Merits of Statutory Instruments Committee: Post-implementation Reviews

My Lords, I apologise to the Grand Committee for arriving a moment late for this debate. I thank the noble Lord, Lord Rosser, and his committee for producing this report and for giving the Grand Committee the opportunity to consider it, together with the Government’s response. Post-implementation reviews should be a very important part of government, and trends in policy-making and legislation have made them even more so. This Government have produced a vast amount of legislation in the past 13 years. In 2007, for example—the noble and learned Baroness, Lady Butler-Sloss, referred to this in more general terms—more than 3,000 separate pieces of legislation became law. The content of that legislation has also changed over time. We have become accustomed to having our concerns about the lack of detail in primary legislation met by the standard government response that the provisions we are debating are part of "a framework Bill". Whereas Acts of Parliament were traditionally used to allow the Government to implement a specific policy, they are now vehicles for much broader powers, with many decisions and important details left to secondary legislation, or even guidance and codes of conduct. Nor is it unusual for this Government to fail to achieve the Cabinet guidelines that a draft SI should be published simultaneously with the empowering legislation. This helpful report rightly identifies the dangers of such an approach. The Government having, at least nominally, accepted the importance of reviewing primary legislation properly, with so much of the detail of policy being contained in secondary legislation it is surely right that this should be extended to statutory instruments. It is also clear from the report that whatever soothing noises the Minister and his colleagues may make about government commitment to post-implementation reviews, it is often a very different story elsewhere in government. The noble and learned Baroness, Lady Butler-Sloss, gave a startlingly clear example of this in DCSF. The National Audit Office report notes that, even where there was a commitment to further reviews, these were carried out only—I think that the noble Lord, Lord Rosser, referred to this—about 50 per cent of the time. As my noble friend Lord James mentioned, the NAO even had difficulty getting responses from the departments on the subject, getting only 40 per cent of its surveys back by the initial deadline. That surely is not good enough. It is fair for the Government to respond to the Merits Committee report—as the noble Lord, Lord Rosser, mentioned—by saying that the primary responsibility for post-implementation review should lie within departments. However, as the noble Lord, Lord Norton, so rightly said, there needs to be leadership from the top and a proper system for ensuring compliance and for incentivising departments to follow best practice. The Better Regulation Executive was established five years ago, and astonishingly it appears that it has not yet managed to achieve this. I appreciate that impact assessments have been standard practice for only three years, and so reviews should be more forthcoming from now on, but this applies only to new SIs. Why have departments not been reviewing existing regulations? Even where there is no promise to do so, surely the Minister accepts that such an exercise would be immensely valuable? Like the noble Lord, Lord Filkin, I find the idea put forward by my noble friend Lord Norton of a new Joint Committee to conduct post-legislative scrutiny and a tougher approach by Parliament very interesting, and I look forward to hearing the Minister’s views. I would also welcome a little clarification on the interaction between the Better Regulation Executive and the recently established Regulatory Policy Committee. That committee’s website seems to imply that it will only get involved at an early stage, but will not concern itself with post-implementation reviews. Similarly, the National Economic Council’s Sub-Committee on Better Regulation sets out its terms of reference as: ""To scrutinise planned regulation and proposals for new regulation"." Again, there is nothing about post-implementation reviews. Of course, getting new regulations right the first time round is critical, and I welcome any sign of a move away from knee-jerk, headline-driven legislation, but situations change and old regulations and regulators cannot be expected to be allowed to go on and on without careful scrutiny. The economic crisis has led to a sudden flurry of efficiency reviews, which we all hope will improve the situation somewhat, but none of these new bodies appears to be tasked with setting up a clear, consistent and transparent framework for monitoring ongoing effectiveness. I assume that that remains the sole responsibility of the BRE. I look forward to the clarification of the linkage between post-implementation reviews and post-legislative scrutiny that the executive is apparently producing next month. But why have the Government continued to draw a clear line between the efficient and effective creation of new policy, and the efficient and effective implementation of existing policy? On these Benches, we would explicitly tie together the creation of new policy with the cutting away of old and out-of-date legislation, something that the noble Lord, Lord Filkin, mentioned. The Government also seem wedded to a narrow view of what post-implementation review can actually involve. I was interested in the exchange of letters between the noble Lord, Lord Rosser, and the Minister for Business and Regulatory Reform, which seemed to indicate that they were talking about two rather different concepts. The noble Lord’s letter states: ""The setting of the threshold illustrates a difference in terminology that runs throughout the Government response. You appear to interpret PIR as a specific labour-intensive process akin to an impact assessment, whereas we have used it as a generic term for evaluation"." So whereas the Merits Committee was looking at post-implementation review as a spectrum of measures from noting any changes in, say, the applications for a licence, right up to a formal review process, the Government—at least at that stage—appeared to consider only the full, formal review process as a true post-implementation review. I agree completely with the noble Lord, Lord Rosser, that the review of legislation should be an ongoing process of many different sorts of assessment. Although we appreciate that making endless small changes to guidelines is unhelpful to those being regulated and prevents new regulations being bedded in, assessing the success of a policy should not be left until the situation has got so bad that there is a national outcry. Public involvement should be critical to this process, but transparency is important not only for maintaining public confidence—although that is a very important part of it—it also allows for the utilisation of the enormous amount of experience and expertise of the private sector and grass-roots public bodies in seeking out and applying best practice. The noble Baroness, Lady Thomas of Winchester, gave examples of this. I imagine that there are few people better at identifying time-wasting box-checking than the hospital administrator who has to meet regulatory requirements and inspection standards from more than 40 bodies. Similarly, I would expect the owner of a small business to be a world expert on which regulations require him to waste the greatest proportion of the seven hours a week he currently has to spend filling in forms and wading through red tape. Changing the culture of Whitehall is not an easy task, as was mentioned by the noble and learned Baroness, Lady Butler-Sloss, and after 13 years, the habit of rushing out new legislation, statutory instruments, guidance and codes in response to every perceived problem is deeply embedded at every level in every department. The establishment of the Better Regulation Executive has failed to stem this flow of paper, and I am sceptical whether the two new committees will be any more successful. Since this Government seem incapable of turning off the tap, effective post-implementation reviews are even more critical to cutting the mountain of regulation down to a measurable size.