Graham Allen MP and the Human Rights Centre,
University of Essex (M 26)
INTRODUCTION
We welcome the renewed investigation of legislative
scrutiny by the Select Committee on Modernisation of the House
of Commons. Democratic Audit has recently carried out with two
partner organisations, Federal Trust and One World Trust, a research
project into parliamentary oversight of external policy. The results
of the work will be published early in 2006. [1]The
general conclusion was that the executive is able to make external
policies subject to at best minimal parliamentary scrutiny and
accountability.
In the following paper we address the parts
of this problem that relate to issues raised in the Modernisation
Committee call for evidence. We argue that improvements in the
legislative process have not benefited sufficiently the scrutiny
of external policy; and we propose means by which this problem
might be rectified.
The overall effectiveness of the recommendations
from the First Report (1997) of the Modernisation Committee on
The Legislative Process
We believe the Modernisation Committee recommendations,
especially for pre-legislative and post-legislative scrutiny,
were welcome and have helped bring about significant improvements
to democratic scrutiny of legislation. However their overall effectiveness
is limited by the fact that their application to external policy
is slight. This is a major area of concern since in the globalised
world of today external policies affect the domestic lives of
British citizens in manifold ways.
External policies are rarely framed in legislation.
From 1997-98 to 2004-05 the government introduced a total of 298
bills. Of these, the principal departments concerned with foreign
policy introduced only 16 bills between them (the Foreign and
Commonwealth Office nine, the Department for International Development
four and the Ministry of Defence three). The Department of Trade
and Industry introduced 22 bills, of which just one was primarily
concerned with external matters. This compares with 54 for the
Treasury over the same period, 53 for the Home Office, 28 for
the Lord Chancellor's Department/Department for Constitutional
Affairs, 19 for the Northern Ireland Office, 15 for the Department
of Health, and 10 for the Department for Culture, Media and Sport.
In its existence of little over four years the Department of the
Environment, Transport and the Regions managed six more bills
than the Foreign Office did in eight years. In three of the eight
sessions the FCO did not introduce a bill at all. [2]
Therefore any improvements to the legislative
scrutiny process have had far less impact upon oversight of external
policies. There is already an "accountability gap" between
external and domestic policies, partly as a consequence of the
small quantity of legislation concerning the former. The effect
of recent improvements to the legislative process, valuable though
they are, has been to widen this gap further. We suggest in the
present paper means by which this deficiency might be corrected.
One reason why so few laws are passed dealing
with external matters is that ministers make policies in this
area largely under the Royal Prerogative, not requiring the formal
involvement of Parliament. Graham Allen MP has had a motion on
the Order Paper since autumn 2002 proposing that the prerogative
power to engage in armed conflict without a vote in the legislature
be reformed. It was signed by more than 100 members of all the
major parties. Democratic Audit has submitted evidence to the
current House of Lords Constitution Committee inquiry that also
proposes that the executive should be obliged to gain Parliamentary
approval before entering into armed conflict abroad.
But ministers—and indeed officials—make
external policy in other significant areas that have consequences
for the everyday lives of British citizens—for example,
making treaties, entering into trade negotiations, playing a part
in the United Nations and its agencies. As we have noted, Parliament
does not have a formal role in the decisions that are made. Moreover—and
importantly from the perspective of the present inquiry—it
has never been presented with legislation setting out the discretion
enjoyed by the executive. These multifarious powers, comprising
the framework within which much of external policy is conducted,
have, therefore, never had the rigours of the legislative process
imposed upon them. For this reason (and others) we support the
Public Administration Select Committee (PASC) recommendation that
prerogative powers in general be placed on a statutory basis.
By bringing forward legislation for this purpose, with a full
pre-legislative phase conducted on the broadest possible basis,
an important step could be made towards rectifying the lack of
parliamentary accountability and legislative scrutiny applying
to external policies.
One area of the prerogative which PASC argued
required urgent attention was the power to make treaties. Treaties
(taken in the broadest sense as meaning all international agreements)
can be regarded as the external policy equivalent to legislation.
But at present the only provision for parliamentary scrutiny of
treaties is the convention known as the "Ponsonby Rule"
which does not require votes to be held and very rarely leads
to an agreement being debated, unless the government or opposition
wants it to be.
We appreciate that the traditional constitutional
position is that treaties which require alteration to internal
law must be enacted by domestic legislation. According to this
theory, the implementation of any treaty with an internal implication
is therefore subject to Parliamentary scrutiny and approval. However
we believe this doctrine is flawed on two counts. First, there
is no reason that the external actions of government should be
subject to any less democratic accountability than the internal
ones. Second, treaties not requiring domestic legislation for
their implementation are nonetheless likely to have internal implications.
