliamentary Branch.

2. Drafting—Policy

2.1 The decision to group SIs is taken by Ministers on the advice of oYcials who in turn will have sought theadvice of Legal Group and Parliamentary Branch. If the SIs are subject to the aYrmative procedure, businessmanagers in both Houses are consulted. The Department applied this approach to a block of electoral SIs in2004 that were subject to the aYrmative procedure (see SIs 2004/222, 2004/225, 2004/226, 2004/293 and 2004/294). The aim of such an approach is to aid debate in Parliament and make for more eYcient parliamentaryhandling, but also to assist stakeholders (in the above case electoral administrators) by all relevant SIs beingapproved and commenced together. The Department allows as much time as possible in between making andthe coming into force of an SI and publicises the instrument and the commencement date widely, including toknown users and stakeholders.

2.2 The Department encourages its policymakers to make full use of the Regulatory Impact Assessment(RIA) process when new policies are in development. The RIA process provides a useful tool for policymakersto measure the potential impact of new policies, including those that may be implemented through secondarylegislation. It encourages consideration of the most appropriate method of implementing the proposed policychange and encourages policymakers to consider potential burdens associated with the policy change.

4. Drafting—who

4.1 OYcials across the Department initiate SIs according to business needs. They instruct departmentallawyers who in turn draft the instrument. Departmental lawyers are qualified barristers or solicitors, employedby the Department, and members of the Government Legal Service (GLS). Drafting lawyers are trained inSI drafting techniques (by undertaking a specific course in SI drafting oVered by the National School for



31 January 2006

Government) and by mentoring and tutoring “on the job”. Further specialist training is also available forimplementing community legislation. GLS wide guidance is also available on the shared “Legal InformationOnline” intranet. In addition, GLS lawyers are experienced in their day to day practice, in interpretinglegislation and in advising on, for example, vires issues.

4.2 Instruments are submitted to Ministers for approval to lay in draft, in the case of an aYrmativeinstrument, or signature, in the case of a negative one. Parliamentary Branch co-ordinates the process fromthis point ensuring that the SI is presented to Parliament. All SIs that are drafted and presented to Parliamentby the Department aim to comply with the guidelines set out in Statutory Instrument Practice, and thesupporting Statutory Instrument Circulars (issued by the OYce of Public Sector Information), and theStanding Orders of both Houses.

5. Correction

5.1 The Department is anxious to avoid the need for corrections, but should stress that when an error isidentified, its primary aim is to correct that error as soon as possible. There is no formal process forinvestigating why corrections are needed but the Department recognises that it is vital that where errors occurlessons are learnt so as to avoid any recurrence. To that end, Parliamentary Branch regularly conductsseminars explaining the SI procedure and has made guidance available to oYcials. Similar experience sharingtakes place within the Department’s Legal Group.

7. Timetabling—peaks and troughs in laying

7.1 The Department makes every eVort to avoid peaks in laying. We recognise the demands that largevolumes of SIs can place on the Committee, however business needs may require periods of high activity, forexample the need to change fees during February and March in the lead up to 1 April, the start of thefinancial year.

8. Commencement—common dates

8.1 The Department makes few new instruments that bear on business, particularly when compared to otherGovernment Departments. Consequently the Department has not encountered any significant problems withbulk laying of regulations in the run up to each common commencement date.

8.2 Appropriate use is made of common commencement dates for the limited number of regulations that dobear on business. For example, the Civil Procedure Rules SIs are made, except in exceptional circumstances,according to a timetable so that new legislation is brought into force, each year, on one of two commoncommencement dates (6 April and 1 October).

9. Commencement—21 day rule

9.1 The Department takes this rule very seriously and only breaks it if there is a pressing need to bring aninstrument into force quickly or if the in-force date of a delayed SI is immovable. If it is necessary to breakthe rule the permission of the Minister with policy responsibility has to be obtained and a memorandumexplaining the decision presented to the Joint Committee on Statutory Instruments (JCSI). During session2004/05 the Department processed 78 negative instruments with an average laying time of 24 days. 14 of theseinstruments (16%) broke the 21-day rule. Of these, five SIs were corrective instruments identified by the (JCSI)and two were required as a consequence of emergency situations (the tsunami and anti-terror legislation). Onlyseven instruments broke the rule due to policy or consultative delays. Every eVort is made within DCA toreduce this number.



31 January 2006

Annex B

Department for Transport

Response to call for evidence from the Select Committee on the Merits of Statutory Instruments—Inquiry into themanagement of secondary legislation

Coordination

How is secondary legislation managed across and within Government departments? Who has overall responsibilitywithin each department? Who has coordinating responsibility across Government?

1. Within the Department for Transport (DfT), the preparation of secondary legislation is an integral part ofthe policy process. Following approval from Ministers, policy divisions, in collaboration with lawyers, takeforward both primary legislation and secondary legislation as appropriate. As set out below, DfT seeks towork in line with the best legal and regulatory practice, taking account of the needs of stakeholders as far aspossible. DfT does not believe that a central point to manage this legislative process would be helpful.

Drafting-policy

How do departments take decisions on the revision, laying and commencement of linked groups of statutory instruments?How is the scope of any individual instrument within a group decided? How is the user’s convenience taken into account?Is the existing regulatory impact assessment process an effective way to ensure that secondary legislation is made in theleast burdensome way?

2. Where a number of linked statutory instruments fall to be prepared, DfT tries to take these forward as agroup. How this is done, and the degree of co-ordination, will depend upon the circumstances. Two or moreinstruments may be inextricably linked and require to be made and come into force at exactly the same time.On the other hand it may be that some instruments, whilst related, do not need to be made at the same time(in particular substantial instruments involving the deployment of scarce drafting resources).

3. It is often necessary to implement linked proposals in separate instruments because they are each made inexercise of diVerent powers or amend instruments belonging to diVerent “families” of S.I.s. Where a numberof inter-related instruments are made together the Department seeks to produce a single ExplanatoryMemorandum covering them all. The Department’s aim is that users’ convenience should be a keyconsideration.

4. On the question about the value of the Regulatory Impact Assessment process, RIAs are an eVective policy-making tool which allow the impacts of proposed legislation, on business, charities, voluntary organisationsand the public sector front line, to be clearly visible throughout the development of the measure. In turn thismeans that departments can take steps to minimise the burdens from compliance with the legislation, on thoseaVected by the measure, before the legislation is finally made. As far as the burden on Parliament goes, thereare occasions where just one RIA has been used to cover several SIs on the same topic, which presumably savesthe scrutiny committee’s time.

Best Practice

What are the government’s mechanisms for distilling and promoting best practice in relation to the instruction, drafting,laying, revision and repeal of statutory instruments? How is best practice monitored and enforced?

5. The drafting of statutory instruments involves both policy and legal oYcials working as a team. DfT’sinternal intranet contains guidance to policy oYcials on the process. The subject is also covered in the legalawareness training sessions provided for policy directorates with particular emphasis on the preparation ofgood drafting instructions.

6. Lawyers undertake extensive training over the course of their careers. Newcomers to drafting attend an in-depth training course run by the National School of Government. The Government Legal Service sponsorsseminars on the implementation of EU legislation and at DfT in-house training events regularly take place.Reports of the Joint Committee on Statutory Instruments (JCSI) and of the House of Lords’ Select Committeeon the Merits of Statutory Instruments (the Merits Committee) are circulated to all DfT lawyers.



31 January 2006

7. The drafting of statutory instruments is subject to a detailed set of rules in “Statutory Instrument Practice”to which all Government lawyers have direct access. In addition—

(a) the Cabinet OYce produces guidance on various aspects of statutory instrument production,including the implementation of EU legislation; and

(b) a common set of guidance for members of the Government Legal Service is currently in the courseof preparation. This will help to avoid duplication of eVort by individual Government LegalDepartments and to ensure consistency of approach.

8. The Government Legal Service’s intranet (“LION”) contains a section devoted to Statutory Instruments,incorporating an extensive body of material including copies of oYcial guidance, the internal guidance on SIdrafting issued by individual Government Legal Departments, synopses of reports of the JCSI and materialrelated to the work of the Merits Committee.

9. So far as the monitoring of best practice is concerned, all general statutory instruments made by DfT thatare laid before Parliament are subject to checks by two senior lawyers in addition to the drafter.

Drafting-who

Who instructs the drafting of statutory instruments? Who drafts them and within what guidelines? Are there crossgovernment drafting standards?

10. In DfT the general practice is for instructions for the drafting of general statutory instruments to beprepared by policy oYcials and for the instruments to be drafted by Departmental lawyers. In some cases (egtransfer of functions orders or instruments amending primarily legislation) instruments are prepared, or atleast cleared, by the OYce of Parliamentary Counsel who are instructed by Departmental lawyers on the basisof policy instructions.

11. Drafting is closely monitored by the Joint Committee (or in some cases the Commons Select Committee)on Statutory Instruments to which Departments are required to make annual reports as to the action takenin response to adverse reports.

Correction

Why are so many correcting instruments required? What are the repercussions in a department if a correction isrequired? In there a process of inquiry about why a correction was needed?

12. The Merits Committee’s Special Reports for the 2003–04 and 2004–05 Parliamentary Sessions containtables showing (both by Department and in total) the number of negative instruments which were reprintedfree of charge as a result of error during those sessions. In the case of 2003–04 the total number for allDepartments was 30 out of a total of 568 negative instruments. The figures for 2004–05 (9 November 2004 to18 March 2005) were 28 out of 531. In the case of 2003–04 the DfT’s performance (3 correcting instrumentsout of a total of 83) is better than the Departmental average but for 2004–05 (2 out of a total of 35) it isslightly worse.

13. In considering why negative resolution statutory instruments require correction and whether the numberis too high the following factors ought to be taken into account

— drafting statutory instruments is a demanding task often undertaken to tight deadlines;

— there is no Parliamentary scrutiny stage before a negative instrument is made and there is thereforelittle chance to correct errors in it after laying compared, for example, with a Parliamentary Billwhere there is usually an opportunity to make corrections between introduction and enactment.

14. In DfT, if an instrument is found to be defective the reasons for this are investigated and where generallessons are to be learned the attention of lawyers are drawn to these.



31 January 2006

Consolidation

How do departments take decisions on the consolidation of statutory instruments; how will consolidation be promoted in future?

15. DfT tries to avoid as far as possible situations where, in order to understand the eVect of a set of Regulations,the reader is required to consider not only the principal Regulations but also large number of amending instruments(including instruments amending earlier amending instruments). Before a decision to undertake consolidation can bemade account has to be taken of the overall number of new instruments required to be drafted and the resource-intensive nature of statutory instrument production.

16. Consolidation of SIs can make a contribution to better regulation, for instance in cases where there are largenumbers of SIs and amending SIs on aspects of the same topic. Consolidation could produce benefits from a simplerlegislative landscape, presenting less of an administrative burden for those aVected by the legislation. Opportunitiesfor consolidation could be identified by oYcials who carry out reviews of their policy areas, for instance as part ofthe current simplification programme which is being promoted and taken forward throughout DfT.

17. A key consideration should be the convenience and ease of comprehension of users. As an example, in the caseof new Transport and Works Act Inquiries Procedure Rules which were introduced last year and proposed newApplications and Objections Procedure Rules (which both revise earlier Rules), DfT deliberately chose consolidatingSIs rather than amending ones. This is because the extent of the changes was and is so substantial that it would havebeen impractical and very confusing to have produced amending SIs rather than complete new ones. But there willbe other situations where the amendments are so small that consolidation is not required.

Timetabling-peaks and Troughs in Laying

Why are there peaks and troughs in the laying of secondary legislation? How can these be ameliorated to facilitate properscrutiny?

18. The table at Annex A shows the approximate number of general S.I.s produced by DfT each month during thecalendar years 2003 to 2005. (The instruments include orders in council sponsored by DfT). The only general trendthat appears from these figures is that a peak tends to occur around the start of the main summer holiday period.

Commencement-common Dates

We are keen to avoid the bulk laying of statutory instruments in the run up to each common commencement date. How willdepartments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny? Are departmentsdeveloping annual statements on proposed regulation?

19. DfT is currently scoping howto work towardsbringing in commoncommencementdates and annual statements.As part of this process we will consider carefully how we would need to plan the laying of SIs.

Commencement-21 Day Rule

How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comes into force?Should the period be lengthened?

20. In DfT the 21 day rule is rarely departed from. In our view extending the period is likely to result in greaterpressure to break the rule. It should be noted that there is also the significantly longer period “40 sitting days” forthe layingof prayers for the annulmentof negative instruments.Dependingon the timeof laying, extending the periodcould possibly result in a significant period of residual uncertainty before and after a period of recess.

21. It is also common for DfT to issue guidance and other material in advance of the date of introduction (includingup to a year beforehand) to ensure that the aVected sectors have suYcient advance warning of any new regulatoryburdens. Such guidance documentation can include codes of practice (which may themselves be statutory and subjectto the 40-day rule). The potential for delays can therefore be doubled.



31 January 2006

Consultation

How well observed is the code of practice on consultation? How can the results be best presented in Explanatory Memoranda?How do the Government coordinate consultations with shared stakeholders, so that they are not overburdened? What changescould be made to the consultation process so as to lead to better secondary legislation?

22. DfT makes every eVort to ensure that the code of practice on consultation is followed. However a flexibleapproach needs to be taken, as several factors may mean that not all aspects of the code of practice are appropriate.Most often the problem area is the advice to consult for a minimum of 12 weeks. The 2004 Annual Report on theoperation of the Code of Practice on Consultation showed that 34 of DfT’s 55 public consultations met this criterion.However, allowing 12 weeks is not always possible, or necessary, for various reasons—eg the need to fit in withexternal timetables (EU or Parliamentary); or when the consultation is aimed at a very small group of specialisedstakeholders; or when the consultation follows or precedes another consultation on the same topic, which did followthe 12 week rule.

23. With regard to Explanatory Memoranda, more guidance on the scope of information arising from consultationwhich might be useful to the Committee would be welcomed.

Users and Impact

What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone in Government(or in the sector affected) monitor the collective impact of regulations on eg small businesses or local authorities?

24. On collective impact, policy development teams within DfT have close working relationships with theirstakeholders, so they are aware of the cumulative impact of regulation in their policy area. This also means DfT cantake cumulative impact into account when working on new proposals. DfT has also begun to assess and review moregenerally the cumulative impact of its regulation on individual transport industry sectors, with a view both toproviding more context for making new regulation, and identifying areas where the burden could be reduced.


The Government are committed to implementing in full the recommendations of the March 2005 report from the BetterRegulation Task Force (BRTF), Less is More? What differences to secondary legislation should Parliament and users expectto see as a result and by when?

25. Implementing “Less Is More” will lead to a programme of simplification of existing regulation aimed at reducingburdens on business, and has also required departments to begin identifying oVsetting deregulatory measures whenthey bring forward for policy or legislative clearance new regulatory proposals which will have a high cost for abusiness sector. DfT considers that it is too early to answer the question with any authority.

DfT’s monthly production of general S.I.s in the calendar years 2003 to 2005, including orders in council sponsoredby DfT (figures exclude all orders of a kind now classified as local)

2003 2004 2005

January 8 January 7 January 7February 13 February 10 February 12March 23 March 16 March 9April 10 April 5 April 6May 6 May 12 May 9June 9 June 9 June 9July 25 July 27 July 17August 9 August 24 August 23September 10 September 4 September 13October 7 October 5 October 9November 13 November 9 November 16December 10 December 12 December 8

TOTAL 143 TOTAL 140 TOTAL 138



31 January 2006

Annex C

DWP Contribution1 to Government Response

1. How is secondary legislation managed across and within Government departments? Who has overall responsibilitywithin each department? Who has coordinating responsibility across Government?

(a) Within DWP, each division dealing with policies or procedures which may require secondarylegislation is responsible for ascertaining that the proposed changes are necessary or desirable, thatthe benefits are proportionate to the costs, and that the changes are consistent with widerGovernment strategy; consulting others within the Department or more widely, and obtainingMinisters’ approval, as required.

