Select Committee on Modernisation of the House of Commons Written Evidence

Centre for Public Scrutiny (M 63)

  The Centre for Public Scrutiny has been created to promote the value and potential of scrutiny in modern and effective government—not only to hold executives to account but also to create a constructive dialogue between the public and its elected representatives—to improve the quality of public services.

  We believe that "better scrutiny means better government": and that this message can equally apply at legislative stages as through post-hoc reviews of the public services that result. We therefore welcome the Modernisation Committee's enquiry and the opportunity to comment on how to ensure appropriate and proportionate scrutiny within the legislative process.

  Our response to your call for evidence will particularly reference our four principles of good scrutiny, which are mutually reinforcing and lead to improved public services:


  1.  provides "critical friend" challenge to executive policy-makers and decision-makers;

  2.  enables the voice and concerns of the public;

  3.  is carried out by "independent minded governors" who lead and own the scrutiny role; and

  4.  drives improvement in public services.

The CfPS Four Principles of Good Scrutiny & Cycle of Public Accountability[30]

  We will discuss how better pre-legislative scrutiny can lead to better legislation and better public services, arguing that Select Committee style scrutiny—in which elected representatives as "independent minded governors" examine legislative proposals in the public interest—has a better chance of achieving better legislation than the more adversarial style of Standing Committee scrutiny.


  CfPS Chair, Dr Tony Wright MP [also Chair of the Public Administration Select Committee] quite emphatically states that current systems for legislative scrutiny are insufficient. Starting the new session of Parliament in the House of Commons in July 2005, he said:

    "Over the years, we have had umpteen reports which show that we do not scrutinise legislation effectively here [the House of Commons], with the result that our legislation is often flawed. We all know that that is true. We still do not see enough draft legislation, we legislate too much, our Standing Committees do not work well in scrutinising and, when amendments come back from the other place [the House of Lords], we often do not consider them at all." [31]

  This statement suggests the current system for pre-legislative scrutiny is weakened by a lack of openness, a lack of executive cooperation and the domination of standing committees.

  The merits of improved pre-legislative scrutiny as a catalyst for service improvement are recognised widely:

    "The system works much better when executive decision-makers and non-executive scrutineers work openly and constructively together, both in the development and the implementation of legislation, to identify and resolve problems in the public interest—before they turn into poor service delivery." (Parliamentary and Health Service Ombudsman Ann Abraham, CfPS Annual Lecture, January 2005)

  Ann Abraham is recognising here that pre-legislative scrutiny at its best should be part of a "virtuous cycle" of establishing better legislation, which leads to improved services. Early involvement of stakeholders, through the scrutiny process, plays a central role in learning from good practice and helps bridge the accountability gap.

  According to the CfPS principles of effective scrutiny, this ideal can best be achieved when "independent minded governors" are leading the scrutiny process, and engaging the public and stakeholders through an evidence-based, investigative process. Such criteria correlate much more closely with the work of select committees than those of the more widely used standing committees. We would therefore advocate that the future development of pre-legislative scrutiny should be based upon a select committee model—providing that necessary consideration is given to several practical constraints that may otherwise limit its potential.


  Developing the standing committee model by further extending "Special standing committee" powers could help engage the public and allow for better legislation to be produced: but does not solve the inherent lack of independence that compromises this model generally.

  The strength of MPs as scrutineers lies not only in the democratic mandate which legitimates their activity on behalf of the people but also in an independence from the executive. There have been longstanding concerns that standing committees are insufficiently independent from the executive. As the CfPS Scrutiny Map states:

    "Their membership reflects the political composition of the House—so a governmental majority is guaranteed—and normally includes relevant ministers, opposition shadows and whips. The strong use of whips ensures that bills pass through the committee stage without significant alteration, meaning that their [standing committees'] potential to initiate genuinely independent scrutiny of proposed legislation is limited." [32]

  Compromising the scrutiny/executive split by involving Ministers in the pre-legislative scrutiny process can blur the role of scrutiny committees and conflict with the principles of accountability. The need for a clear split has been advocated recently through the introduction of Overview and Scrutiny Committees (OSCs) as a check and balance on local authority executives. The Local Government Act 2000 states

    "An overview and scrutiny committee of a local authority, or a sub-committee of such a committee, may not include any member of the authority's executive." [33]

