Chapter 3: Consultation and pre-legislative scrutiny
43.Public consultation is now an established feature of the legislative process. Likewise, it is now recognised that involvement by Parliament, before the introduction of a bill, can be as influential as its role scrutinising bills after introduction. In our 2004 report we argued that “Parliament’s influence may be greater before a bill is formally introduced … We thus attach considerable importance to looking at Parliament’s capacity to influence Ministers at the pre-legislative stage.”47
44.The Bingham Centre for the Rule of Law explained why pre-legislative scrutiny of Government is important:
“Altering Government policy after significant investment of political and practical resources have been made by Ministers and at Cabinet level in the language of a Bill can be difficult. Engagement in the process of legislation at the stage when the policy which will underpin its terms is being formed is often most effective at ensuring the final law is evidence-based, effective and coherent.”48
45.The upshot, as the Law Commission stated, is that “time invested at the consultation and policy development stage can … lead to time and resource savings at later stages of the legislative process.”49
46.There are a number of different stages at which the views of stakeholders and Parliament can be sought by Government,50 which we address in turn below:
- Informal discussions with stakeholders throughout the policy development process;
- Formal public consultation on green and white papers;
- Informal consultation with stakeholders during the drafting process; and
- Formal consultation on draft legislation.
Informal consultation during the policy formation process
47.The then Leader of the House of Commons, David Lidington MP, noted that informal consultation was an essential element of the policy development process:
“Whilst not negating the need for formal consultation and pre-legislative scrutiny, it should be recognised that Government departments are continuously discussing proposals for legislation with public sector partners, the charity sector and industry. These conversations are vital as they allow for frank and confidential debates on new policies and proposals for legislation.”51
48.There were, however, divided views as to the merits of informal (and therefore selective) stakeholder consultation. MillionPlus, the Association for Modern Universities in the UK, argued that “self-selecting who to consult will hamper effective engagement”,52 while the Bingham Centre suggested that “The use of targeted and informal consultation is valuable as it enables expert stakeholder input into policy and legislative development early in the process, especially where time is limited.” They went on, however, to state that “there may be a good case to make use of online platforms to enhance and widen the pool of contributions at this stage. For example, it would be possible to publish immediately the list of organisations that have been invited to offer input and to open, even on short timeframes, input opportunities for others.”53
49.At this stage, our witnesses were clear that to achieve effective consultation the Government should aim to enter into it with a genuinely open mind as to what might work, rather than with a pre-determined outcome.54 This is not always the case. Emran Mian told us that, although he could think “of at least a couple of policy White Papers where there was a serious attempt by the Government to engage with some of the evidence against the proposition that they were putting forward … On the whole … government policy papers ignore, sideline or even at times ridicule evidence against the policy intention that they are pursuing.”55
50.We recognise that there will be times when the Government’s path is already set—an obvious example being a policy that has been detailed in a manifesto—but early consultation should leave open the possibility of departments exploring alternative ways to achieve their policy goals. As the Chartered Institute for Taxation told us:
“The result of starting consultations at too late a stage, with the central proposal already decided upon, is that other routes to achieve the objective more effectively are excluded, and also that unforeseen consequences can only be raised by outsiders after the government is committed to a course of action … Tax technical people often feel that they are in a damage limitation exercise.”56
51.While external support in policy development can clearly be helpful, we heard concerns that a loss of in-house expertise had led to an inappropriate reliance on external stakeholders for policy development. The Tobacco Manufacturers’ Association (TMA) told us that “the loss of in-house departmental expertise as a result of central government retrenchment … has led to a situation in which policy development is informally contracted out to other organisations.”57 The TMA argued that this can lead to “regulatory capture of government departments that have been denuded of their policy expertise by politically-oriented and often taxpayer-funded campaign groups.”58
52.Informal discussions with stakeholders are an important element of the policy development process. Policy should not and cannot be developed in a vacuum, and early and sustained engagement with a wide range of stakeholders to capture a diversity of views can help ensure that policy meets the needs of those it most affects.
Formal consultation on green and white papers
53.Once informal consultation has resulted in potential policy proposals, they should be published as a Green Paper to allow a wide range of interested bodies and stakeholders to comment. The consultation on a Green Paper should be followed by a White Paper setting out how the Government intends to proceed.
