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Grand Committee

Volume 717: debated on Wednesday 24 February 2010

Grand Committee

Wednesday, 24 February 2010.

Arrangement of Business


Merits of Statutory Instruments Committee: Post-implementation Reviews

Considered in Grand Committee

Moved By

That the Grand Committee do consider the report of the Merits of Statutory Instruments Committee on What Happened Next? A Study of Post-implementation Reviews of Secondary Legislation. (30th Report, Session 2008–09, HL Paper 180).

My Lords, first, I say that this report was undertaken during the excellent chairmanship of my predecessor in that role, my noble friend Lord Filkin.

Our report was prompted by earlier reports and inquiries that the committee had undertaken, not least one on the cumulative impact of statutory instruments on schools, which identified post-implementation review as an area of weakness. Rather than keep saying “post-implementation review”, I shall for the most part use “evaluation”. It still appears to be the case that government does not place as much emphasis as it might on reviewing existing secondary legislation. Cabinet Office guidance published in July last year referred to a new process but said:

“The new process applies only to primary legislation, in the sense that there is no separate process for post-legislative review of individual statutory instruments. However … the preliminary assessment of the Act would cover how the principal delegated legislation under the Act has worked in practice”.

That is a debatable assertion since statutory instruments are likely to continue to appear after the review of the Act in question, they continue to appear under Acts passed some years ago, and secondary legislation implements EU directives and would not be covered by the new process referred to. It is crucial that there should be robust systems for the review of secondary legislation as well as primary legislation.

Government departments provide the Merits Committee with Explanatory Memoranda and impact assessments in relation to the secondary legislation that we consider, and the quality and accuracy of the information provided in those documents is crucial to the effectiveness of our scrutiny work. We wanted to find out the extent to which government departments subsequently check up on secondary legislation to see whether it is having the impact anticipated, is achieving its objectives, is having unexpected consequences, and original estimates and assumptions are proving correct.

If post-implementation review of secondary legislation is not undertaken there is no effective way of establishing whether the policy change is achieving the desired results, or whether costs and benefits are in line with expectations. As a result, vital information which could inform and improve future policy development, improve delivery methods to achieve the best results and develop the techniques used to assess the impact of policy interventions is not available, ultimately to the detriment of us all.

We were extremely grateful to have the invaluable support and assistance of the National Audit Office, which provided us with solid evidence on which to base our findings through conducting a quantitative survey of a sample of statutory instruments from 2005—18 per cent of the 1,282 statutory instruments considered by the committee that year—to see how many had been reviewed. It is accepted good practice to review the implementation of a policy, usually three years after it has taken effect.

We also selected a few statutory instruments for more detailed review, seeking feedback from the relevant department and from those affected by the regulations, and those case studies and the key messages from the evidence are published in full in an appendix to our report. The instruments were drawn from our early reports or had attracted media attention at the time they were presented.

The Merits Committee's view is that, for every statutory instrument reviewed, the following criteria should be met. First, even if conducted as part of a broader review, the impact of each SI should be clearly identified and assessed. Secondly, the review should assess the extent to which the SI has achieved its objectives. Thirdly, the review should examine how the outcome compares with the success criteria set out in the impact assessment. Fourthly, the review should assess the costs and benefits compared with original estimates. Finally, the review should identify whether there have been any unintended consequences.

The survey by the National Audit Office found that 46 per cent of the sample of significant statutory instruments had not been subject to any degree of follow-up evaluation at all, and only 29 per cent to full post-implementation review. Although in the cases of 45 per cent of the 229 statutory instruments there had been a commitment to conduct a review, only half of them had been the subject of some sort of review four years later. In total, some sort of evaluation work, ranging from simple statistics to full post-implementation review, had been carried out in 54 per cent of cases.

In their response the Government have been broadly positive to the recommendations from the Merits Committee, since there is an acknowledgement that better co-ordination and clearer instructions for departments are required. Evidence from the National Audit Office survey revealed that there is no clear methodology for doing post-implementation reviews. The Government in their response have set out three principles for the evaluation of secondary legislation: namely, that it should be integrated, transparent and proportionate. I am sure that those principles would have wide support, but of course the key issue then is how they are going to be interpreted. That is where some problems start to arise.

In looking at the principle of proportionality, we were somewhat surprised to see that the Government in their response felt that a full reconsideration of the impact assessment and public consultation exercise would be appropriate only for statutory instruments that implemented policies imposing burdens of more than £50 million per year. Frankly, if the qualifying bar for a proper evaluation is to be placed that high, that seems to be a move designed more to water down the Merits Committee’s recommendations than to implement them. Subsequent correspondence has indicated that the Government may have intended a sliding scale of evaluation and that forthcoming guidance, which we await to see with interest, would set this out. I hope my noble friend will address that point when he comes to reply because I am sure that the Committee, and I hope the House, would expect much smaller-scale projects than ones of £50 million included in meaningful evaluation and validation of the estimated costs and benefits.

