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
governmentnot only to hold executives to account but also
to create a constructive dialogue between the public and its elected
representativesto 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:
GOOD PUBLIC
SCRUTINY . . .
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 scrutinyin which elected representatives
as "independent minded governors" examine legislative
proposals in the public interesthas a better chance of
achieving better legislation than the more adversarial style of
Standing Committee scrutiny.
BETTER PRE-LEGISLATIVE
SCRUTINY CAN
LEAD TO
BETTER LEGISLATION
AND BETTER
PUBLIC SERVICES
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
interestbefore 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
modelproviding that necessary consideration is given to
several practical constraints that may otherwise limit its potential.
THE SHORTCOMINGS
OF DEVELOPING
THE STANDING
COMMITTEE MODEL
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 Houseso a governmental majority is guaranteedand
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]
THE STRENGTHS
OF DEVELOPING
THE SELECT
COMMITTEE MODEL
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
servicesboth within Westminster and elsewherethe
patchy way in which existing powers have been taken up suggest
a measured approach is required to any future developments. Namely:
CONTRASTING EXPERIENCES
IN WESTMINSTER
AND BEYOND
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 www.cfps.org.uk/publications 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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