4.We note that Committees have engaged in scrutiny of draft Bills in various ways since the practice emerged in the late 1990s. This has often been through substantive departmental or joint committee inquiries, but Committees have also pursued such scrutiny in other ways, for example through one-off evidence sessions or more detailed correspondence. In response to the Government’s letter of 3 January 2018, the Chair wrote to the new Minister for Local Government, Rishi Sunak MP, on 23 January 2018. The letter raised a number of questions about the purpose and effect of the draft Bill specifically in the context of the process of pre-legislative scrutiny:
As you know, the default position should be that Bills will be published in draft and submitted to Parliament for pre-legislative scrutiny. If a Bill is published, the expectation is that pre-legislative scrutiny will be conducted by the competent committee, should it wish (Cabinet Office, Guide to Making Legislation, July 2017, chapter 22).
5.The letter went on to note that the Department appeared to have taken a different approach to the publication of this draft Bill:
Whilst also inviting views from the Committee in your letter, it seems that in this case it is the Government’s intention that the primary objective of the draft Bill and short eight-week consultation are to elicit responses from rating experts and other key stakeholders. This may be justified given the short nature of the draft Bill and its policy objective which seeks to return the Valuation Office Agency’s practice, which dates back more than 50 years, to its position prior to the Supreme Court judgment to which you refer. Equally, it is quite possible that there may be broad consensus among these stakeholders regarding the policy objective. But Committees conducting pre-legislative scrutiny have often benefitted from seeing the results of public consultation before reporting, which is why departments are urged to consider the timetable if issuing a draft Bill at the same time as consulting the public (Guide, para 22.32). The views of stakeholders, and any consensus among them, can often shape a committee’s approach to scrutinising a draft Bill.
6.The Minister’s response of 19 February 2018 reiterated that the Department’s main purpose for publishing the Bill in draft had been to consult rating surveyors “due to the technical complexity of this matter”. However, our subsequent letter to the Minister of 26 February 2018 again noted our responsibilities with regards to pre-legislative scrutiny, and within this context raised a number of further questions and concerns about the draft Bill and the potential effect of the proposed changes, particularly on local authorities. In this letter, we also asked to be provided with copies of all the responses to the Government’s consultation in order to better assess the effect and rationale of the draft Bill. While the Minister’s response of 8 March 2018 sought to address the majority of our detailed questions, the consultation responses were not provided, although he committed to sending these “under separate cover”. At the time of the presentation of the Bill on 28 March 2018 we had not received those responses. They were supplied to us only later that same day.
7.We are disappointed that the Department did not notify us of its intention to present the Bill when it did, or provide the promised consultation responses prior to that presentation. This cannot be consistent with civil service best practice in such circumstances. We made clear in both of our letters that the consultation responses would assist us in assessing the potential effects of the draft Bill. Thus, we are surprised that the Department appeared to have concluded that we had completed our engagement in the pre-legislative scrutiny process. We therefore consider it a discourtesy to the Committee that we were pre-empted in our pre-legislative scrutiny by the presentation of the Bill.
8.We ask the Government to assess what lessons can be learned for future best practice related to the publication of draft Bills. Particular consideration should be given to processes prior to a subsequent Bill’s presentation to Parliament, in order to ensure that departments have appropriately completed any engagement on pre-legislative scrutiny with Parliamentary committees. The Cabinet Office should also take steps to ensure that all departments are fully aware of the processes related to pre-legislative scrutiny of draft Bills and their engagement responsibilities with Parliament and its committees, and that its guidance is clear in this regard.
6 Correspondence from the Chair of the Communities and Local Government Committee to the Minister for Local Government, 23 January 2018
7 Correspondence from the Minister for Local Government to the Chair of the Housing, Communities and Local Government Committee, 19 February 2018
8 Correspondence from the Chair of the Housing, Communities and Local Government Committee to the Minister for Local Government, 26 February 2018
9 Correspondence from the Minister for Local Government to the Chair of the Housing, Communities and Local Government Committee, 8 March 2018
Published: 18 April 2018