House of Lords - Constitution - Fourteenth Report

Select Committee on Constitution Fourteenth Report

CHAPTER 3: Pre-Legislative Scrutiny

15. There is an extensive gestation and drafting process before a bill is laid before Parliament. Government has to decide that a measure is necessary. Increasingly, Ministers will consult on proposed measures. This is one of the most positive developments since Making the Law was published. When the Rippon Commission examined the issue, there was no systematic process of consultation; the Commission was especially concerned that Government should prepare and publish guidelines to be followed by all Departments (Vol. II, p.17, para.3). Proposals now are regularly put out for consultation and there is an established framework for that consultation.

16. Consultation documents are disseminated widely to interested parties and are accessible through the Internet. The Code of Practice issued by the Cabinet Office stipulates that there should be a consultation period of twelve weeks.[11] The Department for Education and Skills as a standard practice issues customised versions of its consultation documents. The Green Paper, Every Child Matters, published in 2003, was issued in two forms, one aimed at adults and the other at children (Vol. II, p.16). Consultation is not necessarily confined to written submissions. The consultation on Every Child Matters extended to nine ministerial events around the country and sixty events involving children and young people.

17. When the decision is taken to bring a bill forward, approval has to be achieved from the relevant Cabinet Committee. Even then, this is no guarantee that the measure will find its way into the Government's legislative programme for the session. It will then form one of many considered by the Legislative Programme Committee for inclusion in the programme. Many will not make it. The Committee is chaired by the Leader of the House of Commons. In his evidence to us, the present Leader, Peter Hain[12], made clear that the Committee took account of the degree of consultation that had taken place. Ministers have to identify if there are controversies surrounding the measure and if they have been addressed by consultation (Q 2).

Parliamentary Counsel

18. When a bill has been agreed for introduction, the Office of Parliamentary Counsel then draft it on the basis of detailed "instructions" drawn up by the relevant sponsoring Government department. Drafting is a specialised art and it takes seven years to become fully proficient in drafting a bill of moderate size. The number of parliamentary counsel has increased significantly in recent years: from 36 in 1997 to 56 today; shortly there will be 62 (Q 317). (Ten, though, are seconded at any one time to assist the Inland Revenue and the Law Commission.) Two or three normally work on a bill, though the Finance Bill can absorb the time of a large number. (At one point this year as many as twenty were working on the Bill.) The increase in the number of parliamentary counsel has essentially enabled the Office to keep pace with the demands of the growth in the volume of legislation. Sir Geoffrey Bowman, First Parliamentary Counsel, noted that Robin Cook had referred to the Stakhanovite commitment of parliamentary counsel. "'Stakhanovite' is a very apt adjective. Life does get like that sometimes. We are constantly breaking records."(Q 323)

19. The work of the Parliamentary Counsel Office has traditionally been devoted to preparing bills for introduction to Parliament. However, counsel have also in recent years been involved in drawing up draft bills: that is, bills that are intended to be available for comment prior to their formal introduction to Parliament. The publication of bills in draft has been a significant feature of the past decade; indeed, in the view of George Cunningham[13], a member of the Commons Procedure Committee that recommended in 1978 the creation of the Departmental Select Committees, the most significant advance (Vol. II, p.167, para.3).

Draft bills

20. In the period from 1992 to 1997, the Government published a total of 18 bills in draft. These were not subject to systematic parliamentary scrutiny but rather published for the purpose of external consultation. In 1997, the new Government announced that it planned to publish seven bills in draft in the new session. This was welcomed by the newly-appointed Modernisation Committee in the House of Commons, which advocated a more regular and systematic use of such bills. It recommended that some, or even all, of the draft bills be considered by ad hoc Commons Committees, ad hoc Joint Committees, or Departmental Select Committees.[14]

