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 www.cabinetoffice.gov.uk Back
344
See paragraph [55]. Back
345
Q 17 [Defra] Back
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