Subordinate legislation committee inquiry into the regulatory framework in Scotland – GMC Scotland response
GMC Scotland Response
GMC Scotland is the Scottish policy office of the General Medical Council and has been established as part of the comprehensive reform of the General Medical Council, shaping a GMC that is fit for purpose in today’s conditions. The General Medical Council functions to ensure the application of commonly held standards across the whole of the UK and is committed to contributing actively to the delivery of excellence in medical practice in Scotland, working with Scottish health organisations, patients and public.
We welcome the opportunity to contribute to this consultation.
PART 5: DISCUSSION POINTS
Part 2: Improving regulatory quality of new regulation
Regulatory Impact Assessment (RIA):
1. Whether there are any cases since devolution where it is thought (a) that a partial or final RIA should have been produced but it has not been or (b) where it has been produced but that has not been used effectively to improve the quality of policy decisions about the regulation.
No comment.
2. Whether an RIA should be prepared (a) only in those cases where it may be thought that the regulation may have an impact upon business, charities and the voluntary sector – as at present – and, if so, how should business be defined or (b) in all cases where regulation is proposed (except in any case where it is not thought appropriate)
We believe that an RIA should be prepared in all cases, supporting option b)
3. Whether, in any case where an RIA is not prepared, a statement should be made giving reasons for not doing so and whether this statement should be given to IRIS, the Minister and the Parliament, along with the regulation.
The importance of RIAs lies in their contribution to pre-legislative scrutiny, and their preparation should inform the development of a regulation or piece of legislation. If a decision is made that an RIA is not to be prepared, any explanatory statement must be submitted to IRIS, the Minister, Parliament -and any committees with an interest in the prospective legislation – prior to the regulation being further developed. This will allow the elected representatives to evaluate the need for an RIA and require one to be undertaken if they believe it would be helpful.
4. Whether the final RIA should indicate what changes have been made to the regulation as a result of going through the RIA process.
Yes.
5. Whether the requirement to prepare an RIA should be made statutory or whether it should remain, as at present, only a matter of policy guidance.
RIAs are potentially valuable tools in the development of effective policy and legislation. NAO reports suggest that this potential has yet to be fully realised. It would be reasonable to hope that this may be achieved through cultural change within the civil service, driven by senior staff and Ministerial commitment. Vigilant Parliamentary scrutiny –including the key role of the Subordinate Legislation Committee – can support this culture shift. In a climate where there is widespread public support for reducing red tape and a light regulatory touch, it may be that a move to rendering RIAs statutory goes against the grain of current policy – but may be appropriate for the committee to reconsider this within a defined period.
6. Whether the requirement to prepare an RIA should, as at present, be upon the policy makers and whether they ought to be required in any cases to consult IRIS and the relevant subject Committee in the Parliament.
Yes. It is essential that policy makers themselves must prepare the RIAs, allowing them to understand, absorb and accommodate the results of the assessment, ensuring better advice to Ministers and to Parliament and more effectively engaging input from external interested parties. Those preparing the RIA should be required to consult IRIS and the relevant committee. It may be that a Parliamentary committee-the Subordinate Legislation Committee? -should take an overview of all RIAs to keep a watchful eye on overall standards The outcome of consulting IRIS and the relevant committee should be noted on the RIA itself.
7. Whether the existing questions in the RIA are the correct questions and, in particular, whether the micro-business test is working effectively as a test.
No comment.
8. Whether there should be a common commencement date, that is a single date or dates for commencing for new regulation in different areas of devolved matters, such as different areas of environmental law.
It is entirely appropriate that the Scottish Executive is considering the possible benefits of a common commencement date. It may be that a common commencement date is more suitable in some areas than others. It is doubtful that a common commencement date would be a positive contribution to regulation in the health sector, where the delivery of the best possible healthcare – and the health and safety of the public -cannot be compromised by artificial delay .
Public Consultation :
9. Whether there should be a general requirement to consult the public upon any proposal for regulation and any persons affected by it (except in any case where this is not thought appropriate and a statement is given explaining this) or whether this would result in consultation fatigue.
There should be a general requirement to consult, but there must be recognition that many organisations -patient groups in particular - will always have a resource issue when responding to consultation. The placing of a complex -and sometimes poorly drafted consultation -on a website is not sufficient. The onus is on the Scottish Executive to engage proactively in an inclusive and effective manner – and the work currently underway across Scotland on Smoking in Public Places demonstrates the public appetite for engagement. The Cabinet Office ( whose guidance is referred to within this consultation) offers a useful breakdown of options open to policy makers seeking input to their policy. The Scottish Executive may wish to take its own view on tackling the geographic, demographic and resource barriers to effective consultation.