The Government also appeared to reject a recommendation that we never made. They rejected our recommendation 7 on the grounds that it would be too resource-intensive to conduct a full review on all statutory instruments. What the recommendation actually proposed was that in all cases the Explanatory Memorandum should include an explanation of the department’s plans to review the statutory instrument. A response from the department that they did not intend to review the instrument because it was simply a technical amendment, or that the instrument would be reviewed with, say, two or three others that were also related to the same policy or scheme, would be perfectly acceptable.

It is not a case of seeking a Rolls-Royce standard of review on all occasions. The objective is to see a more transparent approach to evaluation with departments considering and publishing their plans for reviewing the effectiveness of a policy at the time when it is being devised. Nor are we suggesting a one-size-fits-all approach. One of our case studies, on the report on the human fertilisation regulations, has both short-term and very long-term outcomes, which demonstrates clearly that a suitable approach must be judged on a case-by-case basis.

The Government say that Select Committees such as ours, the National Audit Office and others should hold departments accountable for their performance. That will be difficult unless the Government ensure that more than 15 per cent of evaluations are published, which is the current position, and unless the Government show greater enthusiasm for consulting stakeholders. Surely the Government should be taking steps to keep their own departments up to scratch. Guidance is issued, but there does not appear to be any evaluation of whether that guidance is proving effective. The official line is that it is for departments to take responsibility for the quality of their own legislation. However, this hands-off approach does not appear to be working; our report shows that there is a wide discrepancy between departments. The Department of Health had done some sort of evaluation on 63 per cent of its instruments in the sample, and Defra had completed the highest proportion—33 per cent—of formal post-implementation reviews, but other departments seemed less enthusiastic about following the guidance. There is no point having guidance unless it is implemented and evaluated.

One of the things that our investigation showed was the different interpretations of what constitutes success. The responses to our case studies suggested that departments often focus on the aspirational side of the policy, whereas the public focused much more closely on the practical aspects of the policy’s delivery and how it could be improved. Together those two aspects make a very good basis for evaluation.

The Government clearly hold the view that evaluation is resource intensive and can only be done selectively to avoid wasting taxpayers’ money. In principle, in relation to minor legislation, that is a not unreasonable stance. However, the Government need to bear in mind as well that poorly targeted legislation wastes resources and ineffective systems waste money and cause a lot of frustration. If something is not working properly, it is definitely in the taxpayers’ interests to have a mechanism in place to identify and fix the problem promptly.

Evaluation of secondary legislation is not just an academic exercise, and if the Government are to continue to allow some departments to regard it as an unnecessary and unwelcome burden to be carried out as infrequently as possible and in the quickest possible time, the report we are discussing today might just as well have not been written. Our previous study of the cumulative impact of statutory instruments on schools showed teachers struggling under the constant stream of instruments. They complained that the department was not waiting to see whether the policy had bedded in before changing it and no one appeared to be evaluating to see what had been achieved before, metaphorically speaking, throwing the baby out with the bath water.

I hope that when my noble friend responds he will address the concerns raised in our report and be able to give us not just some warm words but some hard, specific, concrete evidence that the Government’s approach to evaluation and post-implementation reviews of secondary legislation has changed; and that they do not regard the issuing of guidance as the end of their involvement but intend to take firm action to ensure that departments consistently and rigorously adhere to that guidance. After all, it is not much good introducing major changes in policy if evaluating the effectiveness of the implementation of the policy, and the delivery or otherwise of the benefits it was intended to achieve within the costs projected, is regarded as simply a burden rather than an invaluable way of accurately assessing outcomes against objectives and enabling steps to be taken to improve the quality and effectiveness of legislation, and the legislative process, in the future. I beg to move.

My Lords, I very much welcome this report from the Merits Committee. I am a member of the committee but I was not at the time this report was produced. Rather, my interest stems from my period as chairman of the Constitution Committee when we produced the report Parliament and the Legislative Process. That report addressed the need for post-legislative scrutiny in respect of primary legislation. The committee’s recommendations were referred to the Law Commission and led to the Government accepting the case for post-legislative scrutiny. Most Acts are now subject to review three to five years after enactment. I very much welcome that.

There is a very compelling case for secondary legislation to be subject to review and for the same reasons as primary legislation. It is important to check whether the legislation has had the intended effect, whether it has proved cost-effective, and whether there have been unintended consequences. It is not a case of simply looking to check whether something has gone wrong; it is important for identifying and disseminating best practice. It is also an important discipline on government; knowing that there is to be a review helps concentrate the mind. Enactment ceases to be the end of the process—rather, it becomes one step in a continuous process designed to ensure that legislation does what it is supposed to do. Given that, as the Merits Committee argues, post-implementation review should apply to secondary as well as primary legislation. The report is thorough and persuasive, and the Government’s response is welcome as far as it goes. It is certainly a much more constructive response than that produced the last time I was involved in a debate on a report from the Merits Committee.