(b) The policy division is then responsible for ensuring that the secondary legislation is prepared. Itinstructs the relevant legal division which will draft the legislation, and they agree a timetable for itspreparation. The relevant legal director, and ultimately the Solicitor, oversee the secondarylegislation process and programme. See also Q4 below on the checking and approval of SIs.

(c) The Department’s Parliamentary Relations Unit arranges for statutory instruments (SIs) to besigned, laid and published.

(d) The Unit also regularly collects information from policy divisions on forthcoming aYrmativeregulations, to provide forewarning both within the Department and to the Parliamentary businessmanagers.

(e) Where a number of regulations are required to implement major policy changes, such as those arisingfrom the Pensions Act 2004, the Department will normally draw up a programme for the relevantregulations (and may make this available to external stakeholders).

(f) Similarly, the Health and Safety Executive (HSE) publishes a forward look of forthcomingregulations, which is updated every six months.

(g) There is no formal coordination of individual instruments across Government, although sometimesseveral Departments make secondary legislation in a co-ordinated manner because of the nature ofa particular piece of primary legislation. Examples include implementation of the Civil PartnershipAct, and coordination between DWP and HM Revenue and Customs on changes to the rulesaVecting private pension schemes.

(h) Cross-Government coordination also happens on a more general level by various means, such as theGovernment Legal Service (GLS) intranet [LION] (which has weblinks to sites on Better Regulationand Secondary Legislation), the GLS Better Regulation Group and the user group on statutoryinstrument templates. Regulatory reform orders are coordinated by the Cabinet OYce. In addition,Whitehall Departments including DWP often consult and coordinate with the devolvedadministrations when they prepare secondary legislation.


(a) Decisions about what to put in a particular statutory instrument, or group of statutory instruments,will be made jointly by the responsible policy and legal division, in consultation as necessary withother divisions. Factors taken into account might include the date by which the statutory instrumentshould come into force; what other legislative changes need to be made in relation to the same orrelated subject matter; the Parliamentary procedures applicable to each instrument; how muchadvance notice has been given to those aVected; consideration of how best to manage a largeprogramme of change in a particular area; and available resources within the Department.

(b) In general, we aim to keep the number of instruments to a minimum, even though they may bedrafted and consulted upon as separate draft instruments. In some cases, however, it may be easierand clearer for users if strands of amendments are kept separate (and given self-explanatory titlesaccordingly). It may also be helpful for transitional amendments to be put in a separate instrumentbecause of their relatively short life-span.

1 Including contribution in relation to Health and Safety Executive.



31 January 2006

(c) We also take users’ convenience into account, where possible, with regard to the timing ofimplementation and advance notice of regulations. For example, we try as far as we can to limitchanges aVecting Housing and Council Tax Benefits (which are administered by local authorities)to April and October each year, and to leave six months between the laying and coming into forcedates for those regulations to give enough time for IT software changes. See also Q10 below onconsultation.

(d) The regulatory impact assessment (RIA) process helps by ensuring that the impact of a policyproposal on stakeholders is analysed and that a number of options, including non-regulatoryoptions, are considered for achieving the policy objective. Ministers also require any submissions onproposals for secondary legislation which may have a regulatory impact to cover that aspect.

3. What are the Government’s mechanisms for distilling and promoting best practice in relation to the instruction,drafting, laying, revision and repeal of statutory instruments? How is best practice monitored and enforced?

(a) A specialist SI Unit in the Solicitor’s OYce at DWP provides expert advice on the drafting of SIsand the legislative process. It organises internal training, and publishes a regular newsletter for DWPlawyers which covers current SI-related issues and summarises the reports of the Joint Committeeon Statutory Instruments (JCSI) and the Merits Committee (to which all lawyers also have directaccess via the internet). Guidance on how to draft SIs and about the SI process is also available onDWP intranet sites.

(b) The GLS intranet (LION) contains information about SIs including the various Departmentalguides, which are in the process of being combined into a single guide. Training courses for GLSlawyers are also regularly run by the National School of Government, which all DWP lawyers newto drafting attend.

(c) Policy divisions (working as appropriate with the Solicitor’s OYce) arrange for oYcials involvedwith legislation to be trained as required in legal awareness, legislative processes and good practicein policy-making.

(d) Best practice in relation to SIs is monitored by careful checking processes in the Solicitor’s OYce—see Q4 below—and is promoted by a culture of formal and informal sharing of information byDWP lawyers.

4. Who instructs the drafting of statutory instruments? Who drafts them and within what guidelines? Are there cross-government drafting standards?

(a) Instructions are given by the relevant policy division (see Q1 above).

SIs are drafted by DWP lawyers, or may occasionally be drafted by consultant freelance draftsmen,in close consultation with the policy division.

(b) Before it is sent to be printed, every SI will be checked by the drafting lawyer’s head of division forlegal accuracy and to ensure that it reflects the policy instructions given to the lawyer. All SIs are alsochecked personally by the Legal Director for legal accuracy. The head of the responsible policydivision will also check that the correct policy is reflected in the SI.

(c) The checking process is designed to ensure consistency and accuracy, as well as adherence to goodpractice, by reference, for example to Statutory Instruments Practice and Circulars.

(d) All Departments take comments from the JCSI and the Merits Committee very seriously and thishelps to ensure cross-Government drafting standards.


(a) Corrections may be required to deal with mistakes in the policy or drafting, or in the printing process.In particular, a change may be needed in the light of feedback after publication (notwithstandingDWP’s commitment to consultation—see Q10 below), or following decisions by the Social Securityand Child Support Commissioners or the courts on the interpretation of the law.



31 January 2006

(b) Corrections of errors need to be distinguished from amendments of regulations consequential onother policy changes (eg changes to Housing Benefit regulations arising from the introduction ofPension Credit).

(c) As far as drafting errors are concerned, the SI drafting process is technical and diYcult, and oftenundertaken under significant time and resource pressures, especially where there are strong publicpolicy grounds for urgent implementation. We try to minimise drafting errors by a careful checkingprocess (see Q4 above). But it is inevitable that the greater the pressures, the greater the likelihoodthat defects may creep in.

(d) Similar considerations can sometimes apply to errors or omissions in detailed policy design,particularly where substantial change is being introduced, under urgent time pressure, to an area ofcomplex existing law and practice such as occupational pensions.

(e) If a correction is required, the Department naturally regrets the inconvenience for users and forParliament. Making the corrections will also cause certain resource costs within the Department.Lawyers’ and other oYcials’ accountability for their work and its eVectiveness and accuracy aretaken into account in the appraisal process. Managers will always enquire into why a correction wasneeded, and oYcials will explain to Ministers the need for any corrections.

(f) Managers also aim to identify any general problems which may underlie errors in SIs, and to ensurethat lessons are learned accordingly: for example, the checking procedures (see Q4 above) werestrengthened earlier this year after errors were found in some SIs made under the Pensions Act 2004.

6. How do departments take decisions on the consolidation of statutory instruments; how will consolidation be promotedin the future?

(a) Consolidation is considered wherever possible, particularly where new primary legislation isenacted, taking account as necessary of available legal and other resources. We are, for example,nearing completion of the consolidation of Housing and Council Tax Benefit regulations.).

(b) In addition to formal consolidation, up to date texts are available of SIs as amended both on-lineand in loose-leaf editions. The Blue Books which contain all social security legislation are constantlyupdated.

(c) Consolidation will be promoted further as part of the Department’s developing programme ofregulatory simplification (see Q12 below).

7. Why are there peaks and troughs in the laying of secondary legislation? How can these be ameliorated to facilitateproper scrutiny?

8. We are keen to avoid the bulk laying of statutory instruments in the run up to each common commencement date.How will departments plan the laying of SIs before each common commencement date in a way that facilitates scrutiny?Are departments developing annual statements on proposed regulation?

[questions answered together]

(a) Peaks can arise for a number of reasons. For DWP the annual uprating of social security benefitsgives rise to a large programme of work from the publication of the relevant inflation figures inSeptember/October through preparation of various SIs which need to come into eVect in April. Someother SIs are also timed to come into eVect for the new financial year. Some SIs may also arise atthe same time if they follow Budget announcements. And where there is a large reform package (egimplementation of the Pensions Act 2004) there will often be set stages in the reform process whenseveral SIs will come into force on the same day, which is usually beneficial if not essential for thepeople and bodies likely to be aVected by the measures in question.

(b) Common commencement dates were introduced to assist business, charities and the voluntarysector, in line with Government policy on better regulation. DWP applies common commencementdates where appropriate. The HSE was one of the early adopters of common commencement dates.

(c) Where possible and appropriate we aim to lay SIs well in advance of commencement (see Q0 above).

(d) As noted at Q1 above, HSE publishes a statement of forthcoming regulations. Most DWP SIs do notaVect business, but DWP plans to publish annual statements of regulation that do aVect businessfrom 2006.



31 January 2006

9. How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comesinto force? Should the period be lengthened.

(a) DWP tries very hard to observe the 21 day rule. We regret any breaches of the rule, though suchbreaches happen in only a very small number of cases (around 5 per cent of all SIs to which therule applies).

(b) We do not believe that the period should be lengthened.


(a) DWP is required by law to consult on certain SIs. This includes consultation of expert independentbodies—the Social Security Advisory Committee, the Industrial Injuries Advisory Committee andthe Council on Tribunals; local authorities; and relevant organisations aVected by private pensionslegislation.

(b) DWP also consults in many cases on the objectives and detail of other SIs, even where there is nolegal requirement to do so. This again includes consultation of expert bodies such as the statutorilyappointed Disability Living Allowance Advisory Board. Even where the Code of Practice is notapplicable (because the subject is very specialised or has a limited audience) we still aim to apply bestpractice from the Code.

(c) Where Explanatory Memoranda (EMs) refer to the results of consultation we would normally expecta brief reference (to keep the whole EM brief), with cross-reference to any separate announcementof the consultation results.

(d) Where appropriate, DWP participates in cross-Government consultation exercises.

11. What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone inGovernment (or in the sectors affected) monitor the collective impact of regulations on eg small businesses or localauthorities?

(a) The “users” of DWP legislation are varied—eg local authorities, pension scheme trustees,professional advisers—and not necessarily the same as the individuals ultimately aVected by thelegislation. So it is not necessarily straightforward to generalise about users’ concerns.

(b) Subject to that point, however, on the method of making secondary legislation, users generally lookfor advance consultation and then for adequate time to implement the changes; though they do alsogenerally look for a rapid reaction to any identified problems with legislation which are causing themdiYculties. We do our best to meet users’ requirements, as outlined above.

(c) On the substance of regulations, see Q12 below. It is also worth noting that DWP publishes aconsiderable amount of research information about the eVects of its policies, the details of many ofwhich have been introduced by secondary legislation.

12. The Government are committed to implementing in full the recommendations of the March 2005 report from theBetter Regulation Task Force, Less is More? What differences to secondary legislation should Parliament and usersexpect to see as a result and by when?

(a) The Better Regulation Task Force report proposed procedures for measuring and then reducing theadministrative burdens faced by business and other organisations in the UK. It also proposed thatthe Government strengthen controls over the introduction of new regulation and simplify existingregulations, including removing any which are unnecessary. The Government accepted the reportin full, and taking forward the recommendations will achieve year on year reductions in the totaladministrative burdens faced by business and other organisations.

(b) The need for targeted regulation to improve standards and protect rights will inevitably remain.However, it is important to get the balance right so that, wherever possible, new regulation isbalanced by compensating simplification measures. The Department is developing a rollingsimplification plan which will include proposals to reduce administrative burdens within five years,and will outline broader simplification measures such as proposals to consolidate and repeal



31 January 2006

legislation. DWP is actively engaging with stakeholders to ensure that the regulatory impacts whichare of particular concern to them are considered.

(c) Whilst strengthened controls over the introduction of new regulation may mean fewer SIs, secondarylegislation may be necessary to implement some simplification measures.

(d) See also Q7 above on annual statements on proposed regulation.

3247872085 Page Type [SE] 22-03-06 00:00:32 Pag Table: LOENEW PPSysB Unit: PAG7


Written Evidence

Memorandum by Tim Ambler1 and Francis Chittenden2

This paper responds to the two main questions for the inquiry, namely:

— the management of the statutory instrument process and the links within that process to theGovernment’s better regulation initiatives, and

— the working practices of Government, the House and Committee so that the House and Committeecan most eVectively scrutinise the merits of statutory instruments and promote better regulation.

The subsidiary questions deal largely with procedural matters rather than the more fundamental issues whichshould perhaps be considered first. Furthermore, the subsidiary questions appear mostly to have beenanswered in the Select Committee’s own admirable reports and by the clear recommendations therein. Thelevel of these questions may not be suYciently fundamental. Baroness Amos’ response to the SelectCommittee’s first report3 indicates that she saw the role of the Select Committee as being to help Whitehalldepartments with their homework, as distinct from being part of the legislature deciding which and whatregulations, albeit secondary, should be enacted.

The workings of the Select Committee should first be understood within the context of regulation at both EUand UK governmental levels. Secondly, this paper set out the scale of the secondary legislation problem. TheEU Commission and UK government each annually produce thousands of “regulations” and statutoryinstruments (SIs) respectively. The vast majority of these are not secondary legislation (permanent laws) at allso much as administrative orders (transient arrangements, eg for prices or road closures). Thirdly, the questionis whether, and how, the work of the Select Committee and the parallel House of Commons scrutinycommittee could be more eVective and productive. Their reports leave no doubt that the Select Committee isextremely hard working, thorough and serious: the question is not one of industry but the extent to which theburden to benefit ratio of regulation is being reduced by these eVorts. The paper concludes with somerecommendations.

Context

The Select Committee was appointed by the House of Lords on 17 December 2003 with the terms of reference“to consider every instrument which is laid before each House of Parliament and upon which proceedings maybe or might have been taken in either House of Parliament, in pursuance of an Act of Parliament, being:

(i) a statutory instrument, or a draft of a statutory instrument;

(ii) a scheme, or an amendment of a scheme, or a draft thereof, requiring approval by statutoryinstrument; or

(iii) any other instrument (whether or not in draft), where the proceedings in pursuance of an Act ofParliament are proceedings by way of an aYrmative or negative resolution; but excluding any Orderin Council or draft Order in Council made or proposed to be made under paragraph 1 of the Scheduleto the Northern Ireland Act 2000 and any remedial order or draft remedial order under Schedule 2 tothe Human Rights Act 1998 and any draft order proposed to be made under section 1 of the RegulatoryReform Act 2001, or any subordinate provisions order made or proposed to be made under that Act;with a view to determining whether the special attention of the House should be drawn to it on any ofthe following grounds:

(a) that it is politically or legally important or gives rise to issues of public policy likely to be ofinterest to the House;

(b) that it is inappropriate in view of the changed circumstances since the passage of the parent Act;

(c) that it inappropriately implements European Union legislation;

(d) that it imperfectly achieves its policy objectives.”4

1 Senior Fellow, London Business School.2 Professor, Manchester Business School.3 Appendix 1 of HOUSE OF LORDS, Merits of Statutory Instruments Committee, 25th Report of Session 2003–04, HL Paper 206,

29 November 2004.4 HOUSE OF LORDS, Merits of Statutory Instruments Committee, 3rd Report of Session 2003–04, HoL 73, 18 May 2004.



The creation of the Select Committee was part of the government’s commitment, or claimed commitmentdepending on one’s point of view, to better regulation. The role was additional to scrutiny by a parallelcommittee in the House of Commons, the Better Regulation Task Force, the better regulation team withinthe Cabinet OYce and the committees in both Houses scrutinising EU legislation and its transposition intoUK law.

