Select committees and legislation
61. Following the recommendations of the Modernisation
Committee, this Parliament has seen a major and overdue improvement
in the consideration of primary legislation - the use of draft
Bills. This is a function to which select committees are ideally
62. From our experience of pre-legislative scrutiny
so far, we think there are seven areas for improvement:
- scrutiny of draft Bills has often had to be undertaken
at short notice. To some extent this probably reflects the government
coming to terms with a new procedure; but if the process is to
be of full benefit both to government and to Parliament, there
must be adequate lead time - necessarily longer for select committees
than for standing committees. The government's legislative programme
is tightly controlled. When the Cabinet approves the programme
for the coming Session it will presumably be clear which Bills
are to be published in draft and so be available for pre-legislative
scrutiny. In our view the Leader of the House should, very early
in a new Session, be in a position to give the Chairman of Committees
the likely timing of draft Bills for that Session, and a preliminary
view of the Government's plans for pre-legislative scrutiny; and
should notify any changes of plan thereafter. This will become
more important if - as we hope - the use of draft Bills becomes
routine. In turn, the Chairman of Committees would be able to
express preferences for particular Bills to be published in draft.
- there must be adequate time for the pre-legislative
stage if there is to be high quality scrutiny, and especially
if the process is to be of the inclusive character favoured by
the present government in other areas, involving the public and
those likely to be affected by the legislation. With good notice
and orderly phasing of draft Bills, it should be perfectly possible
to provide more time for consideration.
- We understand the arguments for ad hoc
pre-legislative committees (and for joint committees); but we
consider that, where the subject matter of a Bill falls primarily
to a single department, pre-legislative scrutiny should be normally
undertaken by the relevant departmental or cross-cutting select
committee. Departmental committees will have the necessary collective
familiarity with the background; they will have established working
methods which suit them; and they may well have already done some
work on the subject matter of the Bill. When departmental committees
are asked to consider draft Bills, proper notice and planning
will be essential in order not to disrupt other important work.
We would also expect departments with draft Bills to liaise closely
with the relevant departmental select committee.
- When an existing committee is asked to consider
a draft Bill, this should be by formal referral motion in the
House (after discussion with the Chairman of Committees and the
Chairman concerned). When adequate notice has been given, and
if adequate time has been allowed for consideration (as we discuss
above) it would be reasonable - and in the spirit of the programme
motion approach - for the House to impose a deadline for the committee
- although our preference is for pre-legislative
scrutiny to be undertaken by the relevant committee, this must
not be allowed to prejudice that committee's programme. A committee
must be able to decline reference of a draft Bill, in which case
an ad hoc committee would be used.
- if a Bill is examined by an ad hoc select
committee, we would expect it to have a proportion of its members
from committees with an interest. Under our proposals, the Select
Committee Panel will be able to ensure that this is the case.
If the subject of a draft Bill is one that spans the responsibilities
of several departments, the Panel will be able to ensure the proper
"joined-up" approach (see below).
- at the moment there is a somewhat artificial
disconnection between a select committee's consideration of a
draft Bill, and a standing committee's consideration of the Bill
following second reading. We hope that the Committee of Selection
would put on the standing committee at least some of the select
committee that had considered the Bill in draft; but a better
way of using the select committee's expertise on the Bill would
be to provide that any member of the select committee could attend
and speak (but not vote) in the standing committee.
63. Pre-legislative scrutiny also raises questions
of staffing, which we consider in paragraphs 71 to 84 below.