In the time available I want to focus on one core point, and which reinforces something that the noble Lord, Lord Rosser, has already said. In their response the Government identify three principles that should be satisfied by a system of post-implementation review. Like the noble Lord, Lord Rosser, I have no hesitation in endorsing those principles, and indeed I reiterate the point made in the response when discussing proportionality that it is important to avoid the processes that lead policy-makers to adopt a tick-box approach without adding value to the policy-making process.

The response seeks to be constructive and to move forward with post-implementation review. It is always satisfying to see in a government response to a committee report the words, “The Government agree with this recommendation”, as the most frequent response. It is good that progress is being made in developing the framework for post-implementation review and that next month the Better Regulation Task Force and the Cabinet Office will clarify the link between post-implementation review of secondary legislation and post-legislative review of primary legislation. My concern is with what is missing. Like the noble Lord, Lord Rosser, when reading the response I looked for what mechanism is planned for ensuring compliance. The Government aim to embed both impact assessments and post-implementation reviews within the policy-making cycle. However, the response goes on to say:

“Departments must bear the primary responsibility and accountability for their policies and for the quality of their policymaking and IAs”.

How is this accountability to be achieved? The response states that the Government,

“looks to a range of stakeholders, including Parliamentary Committees, to hold Departments to account for the effectiveness of their policy making, including evaluation and PIR”.

The Government will provide guidance and the Regulatory Policy Committee will provide scrutiny and analysis, but there is no mechanism within the Government for ensuring compliance, and in terms of external accountability—especially to Parliament—there is no mechanism for comprehensive and consistent accountability.

In its recent report The Cabinet Office and the Centre of Government, the Constitution Committee expressed some concern that the centre was undertaking tasks that should be fulfilled by departments. Here we have the reverse situation where the centre is leaving things to departments and not undertaking tasks which, if not fulfilled by the centre, are unlikely to be fulfilled at all. Leaving it to departments retains the potential for what exists at the moment, which as the noble Lord, Lord Rosser, indicated, is essentially a patchwork quilt of PIRs. As the Merits Committee notes, some departments are much better geared to undertaking PIRs than others. Even with the changes detailed in the Government’s response, that situation may persist. The Government are not initiating a procedure that will ensure that all departments comply with what is recommended.

As I have already mentioned, on the last occasion that I participated in a debate on a Merits Committee report, in commenting on the Government’s response, I noted that Ministers appeared to have been subject to departmental capture. I fear that we may be witnessing the same phenomenon on this occasion, albeit it is far more subtle and couched in a more conciliatory tone. The response here is more constructive and does seek to move forward in ensuring consistent post-implementation review. What is lacking is the means for ensuring the delivery of a consistent system. I invite the Minister to tell us precisely how the Government will ensure that such a system is delivered.

I also have a comment for the House rather than for the Government. The Government look to Parliament to hold departments to account for their post-implementation reviews. The problem here, as with post-legislative scrutiny, is that there is no single dedicated committee with a specified responsibility for overseeing the exercise. Departmental Select Committees in the other place can examine post-legislative or post-implementation reviews carried out by the relevant departments. But there are two problems. First, those committees are already heavily burdened. They are not likely to have much, if any, time for examining such reviews. Secondly, there is no committee with specified responsibility for looking at such reviews overall. That is especially important in the context of identifying and disseminating best practice.

I have advocated appointing a Joint Committee to consider post-legislative reviews. I shall return to that matter in debate in the House tomorrow. Such a committee could consider reviews that departmental Select Committees do not have the time or inclination to consider, identify good practice and review departmental practice. I see no reason why the terms of reference of such a committee should not include post-implementation reviews. If the other place is not willing to agree to a Joint Committee, this House should appoint its own committee on legislation.

I shall end with a more general observation. My comments, again, are directed to the House. We have the Merits of Statutory Instruments Committee. I have suggested the appointment of a Joint Committee on post-legislative scrutiny. If such committees are to be effective, there needs to be a clear link with the Chamber and a willingness on the part of the Chamber to uphold committee recommendations. If a statutory instrument is clearly deficient, and that fact has been drawn to the attention of the House, I see no reason why the House should not reject that SI. I do not accept that it is a convention that the House does not vote down secondary legislation. It may be the general practice not to do so, but it is not one that merits the designation of a convention. The Government can always come back with a better-drafted instrument.

If this House is more vigilant, be it through committee and a willingness not to accept poorly drafted or otherwise deficient SIs, it will ensure a more disciplined approach on the part of the Government to generate SIs which are more thoroughly thought through and properly drafted. The Government could help to avoid having to face the prospect of such action by the House by ensuring a more rigorous approach to SIs. Knowing that SIs may not be accepted and that, even if they are, post-implementation reviews will be subject to thorough scrutiny by parliamentary examination should ensure that the Government treat secondary legislation with considerably more care than they sometimes have in the past.