The House of Commons, since 2003, has had a “Scrutiny Unit” that is part of the Clerk’s Department. Theirrole is to improve financial scrutiny by the House. The 18 staV are on secondment from other departments egfrom the Audit Commission, National Audit OYce etc. Their remit is to support Select Committees in pre-legislative scrutiny (when invited) and to review department’s annual reports and perfomance against PSAtargets etc. They engage with Select Committees most when committees conduct pre-legislative scrutiny offorthcoming Bills. They only see about eight Regulatory Impact Assessments (RIAs) per year (about fourpercent) when select committeess ask them to consider the quality of the Cost Benefit Analysis in initial ordraft RIAs. This valuable resource might, perhaps, be more widely used—see recommendations.

The Panel for Regulatory Accountability (PRA) was strengthened in 2004 to reduce the flow and improve thequality of regulations and, at UK level, to ensure that regulation is used only where necessary. The PRA, nowchaired by the Prime Minister, scrutinises all new regulations likely to impose a significant cost to businessbefore they can become law. Since this meets in secret, and attempts to discover their conclusions through theFreedom of Information Act failed, we cannot know how eVective it may be.

Finally each government department has a unit responsible for producing RIAs for all proposed EU and UKprimary and secondary legislation that may impact businesses, charities etc. This requirement appears recentlyto have been extended, but without any fanfare, to all changes of policy which might have a cost impact forthe public and or private sector. The new wording is:

“RIAs must be completed for all policy changes, whether European or domestic, which could aVectthe public or private sectors, charities, the voluntary sector or small businesses.

An RIA is needed whenever options are being considered or where costs or benefits could accrue.This includes all changes made using alternatives to legislation, both primary and secondary. So ifthe primary legislation is a framework Act which will be followed by secondary legislation, RIAsneed to be carried out on both the primary legislation and on each subsequent piece of secondarylegislation.”5

This seems rather sweeping and would include the requirement for an RIA every time any minister evenconsidered any policy change, whether regulation was a possible outcome or not. We are seeking clarificationbut at this point have not changed our recommendations. This unit, and the RIA process, is supposed to bringeVective challenge to each legislative proposal to the point, presumably, where external challenge should beunnecessary. Audit is provided by the National Audit OYce which has, at least for the last two years, examinedthe eYcacy of the RIA process.

Regulation itself does not seem to be short of regulators but the question is whether they make any diVerence.The House of Lords clearly finds it convenient to have a Select Committee to winnow material items for theirconsideration from the thousands of SIs issued each year. On the other hand, if all this deliberation leads tominimal results, one may wonder not so much if the game is worth the candle but if the game should be playedby diVerent rules. Maybe one committee doing a thorough job and supplying the needs of all parties, eg bothHouses, would be better than seven, each of which probably has inadequate resources for the task, and failingto achieve it.

In the Select Committee’s transparent and candid reports, their Lordships themselves worry about whetherregulation is actually being improved by their process and how they would know if it was. What are themeasures of “better regulation”? They console themselves with the thought that their attention to SIs wouldhelp to ensure that civil servants took more care with the production of SIs. Tellingly, from the perspective ofthis paper, their Lordships shied away from their ability to reject SIs in favour of being able merely to delaythem. With many thousands of new SIs each year, the UK could probably survive with a few less. It might besalutary for ministers and civil servants if some hostages were taken. So far as I know, no SIs have been rejectedor even formally delayed. If they have been, then those occasions should have been given more publicity forthe sanction to be eVective.5 http://www.cabinetoYce.gov.uk/regulation/ria/overview/who—needs—ria.asp, 21 November 2005.



Scale of the Problem

We need to consider UK secondary legislation within the context of the EU. So far as business legislation isconcerned, the logic of the single or common market is that the UK should pass no secondary legislation atall because when it does so, the market is no longer common. For example, if the UK decides that cucumbersmust be at least 20cm long when the rest of the EU only requires 18cm, the EU cucumber market is no longercommon. The scale of diVerence is not the problem, just the fact that there is a diVerence at all. It follows thatEU national governments should legislate in areas defined as subsidiary and the EU in matters defined ascommon. At present we have the highly undesirable situation of both legislating for both.

The following is extracted from a report earlier this year6: “To provide historical context the trend inproduction of EU legislation over the period from 1958 to 2003 was sampled for the last three years and atfive yearly intervals before that. Table 1 below presents the number of legislative instruments produced overthe last 45 years.

Table 1

EU LEGISLATION PRODUCED ANNUALLY FROM 1958 TO 2003

Year Regulations Directives Decisions Total

2003 2,461 153 804 3,4182002 2,537 120 896 3,5532001 2,769 136 820 3,7251998 3,008 158 735 3,9011993 1,566 166 707 2,4391988 1,801 133 546 2,4801983 1,454 84 514 2,0521978 1,329 116 615 2,0601973 1,110 57 254 1,4211968 443 37 182 6621963 96 8 266 3701958 20 0 23 43

Source: Extracted from CELEX”

The report analysed a ten percent sample of the “Regulations” and found that only six percent were legislativein nature and aVected business, ie they should have had RIAs and EIAs. Allowing for other types of secondarylegislation, we can safely estimate that less than ten percent of all EU “Regulations” are legislative in nature,ie permanent laws. The other 90 percent or so are administrative orders, ie transient arrangements such as forprices or holidays.

The draft EU constitution recognised this anomaly and proposed that Directives should become “frameworklaws” and Regulations should be divided into “laws” where they are legislation and “administrative orders”to reflect the comments above.

Incidentally, the report also found that the EIA and RIA system simply does not work for EU sourcedlegislation and, in particular, many RIAs were produced after the legislative decisions had been taken.

In the six years 1999 to 2004, SIs appear to have averaged 3,526 judging by the serial numbering system. Thecomparative figure for the first ten months of 2005 is 3,042 which seems on track for a total 3,600, ie aboutthe same. This overstates the number of SIs because not all make it through the system. Taking a large sample(999) from 2004, 603 survived and therefore the average for the six years is probably about 2,130.

The seven years to 1993 yielded an average 2,761 judging by serial numbers. A sample of 499 SIs from 1987shows a 75 per cent survival rate, ie an average of 2,070 actual SIs. It is at least encouraging that the SIs havenot increased although, taken together with EU “Regulations” the numbers have grown from 3,700 to 4,600per annum.

Quite why SIs should have such a high rate of stillbirth is a question beyond this paper and should perhapsbe investigated. Before anyone claims a victory for better regulation, we would need to analyse the stillbirthsbetween true secondary legislation and administrative orders. We know that, as in the EU, SIs are confused6 Tim Ambler, Francis Chittenden and Chanyeon Hwang (2005) “Is EU Regulation good for us? A study of EU Regulations in 2003–04,”

British Chambers of Commerce, London.



between secondary legislation requiring RIAs, and administrative orders which form the great majority of SIs,because the UK total number of RIAs covering primary and secondary legislation both for the EU and UKaverages about 170 per annum.7 Even with allowance for non-business legislation, it is unlikely that more thanabout five percent, ie 100 SIs per annum, could be legislative in nature.

About 95 per cent of SIs should not be receiving their Lordship’s attention at all. This will be discussed in therecommendations later.

Modus Operandi

The scrutiny process seems to be driven by the arrival of SIs and a number of the problems such as not fittingwith the dates when the House is sitting and lack of notice before the SIs become eVective, result therefrom.The system does not recognise that the government already has a system for distinguishing between secondarylegislation, which should require their Lordships attention, and administrative orders which should not.

The RIA concept was, for legislation aVecting business, an attempt to deal with this issue by requiringdiscussion of forthcoming legislation in good time. The report referenced below and its two annualpredecessors found, somewhat to the surprise of the authors, that the system worked well in the sense thatRIAs were produced for all UK sourced legislation aVecting business. At least, we found no examples offailure. The quality of the RIAs was another matter and, as noted above, the system does not work for EU-sourced Regulations and possibly not for Directives either.

SIs have a similar system of Explanatory Memoranda (EMs) and Explanatory Notes (ENs). This isthoroughly confusing. Their Lordships have already recommended merging EMs and ENs and the distinctionis not pursued here because the recommendation will be that the RIA system is expanded for all legislation,primary and secondary, UK- and EU-sourced with additional EIAs for EU-sourced. Alternatively, EMsshould be produced for all such legislation which does not aVect business using identical guidelines.

The report referenced below found that RIAs were inadequate and the similar findings from the previous tworeports had been ignored. The Cabinet OYce function is advisory; they are not responsible for the quality ofRIAs. RIAs should be scrutinised by one or both Houses but we found no evidence that they were, apart fromthose noted in the Select Committee reports.

The net result seem to be that their Lordships are swamped by SIs, 95 per cent of which are not regulationsat all whilst only scrutinising RIAs (or EMs or ENs) when prompted to do so by the SI. It might be both moreeYcient and productive if the process was driven by the RIAs (and equivalents) so that regulations receiveda thorough scrutiny before becoming legislation. In other words, the Select Committee should review all RIAs(and the equivalents) at the earliest possible stage to challenge whether the legislation is required at all and, ifso, what are the less burdensome means of achieving valid policy goals.

It is widely accepted, even by the BRTF, that the RIA system has not resulted in serious challenge to newregulations, hence the introduction of these new committees. Some reasons are that the system is used by civilservants to facilitate the laws they wish to make, consultation is one-sided and sometimes sketchy and the caseagainst the regulation is written into the RIA by the counsel for the defence. No system as one-sided as thatcan work and independent evaluation should help restore balance.

Recommendations

My recommendations to meet the two main questions asked by the Select Committee are:

1. The House of Lords should press for EU Regulations and UK Statutory Instruments to be separated intoregulations proper and administrative orders.

2. EU and national government areas for legislation should be more clearly delineated so that only one levellegislates in each area, ie “subsidiarity” is properly defined.

3. Those regulations not now requiring RIAs, because they do not aVect business, should either be broughtinto the RIA system or have an identical EM system. This recommendation may have been overtaken byevents and RIAs extended to all policy changing legislation. Even more so, clarification on RIAs, EMs andENs is needed with a single cohesive system and a central database for RIAs (EMs and ENs).

4. The EU EIA and UK RIA systems should be properly coordinated for EU-sourced legislation and theassessments should be available to both Houses in good time.7 Tim Ambler, Francis Chittenden and Chanyeon Hwang (2005) “Regulation: another form of taxation? UK Regulatory Impact

Assessments in 2003–04,” British Chambers of Commerce, London.



5. Apart from the Cabinet OYce unit (now the Better Regulation Executive) which has a slightly diVerentrole, the scrutiny committees should be replaced by a properly resourced Joint Committee of both Houses,reporting primarily to the Houses but also making their deliberations and findings available to the public. ThisJoint Committee could then be supported by resources of the House of Commons Committee OYceScrutiny Unit.

6. The scrutiny of secondary legislation should be driven by RIAs (and EMs) and not by SIs. If RIAs (EMs)are unsatisfactory, either the assessments or both the assessments and the legislation, should be rejected.

7. Non-legislative SIs (administrative orders), and the processes which produce them, should be researchedto establish why so many fall by the wayside and what external checks, if any, are justified. Maybe these 4,000administrative orders a year (including those for the EU) need a simpler integrated system. An annual lowlevel sampling and audit by the NAO is one candidate solution.

8. “Better regulation” should be defined so that the Joint Committee can measure performance and reportannually on progress.

22 November 2005

Memorandum by Bryan Cassidy8

INAPPROPRIATE IMPLEMENTATION OF EU LEGISLATION

1. History

1.1 Since the early nineties, I have followed very closely the way in which European Community directivesbecome law in the United Kingdom—a process popularly known as “gold plating”.

1.2 In 1992, the then President of the Board of Trade, Rt Hon Michael Heseltine, commissioned a study bythe EYciency Scrutiny Team. Published in July 1993 with the title “Review of the Implementation andEnforcement of EC Law in the UK”, (but without a Cmd number) the report contained three very detailedcase studies with one of which I was actively involved: that shown at Annex C of the Review on Fire SafetyRegulations.

1.3 The Report made 65 recommendations on procedure plus an additional 36 based on the three detailedcase studies included in the Review.

1.4 Recommendations 30 to 52 concern the Role of Whitehall and Ministers, some of which, notably number46 urging “Departments need to keep in closer touch with the European Parliamentary process and beprepared to oVer revised briefing” appear to be followed. Another, number 51, recommended that theDeregulation Unit prepare a guide by the end of 1993 on the formulation and implementation of EC law inthe UK was adopted and two very helpful user guides were produced. So far as I have been able to discover,however, these guides no longer exist.

1.5 I have drawn the existence of this report to the attention of the Better Regulation Task Force alwayssoliciting a surprised response indicating that the BRTF had been unaware of its existence!

2. Implementation of European Legislation in the UK—the Devil in the Detail

2.1 Section 2.2 of the European Communities Act 1972 is the most frequently cited authority when StatutoryInstruments (SIs) are tabled before Parliament. My monitoring of the HMSO Daily List shows that so far in2005 (1 January to 24 November) 3,206 SIs have been tabled of which only 182 have their origin in the EU.These SIs are easily identifiable as the Daily List always shows an “EC note’.

2.2 Scrutiny by Parliament of SIs is unsatisfactory. “The devil is in the detail!” Quite often SIs are tabled whileParliament is in recess. Also, parliamentary procedure inhibits discussion of the details because MPs aresubjected to Party whipping. This discourages debate.

3. The UK Approach

3.1 One of the main criticisms of the 1992 enquiry is that “the UK tends to approach negotiation andimplementation as separate processes”. (No. 3 of Executive Summary). The United Kingdom is not alone inthis, however. A recent Opinion9 produced by the European Economic and Social Committee’s (EESC) SingleMarket Observatory on the implementation of EU legislation (copy supplied) states “The EESC considers8 Chairman, Single Market Observatory, European Economic and Social Committee Member of the European Parliament 1984–99.9 Document“ CESE 1069/05. Rapporteur“ Joost van Ierse.



that the EU has an implementation and compliance problem. Statistics on the state of implementation of EUlaw show that Member States experience delays in the timely transposition of directives. Statistics ofinfringement proceedings reveal that often transposition is incorrect or incomplete. Indeed, 78 per cent of thecases initiated by the European Commission against Member States during 2002–05 concern transpositionand application of directives. This suggests that Member States experience problems in determining thenational method of implementation to give eVect to directives” (page 3).

3.2 In a separate Opinion requested by the British Presidency of the EU on “Better Lawmaking”10 (copysupplied) sets out a strategy for better lawmaking in Europe in its section 4, pages 7–10.

3.3 In this Opinion, paragraph 4.9 draws attention to the agreement on 16 December 2003 between theCommission, the Parliament and the Council concerning the implementing powers granted to the Commissionto draw up regulations pursuant to a Framework Directive “in cooperation with representatives of theMember States”. This process known as “Comitology” appears to be outside the scope of scrutiny byMinisters or by Parliament (either European or British). I have asked what instructions are given to “nationalexperts” to ensure that the line they take in negotiations in Brussels accords with HMG policy. I have yet toreceive a satisfactory answer from Ministers of either persuasion or their shadows!

4. Fire Safety Regulations Case Study

4.1 When I was an MEP, I was very much involved in this. I discovered that the Home OYcer were drawingup very detailed new regulations for fire safety in places of work alleging that they were required by the 1989“Health and Safety Directives” notably the Framework Directive and the Workplace Directive. Business wascomplaining bitterly about the additional burdens that they would have to endure with the implementationof the new regulation. I approached Michael Heseltine who in his turn approached the then Home Secretary(Kenneth Clarke) who gave instructions to oYcials that work should cease. And it did. However, workrecommenced when Kenneth Clarke became Chancellor of the Exchequer and his successor allowed theprocess to continue and the new regulations are now in force. However, I made it my business to enquire ofCommission oYcials in Luxembourg as to whether it was necessary for the UK to go to such prescriptivelengths. I was informed that it was not necessary but that the United Kingdom Government was faced withthe need to codify and bring up to date its own national legislation, most notably the Fire Precautions Act1971. The European Community’s proposals therefore provided a convenient scapegoat as so often happenswhere Ministers and local authorities wrongly cite “Brussels laws’. (I frequently came across this during my15 years as an MEP).