21. In the seven sessions from 1997-98 to 2003-04 inclusive, a total of 42 bills have been published in draft.[15] Of these, thirteen have not been subject to parliamentary scrutiny. The other twenty-nine have been considered by a parliamentary committee: seventeen by Departmental Select Committees, eight by Joint Committees, two by temporary committees in the Commons or Lords, and two by other existing committees (such as the Joint Committee on Human Rights, which considered the Gender Recognition Bill in 2002-03).[16]

22. In the laconic observation of the Hansard Society, all the indications are that pre-legislative scrutiny "has been an extremely positive development".[17] The pre-legislative committees have probed the draft bills in some detail. The Joint Committee on the Draft Gambling Bill undertook a number of UK and foreign visits to consider the potential impact of the bill. In its response to the 148 recommendations embodied in the report of the Joint Committee on the Draft Communications Bill, the Government indicated that it had accepted 120 of them. In evidence to us, the Chairmen of the Joint Committees on the Draft Civil Contingencies Bill and Draft Gambling Bill stressed the value of the exercise (Vol. II, pp 111 and 112, and Q371).

23. We are especially impressed by the work done on the Draft Civil Contingencies Bill. The Joint Committee consulted us and other committees. The report of the Joint Committee was a substantial one.[18] It had a notable effect on the content of the Bill brought before Parliament. In its response to the Joint Committee's report, the Government acknowledged that "[t]o a large extent, we have accepted in full, or in part, most of the recommendations".[19]

24. The reports of the committees have not only affected the content of the bills brought before Parliament but have also been drawn upon by members in the debates on the bills. This was notably the case with the Communications Bill. The work of the committees is thus not something conducted in isolation of either House, but contributes to Members' understanding of the issues surrounding the bills. This enhances the quality of the scrutiny during the legislative process itself.

25. We very much welcome the pre-legislative scrutiny that has been undertaken. We have already identified the value to Members, enhancing the capacity of Parliament to influence legislation at a formative stage. It is also of value to interested individuals and bodies, as they have an opportunity to contribute to the committees' deliberations. It is of value to Government, since—as the Modernisation Committee noted in 1997—it should lead to better legislation and, potentially, save some time during the later legislative stages of the bills.[20] As Dr Lewis Moonie[21] succinctly put it in his evidence to us: "Scrutiny at this stage can resolve potential points of conflict, remove contradictions or impracticable suggestions, and speed up the passage of legislation through both Houses" (Vol. II, p.111, para.2 (a)). The recognition of the value to Government was also revealed by Peter Riddell, Assistant Editor of The Times, in his evidence to us: "I have heard civil servants say, admittedly privately, that the end result of such consultation has been worth the effort involved for them" (Vol. II, p.26, para.3).

26. Not all officials, though, are necessarily positive. As Lord Carter[22] told us, "there are some departments, in fact all departments, that have people within them who do not like draft bills. They think the best thing to do is to produce the bill and then put it through the parliamentary process" (Q 190). Against this, there is another value to Government that is frequently overlooked. Government is often seen as some monolith, with Ministers and officials indistinguishable. In fact, there may be differences between the two, with Ministers in charge of a bill not necessarily being able to achieve what they want. Departmental officials often consider it their task to defend their legislation, as drafted, regardless of the merits of arguments for improvement advanced as it passes through Parliament. Douglas Hogg[23], a former Minister, told us:

"Now, on the big Bills it is extraordinarily difficult for Ministers to face down officials and therefore the process of pre-legislative scrutiny is vital because actually the Minister, very often a junior Minister…, is wholly dependent on his raft of officials and he is not in a position to argue with them. That is one of the great important consequences of external input because you are able to say, 'Well, Lord MacGregor, who knows a damn sight more about this than I am afraid you do, sonny, says it's balls'"(Q 277).