I welcome the Government’s response as far as it goes, but I hope that I have prompted the Minister to consider how much further the Government could go.

My Lords, the Department for Children, Schools and Families did not have its statutory instruments under the scrutiny of the committee of which I am a member and was a member when our report was published. But that department stands out as one that requires considerable enthusiasm within it to look at post-implementation review, to the degree that we on the Merits Committee produced the report to which the noble Lord, Lord Rosser, referred on the accumulative impact of statutory instruments on schools on 13 March 2009.

I want to concentrate on that government department because it is a good example of bad practice and therefore should be under the microscope generally. An advisory committee, the implementation organisation unit, advises the schools department. However, it has become very clear that its advice is not necessarily listened to, which is, and has been shown to be in our report on schools, quite a serious factor.

In that report, we expressed concern about the impact of large numbers of statutory instruments on schools, particularly on small schools, without sufficient staff to deal specifically with the volume of the statutory instruments that came through day by day and week by week. When one looks at that report, the peak in July 2008 of statutory instruments is almost off the page. The impression is that that government department does not take on board the effect on schools of the volume and complexity of the statutory instruments that pour out. The National Governors’ Association reported to us, at paragraph 4 of the relevant report:

“For the professionals in schools the endless piecemeal change has become one of the main reasons given for leaving the job. It is not unruly and undisciplined children that are forcing good teachers and governors out of our schools; it is unruly and undisciplined legislation”.

That requires PIR to see what is going on because the National Governors’ Association is a highly respectable association giving evidence to a Select Committee. Therefore, it is pre-eminently an area in which this government department should engage in PIR.

In a letter from the Schools Minister dated 10 January 2009, having been asked whether PIR focused on individual statutory instruments, he said that it was the exception and not the rule; I paraphrase. The Association of Teachers and Lecturers said in its evidence to us that it was,

“rare for government to invite feedback on its practical implementation. There is a ‘policy lag’ … which means that, by the time a SI comes into force … government has already moved on to”,

its next policy. They do not want to look at the policy that is in the statutory instrument because they are working on the next policy coming up. As teachers say, that means that feedback from them will not change the policy once it is implemented because, among other things, they know that the change that has been implemented will be short-lived because there will be another policy.

The Implementation Review Unit—this time round I have its name correct—said that the DCSF was “very poor” in the area of feedback, and that,

“there is little evidence that a post implementation evaluation takes place nor that lessons learnt are applied to subsequent implementations”.

That is an extremely sad state of affairs. It said in its evidence, recorded at page 5, paragraph 8, of our report of March of last year:

“Recent research commissioned by the IRU shows that in the 2006/7 academic year the Department and its national agencies produced over 760 documents aimed at schools. The research also found that no single part of the Department was aware of the totality of what was being offered”.

What appears to be happening—and what the Merits Committee was being told—was that individual policy-makers in the department had a specific issue, created a statutory instrument and did not look to see what other statutory instruments were coming out from the same department initiated by a different person with a different policy issue. They particularly did not look to see first, whether they clashed; secondly, whether they were co-ordinated—many times they were not—and, thirdly, how the schools were coping with them. This was another example of the lack of PIR.

The sadness, it seems to me, is that there is not a specific set-up in this government department to look to see, across the board, what policies are being produced in statutory instruments and what the effect is on the schools, and to review them after three years or so. I am not, of course, suggesting that every single statutory instrument should be reviewed, but there are so many and they produce so much and such changeable policy—as, indeed, the Government themselves have recognised—that it is time that something was done.

Recommendation 5 from the 13 March report of the Merits Committee states:

“We recommend that the DCSF should ensure that all significant statutory instruments are subjected to post-implementation review, and that the review findings are made known to Parliament”.

That was in March 2009; we are nearly in March 2010. So far, to my knowledge, we have not heard any review findings of any sort. I wonder whether, in fact, that government department has yet got round to thinking about our recommendation 5. I therefore ask the Minister to pass a message to the Schools Minister asking him to look at recommendation 5 of our 13 March 2009 report, because I entirely and respectfully agree with what the noble Lord, Lord Norton of Louth, said about the requirement that the centre should provide good practice. However, while the centre is looking at it, the individual government department should be getting on with it.

In particular, each department requires a push in the right direction, none more strongly than the schools department. More than anything else, it seems to me that we need a change of culture in government to make it important to know the outcome of what the Government put through as legislation, and that is for those sitting behind the Minister. We know that the majority of legislation coming through for schools is by negative statutory instruments. Unless someone stands up every now and again and comments on them they pass through without a word, and it is the schools and pupils who suffer.