54.Witnesses suggested that ensuring the consultation process follows a predictable timetable makes it far easier for stakeholders and the public to comment on and contribute to the process of refining policy proposals. As the Bingham Centre for the Rule of Law noted in the context of pre-legislative scrutiny (although the principle applies more widely to the whole policy development process):
“A lack of transparency and predictability around the timing of legislative proposals makes it extremely difficult for the public and interested parties to engage effectively with the pre-legislative process. This is especially the case for those working with disadvantaged and vulnerable groups, who are often heavily reliant on volunteer contributions, for whom adequate time to engage is crucial. It is not only the amount of time available for responses that is important; the scheduling can affect input where, for example, consultations are published at the very start of a holiday period and it is difficult for small civil society organisations to marshal volunteer or staff contributions to provide the best input possible.”59
55.Until 2012, the code of practice governing government consultations recommended a 12-week period for consultations. In 2012, the Government launched a set of ‘Consultation Principles’, replacing the 2008 code of practice. That code replaced the default 12-week period with a principle that “consultations should last for a proportionate amount of time.”60
56.The Bingham Centre concluded that this change had been unhelpful:
“[t]here should be a return to the previous assumed period of at least 12 weeks for consultations and the position in the HM Government 2008 Code of Practice on Consultation. These standards should apply to all pre-legislative stages, including green papers and white papers.”61
57.They were not alone in expressing concern about the length of time allowed for consultations.62 The Institute of Chartered Accountants in England and Wales (ICAEW) also noted that “there appears to be a significant amount of evidence collecting taking place in consultations that have a short timeframe and, further, ask inappropriately open questions.”63 Likewise, Dr Fox stated that “When there are consultations, often the Government’s own best practice guidelines around timescales for consultation, analysis and so on are breached, and obviously there are no penalties as a consequence.”64
58.We note that the House of Lords Secondary Legislation Scrutiny Committee, in its 2013 report The Government’s Review of Consultation Principles, concluded that “we are concerned that … the revised Principles still suggest a Government inclined to prioritise their administrative convenience over the interests of potential respondents.” That Committee went on to state that “We are clear that six weeks should be regarded as the minimum feasible consultation period, save in very exceptional cases.”65 The Government response to that report simply stated that while the Government would not outline minimum consultation lengths, “timeframes should be proportionate and realistic to allow stakeholders sufficient time to provide a considered response.”66 We endorse the view of the Secondary Legislation Scrutiny Committee that six weeks should be considered a minimum feasible consultation period, save in circumstances which would be generally recognised as exceptional.
59.Witnesses expressed concern about other problems encountered by organisations and individuals looking to respond to Government consultations. Some witnesses argued that the number of consultations put forward by Government made it difficult for many organisations to respond effectively.67 The Law Society of Scotland meanwhile drew our attention to the need for consultations to be framed in ways that made them accessible to the public:
“pre legislative consultation requires to be undertaken in a clearer and more accessible way. It is relatively easy for professional organisations, campaigning bodies, experts in the relevant fields, and those accustomed to civil service and political structures to respond to consultation papers. It is less easy for those whose interaction with government or legislative authorities is sporadic. There are issues concerning the language used in consultation in consultation papers, the assumptions made of prior knowledge and understanding of the constitutional and legislative backdrop [that] militate against a broad range of participation from a broad range of people.”68
60.Another concern among our witnesses was the importance of ensuring that stakeholders had relevant consultations brought to their attention in a timely manner.69 ICAEW noted that:
“At present it is not always easy to find out what consultations and inquiries are open in respect of potential legislation. We note particular difficulties when a piece of legislation is drafted by a department that does not usually legislate in that particular area. For example legislation to require mandatory Gender Pay Gap reporting was published earlier this year by the Government Equalities Office. These proposals affected corporate reporting but were from a department not typically involved in legislating in this area.”70
61.We note that the Government publishes details of all government consultations on a single website71 which allows for the list of consultations to be filtered by subject area—this is a positive development. We would welcome, however, an explanation as to the recommended steps, if any, that must be taken by Government Departments to bring consultations to the attention of those with a relevant interest in the subject matter.