27. Also among the bodies that can benefit from publication of bills in draft are the elected assemblies in the different parts of the United Kingdom. Publication in draft can contribute to the process of devolution. This was an issue that we considered in our report on Devolution: Inter-Institutional Relations in the United Kingdom.[24] We recommended in the context of Wales that further thought should be given to how Members of the National Assembly can be afforded the opportunity to consider Westminster legislation that will affect the Assembly and its functions. As we wrote: "The trend toward publishing bills in draft is especially welcome and will, we believe, be especially helpful in this context."[25] This view was also endorsed by the Welsh Affairs Committee in the House of Commons,[26] and has been commended to us by Lord Elis-Thomas[27], the Presiding Officer of the National Assembly (Vol. II, p.72, para.15).

28. We not only welcome the use of pre-legislative scrutiny but wish to see it improved and extended. The Modernisation Committee in 2002 stressed that it wished to see publication in draft become the norm.[28] The Deputy Leader of the House, Phil Woolas, has stated that "a bill should be published in draft form unless there are good reasons for not doing so"[29] and has made clear that "it is the Government's intention and policy to increase the amount of legislation that is subject to pre-legislative scrutiny".[30]

Exceptions to publication in draft

29. We recognise that there are occasions when it will not be feasible to publish a bill in draft. Finance Bills constitute a clear example. There will not be time to utilise the procedure for emergency measures, for obvious reasons. A new Government in its first session will not be able to publish all its bills in draft, since it will want to introduce and enact some of its flagship measures within that session. There is also a problem of rushing to get measures through at the end of a Parliament (Vol. II, p.35, para.3). Small bills, on which there is wide agreement—the sort that pass their stages on the floor of the House without much if any debate—also may not lend themselves to pre-legislative scrutiny, though that does not necessarily preclude their publication in draft.

30. We are aware that measures of high political contention have not been published in draft and subject to pre-legislative scrutiny. We do not, however, necessarily regard this as a category for exclusion. As Dr Meg Russell[31] told us, such bills "are arguably the bills that most need proper scrutiny" (Vol. II, p.35, para.4). However committed a Government may be to a measure—and however opposed other political parties may be—that does not necessarily mean that the technical elements of its provisions cannot be improved through early debate and objective scrutiny. As the Constitutional Affairs Committee in the Commons has noted, the use of draft bills "should not be confined to matters of technical complexity".[32] It took the view that the Constitutional Reform Bill was an appropriate candidate for publication in draft.

31. We thus recognise that there are bills that will not be suitable for publication in draft, but we do not believe that this category is a large one and certainly not as large as some may believe it to be. We believe that the occasions when bills are not published in draft should be the exception rather than the rule. At the moment, despite the welcome increase in the number of bills published in draft, it is the other way round.

32. We also note that allowing bills to be carried over from one session to another—something to which we return in paragraph 157—facilitates more bills being subject to pre-legislative scrutiny before being introduced to Parliament. This linkage has been enshrined in the decision of the House of Lords concerning carry-over. The House has resolved that, if required, carry-over should normally apply only to bills that have been subject to pre-legislative scrutiny. With carry-over, there are not the same time constraints as exist with the sessional cut-off.

Rolling legislative programmes

33. The carry-over provision would also enable Government to engage in a rolling legislative programme. A programme of legislative measures could be announced at the start of the session—the Queen's Speech would remain as now—but with measures introduced at different points during the year, thus moving away from what Robin Cook has aptly titled the "tidal wave" principle of legislation.[33] Planning ahead would also enable bills to be published in draft, and for pre-legislative scrutiny, thus enabling the Government to achieve what Margaret Beckett[34] envisaged as "a portfolio of legislation which had already had any major wrinkles ironed out" (Vol. II, p.159).

34. Acknowledging that this entails an important shift of emphasis, we recommend that the Government should move from deciding which bills should be published in draft each session to deciding which bills should not be published in draft. Where the decision is taken not to publish a bill in draft, then the reasons should appear in the Explanatory Notes to the bill.

35. We also recommend that there should be a rolling legislative programme, with Departments gaining slots in specified future sessions subject to the bills having first been published in draft. The presumption should be that no bill should be allocated a slot without being published in draft unless a compelling case has been made to the contrary.