My Lords, I shall speak briefly, mostly because my former colleagues will give me a further hard time if I do not, but also because I do not wish to repeat what is in the report or has been set out eloquently by my noble friend Lord Rosser. I very much welcomed the way in which he presented the report.

I want to address three points—first, why this subject matters; secondly, the primary/secondary debate; and, thirdly, some lessons on this, and perhaps my reflections on the Merits Committee more generally, which may be relevant to debates on the House’s role itself, as touched on by the noble Lord, Lord Norton of Louth.

Why this matters has already been expressed well by a number of speakers, but let me try to underline a few particular reasons. First is what I call policy naivety, which applies to Ministers, civil servants, legislators and lawyers without excuse—the belief that in some way having a good intention and making a law leads to the wished-for policy result. It is a profound cultural attitude within Westminster, and we are not immune from it ourselves. It leads to the most naive forms of legislating at times, whereby you produce something without thinking through—with an understanding of the real world—whether anybody will take significant notice of it. One of the best examples of this that I can think of, without wearying the House, is where I as a householder am liable if I fail to make sure that my builder does not tip my building refuse over the fence. The intention is perfectly good but the problem is, first, that none of us is aware of the abuse and, secondly, the builder will just say, “Of course, guv”. As a mechanism for controlling an abuse, it is naive. It is a silly example, but it shows that thinking that such mechanisms will get the result is naive.

This subject also matters because legislation and policies that do not achieve their result waste taxpayers’ money. If you get a 30 per cent compliance rate when your success level was 70 per cent or whatever, you might as well not have got it. Governments ought to specify their success criteria as part of both their primary and their secondary legislation before it moves forward. They do not, for all sorts of good and bad reasons that you can spot for yourselves.

Linked to that is that within the next decade, or even sooner, there will be much less public expenditure than we have been used to. We are going to have to be more chary about when we launch new policies and initiatives and there will have to be a far more rigorous investment—if I may call it that—in the analysis of approaches to legislation to see whether the mechanisms are actually going to work. This is necessary for all those reasons, but above all for the learning culture so that we know better in the future how to make policy work in practice, and therefore can better identify what is not working and knock it on the head because it is a waste of money. That learning culture is not deeply embedded in either civil servants or Ministers. We are going to have to have more of it in the future, and even if there had been no fiscal crisis, it would be healthier.

Secondly, I turn to the secondary/primary debate. I personally welcomed the Government’s response, which is a positive one, when I met the Minister for a good discussion. The point they make, however, is why look at secondary legislation without looking at primary legislation since they are part of the same carpet. Sometimes that is a perfectly valid response, but one would warm towards it more if one had seen more signs of life on post-legislative scrutiny by the Government more generally. We saw the Government’s approach to PLS in March 2008. It came out covered in blood from battle because the behind-the-scenes fights to get that far were horrifying to behold; I am glad that I did not see them. However, we have not really heard a great deal since. I ask the Minister what is going to happen in the specific terms of a programme for post-legislative scrutiny by Government themselves for the future. Where are the explicit plans setting out what will be done, where, and by which department, so that we are able to see a programme of PLS presented to Parliament, which we believe ought to be the proper process of response by the Government? What are the Government going to do to honour those statements?

I wish to make a further point here. A Joint Committee of both Houses would be a good thing and I hope I live long enough to see that happen, but if it does not, we should not wait. The noble Lord, Lord Norton of Louth, is absolutely right to say that while the Select Committees do some of the plenty that is to be done, there is a need for one body which not only looks at what is not being done by the Select Committees, but—perhaps more importantly—takes the holistic or thematic approach to these lessons. I hope that that would be a joint body but we should do it if that does not happen, Even if the Select Committees reviewed every single piece of legislation, they would not be taking a holistic or thematic approach. I think we have seen the benefits of having a go at these issues in the early and stumbling attempts under my chairmanship. This is a call to the House itself to wake up and be a bit bolder by getting on with it, after making a proper offer to the Commons, saying that we would like to do this with them.

Thirdly, I want to cover one or two lessons that are relevant to this report from my time with the Merits Committee. It is getting to be a bit of a habit, but again I strongly agree with the noble Lord, Lord Norton, that the House is too cautious about its own terms of reference, which are that the Government should not normally or usually—I have forgotten the exact wording—defeat secondary legislation. That is for a very good reason, because primary legislation sets the policy and you cannot constantly rewash the clothing without purpose. However, the emphasis is on “normally or usually”. The frequency with which the House has rejected secondary legislation is, I think, supine. I say that particularly because if the Government feel that they want to have their way, they can bring the same instrument back a week later having tweaked it slightly. Given how well behaved we are in this House, we always or virtually always give in. I can think of very few examples of where it has not done so. But actually saying “This will not do”, or “It will not achieve the policy objectives”, or “It is flawed”, which is fundamentally what the House can do, having read the judgments of the Merits Committee, acts as a wake-up call to officials and Ministers. It catches attention.

