Stephen Gibson today wrote to Lord Hodgson, Chair of the House of Lords' Secondary Legislation Scrutiny Committee, offering the RPC's formal response to the recommendation in the SLSC report Losing Impact: Why the Government’s impact assessment system is failing Parliament and the public.
Initial views were set out in an earlier blog post. Today's response (text below) committed to publishing RPC opinions that have been issued to departments as soon as legislation reaches Parliament.
The RPC response has now been published by the SLSC along with Government's response here.
Dear Lord Hodgson
Thank you very much for your letter of 7 October covering the Secondary Legislation Scrutiny Committee’s report Losing Impact: why the Government’s impact assessment system is failing Parliament and the public. I am pleased to send the Regulatory Policy Committee’s formal response which includes comments on Recommendation 3 (which was directed at the RPC) and on other aspects of your report.
Recommendation 3 on Publication of RPC opinions
Your Recommendation 3 reads:
We suggest that the RPC should demonstrate its independence by publishing its view of a final-stage IA as soon as it is ready: when an SI has been laid for scrutiny Parliament should always have access to the RPC’s assessment whether the department publishes the IA or not. We also suggest that the RPC could do more to communicate to Parliament when it has ‘red-rated’ any IAs.
On the first part of this recommendation, I am pleased to confirm that the RPC now publishes all opinions that we have issued to departments as soon as the relevant (draft) legislation is laid before Parliament (whether or not the IAs have been published). This applies to both primary and secondary legislation. Recent examples (all for primary legislation) include:
- Levelling-up and Regeneration Bill – we published our (green-rated) opinion on 19th July having delayed in anticipation of the department publishing the IA. The IA has not yet been published by the department.
- Financial Services and Markets Bill – we published our (green-rated) opinion as soon as it was available on 25th The IA has not yet been published by the department.
- Retained EU Law (Revocation and Reform) Bill – we received the IA a week after the Bill was introduced to Parliament. We shortened our process and published our (red-rated) opinion as quickly as possible on 21st The IA was then published by the Department on 23rd November.
We are however sensitive to the fact that the RPC should not pre-announce government policy and so would not normally expect to publish our opinions before legislation is laid unless the Government has itself published the relevant IA. We consider that the laying of legislation announces the policy and so do not consider ourselves constrained at that point by the publication, or not, of the associated IA.
Out of courtesy, we let departments know when we plan to publish and hope that this will encourage both earlier publication of the relevant IA and more timely publication of future IAs.
As your report points out, normal operation of the Better Regulation Framework (BRF) should result in both the IA and RPC opinion being made available when the legislation is laid and we agree that this provides the proper support to the parliamentary scrutiny process. We are increasingly concerned at the number of IAs that are submitted to us very late in the process either just before or after legislation is laid.
In cases where we have not completed our scrutiny of an IA when legislation is laid before Parliament, we aim to complete our scrutiny as quickly as possible and publish the opinion as soon as possible after we issue it to the relevant department. In such cases, as soon as we are aware that the legislation is with Parliament, we will publish a note on our website explaining why no opinion is yet available (including whether we have received an IA for scrutiny or not).
On the final part of the recommendation, we have recently made it clearer on our website when opinions are ‘red-rated’ and there is now a specific section listing these. We have also been more proactive in drawing ‘red-rated’ opinions to the attention of relevant parliamentary committees and others and will continue to do this.
Proposals for reform of the BRF
There is one specific point in your report that I want to support strongly – the recommendation that any future BRF should retain a requirement for independent scrutiny of final stage IAs.
The RPC remains very supportive of the overall intent that the Government have articulated to date for its plans to reform the BRF. We agree that earlier scrutiny, with a focus on proper consideration of alternative options to regulation, would allow independent input to add more value to the government decision-making process and ensure that regulation is happening only when necessary and is designed as effectively as possible. We also strongly support the aspiration for government to do better at ensuring post-implementation reviews are carried out and subject to independent scrutiny.
But, as I said to your committee and as we have set out in blog posts, we believe that a new system should retain mandatory scrutiny of final stage IAs so that both ministers and Parliament can have the reassurance that the IA has been validated independently. I know from speaking to business group representatives that they, too, see our independent verification of final stage IAs as an important part of the current process.
As I have said previously, around a quarter of the final stage IAs submitted to us for scrutiny are not fit for purpose when we receive them and over a half are assessed as weak in at least one assessment category. The current process ensures that the vast majority of these are improved before the IA and opinion are published. It would be a retrograde step to risk the loss of this value by making final stage scrutiny entirely voluntary even after the other changes have bedded in. While we support the proposals to address other weaknesses in the system, we believe it should be possible to do so while retaining the strength of the current system.
I hope you find this response reassuring. I would be happy to discuss further with you or your committee if that would be helpful. Thank you again for your support of the work of the RPC.