The decision-making process

36. Publication in draft is a necessary but not sufficient condition for pre-legislative scrutiny. There is then the issue of determining whether a bill should be subject to such scrutiny and, if it is, of ensuring that the committee has the means available—in terms of time, information and resources—to undertake sustained scrutiny of the measure. Who should decide whether there should be pre-legislative scrutiny we treat as an important issue of principle. The issue of which committee should consider a bill we treat essentially as a practical matter.

37. The decision as to whether or not a bill is to be subject to pre-legislative scrutiny is presently a matter for Government and the usual channels. In announcing its bills for the 2003-04 session, the Government sent a letter to the Liaison Committee in the House of Commons—following a request for more information from the Committee—setting out its preferences for which committee should examine each bill.[35] This represented a step forward in terms of the Government making clear its plans, which we welcome.

38. We would like to see this constructive approach developed further, with greater involvement for those bodies representing Parliament. Though consultation with opposition parties is important and necessary, it should not be to the exclusion of consideration of the wishes of each House (including those members who sit on the Government benches) or of its committees. Some committees have been denied the opportunity to engage in pre-legislative scrutiny, despite an express wish to do so.[36]

39. The House of Commons already has a Committee, the Liaison Committee, which is well placed to discuss with Government which bills merit pre-legislative scrutiny. By the very nature of the Committee, comprising the chairmen of Select Committees, a Select Committee wishing to examine a draft bill will be able to make its preferences known. We believe that there needs also to be some consultation between the two Houses on the issue, to ensure that the views of the House of Lords are known. The Lords' Liaison Committee could take the lead in arranging such discussions.

40. Dr Meg Russell suggested to us that a small Joint Liaison Committee "could seek to look rationally at the forthcoming programme of draft legislation and negotiate with Government about which bills should be considered in the Commons, which in the Lords, and which jointly, and using what committee(s)." As she adds, "It could help assert Parliament's role in the process. Without any such arrangements Parliament remains too much at the mercy of Government" (Vol. IOI, p.36, para.6). We attach considerable importance to these views and concur with them.

41. We recommend that the decision as to which draft bills should be subject to pre-legislative scrutiny should be negotiated between the Government and the Liaison Committee of the House of Commons. We also recommend the creation of a Joint Liaison Committee of the two Houses so that the opinion of the House of Lords can be taken into account.

Responsibility for scrutiny

42. In terms of determining which committee a bill should be referred to, we have heard differing views. The advantage of referring a bill to a Departmental Select Committee in the Commons is that the committee constitutes a specialised body—covering the Department sponsoring the bill—and one that already exists. We have already seen that the usual but not invariable practice is for bills to be considered by these committees. The Liaison Committee of the Commons has called on the Government to adopt the working assumption that the committees "are usually the most appropriate means by which draft bills can be scrutinised".[37]

43. However, there can be limitations to referring a draft bill to such a committee. Some Select Committees may already be fully stretched; accommodating scrutiny of a draft bill may be neither welcome nor feasible. Enlarging the size of Select Committees, so as to create sub-committees to engage in pre-legislative scrutiny, has been suggested; however, as Robin Cook reminded us, when he was Leader of the House "my proposal for larger Select Committees did not commend itself universally to the House" (Q 123). In addition, a Select Committee may not be best suited to dealing with bills that cut across several sectors of public policy.

44. Various witnesses have stressed the value of Joint Committees.[38] A Joint Committee is especially useful where there is a large, complex and cross-cutting bill, and one that relates to a subject on which Members of the House of Lords may have particular expertise. It may also serve, as Mark Fisher[39] told us, to encourage both Houses to see their role of scrutiny and monitoring is common "and that we are one Parliament" (Q 306). The value of Joint Committees is shown in the work that they have already done.