5. Conclusion

5.1 The problem of “gold plating” continues though the Better Regulation Task Force has repeatedly drawnattention to the need for better Regulatory Impact Assessments. However, these are not comprehensive nor,for that matter, are the Impact Assessments which the European Commission is supposed to attach to all itslegislative proposals. Their scope has been extended to require “social” and “environmental” impactassessments in addition to the financial impact on business. As the Commission is dependent on MemberStates for this information, unsurprisingly the assessments are inadequate.

1 December 2005

Letter from Chloe Hardy, Acting Head of Communications & Government Affairs Manager, NationalHousing Federation

The National Housing Federation represents 1,400 housing associations in England. Our members areindependent, not-for-profit social businesses. Between them, they provide 2 million aVordable homes to5 million people.

We are pleased to oVer the following comment to the Committee.10 Document“ CESE 1068/05. Rapporteur“ Daniel Retureau.



1. (a) Did the sponsoring government department get in touch to tell you what was happening or (b) was the first thingyou heard about the secondary legislation via one of your members?

(a) This hardly ever occurs, and only ever when we already had an ongoing dialogue. We are unable to identifyan occasion when a Government Department took the initiative about this. We do not believe, however, thatthey would see it as their function.

(b) Quite often, either from our members (housing associations) or some other outside source (pressenquiry, &c).

2. Has your sector had experience of not knowing, until it was too late, that a particular regulation had been passed?

Yes.

3. Can you give us any examples of good or bad practice by a sponsoring government department?

We are uncomfortable with this question because we do not believe Departments see it as their function todraw our attention to impending SIs, so it is hard to blame them for faiting to do it.

However, as SIs become more important, it is more and more of an issue that they are so hard to trackcompared with full-blown legislation. We believe there would be merit in upgrading the OYce of Public SectorInformation (OPSI) website so that it cross-refers between the Acts of Parliament and the various SIs issuedunder their authority. In particular, we would like the ability to select an Act on the OPSI site and immediatelyaccess the SIs that have been issued (even draft Sis proposed) in date order.

Also, the section of the HMSO website dealing with SIs (unlike the section on Acts) is hard to browse, as titlesare not given until the date of issue is correctly identified.

10 November 2005

Memorandum by the Hansard Society

1. Introduction

The Hansard Society is very pleased to be able to contribute to the Merits of Statutory Instruments Committeeinquiry into the Management of Secondary Legislation. Over the past two years, we have been undertakinga review of Making the Law, the 1992 report of the Hansard Society Commission on the Legislative Process,chaired by Lord Rippon of Hexham.11 As part of that review, we have looked at specific elements of thelegislative process including parliamentary consideration of delegated legislation.

We note the Committee’s terms of reference for this inquiry, many of which relate to the formulation, draftingand structure of delegated legislation. Our work on this subject has concentrated on the parliamentary process,rather than the role of government, and our evidence reflects this focus. We draw attention to the numerousproposals for reforming the way that Parliament considers delegated legislation which have been made by theHansard Society and also by parliamentary committees.

2. The Scope and Functions of Delegated Legislation

Perhaps the most noticeable feature relating to delegated legislation is the extent of its growth in volume overthe past half-century. For example, in 1970, Statutory Instruments (SIs) filled 4880 pages of legislation; by1996 that had grown to 10,230 pages.12 In itself, this growth does not necessarily give rise to any concern.Indeed, delegated legislation has an invaluable role to play within the legislative process: crucially it can beused to amend, update or enforce existing legislation without having to go through the elaborateparliamentary process required for primary legislation. Modern government would be virtually unable tofunction without it. As Making The Law argued:

“The main advantages of making greater use of delegated legislation outweigh the very realdisadvantages . . . [it] makes Acts easier for the user to follow, helps Parliament to focus on theessential points . . . [and keeps] the legislative process flexible so that statute law can be kept as upto date as possible . . . [and eases] pressure on the parliamentary timetable.”

11 The Report of the Hansard Society Commission on the Legislative Process (1992), Making The Law, chaired by Rt Hon Lord Ripponof Hexham.

12 See Procedure Committee, First Report (1999—2000) Delegated Legislation HC 48 and Tyrie, Andrew MP (2000) Mr Blair’s Poodle,An Agenda for Reviving the House of Commons, Centre for Policy Studies.



3. Concerns and Criticisms

However, given its crucial role within the legislative system, there is widespread criticism of the way thatParliament scrutinises and gives its authority to delegated legislation. The majority of SIs are subject to little,if any, parliamentary scrutiny. This is because most SIs are subject to negative procedures, which means theywill become law in the form determined by a Minister unless one or other House of Parliament votes againstthem, which very rarely happens.

Most criticism of the system is concerned with the negative resolution procedure where the initiative lies withthe Opposition to table appropriate annulment motions in the form of Early Day Motions (known as“prayers”). Given that the Government controls almost all the available parliamentary time in the Commons,unless the Opposition can persuade the Government to provide time, either on the floor of the House or inStanding Committee, the SI will not be debated.

On the other hand, a minority of SIs are subject to aYrmative procedure, which means that they cannotbecome law unless a draft is first approved by both Houses. The aYrmative procedure, however, is much lesscommon than the negative procedure. For example, in 1998–89, 178 SIs were subject to the aYrmativeprocedure, compared to 1,266 subject to negative procedures.13

A range of problems with the procedures have been identified, including:

— That the unpredictability and rigidity of the parliamentary timetable, and the inevitable timeconstraints, militate against eVective scrutiny.

— That SIs cannot be amended in part or redrafted.

— That the length, volume and technical complexity of many SIs can obscure important issues with theresult that major changes to law and policy can come into force with little or no parliamentaryscrutiny.

— That the implications of an SI for other domestic or EU legislation may not be immediatelyapparent.

— The increasing instance of SIs being used to implement core policy decisions rather than fill out thedetail of statutes.

4. Proposals for Reform

The Hansard Society has identified a number of specific reforms that might improve the functioning andscrutiny of delegated legislation, including:

— Departmental select committees should review SIs in their field prior to their being laid beforeParliament and then report on matters of particular public importance. By identifying matters thatrequired further clarification or justification, such pre-legislative scrutiny would reduce the heavyworkload of the Joint Committee on Statutory Instruments (JCSI).

— Debates on SIs (under the aYrmative procedure and those against which prayers had been tabled)should only take place once the JCSI has reported.

— A Legislation Steering Committee should be set up to determine which prayers should be debated,thus standardising the procedure and allowing Parliament more input into the allocation of suchdebates.

— The time limit (of an hour and an half) imposed on debates should be removed.

— Once an SI had been selected for debate, a Special Standing Committee should undertake moredetailed scrutiny.

A range of reform proposals were also put forward by the House of Commons Procedure Committee, whichproduced two reports, in 1996 and 2000.14

5. Alternative Models of Scrutiny

A range of other mechanisms and procedures would bring more detailed scrutiny into the process:

— The introduction of a sifting (merits) committee in the Commons, equivalent to that established inthe House of Lords. (See paragraph 6).

13 Blackburn, R and Kennon, A (2003) GriYth & Ryle on Parliament: Functions, Practice and Procedures, London, Sweet and Maxwell.14 Procedure Committee (1995–96) Delegated Legislation, HC 152, Procedure Committee (1999–2000) Delegated Legislation, HC 48.



— Conditional amendments: The Procedure Committee has raised the possibility of conditionalamendments to SIs whereby an SI could be rejected but the terms under which it would be acceptablewould be indicated. The Commission to Strengthen Parliament described this as an “eminentlysensible” solution and argued that this represented the best way to proceed.15

— Use of Ministerial Statements: When SIs are discussed in committees, proceedings should begin witha ministerial statement and questions, as in the case of Commons’ European Standing Committees.

— Greater use of pre-legislative scrutiny: Select committee involvement might be a way to raise publicand media awareness of certain important proposals and to test the climate of opinion.

— Post-legislative scrutiny of SIs: As with primary legislation, it would be open to departmental selectcommittees to commission research on the eVect of particular SIs or to undertake a short inquiry.

— Extending the deregulation procedure: Blackburn and Kennon put forward the use of deregulationprocedures as a model for better scrutiny of SIs, arguing:

“The only substantial improvement in parliamentary scrutiny of [delegated] legislation in recentyears has been the introduction of deregulation orders. The deregulation procedure could beused for other SIs amending primary legislation, provided an Act was passed defining thecategories other than the deregulation to which it would apply.”16

— External consultation: Most draft social security delegated legislation is referred by the Governmentto the Social Security Advisory Committee (SSAC) before being presented to Parliament. The SSACconsults with public and interested bodies. The Secretary of State is obliged to take account of theSSAC’s recommendations (although is not bound by them) and when the regulations in question arelaid before Parliament, the SSAC’s report and a statement explaining the Government’s responsesto the recommendations must also be laid. This model of consultation may be appropriate in otherspecific areas of legislation.

— Lessons from Scotland: The Scottish Parliament’s procedures for dealing with secondary legislationinvolve a designated role for its committees and a guaranteed level of scrutiny. Westminster couldevaluate whether there are lessons from Scotland that could strengthen its own procedures ondealing with delegated legislation. (See Appendix 1)

6. Role of the House of Lords

No SIs can be amended by either House. This means that the Lords would have to reject the SI entirely if theyidentified a problem, a path that they are usually unwilling to take. This is despite the fact that the power toreject delegated legislation is one of the few unilateral powers possessed by the Lords (on which they cannotbe overruled by the Commons).

With the final shape of reform of the House of Lords still to be determined, it is important that the powersand functions of the Upper House in considering delegated legislation are part of this process. The main themeof any settlement should be to enshrine ways that enhances the mechanisms available to scrutinise delegatedlegislation. The establishment by the House of Lords of the Merits Committee to identify SIs “which itconsiders to be of suYcient political importanceto merit debate” has been widely welcomed, including by theHansard Society, and shows that the Lords has made more progress than the Commons in this area and thatthis position should be safeguarded as Lords reform is completed.

7. Conclusion

The current parliamentary procedures for scrutinising delegated legislation are not working eVectively. A widerange of bodies has reported on this subject in the last ten years and all have proposed substantial reforms.While Making The Law acknowledged that the increasing use of delegated legislation over recent decades wasinevitable, and indeed necessary, given the complexity of modern Government and the constraints onparliamentary time, it warned that the mechanisms for achieving eVective parliamentary scrutiny were absentand needed to be implemented.

The recommendations outlined in Making The Law, and by others, particularly the Procedure Committee,would, if adopted, improve a system that has attracted criticism from across the political spectrum, both insideand outside Parliament. Given the widespread nature of the criticisms of the system, and the range of15 Strengthening Parliament, The Report of the Conservative Party Commission to Strengthen Parliament, chaired by Professor the Lord

Norton of Louth, (2000).16 Ibid.



proposals for reform put forward, the Hansard Society welcomes the Merits Committee inquiry and hopesthat it provides further weight to the calls for reform.

12 December 2005

Appendix 1

PROCEDURES IN THE SCOTTISH PARLIAMENT

— The Scotland Act 1998 gave Ministers and the Scottish Executive the power to make subordinatelegislation (delegated legislation) in any area in which the Scottish Parliament had devolvedlegislative powers. After a Scottish Statutory Instrument (SSI) is laid, it is passed to and scrutinisedby two committees.

— SSIs are considered by the Subordinate Legislation Committee (SLC). Using specific criteria theSLC determines whether or not the SSI should be drawn to the attention of Parliament; for example,whether the SSI is ultra vires or has retrospective eVects beyond the authority of the parent Act. TheSLC must report to Parliament within 20 days.

— The SSI is also scrutinised by at least one subject committee, under whose remit the instrument falls.If it falls under the jurisdiction of multiple committees, one committee is designated the “leadcommittee” and the other committees pass their recommendations to it.

— Instruments are subject to either negative or aYrmative procedure, depending on the stipulation inthe parent Act. The parent Act may sometimes indicate that an SSI can be made withoutparliamentary approval. As in Westminster, instruments cannot be amended.

— Negative Procedure (Motion for Annulment)“ An MSP must move for annulment within 40 days ofthe SSI being laid down, otherwise it is passed into law. The MSP must propose the motion forannulment to the lead committee, where the issue can be debated for no more than 90 minutes. Thelead committee must report to Parliament within the 40-day deadline with its recommendations. TheSSI may be debated and then voted on by the full House, and if necessary the SSI is annulled.

— AYrmative Procedure (Motion for Approval)“ The lead Committee must decide whether the SSIshould be recommended for parliamentary approval, and report to Parliament within 40 days of theSSI being laid. A member of the executive can propose to the lead committee that the SSI beapproved. The issue can be debated for up to 90 minutes in the committee. Once the committeereports back to Parliament, a debate may take place in the House after which the issue is voted on.Between 1999 and 2000, 39 SSIs were subject to aYrmative procedure and 100 to negativeprocedure.17

Memorandum by the Law Commission

Introduction

1. The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keepthe law under review and recommend reform where it is needed.

2. Following discussions with the Deputy Leader of the House of Commons, we agreed in our NinthProgramme of work to carry out a scoping study to assess the purpose and value of post-legislative scrutinyand to make suggestions as to how it might be carried out in a more systematic way.

3. Work began on the post-legislative scrutiny project in July 2005. Our consultation paper will be publishedat the end of January 2006. An open invitation for input on the early thinking on the scope of the project hasbeen on our website since mid-September 2005. We have targeted and received valuable suggestions fromParliamentarians, Parliamentary counsel, Parliamentary clerks, Government departments, academics andothers, all of whom have been able to oVer expertise and insights into diVerent aspects of legislative scrutinyand the Parliamentary process.

4. During the course of this early consultation, we met with Lord Filkin to discuss post-legislative scrutiny inrelation to delegated legislation. We shared with him some of the comparative findings our research hadrevealed with regard to the management of delegated legislation. Lord Filkin considered our findings,particularly in relation to Australia, to be relevant to the Committee’s current inquiry and we are pleased torespond now to a formal invitation to give evidence by submitting those findings in writing.17 Winetrobe, Barry K (2001) Realising the Vision of a Parliament with a purpose: an audit of the first year of Scottish Parliament,

Constitution Unit, UCL, Table 6.3, p 95.



5. In our consultation paper, we will be inviting views on the post-legislative scrutiny of delegated legislationand on whether there may be advantages in making greater use of sunset clauses in secondary legislation. Wedo not express a Law Commission view on these points at this stage. Similarly, the following paragraphsshould be read as a factual input into the Committee’s inquiry and not as the Law Commission advocatingsimilar systems in the UK for the management of delegated legislation.

6. The Australian experience is relevant to the Committee’s inquiry in two diVerent ways. Firstly, it providesa comparative view of best practice relating to the repeal of statutory instruments and therefore addresses inpart the Committee’s question 4. Secondly, the Australians have formulated guidance on matters suitable forinclusion in secondary legislation. This is relevant to the Committee’s questions 2 and 4 on drafting policy andguidelines.

7. We have enclosed for ease of reference the Administrative Review Council Report on Rule Making byCommonwealth Agencies (which unfortunately is not available electronically) and the Legislative InstrumentsAct 2003.

The Management of Delegated Legislation: The Australian Experience

(1) Best practice: repeal of statutory instruments

8. In 1992, the Administrative Review Council18 (ARC) published its report Rule-making by CommonwealthAgencies (ARC 35, 1992). The Report observed that in recent years there had been a vast growth in the volumeand diversity of delegated legislative instruments. The ARC raised a number of concerns in relation to theseinstruments including inaccessibility and quality of drafting, and made 31 recommendations, including thesunsetting of rules on a 10-year, rotating basis.