  In addition to this inherent weakness, it should be noted that previous attempts to extend and open up the role of standing committees have been largely unsuccessful. As your consultation paper notes, arrangements are already in place for "Special Standing Committees" that allow a wider "inquiry" approach, including select committee style hearings. This move towards an evidence-based approach is essential to build strong pre-legislative scrutiny arrangements, however, has been used very rarely and without addressing issues around independence "the way in which standing committees operate remains fundamentally determined by the Government's desire to see its own measures enacted." [34]


  Select committees, by contrast, possess the required measure of independence to provide genuine "critical friend" challenge to the executive in the public interest rather than merely follow the direction dictated by Ministers or whips. They are also accustomed to an evidence-based process and consensual cross-party working which is conducted predominantly in public and with significant input from external witnesses: including experts, community leaders and the general public. Furthermore, the subject-specific expertise developed by select committee members suggests they would be ideally suited to provide further "critical friend" challenge in a pre-legislative environment.

  Provisions for pre-legislative scrutiny are strongly anchored within the first three core tasks of select committees, as defined by the Liaison Committee:

    —  To examine policy proposals from the UK Government and the European Commission in Green Papers, White Papers, draft Guidance etc, and to inquire further where the Committee considers it appropriate.

    —  To identify and examine areas of emerging policy, or where existing policy is deficient, and make proposals.

    —  To conduct scrutiny of any published draft bill within the Committee's responsibilities." [35]

  Whilst there is often enthusiasm for extending this remit as a successful way to improve the delivery of public services—both within Westminster and elsewhere—the patchy way in which existing powers have been taken up suggest a measured approach is required to any future developments. Namely:


  Under the provisions of the Standing Orders of the Scottish Parliament, Parliamentary committees have the power to introduce a bill on a subject falling within its scrutiny remit. (Other legislatures including the European Parliament also grant similar powers to their committees.) In Scotland this model has been used to secure early public involvement in legislation and this ability to innovate has often been considered a tremendous advantage. For example, in 1999, the Scottish Parliament's Justice and Home Affairs Committee decided to consider the issue of protection from abuse, which resulted in a Bill extending the scope of existing legislation on the protection of victims. Alasdair Morgan MSP, convener of the committee at the time commented:

    "Our Bill has extended legal protection to many people who were vulnerable to domestic abuse, but whose rights were not recognised by existing legislation." [36]

  The practical experiences of Westminster committees demonstrate that some favour increased involvement of select committees in proactively pushing forward a legislative agenda, while others see pre-legislative scrutiny as beneficial only in specified conditions.

    —  The Public Administration Select Committee (PASC) broke with tradition in January 2004 by publishing a Civil Service Bill as part of its consideration of the case for an Act.

    —  In 2003, The Environment, Food and Rural Affairs Committee carried out pre-legislative scrutiny of the draft Animal Welfare Bill. Many of its proposed changes were accepted by Ministers, who commented on how useful the process had been. However the Committee concluded that the bill had not been an appropriate candidate for pre-legislative scrutiny by Parliament in the absence of proper consultation by Government. It further said that Government should not regard pre-legislative scrutiny by Parliament as a substitute for proper public consultation.

  Extending existing pre-legislative scrutiny powers of select committees must thus be carefully considered, especially in terms of the below issues.

Powers, strategic levers and executive responsiveness

  Both in order to prevent the unreasonable delay of urgent and important legislation and the overload of already pressed select committees, it is necessary that clear powers and terms of reference are attached to an enhanced pre-legislative role.

    —  As the EFRA Committee example demonstrates, clear frameworks have to be established for establishing which bills will be subject to pre-legislative scrutiny.

    —  There must be adequate provision to ensure a select committee's work programme remains independent rather than swamped by statutory requirements for pre-legislative scrutiny. Within local authority health scrutiny committees, which have a statutory duty to be consulted on substantial variations and developments to health services, many are struggling to maintain a "proactive" element to their work programmes and investigate matters outside of this statutory remit. [37]

    —  The quality of pre-legislative scrutiny will depend largely on timely availability of information to select committees. Involving committees as soon as possible in the process, and giving them a realistic timetable in which to carry out genuinely public facing reviews, would be advantageous.

    —  Scrutiny should be appropriate and proportionate: therefore complex or cumbersome procedures should be avoided. A split-committal process could prove useful for particularly large and complex legislation, but should be limited to such instances to guarantee a maximum amount of coherence. The re-committal system could however be seen to undermine the work of select committees, in the event that a standing committee amends the text after it has gone through the select committee. This could be an unnecessary duplication of the process, and undermine the legitimacy of select committees.

    —  Levers should be in place to ensure the executive is responsive to pre-legislative scrutiny. As with select committee's standard reviews, there should be provisions for government to respond to recommendations publicly within a proscribed timescale.

