Volume 15: Government and Public Administration
3. Policy-making and legislation
Clearing policy with other Departments

3.10 Before matters were brought to the Cabinet, officials would usually discuss in advance with other Departments any proposals thought to affect them, in order to smooth the way to agreement. Ministers also often prepared the ground informally, and identified difficulties, in discussion with other Ministers in the margins of other meetings or while in the Houses of Parliament ('the House'). Drafting papers and obtaining collective agreement could be time-consuming. All papers containing proposals involving public expenditure had to have Treasury clearance before circulation. Likely effects on public sector manpower levels had to be estimated, as well as any implications that followed from EU legislation or other commitments. Under the Government's Deregulation Initiative (described in Chapter 7), the cost to business of complying with Regulations also had to be taken into account.

3.11 In addition, papers had to say whether any new legislation would be needed to implement the proposals they contained. The kinds of legislation (domestic and European) and the process of making it are described later in this chapter (paragraphs 3.54-3.61).

3.12 Bids for primary legislation (a proposed new Act of Parliament - known as a 'Bill' until enacted - or amendment of an existing one) faced intense competition for a place in the Government's legislative programme. This was decided by the Cabinet annually and announced in the Queen's Speech at the start of the parliamentary session in November. Proposals involving legislative changes had also to be cleared by the Cabinet Legislation Committee, which scrutinised Departments' proposed measures.

3.13 Once drafted, approved and announced, a Bill might take up to a year to pass through all its parliamentary stages. The processes for agreeing and putting to Parliament secondary legislation (Orders and Regulations) were simpler and quicker. These could usually be agreed bilaterally between the Departments concerned, and the Treasury if necessary. Ministers therefore preferred to use and adapt existing powers rather than seek new primary legislation.

3.14 The Department which introduced government legislation into Parliament and handled it during its passage through the parliamentary process would generally assume strategic responsibility for matters covered by the legislation once it was enacted. ¹ A Department which made secondary legislation (ie, an Order or a Regulation) would similarly assume responsibility for its implementation. Miss Dora Pease (DH) told the Inquiry:

If any Department had an oversight, it was the Department that was handling their legislation. ²

3.15 However, three factors complicated the operation of this convention where BSE was concerned.

3.16 First, the legislative frameworks covering animal health, medicines and food safety had a variety of purposes and different basic approaches. Moreover, policy responsibilities (in particular for the safety of food) were divided between DH and MAFF. Lines of demarcation were not always clear, even to Ministers and officials. Two witnesses put it thus:

. . . if you had asked me at that point in time to sit down at a desk and write down exactly what our responsibilities were and what the Department of Health's responsibilities were, I personally, I think, would have had some difficulty. ³

. . . it is a split of responsibility which is not easy to explain conceptually but there is no obvious better way of doing it. ⁴

3.17 It followed that Ministers and senior officials had differing perspectives on where the lead on BSE lay:

. . . the principal responsibility for delivering the Government's objective, which was the control and elimination of BSE as an animal disease, rested with the Ministry of Agriculture. ⁵

But quite clearly the advice on food safety must come from the Department of Health, and in particular from the Chief Medical Officer working with his other colleagues in other parts of the UK. ⁶

It seems to me quite extraordinary that I was doing this in the first place really but this Committee [ie, Southwood] was not being set up by MAFF. ⁷

3.18 The second complicating factor was that much of the day-to-day responsibility for implementing the control measures lay with a large number of local authorities which, as described in Chapter 9 were split into two tiers: counties (concerned with trading standards and animal health) and districts (concerned with food hygiene and environmental health.). Each of these had its own priorities and, because of the different legislation involved, there were different lines of communication with central government Departments. Also involved in aspects of enforcement were the Health and Safety Executive (HSE), and regionally based arms of MAFF - the State Veterinary Service (SVS) - and DH - the Medicines Inspectorate of the Medicines Control Agency. ⁸

3.19 A third complication derived from the mixture of parallel and devolved responsibilities of the Secretaries of State for Wales, Scotland and Northern Ireland, which are described in Volumes 9 and 14 of this Report. Welsh legislative and administrative arrangements broadly aligned with those of England, but this was by no means always the case with Scotland and Northern Ireland, so care was needed when making a joint Statutory Instrument (Order or Regulation). Where separate Statutory Instruments were required, coordination and timing problems could arise - see vol. 9: Wales, Scotland and Northern Ireland. For example, as described in that volume, the Scottish Office in 1989 deferred finalising the Bovine Offal (Prohibition) (Scotland) Regulations while it waited for MAFF to publish an amended version of its Bovine Offal (Prohibition) Regulations. The Minister for Agriculture, Fisheries and Food (Mr John Gummer) 'expressed concern . . . that the Scottish regulations had not yet been made. He felt that this was undermining his position in the discussions in the [European] Council of Ministers about BSE.' ⁹ The Scottish Regulations eventually came into effect nearly three months after the equivalent Regulations for England and Wales, and the Scottish Office was criticised for this delay by the House of Commons Select Committee on Agriculture. ¹⁰