9. Sunsetting of delegated legislation had already been established in New South Wales, Victoria, Queenslandand South Australia. In Victoria, the provision for sunsetting was introduced in 1984 after the Legal andConstitutional Committee of the Victorian Parliament found that many statutory rules were no longeroperative, mainly through the passage of time. The Committee therefore recommended a staged repeal of allexisting statutory rules, subject to some limited exceptions, and an ongoing 10-year sunsetting period for allother statutory rules.19

10. In 2003, the Federal Parliament passed the Legislative Instruments Act 2003 (Cth), which is significantlybased on recommendations made by the ARC. One of the objects of the Act is “to provide a comprehensiveregime for the management of Commonwealth legislative instruments by establishing mechanisms to ensurethat legislative instruments are periodically reviewed and, if they no longer have a continuing purpose,repealed.”

11. The Act sets out a procedure for registering “legislative instruments” (which include all regulations,statutory rules currently in force, other instruments that are disallowable under the current system, andproclamations) on an online database (FRLI) that is maintained by the federal Attorney-General’sDepartment.

12. The Act provides that legislative instruments are to be kept up-to-date and only remain in force for solong as they are needed. The basic rule is that such instruments should reach their sunset approximately 10years after the date that they commence or are required to be lodged for registration. There are listedexceptions to this general rule and a procedure in place for the Attorney-General to defer sunsetting in certaincircumstances and a procedure for Parliament to resolve that instruments continue in force.

13. It is too early to comment on the eVects of the Legislative Instruments Act. However, the Act itselfprovides, at sections 59 and 60 that it will be reviewed generally after three years and that the operation of thesunsetting provisions will be reviewed after 12 years.18 The Administrative Review Council is responsible for overseeing and monitoring the Australian system of administrative review. It was

established to provide advice to the Attorney-General on strategic and operational matters relating to that system. For moreinformation see:http://www.ag.gov.au/agd/WWW/arcHome.nsf/Page/Home

19 Administrative Review Council Rule-making by Commonwealth Agencies (ARC 35, 1992), p58.



(2) Drafting policy and guidelines

14. In the UK, there is no set of rules for deciding what matters are suitable for secondary legislation or shouldbe included in the Act itself. There is a perception among Parliamentarians and Parliamentary Counsel thatthere is a greater tendency to use secondary legislation than in the past. The Australian Administrative ReviewCouncil20 noted a similar problem in Australia regarding the lack of clarity in the division of content betweenprimary and secondary legislation. The Council recommended that criteria should be incorporated into theLegislation Handbook which is prepared by the Department of the Prime Minister and Cabinet. TheHandbook was updated in 2000 and now contains the following guidance21:

Primary or subordinate legislation

1.12 While it is not possible or desirable to provide a prescriptive list of matters that should be included inprimary legislation and matters that should be included in subordinate legislation, it is possible to providesome guidance. Matters of the following kinds should be implemented only through Acts of Parliament:

(a) appropriations of money;

(b) significant questions of policy including significant new policy or fundamental changes to existingpolicy;

(c) rules which have a significant impact on individual rights and liberties;

(d) provisions imposing obligations on citizens or organisations to undertake certain activities (forexample, to provide information or submit documentation, noting that the detail of the informationor documents required should be included in subordinate legislation) or desist from activities (forexample, to prohibit an activity and impose penalties or sanctions for engaging in an activity);

(e) provisions conferring enforceable rights on citizens or organisations;

(f) provisions creating oVences which impose significant criminal penalties (imprisonment or fines equalto more than 50 penalty units for individuals or more than 250 penalty units for corporations)22;

(g) provisions imposing administrative penalties for regulatory oVences (administrative penalties enablethe executive to receive payment of a monetary sum without determination of the issues by a court);

(h) provisions imposing taxes or levies;

(i) provisions imposing significant fees and charges (equal to more than 50 penalty units consistent with(f) above);

(j) provisions authorising the borrowing of funds;

(k) procedural matters that go to the essence of the legislative scheme;

(l) provisions creating statutory authorities (noting that some details of the operations of a statutoryauthority would be appropriately dealt with in subordinate legislation); and

(m) amendments to Acts of Parliament (noting that the continued inclusion of a measure in an Actshould be examined against these criteria when an amendment is required).

15. The acknowledgement in the introductory paragraph of this guidance that it is not possible to provide aprescriptive list is important because literal adherence to (m) would not be desirable in all cases and wouldrisk holding up law reform where an existing Act is not working satisfactorily. The Cabinet OYce has recentlyconsulted on a new Bill for better regulation. This would allow Regulatory Reform Orders to amend or repealprimary legislation in order to simplify legislation and/or implement uncontroversial Law Commissionrecommendations, as well as remove, reduce, re-enact or impose burdens (as now). In our consultation paperon post-legislative scrutiny, we will be considering whether such a mechanism might be used as part of post-legislative scrutiny.

16. At the Law Commission, we are well used to producing reports recommending legislation to reform thepresent law. Government often accepts our recommendations but responds that it will only legislate when timepermits. Therefore we would welcome a procedure which enabled properly considered law reform which hasbeen subject to public consultation to proceed on a fast-track route. This illustrates the need for flexibility inany formulation of guidelines for statutory instruments.

17. We hope that this information is helpful. We are happy for the Committee to contact us for any furtherassistance that we may be able to provide for this inquiry.

21 December 200520 Administrative Review Council Report, “Rule-making by Commonwealth Agencies” Report No 35, 1992.21 http://www.pmc.gov.au/guidelines/docs/legislation—handbook.pdf22 A penalty unit is defined in section 4AA of the Crimes Act 1914; at July 1999 a penalty unit was equivalent to $110.



Memorandum by the Law Society

Summary

The Law Society welcomes this inquiry and in the enclosed submission makes points on some of the questionsraised in the call for evidence.

Secondary legislation is of ever-growing significance but there are increasing concerns about the level ofscrutiny it receives. We broadly endorse the points made most recently by the Hansard Society23 and supporttheir recommendations for change, including allowing statutory instruments (Sls) to be “conditionallyamended” and extending consultation processes to mirror those of the Social Security Advisory Committee.

In our evidence, we comment on the need:

for extensive consultation with stakeholders and users at an early stage;

— for thorough preparation of Regulatory Impact Assessments (RIAs), improvements in their scopeand for their subsequent evaluation;

— for careful, clear drafting and timely laying and publication of Sls.

Introduction

The Law Society is the professional body for solicitors in England and Wales. The Society regulates andrepresents the profession and in its public interest role works for reform of the law and improving access tojustice.

Preliminary Points

The Law Society is very pleased to respond to the Committee’s enquiry.

Secondary legislation is a major part of this country’s regulatory and legislative framework and is of ever-growing significance. A thorough and systematic review of its operation is now necessary and mostwelcome, not least because of increasing concerns about the growing amount of secondarylegislation and the inadequate scrutiny much of it receives. Shortcomings in these respects have beendrawn to public attention in numerous reports over the years, most lately perhaps by the HansardSociety24, and little purpose would be served by repeating them once more. We broadly endorse thepoints made by the Hansard Society and support their recommendations for change, includingallowing Sls to be “conditionally amended” ie rejecting the measure by saying how it should bechanged, and extending consultation processes to mirror those of the Social Security AdvisoryCommittee, which consults widely with the public and interested parties in advance.

In this paper we will answer where we think we can be helpful the questions raised in the Call for Evidence.These are repeated in italics for ease of reference.

Responses to Questions

Coordination

1. How is secondary legislation managed across and within Government departments? Who has overall responsibilitywithin each department? Who has coordinating responsibility across Government?

Consultation and timetabling

1. Clearly where there is a measure which aVects more than one department, or the devolved administrations,a timetable and programme for its management within each, and careful co-ordination, will be necessary.Consultation will need to take place with stakeholders in the usual way but more time for consideration ofresponses may be needed.23 Parliament, Politics and Law Making, edited by Alex Brazier, the Hansard Society, 2004.24 ibid Chapter 5.



Titles of SIs

2. An apparent change in practice in relation to SI titles has caused uncertainty for those working within bothEngland and Wales. We are grateful to Marie Navarro at CardiV Law School for this information, drawn fromher current PhD research.

3. The problem is that it is now no longer always clear from the title of measures made in London whetherthey apply to England alone or to both England and Wales. Previously the preamble to any SI made wouldstate that it was made in respect of England alone or of both England and Wales. Lately, however, this hasnot always been the case.

4. For example, an Act may give powers to Wales in respect of one group of issues, to the Secretary of Statein relation to England and Wales on a second group and power in relation to England only in relation to athird. Unless any SI made in exercise of the retained powers states in which jurisdictions it applies, in orderto identify which powers relate to England alone and which to both England and Wales, it is necessary to referto the original Act25. This is time-consuming and troublesome, and easily avoidable by clearly identifying theextent of powers in secondary measures made.

Drafting

5. If SIs are to be drafted by policy staV rather than lawyers, Parliamentary Counsel or other government legaladvisers might be given a co-ordinating or overseeing role to ensure that the measures will dovetail with eachother and what is already on the statute book.

Drafting—policy


Plain language and easy-to-use structure— helping the user

6. Often, the statutory instrument will contain the practical detail which regulates the day to day operationof a new Act. Thus it should be a priority to draft regulations so as to make them accessible and helpful to theanticipated users. Using plain language to draft the SI, and structuring and ordering it so as to make itspurpose and operation as clear as possible, would be of great help to users.25 Marie Navarro at CardiV Law School has identified the following examples (in the first two instances below discrepancies between the

title and the area of operation are shown in bold):Regulatory Reform (Schemes under Section 129 of the Housing Act 1988) (England) Order 2003, SI 986, s 11 Citation, commencement and extent(1) . . .(2) . . .(3) This Order extends only to England and Wales

and converselyHealth (Wales) Act 2003 (Commencement No 2) Order 2003, SI 30642 Appointed days for provisions relating to the Community Health Councils in England(1) . . .(2) The provisions referred to in paragraph (1) are brought into force only in relation to England.

Further Marie Navarro points out that “the territorial extent of the provisions of Sls made by central government are becoming verycomplicated. An example is the following:

National Health Service Reform and Health Care Professions Act 2002 (Supplementary, Consequential etc Provisions) Regulations2002, SI 2469.2 Application and extent(1) Regulations 3 and 15 to 17 apply only in relation to England.(2) Subject to paragraphs (3), (4) and (5), the extent of any amendment made under regulations 4 to 14 is the same as that of theprovision amended.(3) Where before the coming into force of these Regulations, a provision of a statutory instrument has been amended and thatamendment applies only in relation to England, any further amendment of that provision made by these Regulations shall similarlyapply only in relation to England.(4) Nothing in these Regulations shall be taken as amending any provision of a statutory instrument, or part of such a provision,which applies in relation to Wales only.(5) The amendments made by paragraphs 33, 56 and 76(3) and (4) of Schedule 1 apply only in relation to England.(6) Regulation 18 extends to England and Wales and to Scotland but not to Northern Ireland.(7) The extent of any repeal or revocation of any enactment under regulation 19 is the same as that of the enactment repealed orrevoked.”



Planning for SIs

7. Our experience, with some exceptions, is that departments do not always work eVectively on linked Sls andthe user’s convenience tends to be a low priority. This may be because of pressure of time, but, however goodthe reason, one outcome at least may be to limit the usefulness of responses from stakeholders, and indeedtheir ability to comment.

8. For example, we welcome the fact that the OYce of the Deputy Prime Minister (ODPM) has nowresponded to pressure to consult on the regulations in respect of the contents of home information packs underthe Housing Act. However, it was at first decided that the regulations should be released in three tranches,despite the fact that the regulations needed to be read together. This made it diYcult for stakeholders tocomment, and this diYculty was compounded by the fact that the second tranche amended the first, thuswasting some of the work done already.

9. We think the quality of responses would have been improved if consultation had been planned andsystematically undertaken from the outset, to say nothing of saving time and eVort.

10. On other matters, such as planning, our experience has been that the ODPM has worked well on linkedSls.

Statutory Instruments, RlAs and the legal aid impact test

11. Regulatory Impact Assessments (RIAs) will have an increasingly important role to play, partly as a resultof the adoption by the Government of reports such as “Regulation—less is more”26. In addition, it is often thestatutory instruments associated with an Act that carry the essential detail for users. Thus it is vital that RlAsare carried out in respect of all potential aspects of a measure.

12. RIAs should also highlight concerns expressed by stakeholders and potential users, at consultation stage,about proposed measures, whether these relate to principle or practicability. For example, concerns wereexpressed about the workability of parts of the Charities Act 1992 concerning street collections27. The sectionsdealing with this have never been brought into eVect. Similarly, during its passage, the Law Society expressedconcern about aspects of the Domestic Violence, Crime & Victims Act 2004. These sections28 are not yet inforce and we fear this may also be because our concerns about workability were not recognised earlier.

13. The Law Society’s particular concerns are of course access to and the administration of justice, and theoperation of the legal system more generally. So far, we consider that RIAs have not assessed suYcientlythoroughly possible impacts on these areas. For example, creation of a new oVence (and many hundreds ofnew oVences have been created since 199729) has significant cost and other impacts for the public sector, inparticular for the legal aid fund. The eVect bears most heavily on the availability of civil legal aid, as criminalcases in eVect have first call on the limited fund.

14. In this connection we therefore welcome the introduction by the Department for Constitutional AVairs(DCA) of the new legal aid impact test. This will be undertaken “[w]henever consideration is being given tothe introduction of new criminal sanctions or civil penalties . . . at an early stage in the development of theproposal . . . The results of the test and any impact identified should be reflected in the enforcement andsanctions section of the regulatory impact assessment (RIA)”30.

15. The test will also apply to the availability of preliminary advice under civil legal aid as well as any possibleimpact flowing from the proposal on the courts: “In civil and family matters in particular, help and assistanceis available to advise people of their rights and obligations, and entitlement. For example, to explain how newlegislation impacts on them individually or to advise on the entitlement and amount of state benefitspayable”31.

16. The eVectiveness of the test is to be reviewed in a year’s time. We hope it will improve the way resourcesare allocated, but in the meantime note that it does not refer specifically to the possible impact of legislativechange on tribunals, which consider large numbers of cases every year. Nor is the legal aid fund the only sourceof state-funded information, advice and representation—for example the equality commissions may beaVected by measure creating new rights and obligations.26 http://www.brtf.qov.uk/reports/les’sismoreentry.asp27 Part III Charities Act 1992.28 s12 of the Domestic Violence, Crime & Victims Act (which inserts new para 5A into the Protection from Harassment Act 1997)

concerning restraining orders after acquittal (s13 applying to Northern Ireland).29 According to a press release from the Liberal Democrats on 8 February 2005, the number is 1000, including 367 from the Home OYce.30 http://www.dca.gov.uk/laid/impact-test.htm31 ibid.



Inadequate RIAs

17. At present there appears to be no means of submitting complaints about inadequate RlAs, challengingthem, or ways of seeking more information on points raised in them. While the National Audit OYce doesconsider a sample of RIAs subsequently referred to them by the Better Regulation Task Force, this is not afully satisfactory solution to the problem. A new mechanism is needed.

18. A recent example is the partial RIA in respect of the smokefree aspects of the Health BiIl32. This does notappear to mention legal aid. Enforcement is to be primarily the responsibility of local authority environmentalhealth oYcers33, and costs under the preferred Option 4 are estimated at £7–20 million per year. There appearsto be no indication of how this sum is to be raised, nor of whether existing environmental health oYcers cantake on this additional burden, nor of any assessment of the possible number of cases which may go to court(although the paper does refer to the experience in Ireland). Reference is made to costs estimates obtained byASH but these are not shown in detail and there appear to be no detailed estimates from local authorities andrelevant departments.

19. There are of course other costs than legal aid involved in creating new criminal sanctions and civil legalrights and obligations. New oVences may add to the costs of the police, prosecution or other enforcementauthorities, probation, prison, aftercare, victim support and social services. These should all be covered inthe RIA.