Informal consultation during the drafting process
62.Evidence suggests that the drafting (as distinct from the policy content) of legislation can also benefit from the involvement of those it will eventually directly affect. The Bar Council told us it “would encourage the consistent and widespread use of pre-introduction consultation and pre-legislative scrutiny to allow full scrutiny of the policies and legislation when a Bill is formally introduced, particularly where this reaches expert users of the legislation.”72 Without this kind of informal consultation, the opportunities for stakeholders to comment directly on the drafting of legislation may be limited. As the Bar Council argued:
“The opportunities to be involved in this stage of the legislative process are limited. It may have been possible to respond to a Government consultation, and it may have been possible to send evidence to a Committee conducting pre-legislative scrutiny, where that takes place. In both cases, however, opportunities to comment on detailed drafting are practically limited, either because it may not have been published (in the case of Government consultations) or because the Committee is more interested in broader principles and limits the format for submissions (in the case of pre-legislative scrutiny).”73
63.MillionPlus noted that “Whilst everybody accepts that the government will have a policy agenda that they are wanting to push through, if they do not consult the relevant sector stakeholders at all when drafting they will miss out on some practical implications of their proposals, which will in turn make the need for amendments more pressing–which slows down the legislative process and can reduce the time given to scrutiny in other areas.”74
64.Sir Steve Webb gave us a practical example of such consultation from his time as pensions minister, stating that “Certainly at the DWP, because pensions law is so technical and because, as part of the cuts, we were sacking lots of people, including lawyers … we drew heavily on the profession. There is something called the Association of Pension Lawyers, and we often ran drafts by them and consulted them.”75 He suggested that this consultation made it easier to take the legislation through Parliament as a result, noting that “because we had embraced the people who understand the technical details … There was nothing that a government or opposition MP could say to us about the wording of Clause 72 that we had not already run by a pensions barrister or somebody.”76
65.Government departments should normally consult a wide range of stakeholders on the drafting of legislation. Once legislation has been introduced in Parliament, it is far harder for the wording to be changed. Early, informal consultation on the wording of draft legislation can mitigate the risks of unintended consequences and ensure that legislation has been thoroughly ‘stress tested’ by the time it is introduced. Yet, as with the earliest stages of policy development (see paragraph 52) it is also essential that departments have sufficient resource and expertise to ensure that they are not reliant on a narrow group of external stakeholders who may have a particular objective or interest in mind when contributing to the development of legislation.
Parliamentary pre-legislative scrutiny of draft bills
66.In our 2004 report on Parliament and the Legislative Process, we recommended that it should be the norm for bills to be published in draft. In that report we gave a number of reasons for this recommendation:
- pre-legislative scrutiny of draft legislation by parliamentary committees has proven effective at improving such legislation;
- the reports published and evidence taken by pre-legislative committees contribute to parliamentarians’ understanding of the legislation and enhances the quality of scrutiny during the formal legislative process;
- pre-legislative scrutiny can resolve potential points of conflict early on and save time during later legislative stages;
- it provides ministers, who may well be largely dependent on civil servants who consider it their task to defend the legislation as drafted, with alternative views; and
- it provides a useful opportunity for the devolved administrations—Wales in particular—to consider how “Westminster legislation … will affect the Assembly and its functions.”77
67.These reasons remain valid, and a number of witnesses to this inquiry endorsed that recommendation.78 It was also endorsed by the House of Lords Leader’s Group on Working Practices, which reported in 2011.79 It has not, however, been adopted as standard practice in the 13 years since our 2004 report was published. The Government’s response to that report stated that:
“The Government continues to be committed to pre-legislative scrutiny. Whilst it will not be possible nor necessarily desirable to sustain the recent year-on-year increase for an indefinite period, we will seek at least to maintain the proportion of bills published in draft.
The Government is not persuaded by the recommendation that the reasons for not having published a bill in draft should be outlined in the explanatory notes to a bill. In the case of emergency legislation the reasons for not publishing a bill in draft will be self-evident. In other cases, the reasons may include pressure of time, demands of parliamentary counsel, the priority of other bills. On that basis, any explanation in the notes would likely be formulaic and would not add to the transparency of decision making.”80
68.We saw no evidence that this position has changed in the intervening period. The House of Commons Library found that “In total, 35 draft bills or substantial sets of clauses (excluding draft Finance Bills) were published by the Government in the 2010 Parliament. In the three Parliaments between 1997 and 2010, 75 draft bills or substantial sets of clauses were published: 17 in the 1997 Parliament; 33 in the 2001 Parliament; and 25 in the 2005 Parliament.”81 Of these, many, but not all, were subject to some form of parliamentary pre-legislative scrutiny—yet these represent but a fraction of the legislation passed by Parliament during the same period. For example, the 35 draft bills published during the 2010–15 Parliament (of which some were subsequently never introduced or given Royal Assent) represent only 29 per cent of the 121 Government Bills passed under the Coalition Government.82
The value of pre-legislative scrutiny
69.Our previous report found considerable value in the work of pre-legislative scrutiny committees.83 It noted that:
“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 … 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.”84
70.Our witnesses for this inquiry were, in general, supportive of pre-legislative scrutiny.85 We heard a range of views, however, as to whether bills should routinely undergo pre-legislative scrutiny. The Bar Council were among those who felt that pre-legislative scrutiny ought to be used more widely, stating that it “would encourage the consistent and widespread use of pre-introduction consultation and pre-legislative scrutiny.”86 Likewise, Dr Mark Goodwin and Dr Stephen Bates, Lecturers in Politics at the University of Birmingham, argued that “some process of pre-legislative scrutiny with strong parliamentary involvement either through Select Committees or Joint Committees ought to be the default setting for new legislation and the pathways for such scrutiny ought to be formalised.”87
71.Current and former ministers were more qualified in their support, suggesting that the effectiveness of pre-legislative scrutiny depended on the context within which the legislation was being considered. Sir Steve Webb, a Minister of State for Pensions under the Coalition Government 2010–15, suggested that where a department had made extensive efforts to consult widely and to engage with relevant stakeholders before publishing legislation in draft, then the value that could be added by pre-legislative scrutiny was limited.88 The then Leader of the House of Commons agreed that “sometimes there will have been quite detailed consultation between the Government and interest groups such as business groups or professions that are particularly affected by a proposal to change the law, without a formal PLS [pre-legislative scrutiny] process.” He added that the new-found governmental commitment to Green and White Papers meant that the policy-making process would inevitably involve more opportunities for “public examination and comment” compared with a situation where “the Government has moved straight from internal consideration to introducing a Bill.”89
72.However, while Green and White Papers are welcome parts of the policy consultation and development process, they are not substitutes for pre-legislative scrutiny of draft Bills. Draft Bills provide not just the policy intention but also set out the detail of how it will be implemented in law. Where a draft Bill is referred to a committee for pre-legislative scrutiny, it provides a better opportunity and more substantial mechanism for parliamentarians to scrutinise and influence draft legislation than a Green or White Paper affords.