45. There are, though, practical problems. Referring a bill to a Joint Committee involves achieving the approval of both Houses, and approaching Members from the two Houses to serve.[40] This takes time and in dealing with draft bills time is often of the essence. There is also a problem for Government in that it will not enjoy an automatic majority on a Joint Committee. There is a problem for opposition parties in the Commons in that, if it is a small committee, it may result in only one or two MPs from opposition parties being appointed to it.

46. We have also had put before us innovative proposals for a new committee structure. Both George Cunningham and Dr Meg Russell have raised the prospect of legislative Select Committees to parallel Departmental Select Committees, with some overlapping membership (Vol. II, p.168, para.4; Vol. II, p.36, para.10). This, as Dr Russell notes, is a practice adopted in the Australian Senate. As she concedes, an alternative would be to establish legislative sub-committees of Departmental Select Committees. The principal difficulty with such a proposal would be one of resources; attracting a sufficient number of Members to serve on a parallel set of committees may prove impossible. (We note the problems of getting members to serve when the European Standing Committees in the Commons were established to consider European documents).[41] We have drawn attention already (paragraph 43) to the less than enthusiastic response to Robin Cook's proposal to enlarge the size of the Departmental Select Committees.

47. We do not believe that any hard and fast rules should apply. We take the view that the arrangements utilised so far have, on the whole, proved effective. The only practice that does not appear to have worked well is having a bill considered by separate committees in the two Houses. The Freedom of Information Bill was considered by the Public Administration Committee in the Commons and a temporary committee in the Lords, entailing a duplication of effort and carried the risk of committees coming to different conclusions. That apart, there may be a case for the use of different committees, depending upon the subject matter, complexity, and range of the draft bill. We therefore incline to the view that existing practice should be followed, though over time we would envisage a growing use of Joint Committees.

48. We recommend that a draft bill should normally be considered by a Departmental Select Committee. If a Departmental Select Committee declines to consider a bill, the Liaison Committee of the Commons should consider appointing a temporary committee. For big and complex bills (as with the Financial Services and Markets Bill and the Communications Bill), and where there is particular expertise in the House of Lords, a Joint Committee should be considered. Where a bill cuts across several sectors, then a (sub)committee drawn from two or more Commons Select Committees, or a Joint Committee, may be appropriate.

Methodology of scrutiny

49. In practical terms, we envisage that the use of Joint Committees will expand as bills become more complex and the number of bills subject to pre-legislative scrutiny increases. The more pre-legislative scrutiny becomes the norm—as we wish it to—the greater the burden on Departmental Select Committees, some of which will be under tremendous pressure if presented with all the draft legislation from the Departments they cover. This, we think, enhances the need for developing contact between the two Houses so that Joint Committees can be agreed and established with some expedition.

50. Consideration of draft bills is not necessarily confined to the committees appointed to consider them. We note that both the Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights have also taken an interest in some draft bills[42] and this is something that we very much commend. The Delegated Powers Committee, for example, examined the Draft Gambling Bill, and its recommendations were commended by the Joint Committee on the Bill.[43] Ensuring that the expertise of these specialised committees is brought to bear at this stage can save the time of the House once a bill is brought forward.

51. Indeed, this consideration leads to a further important and fundamental point concerning the nature of the scrutiny that is undertaken at this stage. It is up to the committee considering a draft bill as to how it goes about its task. Practice has varied among committees as to whether they focus on the policy behind the legislation or on the specific provisions. The Joint Committee on the Draft Gambling Bill noted the different approaches taken by a number of committees;[44] the Committee itself looked at both the policy and the draft clauses. The value of this was drawn out in evidence to us from the Special Adviser to the Joint Committee.[45]

52. The variation in approach means that some aspects of a draft bill will, by definition, be considered by one committee but not by another. The case for greater consistency in approach has been put to us by Professor John McEldowney[46]. He cites the work of, among others, Professor David Feldman—former Legal Adviser to the Joint Committee on Human Rights—in arguing for Parliament assessing and setting standards for legislation.[47] As Professor McEldowney notes, "Standard setting provides a focus beyond procedural scrutiny of legislation. This elevates Parliament's role beyond adversarial exchanges and party political considerations" (Vol. II, pp.174-179).