Scope of RIAs

20. We are also concerned about the scope of RIAs. At present we are concerned that they do not suYcientlyassess the value of intangible benefits, such as rights and freedoms. Neither do they cover such intangible costsas serious delay in obtaining resolution of a case. This may involve practical diYculties, with measurable costs.

21. The National Audit OYce (NAO) in a review of RIAs34 noted the diYculty experienced in quantifyingcosts and in particular benefits “for which”, as their report puts it, “there is no market”35. In some cases therewill be less quantifiable costs: “justice delayed is justice denied” and although this is not a measurable loss,there will be a loss nonetheless.

22. Current RIA guidance refers policy makers to the Green Book36, which oVers some guidance on thispoint37. If there is no “market data” policy makers are advised to try and assess people’s “willingness to pay fora particular benefit” or “the amount of compensation consumers would demand in order to accept” a cost38.

23. However this is of very limited help. Inevitably there is a particular problem with assessing the cash valueof the legal system, or elements of it, by and to people who have not had contact with it (or whose perceptionof their contact with it has been negative). Most individuals will have no realistic way of comparing andexpressing the value of the right of access to the court, say, with the value of any other constitutional principle,or any other intangible good in their lives, and of then converting it to monetary amounts.

24. Other countries have grappled with this issue. For instance, the guidance from New Zealand is as follows:

“Tangible and intangible“66. . . . The term “intangible” is often applied to those impacts to which it is diYcult to attributea dollar value. Examples might include time, health, comfort, environmental, and cultural impacts.

“67. It is both possible and necessary to integrate the two types of impact . . . intangible factors(either dealt with in a descriptive or qualitative manner) should be presented alongside quantitativeanalysis. The analysis should indicate the relative importance that has been assigned to the values,and the assumptions that have been made in making those judgements. It is also critical to recognisethe use of a formal [cost/benefit analysis] approach does not imply ignoring non-quantifiable factors.

32 http://www.dh.qov.uk/assetRoot/04/12/19/31/04121931.pdf33 The BBC reported on 7 November a shortage of Environmental Health OYcers across the country—see

http://news.bbc.co.uk/l/hi/programmes/real story/4407710.stm. This may have an impact on the enforcement of the new measure butis not referred to in the RIA.

34 first Evaluation of Regulatory Impact Assessments Compendium Report http://www.nao.orq.uk/pn/03-04/0304358.htm35 para 2.53 p37.36 Green Book, Appraisal and evaluation in central government’,

http://www.cabinetoYce.gov.uk/requlation/ria/ria–guidance/costs–and–benefits/cost–and–benefits checklist.asp37 http://qreenbook.treasury.gov.uk/38 “Valuing costs and benefits where there is no market value” para 5.30V

http://greenbook.treasury.gov.uk/chapter05.htm; and Annex 2:http://qreenbook.treasurv.qov.uk/annex02.htm



In fact, it may be more important to focus on the qualitative factors, especially where those factorsare expected to be larger than the quantitative impacts”39.

25. We recognise that this is a diYcult matter. One solution might be to allot a notional amount in the cost/benefit analysis for (for example) constitutional rights (this amount would have to be agreed and appliedacross government and be regularly reviewed to take account of inflation).

26. However we tend to think that attempts to create equivalent cash values for something like the right toseek the adjudication or assistance of the court may be to miss the point. These rights cannot be regarded as“having a market” but are of inestimable worth nonetheless.

27. Finding a means of incorporating a non-price weighting—a worth factor—for legal and constitutionalintangibles might assist, as suggested in the extract above, with other RIAs as well, such as rural impacts. Aworth factor could for instance be attached to “rural peace and quiet” in a similar way to “the right of accessto justice”. Agreeing a common way of dealing with worth factors across government would also increasetransparency and enable consultees to respond more fully to proposals, or even challenge the worth factorattributed.

28. Whatever method is adopted, legal and constitutional rights cannot simply be ignored in the impactassessment process. To leave them out, in eVect allotting a nil amount, is to risk distorting the balancing ofcosts, benefits and interests which is part of the policy making process. It is essential therefore that the RIAshould include some means of recognising the importance of these factors. Omitting them from the equationrisks valuing only what is measurable, and damagingly warping the resultant assessment.

Other factors

29. We think it would also be useful if RIAs considered whether there were any proposals for further changein the law in the pipeline in the same or related fields. This would draw attention for instance to any LawCommission proposals which might have a bearing, and to any forthcoming measures, EU or otherwise, theimpact of which will need to be taken into account.

30. In addition of course RIAs should address the question of rationalisation, simplification and codificationof the legal and regulatory context in which the new measure will operate.

Evaluation

31. Issues aVecting access to justice and other aspects of the legal system must not be regarded as tangentialor as afterthoughts, but as integral to assessing the impact and eVectiveness of new measures. As in other fields,the eVectiveness and accuracy of all aspects of the RIA, including legal impacts, must be systematicallyreviewed once the measure has been in operation for an appropriate period of time. This will ensure thatlessons can be learnt and applied in the future.

Correction


32. Fuller consultation, with suYcient time for consideration on the part of stakeholders, along with moreuse of draft instruments, is likely to lead to a reduction in the need for corrections. In addition, as the HansardSociety suggest, a full narrative setting out the policy proposals which are to be enacted should be madeavailable as soon as possible if the final text of a measure is not to be published at an early stage40.39 http://www.med.govt.nz/busit/compliance/regimpact/regimpact-01. html£P 149 3001540 Parliament, Politics and Law Making, edited by Alex Brazier, the Hansard Society, 2004, p 36.



Commencement—common dates

8. We are keen to avoid the bulk laying of statutory instruments in the run up to each common commencementdate. How will departments plan the laying of Sls before each common commencement date in a way thatfacilitates scrutiny? Are departments developing annual statements on proposed regulation?

33. Common commencement dates need not lead to a rush in the run up to the day. Sls may be introducedin an orderly fashion throughout the year with an implementation date some months ahead. This would helpcompliance with, for instance, the Government’s guidance issued through the Small Business Service, whichstates on p141, “you should issue guidance on new legislation at least 12 weeks before the legislation comesinto force”— although our experience is that frequently this requirement is not complied with. The websiteemphasises the need to allow business suYcient time by adding, “when planning to introduce new legislation,allow enough time for a 12-week implementation period”42.

Commencement—21 day rule

9. How well observed is the rule of practice that an instrument should normally be laid at least 21 days before it comesinto force? Should the period be lengthened?

34. Our first comment is that Sls should always be published before they are laid. This is not always the case.

35. As far as the 21 day rule is concerned, unfortunately this principle is not well observed. For example, inrelation to the Planning and Compulsory Purchases Act 2004:

— the Planning and Compulsory Purchase Act 2004 (Commencement No. 3 and Consequential andTransitional Provisions) (Wales) Order—SI 2005/1229 was made on 26 April 2005 and came intoforce on 30 April 2005;

— the Planning and Compulsory Purchase Act 2004 (Commencement No. 4 and Consequential,Transitional and Savings Provisions) (Wales) Order—SI 2005/2722 was made on 4 October 2005 andcame into force on 5 October 2005.

— the Town and Country Planning (Local Development Plan) (Wales) Regulations—SI 2005/2839 wasmade on 11 October 2005 and came into force on 15 October 2005.

36. In this connection, it is worth pointing out that the Small Business Service website carries theGovernment’s guidance to departments on implementation periods: “Business and particularly small firmsshould be allowed suYcient time to prepare for the implementation of new legislation. You should issueguidance on new legislation at least 12 weeks before the legislation comes into force”, it says43. It is importantthat requirement is also complied with.

37. Further, when a measure with regulation-making power is introduced, departments from time to timeagree to make an SI available in draft, to give an indication of the likely use of the powers. The anticipated SIis not always forthcoming but is of value when it is made available. It would be helpful if this became standardpractice.

Consultation


38. By and large government departments appear to try to comply with the Code. The most obviousimprovements which could be made include always consulting on significant proposals, allowing more timefor consultation, and issuing draft regulations for comment in good time. Feedback on consultation responses,saying why a point has not been adopted, for example, would also be welcome.

39. Extending the super-aYrmative resolution procedure44, normally applicable to Regulatory ReformOrders, would also be desirable.41 http://www.sbs.gov.uk/SBS Gov files/requlations/REG implementationguideline s.pdf42 http://www.sbs.gov.uk/sbsgov/action/laver?r.12%7000013212&r.11%7000000211 &r s%tl&topicld%700001322543 http://www.sbs.qov.uk/SBS Gov files/requlations/REG implementationguideline s Of44 This special procedure allows (broadly) debate on, and amendment of, statutory instruments—see Statutory Instruments, Fact

Sheet 7, Legislative Series, House of Commons Information OYce for a helpful outline; athttp://www.parliament. u k/docu me nts/upload/L07. pdf



Users and impact

11. What are users’ most pressing concerns about the current method of making secondary legislation? Does anyone inGovernment (or in the sectors affected) monitor the collective impact of regulations on e.g. small businesses or localauthorities?

40. To answer the final point first, we are not aware of anyone monitoring the cumulative eVect of theGovernment’s legislative output on a systematic basis. Indeed Professor the Lord Norton of Louthcommented on this at a debate at the Law Society in 200345.

41. With regard to the first point, users’ most pressing concerns, we would cite the following:

— Too much secondary legislation is made too late, and comes as too much of a surprise. There shouldalways be full consultation on significant measures, and feedback on the consultation. As indicated,this should make it clear for example why a particular suggestion was not adopted, so that thethinking is as clear as possible.

— Ideally a draft instrument would be available from an early stage, but, as the Hansard Societysuggest, if this is not possible there should at least be a full narrative setting out the policy proposalswhich are to be enacted46. Most of the problems with secondary legislation are to do with thepractical eVects of policy, not the drafting. It may be more helpful to stakeholders and users to knowthe nature of the policy the government is proposing than to see its final legal form—although thisis not of course to discount the need for careful drafting. However if it was at least clear what it wasintended to bring into eVect, users would generally be in a better position than at present. They couldthen more clearly assess whether the legal text did eVectively carry this into eVect.

— Other steps which could be taken include reviewing the whole process by which a measure enters law.As much detail as possible should be provided in advance, to enable better and more thoroughdiscussion, and so as to avoid rushed consideration at a late stage when essential detail emerges.Carry-over may help in this respect, perhaps allowing more measured consideration of major andnon-urgent proposals.

42. It may be worth adding that more attention should perhaps be paid to secondary legislation implementingEuropean measures. Estimates indicate that 40–60 per cent of secondary legislation comes from Europe. Muchof this does not receive publicity until it is put before Parliament. More information and consultation, evenbefore proposals are formally put forward in Europe, would help identify salient issues early on and mayobviate problems arising in the first place.

43. A prior question even to this whether it is always appropriate to use the regulation-making powerconferred by section 2(2) of the European Communities Act 1972 as the route for transposing EuropeanDirectives, given the significance of many of these measures.

December 2005

Letter from the National Consumer Council

I am pleased to enclose a copy of Consumers and regulation, a paper recently completed by the NCC DeputyChief Executive, Philip Cullum, regarding the consumer interest in regulation. This paper details howinappropriate regulation has a negative eVect on both the consumer, and on business.

Regulation can at times be vital, providing essential safeguards for vulnerable people and helping to makemarkets work. Common technical standards, safeguards on misleading claims and rules aboutanti-competitive behaviour all promote consumer choice and ultimately, enhance business competitiveness.

There are three reasons for our caution. The first is that consumers foot the bill (although policy-makers havefallen for the line that unnecessary regulation is a cost for business). Next, incumbents often use regulation torestrict or prevent competition. Business leaders talk tough about regulation, but too many companies—andindeed entire sectors—are willing to embrace and even lobby for rules and restrictions when they think it willfurther their own position. Finally, regulation, often via statutory instruments, can have a deadening eVect,inhibiting business creativity and innovation.

Current debates about the quantity of regulation miss the point, and rhetoric is still more in evidence thanhard facts. There must be a change in our regulatory culture. The way forward is to place the consumer at theheart of regulatory decision-making, using the consumer interest as a framework for assessing what is workingand what isn’t.

13 January 200645 Report of the Better Law-making Debate, 2003, the Law Society.46 see note 17.



Consumers and regulation, by Philip Cullum

The NCC’s mission is to help everyone get a better deal by making the consumer voice heard. To achieve this,we have four strategic objectives:

— to put users at the heart of public services;

— to ensure that disadvantaged and vulnerable consumers get a fair deal;

— to achieve more sustainable consumption; and

— to make markets work for consumers.

Our work in this last programme area—Open Markets—aims to improve market outcomes for consumers bypromoting eVective policies on competition, law and soft law. We also want to advance policy on innovation,technology and information use that promotes consumers’ interests.

This is the second in a series of Open Markets pamphlets that challenges the status quo in consumer policy,drawing on the NCC’s unique insights to advocate new ways of thinking.

Summary

It is time to rescue the debate on regulation from the vested interests of business leaders and bureaucrats. Atthe National Consumer Council (NCC), our instinct is against knee-jerk calls for regulation, and we have along and distinguished track record in calling for greater competition when others were concerned withprotectionism and the promotion of so-called national champions.

There are three reasons for our caution about regulation. The first is that consumers foot the bill (althoughpolicy-makers have fallen for the line that unnecessary regulation is a cost for business). Next, incumbentsoften use regulation to restrict or prevent competition. Business leaders talk tough about regulation, but toomany companies—and indeed entire sectors—are willing to embrace and even lobby for rules and restrictionswhen they think it will further their own position. Finally, regulation can have a deadening eVect, inhibitingbusiness creativity and innovation.

Regulation can at times be vital, providing essential safeguards for vulnerable people and helping to makemarkets work. Common technical standards, safeguards on misleading claims and rules about anti-competitive behaviour all promote consumer choice and, ultimately, enhance business competitiveness. Butregulation needs to be used sparingly and with a sense of purpose.

Current debates about the quantity of regulation miss the point, and rhetoric is still more in evidence thanhard facts. There must be a fundamental change in our regulatory culture. The way forward is to place theconsumer at the heart of regulatory decision-making, using the consumer interest as a framework for assessingwhat is working and what isn’t.

The NCC supports proposals for a super-complaint process, in which business organisations, consumergroups and other stakeholders can refer failing regulations for oYcial review. In this pamphlet, we identify anumber of very diVerent instances in which regulation restricts competition, limits choice and raises prices.These include the rules that make it hard for law-abiding citizens to open a bank account, the regulations thatmean people in many towns have to wait longer for a taxi, and the red tape that wraps itself around coupleswho want to tie the knot.

Our Bias Towards Markets

These are boom times for deregulators. The Queen’s Speech—ironically, one of the longest lists of proposedlegislation on record—promised a Better Regulation Bill. This will implement the recommendations of theBetter Regulation Taskforce to reduce the administrative burden of regulatory compliance, as well as facilitatea “one in, one out” approach to new regulation.

A Better Regulation Executive is being established, and action is being taken to implement the report of theHampton review on regulatory inspections and enforcement.

This isn’t just a UK issue: the European Commission is pushing for less red tape, as part of the Lisbon agendato enhance European competitiveness; and the global management consultancy McKinsey says “governmentseverywhere struggle to get regulation right.”

The prime minister argues that “It seems to be part of the DNA of regulatory bodies that they acquire theirown interests and begin to grow”. But government departments are hardly blameless when it comes to creatingnew rules and greater bureaucracy.



Campaigning groups are often in the firing line too. Their role is to identify problems that need to be tackled,and government intervention often appears to be the best way of achieving this. It can be all too tempting tocall for regulation as a quick fix.

“Our starting point is that competition works, with well-informed consumers exercising real choice”

But at the National Consumer Council, our instinct is against knee-jerk calls for regulation. We are in favourof properly functioning markets, and our starting point is that competition works, with well-informedconsumers exercising real choice. This is our prejudice, one that we have articulated constantly since the mid-1970s, including over many years when the benefits of competition and choice were not so widely accepted andthe prevailing political philosophy was all about protectionism and national champions. We do not supportregulation unless and until there is a powerful case for intervention to make markets work or provide essentialsafeguards for consumers.

