Rt Hon the Lord Hunt of Wirral and Rt
Hon Alan Beith MP (M 82)
Timing of pre-legislative scrutiny in
2005-06
1. Only three draft Bills were promised for the
current session: Legal Services, Coroners and Courts and Tribunals.
[64]Legal
Services is being examined by a Joint Committee and Coroners by
the Constitutional Affairs Committee. No decision has been made
about scrutiny of Courts and Tribunals, which has not yet been
published.
2. The timescales have been as follows:
Legal Services: draft Bill published 24 May;
Joint Committee appointed on 23 May and ordered to report by 25
July.
Coroners: draft Bill published on 12 June; expectation
in Government that the Committee will report before the summer
recess.
3. The time available for pre-legislative
scrutiny has sometimes been short in the past. In 2004 the draft
Charities Bill was published on 27 May and the Joint Committee
was ordered to report by 30 September. In this case the Committee
staff were able to draft the report during the summer recess,
and the Committee then considered it during the September sitting,
but the Committee nevertheless recommended "that neither
House should agree to deadlines in motions to appoint Joint Committees
where the time for consideration of the draft Bill is less than
12 sitting weeks from the date of publication of the draft Bill".[65]
LEGAL SERVICES
4. The Joint Committee on the Draft Legal
Services Bill has been allowed just under eight sitting weeks
(excluding the Whitsun recess) from the date of publication of
the draft Bill to invite written evidence, set up a programme
of meetings, take oral evidence and prepare and agree a report.
[66]The
draft Bill is a long one: 159 clauses and 15 schedules on 172
pages, covering numerous complex and contentious issues. Oral
evidence was taken from 6 to 26 June, and the Chairman's draft
report had to be circulated on 5 July to allow sufficient time
for the issues to be discussed by the Committee and the report
to be published on 25 July.
5. Questioned about the reasons for urgency
and the date for introducing the Bill, the Minister's response
was: "We want it to be early in the second session in order
that we can get all the proposals in. | there is a 12 to 18 month
lead in so we need as much time as possible in order for the 12
to 18 months to end as early as possible." [67]
6. The results of the limited time have
been that:
— The number of evidence sessions had
to be restricted to seven, with witnesses seen in "panels"
of three or four;
— Given that format, questioning had
to concentrate on the major aspects of the draft Bill, and there
was not always enough time for the witnesses to be questioned
in sufficient depth;
— Where there has been conflicting
evidence, it has been impossible to follow up points in writing;
— The deadline for written evidence
fell after much of the oral evidence had been taken;
— Some issues raised by the draft Bill
have not been dealt with at all.
7. The Committee's difficulty has been increased
by the fact that amendments to the Solicitors Act, on which some
of the proposals in the draft Bill depend, were not provided to
the Committee in time to be used in the examination of witnesses,
and when they were provided they were incomplete. [68]The
Minister's response was that "I think you will be able to
give full consideration to the impact because the Bill sets out
the policy and provides enough detail on the objectives and the
framework for you to be able consider that sufficiently".[69]
As one member of the Committee pointed out, the lack of detail
had made it impossible for the witnesses to answer some questions,
and "one of the things that is wrong is that the Bill shows
what the policy is but does not show in sufficient detail how
it is going to be achieved".[70]
8. The Joint Committee will produce a substantial
and worthwhile report, but the effectiveness of the pre-legislative
scrutiny, and particularly the opportunity for those affected
by the bill to present their views in detail, has been severely
reduced by the limited time.
CORONERS
9. The Constitutional Affairs Committee
began its inquiry into reform of the system of coroners well before
the publication of the draft Bill, intending to conclude the inquiry
by examining the detailed provisions. The Department had long
notice of the timetable for the inquiry. In the event the draft
Bill was not published until 12 June, the day before witnesses
were due to give evidence to the Committee on its provisions.
Even a confidential copy of the draft Bill was not made available
to Committee staff until 5 June, and then only in hard copy. [71]
10. The Minister's explanation for the delay
in publishing the draft Bill was that it resulted partly from
the Department's desire to have a plain English version alongside
the actual text, and she apologised for having allowed this to
hold up publication. [72]The
Department has indicated its intention to proceed with the Coroners
Bill early in the autumn.
11. The Committee took evidence on the draft
Bill on 13, 20 and 27 June, with the aim of agreeing heads of
report on 4 July and a report on 18 July for publication by the
end of July. Information about the funding of the reformed coroner
system, crucial for assessing the draft Bill's proposals, is still
not available at the time of writing. The limited time has meant
that it has not been possible to complete the inquiry as originally
intended and the report will include only interim recommendations
on the broad policy set out in the draft Bill. As a result the
Bill will be published without the Committee having been able
to comment on the detailed provisions in the draft Bill. The Committee's
inquiry has been compromised by the delay in publishing the draft
Bill.
12. At the end of the last evidence session,
on 27 June, when no further evidence could be taken, the Minister
asked the Committee to comment on three specific aspects of the
draft Bill. [73]
13. The Minister has also announced what
has been described as "pre-legislative scrutiny" of
the draft Bill by a panel of about 12 recently bereaved people
in the Palace of Westminster. The status of this exercise is unclear.
[74]
CONCLUSION
14. Only two draft Bills published in the
present session have been subject to pre-legislative scrutiny,
and both on very restricted timescales. We do not know whether
this reflects solely the timing difficulties following the general
election. But it is clear that requiring a Committee to deal with
issues as varied and complex as those in the draft Legal Services
Bill in less than eight sitting weeks, or those in the draft Coroners
Bill in an even shorter period, provides the illusion of detailed
pre-legislative scrutiny rather than the reality and is unlikely
to add to the reputation of either House.
15. We are particularly concerned by the
attitudes of the relevant Ministers. In the case of Legal Services
the Minister considered it enough for the Committee to be able
to examine the objectives and framework. In the case of Coroners,
the Minister is seeking to establish a parallel process of scrutiny
by a panel selected by the Department. In both cases information
crucial for effective pre-legislative scrutiny has become available
or is expected to become available only at a very late stage in
the process.
16. We ask the Modernisation Committee
to recommend that 12 sitting weeks be the minimum time made available
for pre-legislative scrutiny, with any exceptions to be agreed
by the Liaison Committee and if appropriate, the authorities in
the House of Lords.
17. We are copying this note to Lord Brabazon
of Tara, Chairman of Committees, House of Lords.
Rt Hon the Lord Hunt of Wirral
Chairman, Joint Committee on the Draft Legal Services
Bill
Rt Hon Alan Beith MP
Chairman, Constitutional Affairs Committee
July 2006
64 The draft Corporate Manslaughter Bill was published
before the election, on 24 March 2005, and the report on it by
a joint sub-committee of the Home Affairs and Work and Pensions
Committees was published on 20 December. Back
65
HC 660 (2003-04), para 398. Back
66
Staff of the Joint Committee were given a near-final copy of the
draft Bill in confidence on 9 May, which made some preparatory
work possible. Back
67
Uncorrected evidence of 26 June 2006, Q 441. Back
68
A letter was sent to the Committee on 27 June 2006, the day after
the final evidence session. Back
69
Uncorrected evidence of 26 June 2006, Q 442. Back
70
Ibid., Q 443-4. Back
71
Committee staff were permitted to brief the witnesses of 13 June
about the draft Bill's contents the day before their appearance. Back
72
Uncorrected evidence of 27 June 2006, QQ 243-4. Back
73
Uncorrected evidence of 27 June 2006, Q 282. Back
74
11 See ibid., QQ 238-42. Back
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