53. Professor McEldowney notes that what he terms standard-setting techniques are widely used in most private and public sector activities. Therefore, as he says, the use of such techniques for the parliamentary scrutiny of bills should not be perceived as unusual.

54. We see a case for pursuing a similar approach in pre-legislative scrutiny. In our report on the regulatory state, we drew attention to the value of the regulatory checklist utilised by the OECD and recommended that it be utilised as standard for legislation, regulatory decision-making and in establishing any new regulator.[48] We believe that a checklist to ensure that draft bills meet certain standards would contribute significantly to the process of pre-legislative scrutiny. Some element of this standard setting already takes place through the committees we have mentioned. The Joint Committee on Human Rights, for example, checks for compliance with the European Convention on Human Rights. Professor McEldowney's argument is that such evaluation could be extended to cover other standards. In his model, the checklist would encompass compatibility with the ECHR, compatibility with EU law, value for money, risk assessment, as well as clarity in aims and objectives.

55. Introducing a checklist of this sort would deliver consistency, thus enabling Parliament to avoid neglecting important aspects of evaluation. It would be able to draw on the work of existing committees as well as the National Audit Office. It would also provide Parliament with a framework for evaluation throughout the legislative process by employing standards for pre-legislative scrutiny as well as at subsequent stages. It would also, as Professor McEldowney stresses, introduce what in effect is a more objective element into the process of evaluation.

56. The use of a checklist also has the advantage that it is likely to improve the quality of draft bills, since it would inject a greater discipline on officials. The value of this was revealed by the Chairman of the Joint Committee on Human Rights (JCHR), the Rt Hon Jean Corston MP. She believed that the JCHR had affected outcomes, directly and indirectly. "Here, it is the threat of parliamentary scrutiny, and an adverse opinion from us, that is the key factor. This threat, I believe, is much enhanced by the comprehensiveness of our coverage" (Vol. II, pp. 164-167). A clear checklist would deliver comprehensiveness in a range of areas. Officials would be aware of what a committee would be examining.

57. We recommend the employment of a clear and transparent checklist by committees engaged in pre-legislative scrutiny, as well as by committees at other stages of the legislative process. The Joint Liaison Committee that we have recommended would appear well suited to draw up the checklist.

Time constraints

58. For pre-legislative scrutiny to be effective, committees need information, time and resources. Information and time remain problematic. The issue of resources has been addressed through the appointment of new staff, in particular the creation of the Scrutiny Unit in the House of Commons in November 2002.[49] This comprises a staff of eighteen, including lawyers, accountants, economists and a statistician and exists to assist permanent or temporary committees in the analysis of draft bills and also to examine departmental estimates. As such, it complements the existing library and staff resources available to each committee. We would envisage the Unit expanding in size as the volume of pre-legislative scrutiny expands.

59. There remains a problem with obtaining information, in particular with the content of the actual draft bill. Sometimes what is placed before a committee is a mix of draft clauses and statements of intent. Material is sometimes published in instalments. This applied in the case of the Draft Financial Services and Markets, Communications, and Gambling Bills.[50] These were all substantial bills.

60. The difficulties that this mixing creates were highlighted in the report of the Joint Committee on the Draft Gambling Bill and in evidence to us by the Chairman of the Committee, John Greenway MP. Fifty clauses of the draft bill were published in July 2003, shortly before the Joint Committee was established. Further clauses, plus nine schedules, were published in November 2003 and additional clauses—bringing the total to 268 clauses—in February 2004. Another three clauses were published the following month. When the Committee agreed its report, clauses covering important aspects of the bill had not been issued. As the Committee reported: "our work has been hampered by the lack of key clauses until late in our lifetime, and there are some areas in which we have not been able to conduct any scrutiny whatsoever. Many of those who submitted written and oral evidence to us noted that this was unsatisfactory."[51]