Three reasons for caution

The first reason for our caution about regulation is that consumers foot the bill. Time and again, unnecessaryregulation is presented as a cost for business. The British Chambers of Commerce even publishes what it callsits business “Burdens Barometer”. This line has been asserted so many times that policy-makers andpoliticians from all parties have fallen for it. The Department of Trade and Industry (DTI) recently publisheda leaflet tellingly entitled Better regulation in DTI: less red tape for business.

In fact, the real burden is on consumers, who pick up the tab. But we are rarely mentioned. Indeed, when theappointment of the Better Regulation Executive’s new chair was announced, cabinet minister John Huttonsaid “William Sargent will drive through the major change programme for business and public sectorstakeholders.”

The second basis for our sceptical approach is that incumbents often use regulation to prevent or restrictcompetition, for example, by setting unnecessarily high entry standards. Business may talk tough when itcomes to regulation, but all too many companies—and indeed entire sectors—are willing to embrace (andsometimes lobby for) rules and restrictions when they think it will help further their own position.

Third, regulation can inhibit business creativity and innovation. This can be a particular issue for smallbusinesses, so often a driver of new ideas in our economy. It has been estimated that regulation has five timesas much impact on them.

Last year, one of the UK’s leading regulators required companies trying to win the right to bid for some smallmarket research projects to answer numerous questions such as “How do you ensure your organisation andits people have a dialogue?” Few people would feel at their most entrepreneurial after a few hours spent onthis kind of pointless form-filling.

“Unnecessary bureaucracy increases costs. As a result consumers pay more”

A survey of members of the Federation of Small Businesses found that the longer someone has been inbusiness, the more likely they are to be dissatisfied with the rules aVecting companies. This is the deadeningeVect of regulation. Unnecessary bureaucracy like this also increases costs, and, as a result, consumers andtaxpayers pay more.

Benefits of Deregulation

The reality is that consumers have benefited hugely from much deregulation over the years. In markets asdiverse as optical services, conveyancing and air travel, consumers now have greater choice and lower pricesthanks to the opening up of markets—moves supported at the time by the NCC. In each case, scare storiesput around in advance were unfounded, and quality standards have been maintained.

Regu-Waffle

Many business people routinely denounce all regulation in the strongest terms. The Confederation of BritishIndustry talks regularly about “a red tape tide”, while the British Retail Consortium says that “excessiveregulation and red tape are damaging business.” The British Chambers of Commerce goes even further,declaring that “monitoring and measuring the cost to business of compliance with regulation and red tape isone of [our] top priorities.”



“Businesses benefit from much regulation, and they support it when it suits them”

Earlier this year, a PricewaterhouseCoopers survey found that the world’s top chief executives think over-regulation is the biggest potential threat to business growth. This seems unlikely to be true. Can it really becorrect that regulation is more important than competition from China and India, issues about humanperformance and skills, or the state of the wider economic environment?

The reality is that businesses benefit from much regulation, and they support it when it suits them—oftenjustifying this as the need for a “level playing field”, when in fact they want quite the opposite.

John Sunderland, executive chairman of Cadbury Schweppes, is a fierce critic of much food regulation,denouncing “traYc light” nutritional labelling as “extreme”. But he refers approvingly to the MerchantShipping Act of 1867, which once required all ships to carry a daily ration of lime juice (and whichcoincidentally benefited his company, owners of Rose’s Lime Juice). And, as president of a body representingBritish advertisers, he has called for increased regulation of the BBC and for a proposed merger of two TVcompanies to be investigated by the Competition Commission. When they talk about the detail, businessleaders often have pretty nuanced views about regulation, recognising the pluses and minuses—yet suchsubtlety tends to be lost when the anti-regulation rhetoric starts.

Principles and Focus

We consider that there are two key types of regulation. In both instances, critics are simply wrong tocharacterise regulation as a problem.

The first is lifeline regulation, which safeguards consumers. The CORGI rules about gas safety save lives—around 47,000 businesses employing 98,000 gas fitting operatives are now registered, ensuring that UKhouseholds benefit from a well-trained workforce. Set up 35 years ago, CORGI commands wide support, andno-one today seriously argues that it has been anything other than a good thing for consumers and businessalike. And the regulation governing access to aVordable energy and water safeguards vulnerable consumers.

The second is market-making regulation, which enables proper competition and choice. The Building SocietiesAssociation says that there is too much regulation and “an inadequate recognition of the long-term benefitsof competition in delivering consumer value.” But let’s not ignore all those instances where regulatoryintervention is needed to make markets work.

Common technical standards can help establish competitive product markets; and ensuring that advertisersare not allowed to make misleading claims helps promote choice. The current Competition Commissioninquiry into doorstep lending, prompted by the NCC’s super-complaint, should sort out a market that isfailing low-income customers; and standards on food labelling can help consumers make informed decisionsand promote new ranges of healthy food.

The point is that making markets work for consumers is so important that we should never allow it to besabotaged by the lazy rhetoric of lobby groups, whether for or against regulation.

We will soon be publishing new NCC thinking on how and why markets sometimes fail, the benefits ofcorrecting such market imperfections, and how to identify and apply the right potential solutions.

Regulators can play an important role in making markets work. This can be about cracking down on anti-competitive practices. But it can also mean more positive steps, such as sweeping away barriers to switchingbetween companies and promoting informed choice, or enabling consumers to share their experiences ofdiVerent companies, so that those who deliver good products and high service standards benefit and those whodo not lose out.

Self-Regulation

Sometimes the best option can be self-regulation, allowing an industry to take responsibility for any necessaryrules. The premium rate telephone regulator, ICSTIS—which covers information and entertainmentservices—is one example. Self-regulation has built the consumer trust needed to make this £1 billion marketwork.

However, in a failing market, self-regulation is a privilege, not a right. Our research suggests that it works lesswell in fragmented markets where the range of providers is wide and diverse.

The car servicing and repair sector provides a prime case study of this. There is overwhelming evidence ofmassive consumer detriment—estimated to be as much as £4 billion a year in a £6 billion market. Over the last30 years, 11 diVerent self-regulatory schemes have been tried and all have failed, the result of a lack of will on



the part of the industry and the apparent reluctance of policy-makers to get to grips with the unglamorous jobof enforcement.

The NCC has now set the industry a deadline to make self-regulation work; this is its last chance. In theabsence of real action, and in the face of high and sustained levels of detriment, the only option may be someform of licensing or regulation. We would demand such action reluctantly. But we are conscious thatscepticism about regulation, and support for the better regulation agenda, should not mean leaving consumersdefenceless when traders are intent on ripping them oV time and again.

Principled Regulation

One paradox is that, while most in business say they do not like detailed regulation, many (not least thoseworking in companies’ compliance departments) can be uncomfortable with a principles-based approach andprefer being given direct instructions by a regulator. This is apparently known in some circles as “Nikeregulation”, after the sports firm’s advertising slogan “Just do it!”

The Unfair Commercial Practices Directive, which the NCC has championed, sets out a general duty onbusinesses across the EU to trade fairly. This welcome reform represents an attempt to change culture andunderlying attitudes rather than being highly prescriptive. Indeed, it should provide an opportunity to sweepaway some detailed rules. The directive has, however, met some resistance from business organisations, whichexpressed concerns about a possible lack of certainty.

But support for greater focus on cultural change is growing. Tim Ambler and Keith Boyfield of the AdamSmith Institute say that what we need is “a few general rules of good conduct and the marketplace, [ratherthan] thousands of pages of detailed prescriptions.” This of course depends on companies demonstrating thatthey are willing and able to change their ways. One of the challenges of principle-based regulation is how tomeasure and monitor compliance; it can also be hard to measure overall regulatory impact.

“Many businesses prefer being given direct instructions by a regulator”

The Financial Services Authority has led the way with its Treating Customers Fairly initiative. It is remarkablethat a major industry such as financial services still needs to be told that it should treat its customers fairly—in almost all markets this would be taken as read—but it reflects the extent to which standards in the sectorhave declined, with the result that consumer trust has ebbed away.

Rather than setting detailed rules, the regulator has rightly tried to tackle the cultural problem head on. Itinsists that companies’ senior management demonstrate that they are taking responsibility for driving changethroughout their business—then the detail is down to these leaders, not the regulator. Only time will tellwhether the industry is able to rise to the challenge. Then the test for the regulator will be to ensure that itachieves genuine reductions in regulatory burdens for those companies that can demonstrate they are treatingtheir customers fairly.

A Focused Approach

The Better Regulation Taskforce has famously declared that “less is more”, though without producing muchto back up this assertion. Certainly, there needs to be a fundamental shift in our regulatory culture—not justhere in the UK, but in Brussels and international organisations. This is not a matter of weighing regulations,but is instead about focus and principles.

The Better Regulation Taskforce has set out five principles of regulation: proportionality, accountability,consistency, transparency and targeting. These all serve as a useful test when detailed regulation is beingdrafted. But they do not really get to grips with the philosophy underpinning regulation. Why do we want toregulate, and how can we tell if it is working? We believe that the way forward is to place the consumer at theheart of regulatory decision-making.

Although regulation is usually framed as a business issue, in many instances, companies will not see genuinecompetition as being in their interests and will therefore be quite happy with regulation that restricts it; whilethe consumer interest is usually much more firmly with well-functioning markets, innovation and choice. Soa consumer-focused approach to regulation oVers a way past vested interests and can act as a real driver ofUK competitiveness.

Many sectoral regulators have statutory duties focused in some way on consumer interests, although thediVerent pieces of legislation tend to be inconsistent and of rather variable quality. For example, Ofwat’s rolein protecting the interests of water customers is currently subsidiary to other objectives, and the regulator has



itself called for this to be made a primary duty, so “putting customers’ interests clearly at the heart of waterregulation”. A much more recent piece of legislation declares that the “principal duty” of the communicationsregulator, Ofcom, is to further the interests of citizens and consumers.

Of course, much depends on how such objectives are put into practice—but, even so, they represent anextremely useful framework for decisions about regulation. Government departments are not similarlyguided—and often it shows.

This is an area in which the new Better Regulation Executive and the Cabinet OYce could usefully take thelead, making it clear to civil servants that, when they are regulating, consumer interests should be centre-stage.

The performance of each department in achieving the right level and focus of regulation could then beregularly and independently assessed. The Audit Commission uses its Comprehensive PerformanceAssessment to measure how well local councils are delivering services, distilling a range of assessments intoone easily understood rating to help focus future improvements. The same kind of approach could perhapsbe used to encourage best practice in how departments regulate.

The proposed Bill for Better Regulation might provide an ideal opportunity to create greater consistencyacross sector-specific regulators, for example, upgrading the statutory duties governing utilities regulators tothe standard of the best.

The NCC Hit-list

Much of the debate about regulation is framed in generalities, with rhetoric and assertions far more in evidencethan hard facts.

It is important that we move the focus onto tangible examples of what is working and what isn’t.

This is why we support proposals for a super-complaint process in which business organisations, consumergroups and other stakeholders can refer failing regulations for oYcial review.

To get this much-needed debate started, the National Consumer Council has identified a number of verydiVerent instances in which regulation restricts competition, limits choice and raises prices.

This is our hit-list of rules that should be reduced, simplified or abolished. These go beyond the proposals ofthe Better Regulation Taskforce, in that they relate not only to administrative elements of regulation but alsoregulatory policy failures.

The regulations intended to stop criminals laundering cash

The banking industry and the regulator both admit that there has been “over-enthusiastic” application of therules. This has caused real harm to consumers who have been prevented from opening a bank account. Earlierthis year, and not before time, the industry proposed some changes, saying “we have taken a radical approach.The new guidance reflects the reality, that most customers are neither money launderers nor terrorists.” Evenmore recently, the Financial Services Authority has proposed removing all detailed rules in this area andreplacing them with some brief high-level provisions. We want to see tangible action before the end of the year,to introduce some common sense in place of what has proved to be an outstanding example of misjudged andineVective regulation.

Restrictions on the number of taxis in towns and cities

The OYce of Fair Trading has exposed how these rules act against the consumer interest, and the governmenthas strongly encouraged local councils to scrap the controls on numbers. Some local councils have acted, butalmost one-third currently still maintain such restrictions, protecting incumbent operators at the expense ofcompetition and choice.

The CAP

The European Commission says that the aim of the Common Agricultural Policy (CAP) is to “provide farmerswith a reasonable standard of living and consumers with quality food at fair prices.”

In fact, it has long meant that European consumers pay more than they should do for food. A series ofwelcome if long-overdue reforms has reduced the scale of this, but European consumers still pay too much.Despite price reductions, food is still more expensive in the EU than the United States, and EU consumersspend a larger share of their income on food and drink. The CAP is at least partly to blame.



The regulation of legal services

The Government and Sir David Clementi (who has led a major review of the sector) have described thesevariously as outdated, inflexible, over-complex, lacking in accountability, insuYciently transparent, flawed,inappropriate, inconsistent and having “insuYcient regard to the interests of consumers.” The good news isthat change is on the way, with firms being enabled to provide legal services under alternative businessstructures. By removing restrictions that currently prevent lawyers working with non-lawyers and permittingexternal investment supported by proper safeguards, consumers are set to benefit from more competition,greater innovation and reduced costs. At the same time, a modern, light-touch regulatory frameworkregulation will be introduced, including the creation of a single independent complaints-handling body.

Constraints on Sunday shopping

The NCC was one of the leading lights in the original campaign to end the ban on Sunday shopping in theearly to mid 1990s. Now it is time to look at further relaxation of the rules. Large stores can currently onlyopen for six hours on a Sunday, even though evidence suggests that many millions of people would like to havegreater freedom to shop when it suits them. This restriction has the important objective of protecting workersfrom being exploited—but it is not at all clear that it is the most eYcient way of achieving this aim.

Tying the knot

There are some moves to relax rules on the type of music and readings that can be used at civil weddings. Butmany rules and restrictions remain, some of which go well beyond what is needed to safeguard the institutionof marriage. Civil wedding venues must be “seemly and dignified” and “regularly available to the public foruse for the solemnisation of marriages”, which in eVect has meant that you cannot use your house unless youlive in a stately home and are happy to allow other people to be married there too. No food can be eaten withinthe premises less than an hour before the wedding. Local councils can set additional rules—Essex CountyCouncil insists on two free car parking spaces for registration staV, “as near to the main entrance of thepremises as possible.”

Enabling choice, harnessing consumer power

The process of regulation can all too often itself be bound up in red tape. Those premises selling foods whichare considered by environmental health oYcers to pose a higher risk to the general public are visited morefrequently and can face firmer enforcement action; yet, as the Scottish Consumer Council has noted, the publicis denied information about these risk assessments. There is a pressing need to cut through such bureaucracyand open up regulatory processes. Last year, the DTI did propose a scheme to shed some light on traders’regulatory track records—but then dropped this plan from the final version of its Consumer Strategy, leavingconsumers in the dark. Equally, many regulators could do more to open up to feedback from consumers oncompliance.

For example, the major regulatory emphasis concerning medicines is on pre-licensing data, based on theresults of clinical trials, with limited formal mechanisms after medicines are launched. Yet it is only in the realworld that some problems emerge. By seeking direct feedback from consumers on their own experiences, theMedicines and Health Products Regulatory Agency could amass a rich source of data, so facilitating moreeYcient and eVective use of scarce regulatory resources.

Trade mark rules and international competition

The law on trade marks ensures that goods really are what they seem to be, so protecting both companies andconsumers from piracy and fraud. And when a trade mark owner places a product in a defined market, theylose the ability to restrict trade in the product within that market, so enabling competition. But the flip-sideof this is that manufacturers can prevent trade outside that defined market. Such regulation might soundtechnical and dull, but for EU consumers it means higher prices and less competition. Manufacturers cansegment the global marketplace, hiking up prices in the EU for products such as clothing and toiletries, securein the knowledge that other companies are not allowed to import cheaper supplies from elsewhere. Researchby the Swedish and UK governments demonstrates that consumers would benefit from reform of the rules,but the European Commission remains complacent about this anti-competitive piece of regulation.



