Select Committee on Environment, Food and Rural Affairs First Report

11  Comments on the pre-legislative scrutiny process

394. In the case of this draft Bill, Defra has chosen to rely on our pre-legislative scrutiny process rather than running its own, separate consultation process. Cabinet Office guidelines on consultation state that government departments should consult widely throughout the process of developing a policy, allowing a minimum of 12 weeks for written consultation at least once during the process.[343] Defra last consulted on the policy of developing a draft Animal Welfare Bill in January 2002.

395. In the course of conducting pre-legislative scrutiny, we chose to provide copies of the written memoranda we received on the draft Bill to Defra. Defra officials received these copies almost as soon as we received the memoranda ourselves, and provided us with a helpful summary of the large amount of memoranda received. Defra representatives were also present at all our oral evidence sessions, to listen to the evidence presented. It was apparent from our second oral evidence session with the Minister, which was held two weeks after the conclusion of all other oral evidence, that our pre-legislative scrutiny process had already made a significant contribution towards improving the draft Bill, even prior to the publication of this report. We welcome the extent to which Defra has chosen to involve itself in our pre-legislative scrutiny process, and the helpful and open-minded attitude adopted by the Minister and his officials in the course of our oral evidence sessions with them.

396. However, we consider that this draft Bill was not an appropriate candidate for pre-legislative scrutiny by Parliament in the absence of the Government having first conducted its own consultation process. Defra last consulted on this policy proposal two and a half years before the publication of the draft Bill. Given the complexity of the proposal and the widespread public interest in it, we consider that it should have been subject to further consultation prior to being published for the purposes of pre-legislative scrutiny. This draft Bill could and should have been published for pre-legislative scrutiny purposes in a more developed state, despite the fact that it seeks to be an enabling framework rather than a fully developed statement of animal welfare law. Examples of the undeveloped nature of the draft Bill include:

  • the fact that the Government proposes that Parliament should delegate power to the appropriate national authority to legislate on wide-ranging and significant areas of human activity which relate to animal welfare, other than those relating to wild animals, living in the wild
  • the apparently undeveloped state of Defra's policy on a number of extremely controversial animal welfare issues which it intends to regulate under the proposed delegated powers, particularly welfare standards at greyhound tracks, the regulation of performing animals and of animal sanctuaries
  • the complex, confusing and often inconsistent way in which the definitions of "animal", "protected animal", "kept by man" and "keeper" apply within the framework of the draft Bill, a problem which the Government appears to have acknowledged[344]
  • the almost random arrangement of the provisions in the draft Bill relating to enforcement, prosecution and penalties; in our initial oral evidence session, the Minister openly agreed that this was an area where there were "real holes in the legislation" and added, "I think that we need to do some more work on the whole area of enforcement and the roles of inspectors and the powers of entry"[345]
  • the fact that the Regulatory Impact Assessment accompanying the draft Bill fails to demonstrate that the benefits of the proposed legislation would exceed the costs, as is required by Cabinet Office and National Audit Office guidance.

397. We are surprised that the policy behind the draft Bill is not better developed, given that two years elapsed between Defra's publication of its analysis of the responses received to its initial consultation, in August 2002, and its publication of the draft Bill, in July 2004. Despite this lack of policy development, the Government appears to be seeking to push forward with this legislation. No doubt this is why Defra chose to rely on our call for written memoranda from interested parties as a substitute for its own consultation process. Had Cabinet Office guidelines been applied, Defra would have had to give consultees 12 weeks from the 14 July publication date—that is, until 6 October—to respond to the draft Bill. As it was, our call for written memoranda closed on 25 August.

398. There does not appear to be any guidance laid down for government departments, setting out how well-developed draft legislation should be before it is published as a draft Bill. Clearly, overlap between the Government's consultation processes and Parliament's pre-legislative scrutiny processes is possible, and sometimes desirable. While it is not always inappropriate for government departments to choose to rely on Parliament's pre-legislative scrutiny process, rather than conducting a separate consultation process in accordance with Cabinet Office guidelines, we consider the Government should adopt such an approach only where the policy behind a draft Bill has recently been consulted on, or where the draft Bill is minor or uncontroversial. Neither of these conditions were met in the case of the draft Animal Welfare Bill.

343   Cabinet Office, Code of Practice on Consultation, January 2004; available at Back

344   See paragraph [55]. Back

345   Q 17 [Defra] Back

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Prepared 8 December 2004