Perhaps I may make the reverse point. While those big shocks to the system are occasionally essential and ought to be seen as part of our role rather than something that we think somehow confuses our constitutional position—which I do not believe they do—the distinct alternative is the less visible response that I will call “grinding away”. The most significant impact of the Merits Committee over the past few years has been a process almost of attrition, whereby our excellent officials, supported I hope by their committee, sought to get the Cabinet Office to strengthen and clarify the guidance to departments about what they should do when making Explanatory Memoranda and SIs. These should then be policed against those standards on individual cases.

The consequence of that, and of the occasional big bang, was that the attention given by Ministers—I speak as a culprit—and of Permanent Secretaries to secondary legislation went from about zero to quite significant over a period of time. Some Permanent Secretaries—I think of Sir David Normington—put their back into recognising that their departments were really failing and committed themselves to doing something about it.

We could apply that principle to other areas of our legislative process—on which we might touch tomorrow—whereby there are standards and principles which are policed in almost a non-histrionic way. But the officials, and their Ministers behind them, know that if these things are not done well, the House will properly bring them to account. The effect is not usually massive rows but a gradual improvement in the process by which legislation is made and, I hope, the policy that goes to make legislation.

That is more than enough from me. I am delighted that my noble friend is taking this debate. I look forward to touching on some of these issues in the debate to be introduced by the noble Lord, Lord Norton of Louth, tomorrow.

My Lords, I should like to use the gap to make one small but very important point, which I do not think has been covered by any speaker so far. It arises out of my observations over the three years I have spent on this committee. When the National Audit Office came to us, it was very diligent and thorough in what it sought for its briefing. We covered one particular point with it; namely, that it should particularly follow up where the Merits Committee had decided that, in passing through an SI, there should be a precise follow-up on some specific aspect of its implementation, which usually occurred where the department had to delegate to another government body the sharp-end implementation. I believe that there was one case involving medical prescriptions, another on an aspect of traffic control and one on education.

When we selected the two dozen or so cases that we wanted the National Audit Office to review, there were two cases where such a follow-up should have been pursued. When the report came back, there was a total absence of any comment on the follow-up points. Through the officers of the committee, we asked why not. In each case, we were told that there was no record in the departments of the need to follow up and no process had been followed so to do.

I believe that this is a very important point and that a number of occasions will occur where departments should have noted this. There needs to be a central index or something like that. Indeed, our committee should maintain—I believe that it now does—such an index. But the departments should have such an index which can be inspected by the National Audit Office or anyone on behalf of the committee at any time. Otherwise, a major part of the process is being failed completely by the lack of this very important point.

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 usual 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 shown 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.

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.

My Lords, I thank the noble Lord, Lord Filkin, for his years of hard work as Merits Committee chairman, and congratulate the noble Lord, Lord Rosser, on his recent appointment as chairman. I also thank the Merits Committee for the report on post-implementation reviews, and I thank noble Lords for their contribution to this thought-provoking debate.

After only a year as a Minister, I have tried to look at this issue from a new and business-minded perspective. I am a huge fan of lessons learnt, impact analysis and understanding the impact of policy decisions. In the long run, they save money and improve performance and productivity. I am not a fan of something that paralyses the system, however—we need balance.

My personal perspective as a newcomer to this is that I agree with the spirit, and most of the content, of the report. The debate is about whether every piece of secondary legislation needs PIR. That could paralyse the system and create a huge amount of extra work for little benefit. PIRs need to have a clear benefit; we need to ensure that they do not become a tick-box exercise. We expect to review everything unless there is an explanation for why a review is not necessary. This “comply or explain” methodology is how the Government will hold themselves to account.

I encourage the Merits Committee to be tough on any department that is not clear in its explanation for why it is not carrying out a review. We need to look at whether Parliament should stop taking legislation through without full and thorough impact assessments. All the processes are in place, but there is scope for Parliament to be tougher on both impact assessments and PIRs. My current impression is that there is not enough pre-policy preparation, and that the end of the process needs to be improved. We should look back and learn before we move forward.

That does not mean, however, that we need PIRs on everything. Parliament needs to hold officials to account for the impact of policy implementation, and there is no doubt that there needs to be a cultural change across Parliament and parts of government. A strengthened process should be easy to monitor. The best way to achieve a major cultural change would be to assess how the strengthened impact assessment and PIR process works over the next 12 months and look again in 12 months’ time at whether BRE should have a stronger role in policing new policies.

I turn to PIR. I shall explain the background to our approach, explain why we have not accepted all the committee’s recommendations and address the points raised. In the context of better regulation, PIR—to state the obvious—improves public accountability and improves policy design by feeding in lessons learnt. It also looks at the extent to which burdens are minimised and benefits are maximised. It also gives a better understanding of effective policy enforcement mechanisms. In carrying out PIR, the review content is important; it is not the forms we fill in but the lessons we learn and the consequent actions that we take.

