Merits of Statutory Instruments Committee: Post-implementation Reviews

My Lords, I welcome this debate on the most timely report from the Merits Committee of which I am also a member. Perhaps I may say how much we value our two advisers, Jane White and Grant Oliver, without whom we simply could not operate. The committee members are just crawling out from under an absolute avalanche of statutory instruments, many of which are of considerable importance. No doubt this has much to do with the impending general election and Ministers clearing their in-trays. I believe that that is not unprecedented for this stage of the electoral cycle, but it helps to focus the mind on what happens after these statutory instruments become law and on whether they are doing the job that they were implemented to do. We have come a long way in the whole field of the scrutiny of statutory instruments in a relatively short space of time. For years, scrutiny in the House of Lords was confined to the Joint Committee, which looked only at the vires of statutory instruments, and the relatively few Peers who took part in the usually dinner-break debates on affirmative instruments. Prayers against negative instruments would occasionally be tabled and debates held, but the Prayer would invariably be withdrawn, and that was that. With the growth of the important detail of Bills being left to statutory instrument in the 1980s and 1990s—incidentally, I was told by a civil servant friend that Whitehall had discovered how to bypass Parliament by putting important and controversial matters into statutory instruments—heroic figures, such as the late Lord Simon of Glaisdale, from the Cross-Benches, and the late Lord Russell, from the Liberal Democrat Benches, spoke up forcefully for the House of Lords not to be bullied by the Government of the day if Peers wanted to contest an instrument. The noble Lords, Lord Norton of Louth and Lord Filkin, are right: we should have the courage to vote down instruments more often if we believe that they are objectionable. It may be worth citing the report of the Joint Committee on Conventions of the UK Parliament in 2006, which stated that in exceptional circumstances it may be appropriate for the House of Lords to reject a statutory instrument. It went on to state that if the Merits Committee—new when the report was issued—drew especial attention to an instrument, that would be a relevant factor. Although the question of voting down statutory instruments is not strictly relevant to this debate, it is worth those of us who take an interest in delegated legislation reiterating that point whenever we can. This afternoon, we have showed that we all believe that that is important. That footpath, however seldom used, must be kept open. We now have the Delegated Powers and Regulatory Reform Committee and the Merits Committee. What we do not have, as has been said, is a post-legislative scrutiny committee of any sort for either primary or secondary legislation. That was not a recommendation of the Merits Committee in its report for secondary legislation, for very good reason, although it was suggested by the Law Commission and endorsed by the Hansard Society in its evidence—a point made by both the noble Lords, Lord Norton of Louth and Lord Filkin. The Merits Committee wants all departments themselves to undertake post-legislative scrutiny of their secondary legislation, so that they can learn lessons from looking at how an instrument has fared. That is reflected in the report's second point, which calls for a stronger government impetus to help departments establish a methodical post-implementation review system to inform both the content and delivery mechanisms of their secondary legislation in future. In other words, as one of our advisers put it succinctly: physician, heal thyself. However, in general, I am in favour of post-legislative scrutiny, and would endorse a Joint Committee being set up in future for that purpose—or, if not a Joint Committee, a committee of this House. Another strong point in the Merits Committee report was that the views of those affected by the legislation should be sought when assessing its performance. Some graphic examples are to be found in the report’s case studies. For example, those affected by the horse passports legislation over the past seven years gave telling evidence. That was the subject of heated debate in this House in 2003 and 2004, seeking to clarify the policy objective and how it was being implemented. The original recommendations in 2003 were from the European Commission, and were solely to protect the human food chain. The rationale was that a horse passport should show that no medicines had been given to that horse which should not be given to food-producing animals. However, by the deadline set, only relatively few horses had been given passports, so the following year, more regulations were introduced easing the deadline and introducing another policy objective: that of protecting and enhancing the trade in pedigree horses, with Defra opting for complete implementation. Just last year, new regulations were introduced requiring all foals born after 1 July 2009 and all older horses not previously identified to have a microchip implanted. There was no systematic post-implementation review, with Defra saying that the policy was thought to be successful because it had monitored the intervention through dialogue with key stakeholders. This, however, is not quite what the evidence presented to the Merits Committee shows; rather, it shows all too clearly that the horse passport system is full of holes. For example, it was found that some of the 61 passport-issuing bodies actually issued passports at the sale ring, thus undermining the whole system of deterrence from theft—or was that not an objective of horse passports? Perhaps it was not. Another practical problem with the data that a vet has to supply for a passport is how that vet describes, say, a black horse other than as a black horse if there are no distinguishing marks. There is hardly any enforcement of the legislation, which has upset compliant horse owners, and there seems to be little understanding of what the purpose of the original legislation was, given the fact that comparatively few horses in this country enter the human food chain—although I recognise that a lot are exported. My own research shows that, in some parts of the country, the costs of a vet identifying and microchipping a horse can be more than the value of that horse. If ever there was a case for Defra to undertake a systematic review of the whole horse passport system along the lines suggested by the report, this is it. It is a good example of what the noble Lord, Lord Rosser, said: the department thinks about aspirations, whereas for the public the focus is on practical outcomes. I have my own example of where post-implementation review of a statutory instrument is highly desirable, on this occasion because of possible difficulties with its implementation. This is a recent social security instrument that, among other things, makes it possible for out-of-pocket expenses to be disregarded for benefit purposes to enable disabled people to help in the design and planning of services in the health and social care field—service-user involvement, in the jargon. That was a positive step forward, but no one in the Department for Work and Pensions seems to have fully grasped that it will be a difficult policy for Jobcentre Plus offices unless it can be agreed that service-user involvement which is required by law and that which is required by the Government’s own policy guidance should be treated the same for benefit purposes. The last of the report’s recommendations is that the Regulatory Policy Committee that the Government have established should consider the role that post-implementation review should play in informing the cost estimates for amending or replacing regulations, and should establish consistent methods for PIR and impact assessments. In appendix 3, the memorandum from the Better Regulation Executive states confidently that this new committee will be, ""a powerful tool in helping to improve the quality of analysis underpinning policy-making decisions and should help influence behaviour and attitudes towards regulatory interventions across government"." However, it does not explicitly address whether it will be the task of the new committee to ensure that post-implementation reviews are carried out. This brings me to the Better Regulation Executive itself, which I think was established about five years ago with a staff of 99 and a unit in every department. However, I was not particularly reassured to see where its focus lies. According to its website, its purposes are to scrutinise new policy proposals and achieve effective new regulations; to make it easier to change or remove regulations; to reduce existing regulatory burdens; to improve transparency; and so on. Nowhere is it clear that the strengths and weaknesses of the current regulatory system will be properly evaluated to point the way forward, although post-implementation review is in the full policy cycle that is in the BRE guidance to policymakers. In appendix 3 we learn that: ""The Better Regulation Executive believes there is an upwards trend in the level of commitment to carry out post-implementation reviews"." That sounds very vague. Perhaps the Minister will assure us that it will be given as much weight as the other, perhaps more exciting, parts of the cycle. We were not particularly comforted by the National Audit Office study of a sample of statutory instruments published in 2005—it is worth repeating the statistic mentioned by the noble Lord, Lord Rosser—which found that 45 per cent of 229 regulatory impact assessments included a commitment to conduct a full post-implementation evaluation or review, but in four years only half of these had been done. This is a good moment to have this debate. A new Government will lose no time in sharpening their collective legislative pencil. Nearly all Bills contain statutory instruments. Now is the time to urge a new Government to commit to adopting a consistent and proportionate response to post-implementation review of delegated legislation so that valuable lessons can be learnt from the past before yet more statutory instruments are drawn up which may repeat past mistakes.