3 The role of the Committee
22. While the powers of departmentally-related
select committees have remained largely constant since their establishment
in 1979, we note a steady increase in the number of functions
which it is expected that they will perform on behalf of the House.
Some of these functions may be fairly undemanding, such as the
requirement to consider relevant petitions.[15]
Others may have a considerable impact on the Committee's programme
of work. For instance, two of our inquiries this year examined
draft bills planned for introduction in the 2008-09 Session; and
select committees will in future be invited to conduct post-legislative
scrutiny of legislation recently passed by Parliament.[16]
Sometimes this happens already: our current inquiry into the Licensing
Act 2003 is intended to measure the impact of the Act some three
years after it was brought into force. Both pre-legislative and
post-legislative scrutiny will be of value to the House, although
we make observations below about our experience of pre-legislative
scrutiny.
Pre-legislative scrutiny
23. The Draft Heritage Protection Bill was laid
before Parliament on 2 April 2008, a day before the House adjourned
for the Easter Recess. The Committee's timetable made it impossible
to agree to undertake scrutiny of the draft Bill and then consider
and publish terms of reference until 1 May 2008. We appreciated
the Department's desire for the Committee to report, if possible,
before the Summer Recess, so that any amendments which the Committee
might propose to the draft Bill could be taken into account by
the Department and by Parliamentary Counsel in good time before
introduction of the Bill itself in the new Session. We therefore
worked to a tight timetable which did not allow us time to undertake
full scrutiny of the Bill. Certain key clauses on conservation
areas were not published until the day before the Committee took
oral evidence, making it difficult for witnesses to give any detailed
assessment.
24. We remind the Government
that it is desirable that draft legislation should be published
in time to allow select committees adequate time to invite written
submissions, take oral evidence and prepare and agree a Report.
The Committee was extremely
disappointed that having worked hard to meet the Government's
timetable for scrutiny of the two draft bills, the Government
then decided to drop them from the legislative programme. This
decision has caused consternation amongst all those bodies involved
in heritage and undermines the whole pre-legislative scrutiny
process.
Petitions
25. We also observe that referral of Members'
petitions to select committees will, in most cases, be of very
limited value to petitioners. Three petitions were referred to
us during the 2007-08 Session; the issues that were raised were
important but were already being addressed as part of the Committee's
work programme. We would not normally expect to take up petitions
about strictly local issues (such as the closure of a sports centre),
although it is conceivable that a petition could draw our attention
to a failure of policy which, although manifested locally, had
national resonance.
'The Governance of Britain'
26. The Ministry of Justice published a Green
Paper in July 2007—The Governance of Britain—which
made a number of proposals for increasing the accountability of
the Government to Parliament. Some of these proposals have implications
for select committees:
- Scrutiny of certain public
appointments by select committees;
- Simplification of the reporting of government
expenditure to Parliament (which will enable closer scrutiny by
this Committee of the Department's expenditure plans); and
- Inviting Parliament to debate the objectives
and plans of major government departments (which are currently
the subject of one of the Committee's core tasks).[17]
27. We particularly welcome the proposal that
select committees should have a role in the appointment of people
to certain positions, for instance because the officeholder exercises
statutory or other powers in relation to protecting the public's
rights and interests. A list of such positions has been drawn
up, following negotiations between the Government and the Liaison
Committee. There is just one post for which it has been agreed
that this Committee should have a role, through holding a pre-appointment
hearing with the Government's nominee and giving a view, which
would not be binding on the Government. That post is the chairmanship
of Ofcom.[18] We and
the Business and Enterprise Select Committee held an evidence
session on 13 January 2009 to assess the preferred candidate for
the post, Colette Bowe, following the announcement by Lord Currie,
the current Chairman of Ofcom, in June 2008 that he would stand
down after Easter 2009.[19]
28. We do not, however, believe that the Government
is applying consistently the principles set out in The Governance
of Britain for determining which posts should be subject to
the pre-appointment hearing procedure. In our view, the post of
Chairman of the BBC Trust is one in which the officeholder holds
specific responsibility for "protecting the public's rights
and interests", as described in The Governance of Britain.[20]
Under Article 22 of the BBC Charter, the Trust is the guardian
of licence fee revenue and the public interest in the BBC, and
it can exercise powers to protect the public interest.
