Ministerial Statements - Procedure Committee Contents

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:

  1. thorough preparation underpinning the original policy proposals;
  2. adequate advance information for Parliament and public so as to enable a wide range of experience to be brought to bear;
  3. 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:

  1. define the problem;
  2. present the evidence, including front-line experience, on which the policy is based;
  3. explain why new legislation is operationally necessary;
  4. analyse the costs, benefits, and risks;
  5. where there are alternatives, explain why the proposed option has been chosen;
  6. 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

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