10. Whether there should be a general requirement that the public and interested parties should get access to the comments made by those consulted (except in any case where it would not be appropriate to do so – such as because of commercial confidentiality) and how account was taken of them.
Yes there should be. The current system of transparency should be continued.
11. Whether any such general requirements should be statutory or, as at present, only a matter of policy guidance.
These should continue to be a matter of policy guidance although if there is no improvement the committee may wish to reconsider whether the requirement should become statutory.
12. Whether consultation should be a one-off event or whether it should take place at appropriate stages during the making of the regulation and, if so, what those stages might be.
This could be considered on a case-by-case basis. In the majority of cases, there is unlikely to be a need for repeated widespread consultation ( with the consultation fatigue implications) throughout the development of a regulation but sourcing additional views in a targeted manner may be appropriate.
13. Whether the consultation process should continue to follow the Cabinet Office Code of Practice on Consultation and, in particular, that the minimum consultation period should be 12 weeks.
Yes. The Subordinate Legislation Committee must particularly press for longer consultation on proposed EU legislation. The already short EU consultation periods are exacerbated by he inevitable delays as such consultations are processed by the Member State.
14. How the consultation process in relation to Bills, amendments to Bills and subordinate legislation can be handled in an effective manner.
See Q9
Easily understood :
15. Whether there should be a general requirement that the text and structure of the regulation should be written in plain language and be simple to use and to understand.
Yes.
16. Whether such a requirement should be part of the RIA and, if so, how can it be made effectively and
17. Whether, if, exceptionally, it may not be possible to use simple language in the regulation, there should be a requirement that guidance, written in plain terms, should accompany the regulation.
Accessibility of language, whilst retaining legal clarity, must be a priority. The RIAs should note whether comprehensive guidance has been made available at the same time as a draft regulation.
Enforcement :
18. Whether the Scottish Ministers should have a power to establish a statutory code of good enforcement practice in relation to devolved matters as UK Ministers have under section 9 of the Regulatory Reform Act 2001 in relation to reserved matters.
Yes, the Scottish Ministers should have the same powers at their disposal.
19. Whether the Enforcement Concordat is working effectively.
The principles of the Enforcement Concordat are sound and represent a commonsense approach to implementing legislation effectively. Robust regulatory bodies have the principles on which the Concordat is based inherent in their work. However, despite redrafting the Enforcement Concordat guidance, and significant’ buy in’ by groups representing public and businesses, the Concordat has been hampered by the very limited interest shown by the public sector, and the largely cosmetic nature of the ‘sign up’ from the local authorities. Members of the public who have a poor experience of regulatory enforcement will carry their negative perspective into all their dealings with a variety of regulatory bodies, creating a climate of suspicion and even hostility that serves neither citizen nor government well.
20. What measures should be in place by the Scottish Executive to assess how compliance with any regulation is to be measured and to determine whether compliance is equitably enforced within all parts of Scotland and, if a similar regulation is in place in other parts of UK or elsewhere in the EU, within all parts of the UK or EU.
No comment.
21. Whether there should be procedures available to enable users to complain about the unequal or unfair enforcement of regulation and, if so, what those procedures should be
The GMC supports robust local complaint and dispute resolution processes.
Periodic review :
22. Whether there should be a general requirement that all new regulation (or regulation of a specified kind, such as those which impact significantly upon business – and, if so, how should that be defined) should be subject to review after a certain specified period of time and, if so, whether that period of time should be 3, 5 or 10 years.
There should be an expectation that all new regulation is reviewed every 5 years. 10 years is too long, 3 years may be insufficient in some cases for implementation to have bedded in. Where the circumstances surrounding the regulation change significantly, or evidence comes to light of negative unintended consequences, a review should be undertaken swiftly.
23. Whether such a requirement should be statutory or contained in policy guidance.
This should be policy guidance and if it is felt to be necessary in due course, the option of a statutory review could be invoked.
24. Whether there should be a blanket use of “sunset” or review clauses or whether there should be a presumption that, except where an exception can be justified, such clauses should be used in the cases identified in the Mandelkern Report, namely where the regulation-
- was introduced at short notice or
- was based on a precautionary motive or
- was based upon technology or market conditions which are liable to change or
- was a pilot project or
- conferred rights upon the State
There must be blanket periodic review. In many cases this would be very straightforward but it would allow an opportunity for problems to be identified and corrected.