61. We share the view of the Committee that this situation is clearly unsatisfactory and undermines the capacity of Parliament to undertake pre-legislative scrutiny. It is especially problematic if the case for benchmarking is accepted. The Committee attributed the problem to the relatively low priority given to draft bills by parliamentary counsel.[52] However, Sir Geoffrey Bowman informed us that parliamentary counsel "deal with draft Bills essentially in the same way as we deal with Bills which are intended for introduction without prior publication in draft". They work closely with the business managers in deciding the priority particular work is to be given. "The fact that a Bill is or is not to be published in draft is generally irrelevant" (Q 349).

62. Given that there appears to be no problem with the level of priority attached by parliamentary counsel to draft bills, and given our earlier points about carry-over, we see no reason why draft bills should not be available as complete drafts in time for scrutiny by parliamentary committees. If Government is committed to the desirability and utility of pre-legislative scrutiny, then we believe it should commit itself to ensuring that draft bills are available in complete form for pre-legislative scrutiny.

63. We endorse the recommendation of the Joint Committee on the Draft Gambling Bill that the Government should ensure that the full text of draft Bills is available to pre-legislative scrutiny committees in good time before they are asked to report.

64. Time is, clearly, a related problem. Some pre-legislative committees have had to work to an extraordinarily tight deadline. The Joint Committee on the Draft Communications Bill, for example, had relatively little time to address what was a substantial bill. It is a testament to the commitment and hard work of the members of the Joint Committee, and of the officials servicing it, that it was able to report when it did.

65. Sometimes, committees may not even have the twelve weeks normally allocated to a consultation process. The Joint Committee on the Draft Communications Bill effectively carried out its work in the period from May to July 2003. The Joint Committees on the Draft Civil Contingencies Bill and the Draft Mental Incapacity Bills were appointed on 11 July 2003 and asked to report by November, a period including the summer holiday period. On the former, the Defence Committee in the Commons reported that it was not persuaded "that a draft bill could not have been produced soon enough to have provided for a consultation period which met the spirit of the Government's Code of Practice on Consultation and allowed a fair and adequate time for interested parties to express their views".[53] The Government responded by pointing out the degree of consultation that had preceded the introduction of the draft bill.[54] On the Draft Mental Incapacity Bill, Lord Carter told us that the deadline "was quite unreasonable" (Vol. II, p.52).

66. One particular problem is apparent from the examples we have cited: that is, the tendency for bills to be published in draft towards the end of the session. Given that the bills are intended for introduction in the next session, this leaves little time for pre-legislative scrutiny. Hence the haste that we have identified.

67. Unless there is sufficient time for consideration, then much of the benefit is lost. As Jean Corston MP put it to us:

"Draft bills seem to me to be an entirely positive contribution to making the legislative process more rational, but these too will only be fully effective where there is a sufficient gap between the draft bill and the bill itself to allow parliamentary and other contributions to be fully taken into account" (Vol. II, pp. 164-167).

68. We concur with this view. The haste with which draft bills are considered strikes us as unjustified and reflects an incapacity or unwillingness to grasp the implications of the provision for the carry-over of bills. We have already mentioned that, in the House of Lords, bills that have been subject to pre-legislative scrutiny can be carried over. Carry-over is also possible and has been utilised in the Commons, notably in this context for the Financial Services and Markets Bill. There is thus no reason for the tight deadlines given to some of the committees engaged in pre-legislative scrutiny.

69. The Joint Committee on the Draft Communications Bill recommended that Joint Committees be set up at least two sitting weeks before a draft bill is published and not be required to report until at least one month after the end of the consultation period.[55] We see no reason why such a schedule cannot be adhered to and would regard it, as the Joint Committee appears to ("at least one month"), as an absolute minimum. We endorse the recommendation of the Joint Committee and add that, in the absence of a formal consultation exercise on the part of the Government, the minimum should be 4 months from publication of draft bills.

