Advice from the Government’s own regulation watchdog could have been written
for the Personnel Today/EFSP campaign, says Philip Whiteley, but the DTI still
chose to ignore it
In April 1999, the new Secretary of State for Trade & Industry Stephen
Byers sat down to a meeting with a small group representing major employers in
a highly secretive meeting. On the agenda was how to amend the Working Time
regulations to reduce the paperwork and increase exemptions for managers.
At the same time, government watchdog the Better Regulation Task Force
produced its report on enforcement of regulation, which denounced the practice
of "rounding up the usual suspects" in consulting procedures. It went
on, "Of particular concern is the practice of informal pre-consultation with
certain representatives which skews the options for discussion in a way that is
neither transparent nor accountable."
News of Byers’ clandestine discussions was leaked to Personnel Today, much
to the dismay of those involved, who feared that a backlash from the trade
unions would scupper the talks. The TUC did indeed protest about what it saw as
a watering down of the directive, but Byers weathered the storm. Rather than
open up negotiations, however, he formally announced the plans in July, with
just two weeks’ consultation.
While the meeting’s outcome was welcomed by most employers, the revelation
that the DTI ignored the Government’s own watchdog causes disquiet. Secretive
strategies tend to produce errors in law.
In the same report, the Task Force emphasises the point – that those with
relevant experience will better spot the flaws in any proposed law than DTI
"It is heartening that the Government’s own advisers were making the
sensible point, but worrying that the DTI was apparently not listening – that
will have to change," said EFSP chief executive Robbie Gilbert.
The condemnation by the task force produced not a hint of a blush at
Victoria Street, which continued in similar spirit. Formal consultation on the
far-reaching Part-Time Workers directive has been squeezed into six weeks – out
of a maximum 104, given that the UK like any other EU country has two years to
translate a directive into domestic law.
Further extracts from the task force report show its prescience – it could
have been written for the Personnel Today/Employers’ Forum on Statute and
Practice campaign. "It is important that all those affected are consulted
early enough to have some influence," it stated. "Those who are being
consulted are probably engrossed in their immediate business and interests, so
it is important to make it easy for them to take part.
"Give them the information they need in plain language, be clear about
what is open to consultation and change and give them sufficient time to
Looked at objectively, it is odd that there are no standard processes –
particularly for proposed regulations which, unlike a Bill, have limited
The Institute of Directors recommends at least three months’ proper
consultation plus a further two months or more for employers to have time to
digest and familiarise themselves with the law. "We have had just six
weeks to respond to the Part-Time regulations," said business policy
executive Richard Wilson. "The Parental Leave regulations came into force
on 15 December; the guidelines were not published until 24 hours after.
Allowing a decent amount of time to get to know new laws is important,
Wilson added, as penalties for making a mistake have increased spectacularly
with the quadrupling of the maximum penalty for unfair dismissal.
It is not as if the DTI has always got it wrong. On the initial consultation
on union recognition – which formed part of the Employment Relations Act – it
involved both unions and the CBI in an exercise that saw the two adversaries
reduce their differences on the complex formula for ballots on whether unions
should have negotiating rights.
The DTI’s defence is that consultation must be fit for purpose. "Every
consultation is different, and with different external timetables – different
groups affected and varying complexity involved," said a spokeswoman.
"A major public consultation on a Green Paper would not be treated in the
same way as a very technical matter affected a limited number of people."
The department accepts the recommendations of the task force and agrees that
the process should be "transparent and accountable". On the
pre-consultation meetings, she added, they are not used to "skew
"Policy is not developed in a vacuum. We need clear understanding of
the issues and options if we are going to have effective consultations. Getting
this requires exploratory discussions." The delay to the Part-Time work
consultation document was longer than hoped, but "time was needed to get
the proposals right".
On Working Time changes last year, the DTI spokeswoman argued that these
were not a major change as they lightened the regulatory burden without
affecting employee rights. This interpretation is strongly challenged by the
TUC. She pointed to the establishment of the Tupe Forum, to discuss laws on
business transfers, as a "model example" of consultation.
The tone from the DTI is defensive. But the EFSP is keen to stress that the
campaign is about making legislation workable, not to oppose the law’s aims.
And disquiet does come from human resource practitioners, not only
representative bodies. "This is a general matter – it is an IPD position
as well," said Sue Adams, head of human resources at the North West
Development Agency. There is a great deal of criticism that there is not
sufficient consultation. The story seems to be, ‘We’ll see how it goes, and
wait for things to fall at the first hurdle’."
Ignorance of the law is, of course, no defence in a court, and penalties for
ignorance have risen. There is straightforward advice from the Government’s
watchdog to ensure that people are fully informed, and practitioners are right
to be puzzled that it is rarely followed.
The Better Regulation Task Force
What is The Better Regulation Task Force?
The Better Regulation Task Force was appointed in September 1997 to advise
Government on regulatory issues. The aim is to give advice on how to improve
regulations so that they are appropriate to the requirement and keep paperwork
to a minimum.
Is this just a quango to police other quangos?
That is not quite accurate. It is an advisory body comprising individuals
from across different sectors. The idea is that they can help government
departments improve their record on regulation. It does not generate rules or
red tape in itself.
Is it a toothless talking shop, then?
The jury is still out – its success depends on whether government
departments heed its sensible, well written advice. If government lawyers and
officials continue to embroider secretly done deals between ministers and
selected parties, the same pattern will continue.
Are any more reports due out on the consultation process?
A report due out next month on small firms, and one later in the year on
pay-roll, will consider consultation arrangements.
What are the terms of reference?
"To advise the Government on action which improves the effectiveness
and credibility of government regulation by ensuring that it is necessary, fair
and affordable, and simple to understand and administer, taking particular
account of the needs of small businesses and ordinary people."