73.MillionPlus suggested that the degree to which any particular piece of draft legislation had been consulted on varied across Government. Consequently, the extent to which value could be added by pre-legislative scrutiny varied from bill to bill:
“The practices in place to present draft legislation, once drafted, are good, and are very comprehensive … However, before the stage whereby draft legislation is published, it is largely down to individual departments or individual Ministers or Secretaries of State as to how clear and accessible any process of drafting may be. In some cases, departments do not engage at all with stakeholders, and draft legislation is withheld until publication, which necessitates a greater need for questions to the government and amendments to draft legislation.”90
74.Martin Hoskins, a former Specialist Adviser to Joint Committees on the draft Investigatory Powers Bill and the draft Communications Data Bill, described the experience of witnesses who felt that Government had not engaged properly early in the process: “A number of the witnesses were delighted to come along to the Joint Committee because they had been speaking to the Minister for a long time, and they thought that the Minister simply was not listening to their arguments. They were desperately keen to find another audience to play out their arguments with.”91
75.Another factor that witnesses suggested affected the value of pre-legislative scrutiny was the profile and contentiousness of the legislation. Sir Steve Webb told us “that I am sure it is right that both the willingness of government to engage and the added value of the process is probably greater on the less contentious stuff.”92 Professor Paul Burstow, a Minister of State for Care Services under the Coalition Government, agreed that “the process works best in areas where there is not a very high level of political capital invested.”93 He added: “the areas that benefit most from pre-legislative scrutiny are those where government does not have a vested interest in a particular given outcome to which it is absolutely wedded. The ability to be flexible and genuinely moved by the evidence and opinion of other experts is very important.”94
76.Such flexibility can exist even on contentious legislation—the then Leader of the House of Commons noted, for example, that “the Investigatory Powers Bill was an incredibly controversial subject, but actually the process of pre-legislative scrutiny allowed a consensus to emerge on that matter.”95 Yet at the same time he referred to the draft House of Lords Reform Bill 2011 and told us that:
“the Government published draft legislation alongside a White Paper and it went to pre-legislative scrutiny, but the political reality was that there were no majorities in the House of Commons in particular for a particular version of Lords’ reform, so the then Government withdrew that proposal.”96
77.Yet another factor that witnesses suggested affected the effectiveness of pre-legislative scrutiny was the extent to which Bills relate to technically complicated matters. Sir Steve Webb suggested that he was “not sure that the format of pre-legislative scrutiny lent itself” to detailed examination of the wording of a technical bill.97 However, the draft Investigatory Powers Bill was one such technical bill where pre-legislative scrutiny was considered valuable. Martin Hoskins argued that pre-legislative scrutiny allowed for at least “some independent assurance that Bills are technically fit for purpose. The beauty of pre-legislative scrutiny is that at least there is a draft Bill; at least there are words within which we can work. That is incredibly important.”98 We are convinced that pre-legislative scrutiny is also well-suited to technical bills. We see no reason why pre-legislative scrutiny by a committee would be any less effective at scrutinising technical legislation than the scrutiny of the legislative process itself. Indeed, the greater time and focused scrutiny that can be applied during pre-legislative scrutiny should make it better at dealing with technical issues and considering the wording of legislation when required.