International agreements affect (among other matters) industry
and business, public health and the environment, even anti-crime
and counter-terrorism measures. Treaties should therefore be treated
as analogous to legislation, with similar forms of scrutiny applied
to them. We believe this could be achieved through the following
measures:
— The introduction of a convention
(possibly confirmed by an addition to the Ministerial Code) that
ministers will give evidence to relevant specialist select committees
before they attend international meetings likely to result in
agreements being reached. From this a form of "soft mandating"
could be developed-providing an equivalent to pre-legislative
scrutiny for treaties.
— The establishment of a treaty sifting
committee (possibly a joint committee of both Houses), able to
seek expert opinion on the contents of agreements from relevant
specialist select committees; and with the power to refer treaties
it deems of sufficient importance to the plenary of the Commons
to debate its clauses and vote to accept or reject it.
— Systematic monitoring of the implementation
of treaties by specialist select committees. For especially significant
treaties or those covering many policy areas, special committees
could be established, perhaps co-ordinated by the sifting committee
proposed above. This process could be an equivalent to post-legislative
scrutiny.
Has pre-legislative scrutiny resulted in better
legislation? Could its use be extended and, if so, what consequences
would there be for the legislative process?
Generally speaking, we believe that pre-legislative
scrutiny should become the norm for all legislation. Too much
legislation is passed too quickly and with too little scrutiny.
We believe pre-legislative scrutiny has resulted in better legislation.
For example, greater protections were added to the Civil Contingencies
Act 2004 to guard against abuse of the powers it gave the executive
after concerns were raised during its pre-legislative phase. An
extension of pre-legislative scrutiny would improve the quality
of legislation and contribute to raising public regard for Parliament
if its work were seen to be done better.
The current Terrorism Bill might also have benefited
from a longer phase of pre-legislative scrutiny than it received.
This would have given more space for considered judgment and might
have preserved the consensual approach that the government originally
sought. We are aware that in this case the government was very
anxious to get the legislation onto the statute book. However,
scrutiny need not have had to be based on a draft bill since the
main proposals were known in advance; and in general we consider
that scrutiny of white papers or instructions to counsel could
be appropriate alternatives to pre-legislative scrutiny of actual
draft bills.
We are also strongly of the view that pre-legislative
scrutiny on-line, as for the Communications Bill in 2002, which
allowed members of the public to submit comments on committee
proceedings as they took place, is a model which should be employed
more frequently. This is a process that can strengthen the links
between Parliament and the public and so strengthen our democracy.
There is another area in which the practice
of pre-legislative scrutiny could be extended. Between 1997-98
and 2004-05, the government published 50 draft bills or sets of
clauses which were suitable for pre-legislative scrutiny. Only
two on the list had a clear external policy remit. One, the Export
Control and Non-Proliferation Bill, from 2000-01, received scrutiny
from committees in both Houses. But the other, the International
Criminal Court Bill (1999-2000) was one of only five draft bills
to have received no scrutiny at all. [3]We
believe that there should be a convention that all bills with
an external policy element be published in draft form. For its
part the House should ensure it carries out a thorough pre-legislative
scrutiny process for these draft bills.
As we suggest above, an equivalent to pre-legislative
scrutiny for treaties could be introduced.
Parliamentary committees require research support
for their pre-legislative work. Following recommendations by the
Liaison, Procedure and Modernisation Committees, the Committee
Office Scrutiny Unit was established in November 2002. It reached
its full complement of staff in January 2004, with ten specialists
and seven core staff. Something over half its work is devoted
to assisting committees carrying out pre-legislative scrutiny:
in 2003-04, of 2,137.5 staff days in total, 1,449.5 were spent
on draft bill-related work. Given the small number of bills dealing
with external policies, the Scrutiny Unit—a valuable innovation-makes
less of a contribution to parliamentary oversight of external
than of internal policies. Of the 10 projects with the most Scrutiny
Unit staff hours expended upon them, none related to external
policy. [4]The
developments in scrutiny of treaties and legislation relating
to external policy that we recommend would entail more work for
Parliament and its committees. An additional "External Policy"
branch attached to the Scrutiny Unit could be established to support
the new tasks.
Graham Allen MP
House of Commons
Dr Andrew Blick
Professor Stuart Weir
Human Rights Centre
University of Essex
December 2005
1 Not In Our Name: Democracy and Foreign Policy
in the UK, Simon Burall, Brendan Donnelly and Stuart Weir
(Politico's, London). Back
2
Government Bills introduced each session (by department) 1997/98-2004/05,
Parliamentary Information List, Laurent Palacio and Helen
Holden. Back
3
Pre-legislative scrutiny, House of Commons Parliament and
Constitution Centre, Richard Kelly, Helen Holden and Keith Parry,
Appendix. Back
4
See: House of Commons Liaison Committee, 2003 and 2004
annual reports. Back
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