Complaints made simple

The welcome recognition of the importance of dealing with consumer complaints has had one unfortunateside-eVect: complexity. In England, there is a Parliamentary Ombudsman; and a Health Service Ombudsman(who is actually the same person as the Parliamentary Ombudsman); and three Local GovernmentOmbudsmen; and a Housing Association Ombudsman. Complaints to the Parliamentary Ombudsman needto be made via an MP. The government is reviewing this area, but its proposals are limited to closer workingbetween the diVerent ombudsmen. Meanwhile there is already a Scottish Public Services Ombudsman, whichdrew together the parliamentary, health service, local government and housing association ombudsmen, anda similar merger is underway in Wales. It’s time for the same kind of simplification to take place in England,along with the removal of the pointlessly bureaucratic requirement about complaining to the ParliamentaryOmbudsman via an MP.

Conclusion

It is time to rescue the debate on regulation from the vested interests of business leaders and bureaucrats.Decisions about whether and how to regulate have a huge impact on consumers—yet all too often we areexcluded from the discussion and our interests are ignored. The government’s commitment to betterregulation provides a real opportunity for a fresh start. Regulation can provide essential safeguards forvulnerable people; and it can help markets work. But it needs to be used sparingly and with a sense of purpose.This is the case for a consumer-centred approach to regulation.

Memorandum by Edward C Page FBA, Sidney and Beatrice Webb Professor of Public Policy,Department of Government, London School of Economics

Introduction

1. My evidence to you is based on two studies I have conducted on secondary legislation and the people whowrite it47.

The Character of SIs

2. A very large volume of secondary legislation is of a character that would not in many other countriesusually be considered as the subject of such forms of law making. Many Statutory Instruments (SIs) are localorders, and most of these make provisions for specific stretches of road such as The A7 Trunk Road (CarlisleCity Boundary to The Scottish Border) (De-Trunking) Order 2005 (SI No. 60, 2005). Figures which point tothe apparently alarming growth of red tape based on the number of SIs are generally inflated (by a factor ofapproximately two) by the inclusion of these and similar regulations.

3. SIs are tools routinely used to manage policy delivery alongside other instruments such as circulars, codesof practice, court rules, guidance and instructions to staV delivering services. “Doing regs” is generally a partof a wider portfolio of “policy work” that occupies “policy” oYcials in Whitehall ministries. Unlike primarylegislation, where teams are set up to develop legislation, and slots in the legislative timetable have to be foughtfor, secondary legislation is often incidental to managing and delivering policies already in place. For example,under Mental Health Acts, the forms that have to be filled to cover patient consent and such like have to beset out in an SI, so any changes in the design of the form will require a new SI. Certainly some significant andsensitive initiatives can be handled by SI, such as the reclassification of cannabis under the Misuse of DrugsAct 1971, but for the most part there is nothing like a “legislative programme” for SIs as there is for primarylegislation.

4. SIs are often produced at rather short notice, with oYcials below Senior Civil Service rank (Grade 7, SeniorExecutive OYcers and Higher Executive OYcers in the old common grading scheme) taking the lead insupervising their drafting by departmental solicitors. It should, however, be noted that oYcials at these gradesalso play a leading role in developing primary legislation.

5. Any scheme for the “management” of SIs seeking to establish additional department-wide or government-wide checks on their issue needs to discriminate between the great variety of uses which such regulations areput and the diverse circumstances under which they are developed. A catch-all management scheme that addsextra layers of approval to all SIs could create serious diYculties and lead to a deterioration in the quality ofadministration, with little or no additional benefit.47 See Edward C Page Governing by Numbers. Delegated Legislation and Everyday Policy Making (Oxford“ Hart 2001); Edward C Page

and Bill Jenkins Policy Bureaucracy: Government with a Cast of Thousands (Oxford: Oxford University Press, 2005).



Controls Over the Use of SIs

6. There is no body coordinating the development of all SIs, either within a department, still less across thewhole of government. The parliamentary branches of government departments and the Better RegulationExecutive do not tend to exercise such a control function.

7. Within each Department the authority to produce SIs lies with ministers, usually junior ministers, who a)have to give their approval before any significant time is devoted to developing a regulation and b) have tosign it before it is laid. Cabinet rank ministers may be involved in SIs that involve sensitive or strategic policyissues. A minister can initiate and halt the development of an SI and, should he or she wish, take a close interestin its development at any stage.

8. Ministers do not generally ask for regulations to be passed; they seek changes in policy which requiresecondary legislation, or they agree that an SI should be drafted to ensure eVective administration or deliveryof services. In practice it is usually civil servants—“administrators” rather than lawyers—who make thespecific proposal that an SI is needed. SIs are usually proposed after oYcials have consulted with departmentalsolicitors to see if there are other ways of doing things without an SI.

9. Civil servants developing regulations make considerable eVort to ensure that their minister will approve ofthe content of SIs. Ministers often give only very broad indications, if any, of the type of measures they arelikely to favour. Civil servants have to fill in the detail as best they can. In so doing they tend to look for asmany clues as they can about the minister’s thinking. They do not want to have to scrap their work and startagain when the minister comes to look at it.

10. The hard work of drafting an SI is (except with the longest and most complex of them) the work of adepartmental solicitor working to instructions from a civil service administrator. Lawyers and administratorscan turn for guidance to the SI Practice handbook compiled and updated by HMSO. They can also seek adviceof colleagues and superiors. Drafts of simple SIs (eg ones that simply alter a few words of older SIs) are notusually shown to colleagues. Complex and new SIs are usually shown around the oYce and senior lawyers andadministrators in the department frequently look at them. In the case of more complex SIs it is very commonfor the lawyers, and the administrators who instruct them to discuss the SI in draft, and the draft may go backand forth between administrator and solicitor several times before both are happy with them and they can beshown to the minister.

11. The guidance sent round by your committee asks why there are so many corrections. I did not findevidence of many corrections in my analysis over the ten year period to 1997—under one per cent of SIs wereissued explicitly to correct other SIs. Even accepting that there are SIs that are not clearly labelled “correction”but nevertheless address earlier errors, the evidence does not suggest this is a major problem. The correctionsI came across in my study were of diVerent kinds—adding a form of wording more acceptable in EU law,correcting a timetable entry missed in proof reading, addressing an anomaly only unearthed later, closing aloophole that only became apparent after several months. The most common underlying cause was thepressure of time allowing mistakes or infelicities to slip through unnoticed. To have to correct errors in SIswas usually understood by administrators and lawyers as a very occasional occupational hazard and seemedto attract no blame.

General

12. Since SIs are part of the general toolbox of government, criticisms surrounding how they are used tendto reflect common criticisms of government in general—government does too much, it tries to do things tooquickly, does not listen to expert advice and does not pay enough attention to people outside. Insofar as suchthings are true, they are no more true for SIs than any other type of policy instrument (arguably less so—I wassurprised by the positive evaluation of the SI consultation process in a survey I conducted among interestgroups). There are, however, some specific features of SIs that lead to shortcomings in how they are controlledand scrutinised.

13. As regards ministerial control over the delegated legislative process, a significant problem results from thefact that SIs typically deal with relatively narrow issues. The incentives for ministers to pay close attention tosuch detail are not strong and oYcials interviewed for my studies occasionally mentioned how hard it is toget ministers to engage with such narrow but potentially important issues. Thus one cannot always be surethat regulations reflect considered political judgement. Once a regulation is on the statute books it is also likelyto be hard to get ministers or oYcials to contemplate reversing or revoking it. Politicians are not unique intheir reluctance to devote attention to such important detail. With the notable exception of ChristopherBooker’s Sunday Telegraph column, the mass media only rarely take up such issues and this in turn probablyreflects small public appetite for such things.



14. The wider parliamentary and public scrutiny of SIs is especially diYcult since they are such a diverse groupof laws—some give eVect to important policy changes, possibly also involving the imposition of extra costson businesses and individuals, others are consequential, routine, mundane or uncontroversial. All are treatedunder the single regime provided by the 1946 Statutory Instruments Act.

15. Separating out the routine from the non-routine, possibly by giving departments rule making powers tobe exercised under supervision of courts or tribunals, would result in fewer SIs and allow those that remainto be subjected to closer scrutiny. While this proposal might at first glance imply substantial constitutionalchange, it would, in fact, primarily formalise the de facto position of government departments as the makersof most rules.

16. The Social Security Advisory Committee’s role in scrutinising certain kinds of SIs also provides a possiblemodel that could be adapted to fit other circumstances.

17. If one is interested specifically in securing greater awareness of the costs of SIs to business among thosewho write them, it may be worth exploring the possibility of making regulatory impact analyses a legalrequirement of SIs that can be used as a basis for challenging the SI under judicial review. Just as inadequateconsultation can, in some circumstances, be used to challenge SIs in the courts, those who draft regulationswill devote more attention to impact analyses if they know that their SI could be challenged on the basis ofan inadequate regulatory impact assessment. The same principle could be extended to environmental impactassessments.

November 2005

Memorandum by Linda Weeks, NDipM, Learning Support Centre Manager, Kent Police College

1. Witness Profile: Mrs Linda Weeks

1.1 I am employed by Kent Police as a civilian Police support employee. I joined the Kent Police College inJune 1973, and since April/May 1994 I have been the Force Librarian/Learning Support Centre Manager. Partof my role includes scanning the legal environment for changes to legislation and case law, and I circulatemonthly update bulletins to the Kent Force and other Forces throughout the UK.

1.2 For the last two years I have been a member of both the Northern and Southern Regional PoliceEnvironmental Scanning (ES) Groups. Both Groups meet three times a year; I attend two Southern and oneNorthern Group each year when possible. I keep in regular contact with all delegates, and we shareinformation and update bulletins.

1.3 In August 2001 I set up and am the Moderator for a Legislation Enquiries Forum on our Kent PoliceIntranet, and recently I have asked for and been given space on the Criminal Justice website(www.cjxonline.pnn.police.uk) for a National Legislation Enquiries Forum; I am the Moderator for this aswell. There is also a Futures Scanning Group Forum on this website, and I load my monthly updates andLawTrack onto the system for all to see.

2. Submission of Evidence

2.1 I have compiled my response as an individual but consulted with an Assistant Chief Constable and othersenior oYcers in the Kent Police, who are happy for me to submit it as a corporate response.

2.2 My response is to Questions 9, 10 and 11, as all or most of these are within my experience.

3. Commencement—21 Day Rule

Question 9: How well observed is the rule of practice that an instrument should normally be laid at least 21 days beforeit comes into force? Should the period be lengthened?

3.1 I have only answered the second part of this Question, as the first part is outside my experience.

3.2 In the ES part of my role I produce monthly updates on new legislation. I subscribe to e-mail updates fromParliament and other sources, and these are very useful. However, it would be a great help to have more noticeof Instruments coming into force, particularly before notification is given to the media.

3.3 At Kent Police College (KPC) I have set up an ES Forum which meets once a month to discuss my updateswith a view to deciding which legislation is likely to have an impact on our Force training. Some types of lawwill be covered by Centrex (the National Police Training Centre) but all other legislation will need to be



assessed. If the Group feel that there is a training need, they will pass the information on to the Force TrainingBoard (FTB).

3.4 On some occasions an Instrument will bring in only part of a subsection, and this can be confusing whenoYcers who have been waiting for a particular part of a new Act to come into force then hear on the news thatthey suddenly have new powers as of that day. My colleagues in other Forces and I therefore receive manyenquiries asking whether or not it relates to the Section for which they have been waiting. Sometimes it doesbut often it does not.

3.5 At times, parts of new Statutes with the same name but a diVerent date are brought into force before partsof the old Statutes take eVect. For example, Criminal Justice Acts 1972, 1982, 1988 and 1991 all have parts inforce and parts not yet in force. Those who have joined the Police since 1972 could be forgiven for not realisingthat there are provisions in a 33-year-old Act that might suddenly be brought into eVect in 21 days’ time or less.

3.6 It is not too diYcult to keep track of Instruments which relate to new and “big” Statutes, for example thosefor the Clean Neighbourhoods and Environment, Domestic Violence, Crime and Victims, Drugs,Gangmasters and Licensing Acts, but as more Bills progress and receive Royal Assent the above Statutes willbecome “old” and forgotten. If I miss sight of an Instrument some years from now which brings in one of those“Not In Force” (NIF) Sections our oYcers might miss vital information on new oVences and powers.

3.7 An example of this is the Fireworks Act 2003. When this was new, our oYcers eagerly awaited itsintroduction. To date there are still many Sections—including part of S11 (OVences) and the whole of S14(Prohibition and Supply etc. of Other Explosives)—which are still listed on websites as NIF and, although Iknow that they’re still pending, I have to be ever-vigilant to make sure that I catch the Instrument(s) that willbring them into force.

3.8 Section Summary

Because the KPC ES Forum only meets monthly to discuss new legislation, we might easily miss an Instrumentthat is laid only 21 days before coming into eVect. This means that we are discussing it after it is already inforce, then submitting it to the FTB for their consideration. If the Board decide that there are trainingimplications for the Force, this will take time to implement. It could be several weeks after an Instrumentbrings part of an Act into eVect before our oYcers are able to use the powers contained within it.

4. Consultation

Question 10: How well observed is the code of practice on consultation? How can the results be best presented inExplanatory Memoranda? How do the Government coordinate consultations with shared stakeholders, so that they arenot overburdened? What changes could be made to the consultation process so as to lead to better secondary legislation?

4.1 I have only responded to the third and fourth part of this Question, as I am unable to answer the first twoparts from my experience.

4.2 I do not know and therefore cannot comment on whether or not the Government already do consult withPolice Forces when it makes laws, but feel that it should do so, particularly when it involves the use of newpowers.

4.3 In many cases the information needs to be written into our Force Policy and Standard OperatingProcedures and, as outlined above, our monthly ES Meetings need to discuss the training implications. Itwould be better if these procedures were in place before the powers and oVences etc. are in force.

5. Users and Impact

Question 11: What are users’ most pressing concerns about the current method of making secondary legislation? Doesanyone in Government (or in the sectors affected) monitor the collective impact of regulations on eg small businesses orlocal authorities?

5.1 Information passed to ES oYcers within Police Forces would be of great benefit—and again, especiallyif we had the information before it was broadcast to the general public by the media.

5.2 This would help us to maintain a strategic overview of forthcoming changes to policing.

5.3 Forces should have the time to undertake an impact/risk assessment of new legislation in order to ensurethat oYcers are adequately equipped and trained in advance of the changes taking place.



6. Recommendation

6.1 I believe that I can oVer a solution to the above questions, and recommend as follows:

6.2 That a person be appointed in Parliament (AP) to liaise with all Forces—preferably with a nominatedDepartment or Scanner who is responsible for broadcasting new legislation to their Force.

6.3 That the AP send a daily (or weekly) e-mail to all on the ES list detailing:

— the introduction of all legislation into Parliament

— each Bill’s scheduled reading date in both Houses

— when the Bill is about to receive Royal Assent

— commencement date(s) where specified

— all associated secondary legislation details and commencement date(s)

6.4 I could liaise with the AP to suggest a straightforward, uncomplicated format which would simplify thework of the AP and which would be of benefit to Scanners and their Forces.

6.5 At present most Forces employ someone to undertake the role of ES in addition to other roles. In somecases this person is a Police OYcer. Some of us share our information with those in other Forces. All theseindividuals are currently spending hours each week finding out information for their Forces—but it is the sameinformation, and we are all interrogating the same websites and media sources.

6.6 Having one person centrally in Parliament giving everyone the same message would be of great benefit:it would not only save much duplication of work and therefore many “man” hours in Forces across the UKbut will also ensure that our oYcers are properly equipped with the knowledge and skills necessary toimplement the new laws.

30 November 2005

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