78.Finally, it was suggested to us that the main reason why legislation is published in draft on relatively few occasions is the pressure of time. The then Leader of the House of Commons, for example, told us that, “as a rule of thumb”, pre-legislative scrutiny was a good thing, but that “there is a trade-off between sometimes the time available for policy consultation and the time for formal pre-legislative scrutiny on draft legislation. There are the constraints of a parliamentary year and the pattern that both Houses follow in legislating.”99 Chris Walker suggested that, in his experience, “the work and political deliberation that goes into preparing a Bill tends to go right up to the wire … Obviously, you could lengthen the legislative timescale, but time is tight.”100
79.Other witnesses, particularly those from a political background, agreed. Sir Steve Webb stated bluntly that: “sometimes you just have to get on and do stuff.”101 Professor Burstow said that: “There may be some very immediate political priorities that relate to a manifesto such that a Government, for many reasons, not least the desire to get legislation in place and implemented during the lifetime of a Parliament, may decide they do not want to add that additional [pre-legislative] stage.”102
80.David Lidington MP confirmed to us that he would not go so far as to support a presumption that all legislation should be subject to pre-legislative scrutiny. He indicated, however, that he was “sympathetic to the idea that we should look for additional opportunities for pre-legislative scrutiny.”103
81.The Commons Political and Constitutional Reform Committee concluded in 2013 that “not all bills are suitable for pre-legislative scrutiny.” They added, however, that they considered “pre-legislative scrutiny to be one of the best ways of improving legislation” and suggested that the Government should have to justify a decision not to publish a bill in draft.104
82.Green and White Papers provide an opportunity for public debate on proposed policy and pre-legislative scrutiny allows for a thorough examination of the details of that policy, and its implementation, in its legislative form. We believe, therefore, that pre-legislative scrutiny continues to be a valuable means of improving legislation. While not every Bill will require pre-legislative scrutiny, we recommend that the Government think critically about the value of pre-legislative scrutiny for all of its proposed legislation, irrespective of whether there have been prior policy papers or public consultations.
The impact of pre-legislative scrutiny on subsequent parliamentary stages
83.Professor Burstow noted that: “pre-legislative scrutiny has been added to our process without much thought about the other stages, and whether they should in any way change as a result of that quality input at the outset through pre-legislative scrutiny.”105 He argued that:
“If you have had pre-legislative scrutiny, do you still need to have the evidence-taking session in the Commons at the beginning of the Standing Committee? I do not think you do. If you had pre-legislative scrutiny and you have had the Government’s response, and for the sake of the argument they have taken on board some of the recommendations, that is a material consideration in the negotiation that takes place between Whips about the amount of time that is to be allocated for the Committee stage …
If it is a genuine starting place for the legislative process, its output should genuinely influence every other stage and have a bearing on the length of time for those other stages. At the moment it does not, and that is probably why pre-legislative scrutiny is not used as much as it could be.”106
84.We see much merit in this suggestion. It may make the process of pre-legislative scrutiny more attractive if alterations are made to quicken the passage of a bill later in the legislative process. Sir Steve Webb also suggested that in some cases pre-legislative scrutiny made it simply unnecessary for a separate evidence-taking stage in Public Bill Committee:
“I have looked at the record of the people who gave oral evidence to the pre-legislative scrutiny and to the Bill Committee. There were 14 witnesses to the pre-legislative scrutiny. About three months later, seven of those 14 then walked back through the same door to give the same evidence to the Bill Committee. A further two, interestingly, sent their deputies because they thought it was a waste of time for them to come back to say the same things about the same Bill to the same people.”107
In addition, he noted that “because nobody wants to be on pensions bills” there was also some overlap between the membership of the pre-legislative select committee and the Public Bill Committee.108
85.Other witnesses made similar points. Martin Hoskins, for example, said that those giving evidence were often “asked almost the same questions.” The solution, he suggested, was “a process whereby each Committee can recognise the validity of the evidence that has been given by another Committee.”109 If this was adopted, the Public Bill Committee process might begin with a private session to review the evidence received by the pre-legislative scrutiny committee, and to reflect on its report, prior to the formal consideration of the Bill.
86.In addition to making pre-legislative scrutiny more attractive as a way of smoothing the passage of a bill through Parliament, witnesses also suggested that taking pre-legislative scrutiny into account when timetabling the bill through Parliament might mitigate concerns about the resource implications of pre-legislative scrutiny. Professor Burstow told us that “Currently we cannot underestimate the extent to which government departments, which are downsizing significantly … have less capacity to manage this sort of process from end to end. That is more likely to make them advise Ministers not to have pre-legislative scrutiny, because it adds to the burden of doing the piece and getting legislation through.”110 David Cook, Second Parliamentary Counsel, echoed those comments: “from a technical point of view, pre-legislative scrutiny is resource-intensive … that is no reason not to have pre-legislative scrutiny, but both for that and for the Bill teams involved there is quite a lot of resource, as well as parliamentary resource, involved.”111
87.At present, pre-legislative scrutiny is seen as an optional extra to the legislative process: it may or may not take place and it does so in relative isolation to the other stages of scrutiny which legislation undergoes. Pre-legislative scrutiny should be considered an integral part of the wider legislative process. This may mean adapting other parts of the process to take account of pre-legislative scrutiny when it occurs. We do not, in this report, prescribe how this might occur,112 but as one example we recommend that the business managers of the House of Commons and the House of Lords should take into account whether a bill has undergone pre-legislative scrutiny when considering how much parliamentary time to allocate to the bill when it is passing through Parliament.