29. We raised the matter with the Secretary of
State when he gave evidence to us in July 2008 on his responsibilities.
Although he said that he "did not have a completely closed
mind on the issue", he told us that "the question of
editorial independence from government and Parliament is an incredibly
important cornerstone of the BBC" and that "the public
want the BBC to have absolute editorial independence from government
and Parliament". We suggested that it appeared inconsistent
to say that the BBC's independence might be threatened by a role
for Parliament in the process for appointing the Chairman of the
BBC Trust but not by a role for the Secretary of State in actually
making the appointment. The Secretary of State did not refute
this argument.[21] We
strongly believe that the case for the position of Chairman of
the BBC Trust being subjected to pre-appointment scrutiny is greater
than many already on the list. We welcome the fact that the Liaison
Committee indicated in its report on Pre-appointment hearings
by select committees that it believed that the Chairman of the
BBC Trust should be subject to this procedure,[22]
and we urge the Government
to reconsider this matter.
30. We note a distinct decline in the Government's
performance in responding promptly to our Reports during the 2007-08
Session. Cabinet Office guidance to government departments—the
"Osmotherly Rules"[23]—specifies
that government departments should aim to provide the considered
Government response to a select committee report within two months
of its publication. Some latitude is allowed, following notification
to the relevant committee, if matters require consultation in
depth; and we have regularly agreed that a response may be delayed
until the return of the House after a Recess. In the case of the
Government's response to our Report on On-course horserace betting
(published on 23 January 2008), the Department requested that
publication of the response be delayed so as not to prejudice
sensitive negotiations. We agreed to that request, and the Government
responded in the form of a letter to the Committee Chairman dated
1 May 2008.[24]
31. We did not, however, receive any formal notification
that the Government's response to the Committee's Report on Tourism,
published on 10 July 2008, would not be published when the House
returned on 6 October 2008, after the Summer Recess. Two weeks
passed before the response was laid, on 20 October 2008. A more
serious delay occurred in responding to our Report on Ticket Touting,
published on 10 January 2008. The Secretary of State wrote to
the Committee Chairman on 20 March, apologising for the delay
and indicating that he hoped to send the response the next week.
In fact, the response was not published until the House returned
from the Easter Recess on 21 April, only three days before the
Report was due to be debated in Westminster Hall.
32. Neither of these two examples caused particular
difficulties for the Committee: but they did cause frustration
to those who had contributed to the inquiries and who were anxiously
awaiting the Government's responses. We
remind the Department that we expect responses to be received
within the time stipulated by the guidance. In rare cases where
this is not possible we expect formal notification with reasons
for the delay.
15 Resolution of the House on 25 October 2007 Back
16
Committees would decide, on the basis of a memorandum submitted
by the relevant Government department, whether to conduct post-legislative
scrutiny of the Act in question. See Post-legislative scrutiny-the
Government's approach, Cm 7320, March 2008 Back
17
Ministry of Justice, The Governance of Britain, Cm 7170,
July 2007, Executive Summary Back
18
See First Special Report from the Liaison Committee of Session
2007-08, Pre-appointment hearings by select committees: Government
Response to the Committee's First Report of Session 2007-08,
HC 594 Back
19
http://www.ofcom.org.uk/media/news/2008/06/nr_20080625 Back
20
Cm 7170, paragraph 75 Back
21
Oral evidence taken from the Secretary of State on 17 July on
the Departmental Annual Report 2008 and his responsibilities,
HC 1000, Session 2007-08, Qs 77-80 Back
22
Liaison Committee, First Report of Session 2007-08, Pre-appointment
hearings by select committees, HC 384 Back
23
Departmental Evidence and Response to Select Committees,
Cabinet Office, December 1994, paragraph 108 of the current edition:
see www.cabinetoffice.gov.uk Back
24
Culture, Media and Sport Committee, Second Special Report of Session
2007-08, On course horserace betting: Government Response to
the Committee's Fifth Report 2007-08, HC 549 Back
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