Outcome of consultation process

70. This recommendation also facilitates a link between consultation and pre-legislative scrutiny. Public consultation does not necessarily result in changes to a bill. We believe that it is essential for a committee considering a draft bill to see the findings of any consultation exercise and the government's response to them. The Joint Committee on the Draft Civil Contingencies Bill had the benefit of seeing amendments suggested by respondents to the government's consultation exercise. These were summarised in Appendix 11 of the committee's report. We believe that this should be common practice. It will be helpful to the committee and is also likely to enhance public confidence in the consultation process through enhancing its transparency.

71. We recommend that a committee considering a draft bill should be supplied with the findings of a consultation exercise and that the Government's response to those findings should be made available to it.

Conclusions

72. We thus believe that publication of bills in draft should be the norm and that those bills should normally be subject to pre-legislative scrutiny. All the evidence we have received on the subject acknowledges the value of such scrutiny. Although there still appears to be a departmental ethos that militates against the publication of bills in draft, the benefit of the process has been acknowledged to us by Government, Opposition, private members and commentators. The Guardian, for example, editorialised about the value of the scrutiny accorded the Draft Gambling Bill: "This is good for Parliament, good for law-making and good for politics".[56] We wish to build on what has already been achieved.

73. We believe that both Government and Parliament should move forward in expanding pre-legislative scrutiny and benchmarking of legislation. We note that Government still largely has ownership of the decisions about publication of bills in draft and sending bills for pre-legislative scrutiny. We want to see Parliament more involved in the process. We also believe that it needs to have recourse to powers which will cover such occasions when bills that members believe should be subject to pre-legislative scrutiny have not been selected for such scrutiny. We believe that bills not subject to pre-legislative scrutiny should be subject to a particular process of detailed examination when they are brought before Parliament.

74. We end with the basic principle that we believe should underpin the legislative process. We recommend that each bill should at some stage be subject to detailed examination by a parliamentary committee of one or other or both Houses, empowered to take evidence. The reasons for this we have adumbrated already. The most appropriate way of achieving this is through publication in draft and pre-legislative scrutiny. Failing that, the detailed scrutiny needs to take place once a bill is before Parliament.

11 Cabinet Office, Code of Practice on National Public Consultation; available at www.cabinet-office.goc.uk/regulation/Consultation. Back

12 The Rt Hon Peter Hain MP, Leader of the House of Commons 2003 - . Back

13 Mr George Cunningham, Member of Parliament 1970-1983. Back

14 Modernisation Committee, House of Commons, The Legislative Process, Session 1997-98, HC 190, para 91. Back

15 Andrew Kennon, 'Pre-legislative scrutiny of draft bills', Public Law, Autumn 2004, p. 478. Back

16 Kennon, op. cit., pp. 482, 493-4. Back

17 Hansard Society Briefing Paper, Issues in Law Making, 5: Pre-Legislative Scrutiny, London: The Hansard Society, 2004, p. 5. Back

18 Joint Committee on the Draft Civil Contingencies Bill, Draft Civil Contingencies Bill, Session 2002-03, HL Paper 184, HC 1074. The report occupied 227 pages and the written evidence a further 281 pages. Back

19 The Cabinet Office, The Government's Response to the Report of the Joint Committee on the Draft Civil Contingencies Bill, Cm 6078, Jan. 2004, p. 3. Back

20 Modernisation Committee, House of Commons, The Legislative Process, Session 1997-98, HC 190. See also Hansard Society Briefing Paper, Issues in Law Making, 5: Pre-Legislative Scrutiny, London: Hansard Society, 2004, p. 3. Back

21 Dr Lewis Moonie MP, Chairman of the Joint Committee on the draft Civil Contingencies bill, 2003. Back

22 The Rt Hon the Lord Carter, Government Chief Whip in the House of Lords 1997-2002. Back