Effectiveness of pre-legislative scrutiny committees
88.Witnesses made a number of proposals for making pre-legislative scrutiny committees more effective. Some suggested that Joint Committees were particularly effective mechanisms for pre-legislative scrutiny.113 Others proposed an enhanced power to request information and analysis from the Government—Sir Steve Webb, for example, felt that committees might have “some superior right to scrutinise, ask questions and obtain data and analysis.”114
89.Professor Burstow, meanwhile, argued for more secretariat resource, so that committees could “look in much more granular detail at the assumptions that sit behind impact assessments that Ministers sign. They ought to form a much more forensic part of the examination of the deliverability of legislation than they do currently.”115 Sir Steve Webb agreed with the importance of scrutinising impact assessments, which he described as “often where the bones were buried”, and suggested that draft impact assessments ought to be published alongside draft bills.116
90.Finally, it was suggested that both the Government and the Opposition should have the ability to nominate legislation for pre-legislative scrutiny.117 Presumably this would involve the opposition being able to nominate one or more bills announced in the Queen’s Speech for pre-legislative scrutiny. We are unconvinced that this would be feasible; not least because of the potential for opposition parties to use this tactic to frustrate or delay the introduction and passage of legislation they were opposed to.
91.There is a case for greater resources to be made available for committees undertaking pre-legislative scrutiny, in order to facilitate a detailed legal, policy and financial examination of the proposals in a draft Bill and its associated documents, including impact assessments.
Manifesto bills
92.We asked witnesses whether there was a noticeable difference in the quality of legislation brought forward following a general election, as opposed to that introduced later in the parliamentary cycle. Our concern was twofold. First, that political parties’ manifesto policies might not be subject to the same rigorous evidence-based policy development process as those developed in Government; and secondly, that legislation implementing those policies might be rushed through in the first session of a Parliament without undergoing proper pre-legislative consultation and scrutiny (see Chapter 3 above). For example, the Childcare Bill 2015–16, introduced shortly after the 2015 election, was described as a “skeleton” bill, on which the Government still wished “to consult on matters of detail” and to “consult widely … before finalising a delivery model.” The Delegated Powers and Regulatory Reform Committee said that: “While the Bill may contain a legislative framework, it contains virtually nothing of substance beyond the vague ‘mission statement’.”118
93.Concerns were also expressed to us that bills implementing manifesto commitments are less likely to face a serious challenge in either House of Parliament, as both Houses recognise the public mandate behind a Government manifesto commitment.
94.Our witnesses expressed a number of different concerns. Sir Richard Mottram noted that manifesto commitments could be of variable quality and clarity: “some of them are driven by and grounded in experts outside government, and are very well founded; [but] some may not have a research base.”119 Other witnesses suggested that legislation introduced in the first session of Parliament could feel rushed. Dr Fox said that: “it has always been the case that the Government want to make their mark with a rush to get an early Bill into Parliament. It is partly about managing time and not wasting too much up front.”120 In support of this assertion, she pointed to the Academies Bill and the Public Bodies Bill as examples of legislation introduced soon after a general election with limited consultation, or while the Government was still consulting on the content of the policy.