Part 3: Improving Regulatory Quality of Existing Regulations
Accessibility :
25. Whether the Scottish Ministers should be invited to request the Scottish Law Commission to prepare a comprehensive programme for the consolidation of all primary legislation relating to devolved matters and, after consultation with the Parliament, to approve any such programme. and
26. Whether the Scottish Executive should be invited to prepare, in consultation with the Parliament, a comprehensive programme for the consolidation of all secondary legislation relating to devolved matters.
and
27. Whether, if the Scottish Executive cannot devote the necessary resources for the work involved in the preparation of such consolidations, such work should be out-sourced.
We welcome any forward initiative to look at consolidation whilst recognising the resource implications.
28. Whether, when an Act of the Scottish Parliament makes a number of amendments to another Act or part of it, it should contain a “Keeling Schedule” which shows that other Act (or part of it) as so amended.
Yes - this would provide a useful audit trail.
29. Whether users encounter difficulties in accessing regulation (whether contained in primary or subordinate legislation) which has been amended.
Some users do find difficulty in ascertaining the status of regulation-how up to date is the version in front of them? This is particularly the case when users are searching government ( or other websites) and may be a real problem for smaller interest groups.
30. Whether there should be procedures available to enable users to complain about the difficulties in accessing regulation and, if so, what those procedures should be.
As many problems arise with the accessibility of the huge amount of information on government website , a feedback button would be a simple and helpful approach.
31. Whether, when a set of subordinate legislation has been amended more than, say, 5 times, it must be consolidated and whether there are any circumstances in which it ought to be consolidated before then.
No comment.
32. Whether there should be facilities available, such as on the HMSO website, to enable the public to access, free of charge, the consolidated legal texts or the texts as amended.
Development of the Scottish Executive and Scottish Parliament websites so that the diverse policy and public community can access up to date amended or consolidated texts would be welcomed.
Reform and Simplification:
33. Whether the Scottish Executive should prepare, in consultation with the Parliament, a programme for the reform and simplification of all the existing legislation, whether primary or secondary, relating to devolved matters, along the lines recommended by the Mandelkern Report.
No comment.
34. Whether consideration should be given to having a Bill which would confer upon the Scottish Ministers powers to make orders to give effect to the reforms suggested in that programme. Such a Bill might be similar to, or more extensive than, the provisions in the Regulatory Reform Act 2001.
No comment.
35. Whether, until such a Bill is enacted and to the extent that it could not be implemented by orders under the De-regulation and Contracting Out Act 1994, a start could be made on implementing that programme by means of Bills and SSIs.
No comment.
Part 4: Effective structures for improving regulatory quality
Role of IRIS :
36. Whether IRIS should be re-located as part of the office of the First Minister or at least as part of the Constitutional and Parliamentary Secretariat.
It would seem logical to have a central function. Such a core function should be in the office of the First Minister as this would give it the status it requires.
37. Whether a Minister and an official unit within each department of the Scottish Executive should be charged with being responsible for good regulatory practice within that department.
Yes.
38. Whether IRIS should be charged with ensuring that departments within the Scottish Executive deliver better regulation through full compliance with the RIA process and with monitoring and assessing the level of compliance with that process by means of 6 monthly reviews.
No comment.
39. Whether IRIS should be given a wider strategic role to ensure that all new regulation meets the required standards for good regulation and to draw up programmes and timetables for the consolidation of existing regulation and for its reform and simplification.
No comment.
40. Whether the powers of IRIS should be strengthened by requiring all new regulation to approved by it as meeting the required standards for good regulation as a formal part of the decision making process.
We believe that IRIS should have the capability to monitor regulations as they progress through the system.
41. Whether IRIS should be required to produce an annual report, to be laid before the Scottish Parliament, of its activities, of the level of compliance with the RIA process within the Scottish Executive and of the progress made towards regulatory review and reform.
A newly relocated IRIS could build on current annual reporting.
42. Whether there should be independent advisory bodies established in Scotland, similar to BRTF, to advise IRIS on matters relating to regulatory reform.
No this is unnecessary. Much of the work of BRTF has relevance north of the Border.
Role of the Parliament
43. Whether the remit of the Subordinate Legislation Committee should be amended to give it a specific role to consider matters of regulatory reform, including, in particular,
- assessing whether any new regulation ( whether contained in Bills or in subordinate legislation) meets the required standards of good regulation, with power to report the regulation to the lead committee if it fails to do so;
- ascertaining whether a RIA accompanied any new regulation (or a statement explaining why it was not) and whether the RIA appears to have been properly prepared;
- considering any programmes and timetables drawn up by the Scottish Law Commission or the Scottish Executive for the consolidation of existing regulation or for its reform and simplification and assessing whether and to what extent such programmes and timetables are adhered to;
- considering the annual report of IRIS and the level of compliance by the Scottish Executive with the RIA process.
It would be reasonable to assume that the committee should be routinely monitoring items 1, 2 and 4.