The Government’s newly strengthened approach to PIR is set out in our response to the committee’s report. There are three principles. The first is integration into the policymaking process. The second is transparency, so that stakeholders can hold the Government to account. That is very important: if you have transparency, if you have “comply or explain”, it is much easier. The third principle is proportionality. We have to use the right amount of resource for each PIR.

“Comply or explain” is a new and higher standard. From April this year, when the Government decide not to undertake a PIR, they must state publicly why not. If a planned PIR is not carried out when due, the Government must also explain why.

Flexibility is important. We do not want to impose rigid requirements on departments to carry out reviews at any particular time. It is important that we have time to gather sufficient evidence. We expect most reviews to be carried out three to five years after implementation, after which things may change. There may be good reasons to change plans in response.

On integration into the policy-making process, departments have to retain responsibility for their policies. They have to carry out appraisal and evaluation, which are essential steps in policy-making. Responsibility cannot be farmed out, but we are seeking a cultural change at official level. From April, an improved impact assessment template will be rolled out across government. It will be published on the BIS website in April, and I would be happy to share information with the Committee in the mean time. But let me be clear, we take PIRs seriously, like impact assessments, and they must be signed off by Ministers. A key issue is that the resources devoted to PIRs need to be proportionate to the likely benefits accruing from the review.

“Comply or explain” is a simple idea, but the Government have reaffirmed that they expect departments to carry out and publish a review of policies which were previously subject to impact assessment. Departments may depart from this policy, but they will have to explain in public their reasons for doing so.

Turning to the two main points of difference between the Merits Committee and the Government, there is a debate about how many instruments should be reviewed. I understand that 1,111 SIs were laid in 2008-09. Even a quick desk-top review of each of those would cost a lot of taxpayers’ money. Many SIs are closely related. For example, more than 80 have been made under the Companies Act 2006, which is currently being reviewed. It would be inefficient to review each of these individually when they can be bundled into a single review.

On proportionality, the banking crisis is a good example of many lessons to be learnt, but there has to be a pragmatic proportionality in what we choose to review, how we choose to do it and what resources to dedicate to it. Sometimes, there is a danger that we lose focus. The Government have a responsibility to spend taxpayers’ money effectively. Intense reviews of every policy would be a waste of resources.

The intensity of the review should be aligned to the level of policy impact and the potential benefits of a review. Individual departments should decide the scale of PIR appropriate within the guidance which we shall provide. There needs to be a clear sense of proportionality. We need to ensure that the process is sufficiently flexible and that departments focus resources on full analysis of high-impact policies. The Government see a desk-top review as an appropriate form of PIR for low-impact policies. There has to be differentiation.

By desk-top review, we mean that the policy official would not necessarily answer all the questions suggested by the Merits Committee; for example, the review may not always involve full stakeholder consultation, but a short report would be published. PIRs would always cover the core questions: to what extent has the policy achieved its objectives; to what extent have the success criteria been met; and to what extent have there been unintended consequences?

The noble Lord, Lord Rosser, suggested that Explanatory Memoranda should contain a plan to review. That is contained in the new impact assessment template, which will be in use from April 2010. I think that he also said that more should be published and that it should be published with more enthusiasm. I agree with that. We have committed to review in 12 months’ time everything that has been happening. Publication, transparency and a review in 12 months will ensure that a bit of name and shame will go on and each department will have to perform. How will they be held to account? If you are publishing PIR plans with “comply or explain”, the permanent secretaries and their departments will be held to account for performance, as required when they publish their annual performance report. The Treasury and BIS will be updating that requirement in the near future.

The noble Lord, Lord Norton of Louth, said that if a PIR committee is to work, the House needs to act. The House has that power already; it should use it. The Joint Committee is a very good idea that is worth considering.

The noble Baroness, Lady Butler-Sloss, mentioned the Merits Committee report recommendation on cumulative impact on schools. I agree: a proportionate PIR should look at the cumulative impact on schools. That is a good example of where reviewing individual statutory instruments is a bad idea, but where a collective review is a good idea. I will write to my colleagues at DCSF and report back to the Merits Committee.

The noble Lord, Lord Filkin, and the noble Lord, Lord De Mauley, both asked how many post-legislative scrutiny exercises the Government have carried out. As was mentioned, the policy on scrutiny dates back to 2005. Memoranda are beginning to fall due this year. Progress in producing post-legislative memoranda has not been as strong as we would have liked. We hope that the flow of memoranda will improve as the process becomes better established, and we will continue to monitor the situation. The Government have submitted and published three PLS memorandums so far, and two more are due next month. The three that have been published are on electoral administration, the Railways Act and the Prevention of Terrorism Act. Those due in the next few weeks are on the Constitutional Reform Act and the Education Act.