95.Chris Walker agreed that there could be a tension between political commitments and evidence-based policy-making:
“To give an example, a certain party might have a particular election manifesto; that party subsequently gets elected to government and discovers that actually the commitment in the manifesto does not have the evidence-based credentials that it wanted. As the Civil Service scrutinises it and draws up the evidence, it can often point in exactly the opposite direction. That is an example of where there can be tension and where, inevitably, there can be a degree of retrofitting so that, rather than evidence-based policy, there is policy-based evidence.121
96.We heard that the tension between manifesto pledges and proper evidence-based policy-making was particularly acute when manifestos outlined not only a policy objective, but also specified the means by which that policy would be achieved—leaving a new Government little room for manoeuvre when it came to implementing the policy.122 Jill Rutter elaborated:
“you might tie yourself—particularly if you are not a governing party forming a manifesto—to very specific means without being able to discuss them with the people who will have to implement them … One of the pieces of advice we [the Institute for Government] give is that they should set out strategic objectives, priorities and so on, but not tie themselves to very specific commitments, because they might find when they get into government that there is a better idea.”123
97.It was also suggested that manifesto bills are less likely to be referred for pre-legislative scrutiny. Some of the reasons for this are practical—a Government needs to introduce a legislative programme in the first session of a Parliament which means a number of bills will have to be introduced without having gone through pre-legislative scrutiny. Other reasons are political: there is, for example, an expectation that significant manifesto commitments are implemented as soon as possible. And as Professor Burstow noted, “you have to look at … to what extent there is a clear political commitment to deliver the measure, where interaction in a pre-legislative scrutiny Committee will not help because there is not going to be much ability to shift the ground anyway.”124
98.We recognise that the content of party manifestos is, as David Lidington MP noted, “political territory.”125 Nonetheless, the manifesto of the winning party at a general election has a significant impact on the legislation passed in the subsequent Parliament. Sir Richard Mottram pointed out that “what we now have is a sort of system that says that what is in the manifesto will be implemented, and there is now huge machinery in Whitehall to ensure that every commitment in the manifestos is shown to be implemented, to show that the Civil Service is doing it.”126
99.The Electoral Commission currently provides Policy Development Grants to help parties develop policies to include in manifestos in elections for the European Parliament, the UK Parliament, the devolved legislatures and local government. The total grant is £2m a year, divided among eligible parties127 by a formula weighted according to the proportion of the registered electorate where each party contests elections and the weighted share of the vote received by each party in each part of the UK.128 This provides parties with some rather minimal funding although, as Sir Steve Webb noted, there is “a world of difference” between planning a policy in opposition and implementing it in Government. He explained:
“To take universal credit as an example, the Centre for Social Justice had spent years writing reports and clever people were thinking clever thoughts, but faced with the brutality of implementing a detailed benefit reform, there was still a huge amount of work that had to be done in government to write that flagship legislation. One of the reasons the programme suffered was that the policy, the legislation and the implementation were all being done at the same time, which caused real practical problems.”129
100.There are clear rules restricting the party in Government from calling upon the Civil Service to support party business such as manifesto writing. Yet as Akash Paun from the Institute for Government has previously written:
“In a single-party administration … officials are often asked to carry out analysis or provide advice on policy ideas that the party of government may then incorporate into its manifesto. As one official reflected: ‘Ministers at any stage can ask for policy advice on something … It’s incredibly easy, you just have to ask the right questions, because it’s always your right as a minister to request advice from the Civil Service.’ This means civil servants can be called upon by ministers to support–indirectly and wholly within the rules–the development of the governing party’s election manifesto.”130
101.The party in government can therefore test its policy suggestions within the Civil Service before they appear in its manifesto. There is no such mechanism for testing or verifying manifesto policies proposed by opposition parties. As Jill Rutter noted, parties might tie themselves “particularly if [they] … are not a governing party forming a manifesto—to very specific means without being able to discuss them with the people who will have to implement them.”131
102.One suggestion for mitigating concerns about the quality of legislation introduced by new governments was for the state to provide additional support to opposition parties in the run-up to the election, in particular in allowing the civil service to advise on how policy proposals might be implemented. This is not a new idea. Indeed, James Lloyd, then Director of the Strategic Society Centre, stated the idea succinctly in 2012:
“bad policy analysis by opposition parties costs real money when they come into power, whether in the form of mopping up after policy disasters have occurred, or wasted staff salaries as civil servants spend years trying to show Ministers why their ideas are unworkable. There’s also an opportunity cost: we all need governments to govern when in power, not spend their first couple of years subjecting their ideas to proper scrutiny for the first time, and then trying to work out what the right answer is.”132
103.Sir Richard Mottram told us that:
“if you have fixed-term Parliaments, there is a case for giving the Opposition help in the run-up to the election in thinking about what it is they are seeking to do and giving them support. This is obviously sensitive because of the political impartiality of the Civil Service, parliamentary counsel and so on, which is vital, but could there be mechanisms whereby they are given more assistance? This is what they do in Scotland, and we think there is a case for doing that. If you are rushing things in, at least in the period before you come into power, you would have extended the process, which already exists and is familiar to a number of people round the table, of shadow Ministers being able to consult senior civil servants and giving them a bit of help so the process of rushing is less risky.”133
104.The then Leader of the House of Commons was not in favour of this proposal, noting that it might compromise, or be seen to compromise, the impartiality of the Civil Service if some civil servants were attached to an opposition party for a certain amount of time before a general election. He suggested that he would prefer that the opposition party was provided with additional resources, rather than blurring the role of the Civil Service.134
105.The content of party manifestos is a matter for political parties and will heavily shape the legislative programme at the start of each new Parliament.
106.It was suggested to us that independent bodies like the Office for Budget Responsibility could have a role in assisting other opposition parties to cost and assess their policy proposals. David Halpern told us that:
“There has always been a case for having a Department for the Opposition, where you would give them some access to evidence in another way. In the Netherlands, the equivalent of the OBR does fact checking and looks at the economics and the numbers beyond that, to see whether or not something is likely to be effective and at what cost. It is theoretically possible to put all those things in place.”135
107.David Lidington MP rejected this suggestion, stating that “Ultimately, it is for political parties to carry out an assessment of their own policies and to commission experts to provide external validation, which takes us back to the question of whether political parties need access to more state funds to do that, which is a legitimate argument to have.”136
47 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173)
50 Opportunities for public consultation and stakeholder engagement may, of course, be limited in the case of emergency or fast-tracked legislation.
