Memorandum submitted by the Better Government
Initiative (BGI) (P 49, 2010-11)
We note that in oral evidence before the Procedure
Committee on Wednesday, 10 November, 2010, Sir George Young told
the Committee that: "The Government are committed to the
principle set out in the Ministerial Code that, in the first instance,
all major announcements of Government policy should be made to
the House when it is sitting. We have sought, in this Parliament,
to make more oral statements than before and to keep the House
informed with written ministerial statements, but if we can do
better with your assistance, we would be very delighted to do
so." Your Committee will no doubt wish to give thought to
how this admirable intention might best be enforced. It is worth
considering, however, whether this is part of a wider issue of
Parliament's ability to provide effective scrutiny of the executive.
The timely availability of adequate information to
enable Parliament to scrutinise government policies effectively
is a key concern of the BGI.
This is particularly relevant to the presentation
of legislation. On occasion swift passage of legislation is unavoidable. A
change in the law may be needed to deal with an unforeseen emergency. A
new administration may feel it essential to press ahead with policies
for which it has a mandate for urgent action. But these are
exceptional cases and should be few and far between. It cannot
be in the interest of Government or Parliament for the regular
conduct of business to allow the passage of potentially flawed
legislation.
There are three main requirements for high quality
legislation:
- thorough preparation
underpinning the original policy proposals;
- adequate advance information for Parliament
and public so as to enable a wide range of experience
to be brought to bear;
- enough time for effective Parliamentary
scrutiny.
The requirements for thorough preparation are well
known and long established. The policy proposals should be first
introduced in a ministerial statement to Parliament and then set
out in one or more documents—traditionally Green or White
papers—which:
- define the problem;
- present the evidence, including front-line experience,
on which the policy is based;
- explain why new legislation is operationally
necessary;
- analyse the costs, benefits, and risks;
- where there are alternatives, explain why the
proposed option has been chosen;
- demonstrate how the proposal will work in practice,
identifying responsibility for delivery and resources.
The documents should be published well enough in
advance of the introduction of legislation to enable members of
the public, in particular those with operational expertise, to
be fully consulted and contribute to the development of the policy.
These statements and policy papers will provide an
important part of the advance information for Parliament. But
Parliament will also need more detailed information on the structure
of the legislation, ideally in the form of a draft Bill (pre-legislative
scrutiny should be the norm); its financial and other consequences
in the form of a thorough Impact Assessment; and a clear statement
of the intended outcomes in terms that can be used in post-implementation
evaluation. Where the Bill includes powers to make secondary legislation,
Parliament should also be provided with a clear explanation of
their purpose and the principles that will govern their use.
For effective Parliamentary scrutiny to become a
reality, the Government needs to commit itself to restricting
the volume of legislation to what can be properly considered in
the available Parliamentary time without the need for automatic
guillotining in the Commons.
None of this is particularly novel or much in dispute.
But in practice it often has not happened.
The same standards should be applied to other major
policy changes, including changes in the machinery of government
that do not require legislation. The essential principle is that
those with a contribution to make to the development of policy,
including in particular Parliament itself, should have access
to sufficient information in good time to do so effectively.
There is a case for ensuring that this commonsense
approach is followed in practice by setting down explicit quality
standards for preparation and presentation of legislation and
other major policies and providing the means of enforcing them.
The standards would need to allow scope for expedited procedures
in circumstances where urgent action was unavoidable, but their
use should be strictly limited and accompanied by a full explanation
of why the normal arrangements could not be followed.
When observance of these standards had bedded down,
it would be advisable for Parliament and the Executive formally
to agree their content and place them on a permanent basis through
a Parliamentary Motion or some other form of published statement.
(Our report Good Government: Reforming Parliament and the Executive
includes a draft Parliamentary Resolution, but a similar purpose
could be achieved by a published government statement endorsed
by Parliament).
The application of the standards would need to be
monitored first within the Executive and then by Parliament.
Inside the Executive, the Cabinet Committees dealing
with legislation should check that the size of the overall programme
was compatible with effective Parliamentary scrutiny and that
each proposed Bill complied with the agreed standards of preparation
and presentation. Other Committees could check that the same standards
were applied to major non-legislative policy proposals. It might
be appropriate for Parliament to be provided with a certificate
from the appropriate Minister when a Bill is introduced or a major
policy proposal is announced explaining how the standards have
been applied.
In respect of legislation, monitoring of compliance
with the standards might, for example, be carried out before a
Bill reached the floor by a cross-party backbench parliamentary
committee. If it judged that they were not met, it might propose
that time on the floor should not be provided until the necessary
further action had been taken.
We would therefore recommend that the Committee's
findings should include a proposal that explicit standards should
be set for the preparation of major policies and their presentation
to Parliament including wide consultation where appropriate, full
accompanying material and due time for consideration.
December 2010
| 
