PROBLEMS WITH THE SCRUTINY PROCESS
29. In our report last year we repeated our concern
about the way in which decisions are taken about the choice of
committee to conduct scrutiny of draft bills.[24]
In the 2007-08 session this had resulted in two draft bills being
considered both by a joint committee and a select committee, leading
to problems of overlap and "witness fatigue". In response,
the Government, at the behest of the Leader of the House, instigated
a new system for allocating draft bills to committees which was
designed to be more transparent and better-organised. It noted
that it would "take full account of the Liaison Committee's
views, and those of individual select committees[…] However,
decisions about whether a given bill should be scrutinised by
a joint committee or by a select committee of the House of Commons
must also take account of expressions of interest in the bill
from the House of Lords".[25]
30. It is difficult to assess whether or not the
new system for allocating draft bills to committees worked well
in the last session because so few draft bills were published
for scrutiny. The Justice Committee expressed a tentative interest
in looking at the draft Bribery Bill. It noted in its sessional
report that, in allocating the draft bill to a joint committee,
the Government had not taken account of "the principle that
departmental select committees in the Commons should have first
choice on undertaking the pre-legislative scrutiny role in respect
of draft bills within their remits".[26]
Notwithstanding this complaint, the disagreement did not result
in the conduct of simultaneous inquiries by two different committees.
31. Instead, various committees collaborated on the
examination of the draft Bribery Bill. The Joint Committee on
the draft bill invited comment and received memoranda from the
Chairs of the Public Administration Select Committee, the International
Development Committee and the Joint Committee on Human Rights.[27]
This joint working prevented duplication of effort and undoubtedly
enriched the scrutiny process.
32. We are pleased
that the Leader of the House has embraced a more transparent system
for the allocation of draft bills to committees for scrutiny.
The Government did not publish enough draft bills in the last
session to test properly the efficacy of the new system so we
will continue to monitor progress into the current session and
next Parliament.
33. The Cabinet Office Guide to Legislative Procedure
sets down the minimum period for a pre-legislative scrutiny inquiry
as three months.[28]
Whilst the Government has a good record of publishing draft bills
ostensibly in time to allow a full three months for an inquiry,
in recent years we have observed that delays in setting up joint
committees have substantially reduced the time practically available
for scrutiny. In last year's report we noted that the first meeting
of both joint committees set up to examine draft bills in that
session was able to take place only after a month or more had
elapsed since publication of those draft bills. In its response
the Government agreed with us that "it would have been better
had the intervals the Committee identifies between publication
of draft bills and nomination of joint committees been shorter"
but went on to observe that "establishing joint committees
is ultimately a matter for the two Houses and relies on the outcome
of discussions within the usual channels".[29]
34. In the last session only the draft Bribery Bill
was allocated to a joint committee. The draft bill was published
on 25 March 2009 and, in the Orders of Reference set out for a
Joint Committee appointed to consider the draft Bill, the Government
set a reporting deadline of 21 July 2009. Members were only nominated
to the Committee in the House of Lords on 11 May 2009. This curtailed
the possible four month scrutiny period by seven weeks. In its
report, the Joint Committee echoed the concerns of previous joint
committees in expressing regret that it had been given "a
bare ten weeks to conduct pre-legislative scrutiny of this important
draft Bill".[30]
35. Whilst the Government is correct to note that
the process of establishing joint committees is dependent on discussions
between the usual channels, we note that, on this occasion, it
was a delay in nominating Government party Members in the Lords
to the joint committee that hindered the process. This was a matter
within the Government's control. Furthermore, publication of the
draft bill had been expected for some time and it would be reasonable
to assume that the Government could have made a start on identifying
members to serve on a joint committee in advance. Finally, we
observe that, for its part, the Government did not respond, as
is expected, within two months of the publication of the joint
committee's report. Indeed, it took a full four months to do so,
seven weeks longer than the period that it allocated to the committee
to conduct its inquiry.
36. If the Government
is serious about the role that pre-legislative scrutiny can play
in making better legislation, it needs to ensure that the committees
tasked with conducting that scrutiny are given a reasonable amount
of time in which to do it. We reiterate our view that this means,
at a bare minimum, twelve weeks. If the Government is unable to
ensure that the appointment of joint committees takes place more
quickly than has been the case in the past two sessions it needs
to publish draft bills earlier, to allow sufficient time for the
committees to do their work.
OTHER LEGISLATIVE SCRUTINY BY COMMITTEES
37. Alongside contributing to pre-legislative scrutiny,
committees have contributed to the scrutiny of legislation passing
through the House. Examples are given in Table 5.