54 See, for example, written evidence from the Chartered Institute of Taxation (LEG0018), the Institute of Chartered Accountants in England and Wales (LEG0024), and the Law Commission of England and Wales (LEG0013)
58 Ibid.
60 Cabinet Office, Consultation Principles, first published July 2012 and updated January 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/492132/20160111_Consultation_principles_final.pdf [accessed 19 October 2017]
62 See, for example, written evidence from the Chartered Institute of Taxation (LEG0018) and the Law Society of Scotland (LEG0025)
65 Secondary Legislation Scrutiny Committee, The Government’s Review of Consultation Principles (17th Report, Session 2013–14, HL Paper 75)
66 Secondary Legislation Scrutiny Committee, The Government’s Review of Consultation Principles: Government Response (25th Report, Session 2013–14, HL Paper 111)
67 See, for example, written evidence from the Law Society of Scotland (LEG0025) and the Chartered Institute of Taxation (LEG0018)
70 Written evidence from the Institute of Chartered Accountants in England and Wales (ICAEW) (LEG0024)
71 Gov.uk, ‘Publications: all consultations’: https://www.gov.uk/government/publications?publication_filter_option=consultations [accessed 19 October 2017]
73 Ibid.
76 Ibid.
77 Constitution Committee, Parliament and the Legislative Process: The Government’s Response (6th Report, Session 2004–05, HL Paper 114)
78 See, for example, Q 62 (Robert Khan) and written evidence from the Bingham Centre for the Rule of Law (LEG0016), the Better Government Initiative (LEG0001), and the Liberal Democrat Constitutional Affairs Team (LEG0021)
79 House of Lords Leader’s Group on Working Practices, Report of the Leader’s Group on Working Practices (Session 2010–12, HL Paper 136), para 84
80 Constitution Committee, Parliament and the Legislative Process: The Government’s Response (6th Report, Session 2004–05, HL Paper 114), paras 11-12
81 House of Commons Library, Pre-legislative scrutiny under the Coalition Government: 2010–15, Briefing Paper, No. 05859, 13 August 2015, summary
82 House of Commons Library, Pre-legislative scrutiny under the Coalition Government: 2010–15, Briefing Paper No. 05859, 13 August 2015; and House of Commons Sessional Returns: https://www.parliament.uk/business/publications/commons/sessional-returns/ [accessed 19 October 2017]
83 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173), paras 22–23
84 Ibid., para 24
85 See, for example, Q 27 (Jill Rutter) and Q 27 (Jonathan Breckon) and written evidence from the Bar Council of England and Wales (LEG0009)
96 Ibid.
104 House of Commons Political and Constitutional Reform Committee, Ensuring standards in the quality of legislation (First Report, Session 2013–14, HC Paper 85), para 115
112 Our previous report explored some practical options. See Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173), paras 33–48
118 Delegated Powers and Regulatory Reform Committee, Second Report (Session 2015–16, HL Paper 12), paras 7–8
122 See, for example, Q 24 (David Halpern) and written evidence from the Institute for Government, the Alliance for Useful Evidence and Sense about Science (LEG0008)
127 The Electoral Commission’s website states that “To be eligible for the grant, a party must have at least two sitting Members of the House of Commons and have taken the oath of allegiance provided by the Parliamentary Oaths Act 1866. There are currently eight political parties eligible for the grant: Conservative Party; Democratic Unionist Party – D.U.P.; Labour Party; Liberal Democrats; Plaid Cymru – The Party of Wales; Scottish National Party (SNP); SDLP (Social Democratic & Labour Party); UK Independence Party (UKIP)” The Electoral Commission, ‘Public funding for parties’, http://www.electoralcommission.org.uk/find-information-by-subject/political-parties-campaigning-and-donations/public-funding-for-parties [accessed 19 October 2017]
128 The Electoral Commission, ‘Public funding for parties’
130 Akash Paun, Institute for Government, One Service, Two Guv’nors: How Whitehall serves the Coalition in the final year, 6 May 2014: https://www.instituteforgovernment.org.uk/blog/one-service-two-guvnors-how-whitehall-serves-coalition-final-year [accessed 19 October 2017]
132 James Lloyd, Director of the Strategic Society Centre, ‘Civil servants advising opposition parties: can we afford not to do this?’, August 2012: http://blogs.lse.ac.uk/politicsandpolicy/civil-servant-politics-lloyd/ [accessed 19 October 2017]