One question that I asked when I got into this was: what is the difference between post-implementation review and post-legislative scrutiny? PIR is required for all legislation of a regulatory nature, and for non-legislative regulatory intervention, such as guidance. PIR and PLS are very closely related activities, which are both concerned with reviewing legislative instruments. Many of the activities required to carry out one are also required to carry out the other. A review of whether the policy is working as intended is common to both. In the next month or so, the Government will clarify the relationship between PIR and post-legislative scrutiny of primary legislation, and will update the relevant guidelines.

The noble Lord, Lord James of Blackheath, raised the issue of process within departments to follow up and whether we should have a central index. I think that that is covered by transparency. We will be able to name and shame the departments that are not doing their jobs. I am not an expert on horses, but I gather that Defra has introduced a revised system, with more enforcement, using the Animal Health executive. Nevertheless, that points to some issues that should have been addressed.

The noble Lord, Lord De Mauley, asked about where PIRs are promised but not carried out. The NAO has found that in most cases where a PIR had been promised but not carried out, departments reported either that the legislation had been superseded or that they still planned to carry out a PIR or other work to evaluate success. There was a good reason to delay in most cases.

The final question is one that I have struggled with personally. That is the issue of how important is money: the £50 million threshold. I must be honest; I think that that needs a little more definition. There are other priorities apart from money—public interest, and many others—but I believe that most of them are covered by the policy of “comply or explain”. If you are not doing it, you will have to explain why.

This is an excellent report, and we welcome it. Policy review is important to us all. I do not believe that Parliament is any different from business. The more you talk about mistakes, the more you get a slightly different culture and the more you learn—after all, in all walks of life, not everything works perfectly. The Merits Committee report has stimulated a tightening of policy and the tighter integration of PIR in the impact assessment process, and undoubtedly there will be an increased level of transparency in order to hold the Government to account.

The Regulatory Policy Committee is an independent body, set up last year to comment publicly on the analysis underpinning new regulatory proposals. As the improved impact assessment process focuses more strongly on PIR, the RPC and others will be able to take an interest in PIR in two ways: first, the consultation-stage impact assessment will set out departmental plans for a later PIR, and the RPC may comment on that; and, secondly, the consultation-stage impact assessment may refer to an evaluation of previous related regulation. Again, the RPC will be able to comment on that analysis, or note where it is lacking.

To summarise: the Government will tighten our approach to PIR and, through increased transparency, will hold discussions with stakeholders, including the Merits Committee. We will ensure that everyone is held to account for performance, and I encourage the Merits Committee to carry on pushing on this subject.

My Lords, I thank my noble friend for his comprehensive and largely helpful reply. I thank all noble Lords who have participated and contributed so much to this important debate. It would also be appropriate if I expressed the committee’s thanks, which has already been done in part, to the committee officials for all the work that they have done and the advice that they have given in connection with the preparation of our report.

The issue that we have been discussing is crucial, since it is about the effectiveness of the Government in implementing and achieving their objectives. That has an impact, to a greater or lesser degree, on the lives of everyone. As a number of speakers have said, unless legislation is reviewed, departments will not learn whether their regulations have been effective or what forms of intervention work best. Evaluation is not just about finding out what did not work but should also be about finding out what worked well and spreading that knowledge so that future legislation is more effective.

I reiterate, though, that we did not say that every piece of secondary legislation needs a full post-implementation review—I think there has been some confusion on that. I repeat that we said that the Explanatory Memorandum should include an explanation of the department’s plans to review the statutory instrument.

It is also fair to say that the Merits Committee seeks to hold departments to account. We have asked departments on more than one occasion, some departments more than once, to appear before the committee because we have been dissatisfied with the documentation that they have produced. There is a limit to what the committee can do, though, and the Government have an important role in this regard. Our interest in the evaluation of legislation arises because over time we see a series of regulations on particular subjects, and we also hope to see an improvement in the evidence that supports them, their targeting and their cost-effectiveness. We believe that the current level of evaluation of about 54 per cent is insufficient to achieve that improvement. I repeat: there is a limit to what the Merits Committee can do, although it will continue to play whatever role it can in improving the situation.

While we agree with the Government’s view that evaluation should be integrated, proportionate and transparent, we would add that it also needs to be systematic. It needs the Government to ensure that proper and appropriate post-implementation reviews or evaluations are carried out by departments. The Merits Committee needs to know that it has the Government’s backing and that the Government will be taking an interest and watching departments’ performance closely, and I think that that is what the Minister has indicated today in replying.

The title of the report that we have been discussing starts with the words, “What happened next?”. What happens next—or does not happen—after the publication of our report, the debate today and, in particular, the Minister’s reply will, I am sure, be of considerable interest to the Merits Committee in the months ahead.

Motion agreed.

Committee adjourned at 5.10 pm.