    —  Additional levers should be considered, similar to the call-in procedure is a provision of the Local Government Act (2000) which allows the appropriate Overview and Scrutiny Committee (OSC) to compel the Executive to reconsider a decision it has made but not yet implemented. The procedure varies in different councils, but usually allow for a number of working days (typically five) during which a decision may be called-in before it is implemented, and places a number of other restrictions on who can call-in (typically three members, and sometimes giving the power to the OSC Chair on his own) and which decisions may be called-in (typically excludes urgent decisions and decisions within the policy framework or budget)[38]. These powers, if designed correctly, could allow a delaying mechanism where there are serious concerns about legislation.

    —  In order for such an approach to be successful, and avoid it being abused for political ends, select committees must remain unwhipped. This would maintain the level of cross-party support and collaboration they enjoy today. Consideration could also be given to removing whips' involvement in selection of select committee members: although there is a general feeling that this does not interfere with members' independence of spirit once they are on committees. [39]

Involvement of the public

    —  Progress has been made recently regarding select committees' public profile and the public's ability to get involved in reviews: especially in relation to partnerships with Radio 4 and the extensive use of webcasts for evidence sessions. Similar provisions should be encouraged to ensure public input into legislation.

    —  Additional public input could be obtained by partnering with or learning lessons from local government scrutiny committees. Many local authorities "co-opt" members of the public, local experts or community leaders onto their scrutiny reviews, which could be practiced within pre-legislative scrutiny to ensure the public interest is represented. Additionally, dissemination of information on pre-legislative scrutiny to local government scrutiny committees could be easily achieved through the CfPS Scrutiny Champions' Network and could result in increased public involvement at local level: whether through councillors feeding back their views as evidence or championing the issue locally so that members of the public become directly engaged.

Resources and innovation

  Equally important is the need to provide adequate resources to select committees so that they can perform their work effectively and provide genuine "critical friend" challenge to the Executive. Any expansion of powers should be mirrored by an expansion of staff resources and careful thought about how to innovatively increase member time and expertise.

    —  Staff resources: The Scrutiny Unit has proved a useful resource in the work of select committees, providing support for members to tackle large and complex issues in the short time allowed by pre-legislative scrutiny. The House of Commons Commission commented: "The Unit has already established itself as a highly effective source of support to Committees in these and other areas. It has now reached the full complement of seventeen approved by the Commission. . . . An increasingly significant call on the Unit's resources has been pre-legislative scrutiny, as more bills are published in draft." [40]Any increase in select committee responsibilities would need to see a similar increase in Scrutiny Unit resources.

    —  Member expertise: Given an incredibly busy parliamentary timetable of MPs, an effective way of enhancing capacity of committees may be to make more extensive use of joint committees with the House of Lords. This would refute allegations of scrutiny becoming "staff led", and although questions may be raised about democratic legitimacy if the second chamber remains unreformed, there would be clear benefits in terms of the experience and expertise many members possess.

    —  Indeed, Members of both Houses could be chosen for pre-legislative scrutiny review panels according to their expertise and interests. Such arrangements would provide a flexible range of tools as possible to ensure that they can carry out their pre-legislative scrutiny role. More flexible models of scrutiny such as ad hoc committees have been more widely used in local government, where they have helped scrutineers focus on specific topics. Smaller, focused, time limited panels allow for taking advantage of member expertise and contacts. Clear working arrangements, distinct from those of departmental select committees, can allow for in-depth analysis of important topics by MPs and Lords with a special interest in the area; especially when such topics cut across the remit of multiple departments.

March 2006

30   CfPS The Good Scrutiny Guide 2nd edition 2006. Back

31   House of Commons Hansard, 5 July 2005 : Column 169. Back

32   CfPS Scrutiny Map, p 9. Back

33   Local Government Act 2000, 21 (9). Back

34   Scrutiny Map, p10. Back

35   Liaison Committee Annual Report, 2004-05, p 12. Back

36   CfPS, Successful Scrutiny 2, 2006. Back

37   Process, Progress and Making it Work-a University of Manchester evaluation of health scrutiny, available at Back

38   CfPS, Research Report 1. Back

39   Peter Ainsworth MP, then Chair of Environmental Audit Committee, CfPS Annual Conference 2004, p 22. Back

40   House of Commons Commission, Twenty-sixth report of the House of Commons Commission-Financial, Year 2003-04, HC 791, July 2004, para 66. Back

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