Appendix 3: Correspondence: Pre-legislative scrutiny
Letter from Baroness Fookes, Chairman of the Delegated Powers and Regulatory Reform Committee, to Rt Hon. Ben Gummer MP, Minister for the Cabinet Office and Paymaster General at the Cabinet Office
I am writing as Chairman of the Delegated Powers and Regulatory Reform Committee (DPRRC) in the House of Lords.
At the invitation of the House of Commons Science and Technology Committee, the DPRRC recently contributed to the pre-legislative scrutiny of the draft Spaceflight Bill. The DPRRC welcomed the opportunity and looks forward to making similar contributions in the future.
Delegated Powers Memoranda and draft Bills
In undertaking its scrutiny work, whether in relation to Bills or draft Bills, the DPRRC relies entirely on the Government’s Delegated Powers Memorandum which sets out the justification for the delegation of powers in a Bill and the Parliamentary scrutiny procedures to be applied to those powers. It was therefore with some surprise that we discovered that, unlike for Bills, there was no requirement for a Delegated Powers Memorandum to be prepared in respect of draft Bills. In its submission to the Science and Technology Committee, therefore, the DPRRC said:
“We are aware that, unlike the requirement in respect of bills, the Parliamentary Business and Legislation (Cabinet) Committee does not require a department to prepare a delegated powers memorandum for draft bills. In our report, published in July 2014, entitled “Special Report: Quality of Delegated Powers Memoranda”, we recommended “that the Government encourage departments, as best practice, to prepare a draft memorandum in parallel with the policy development and early drafting stages of the bill rather than leaving it until later in the process”. We therefore recommend to the Cabinet Office that a delegated powers memorandum should be required in respect of bills and draft bills alike, and will be writing to the Cabinet Office accordingly.” (paragraph 2)
Illustrative statutory instruments and draft Bills
The DPRRC also made the following comment with regard to the provision of illustrative statutory instruments at the pre-legislative scrutiny stage:
“It will be important–once the Bill is introduced into Parliament–that illustrative statutory instruments accompany the Bill. This will enable Parliament to have a clearer understanding of how some of these important powers are likely to be exercised in due course. When the illustrative statutory instruments come to be made, the principal changes to the drafts should be indicated and an explanation given. Given the importance we attach to the provision of illustrative statutory instruments to accompany a bill, it follows that we would also welcome their being made available during pre-legislative scrutiny. This is also a matter which we shall be drawing to the attention of the Cabinet Office.”
The DPRRC would welcome your views on these two important matters.
27 April 2017
Letter from Rt Hon. Ben Gummer MP to the Chairman
Thank you for your letter of 27th April regarding the pre-legislative scrutiny of the draft Spaceflight Bill and the provision of a delegated powers memorandum.
As I am sure you are aware, following the dissolution of Parliament we are not in a position to respond substantively on the points you have raised. I value the vital role the Committee plays and I have asked my officials to consider this issue very carefully. I will ensure a response is prepared which addresses your concerns.
7 June 2017
Letter from Rt Hon. Damian Green MP, First Secretary of State and Minister for the Cabinet Office at the Cabinet Office, to the Chairman
I am writing further to Ben Gummer’s interim reply of 7th June and in response to your letter of 27th April.
I am extremely grateful to the Committee for the work it does in scrutinising Government legislation. I understand that the Cabinet Office have been working hard to ensure officials across Government are aware of the Committee’s reports and recommendations.
We are hoping to publish several sets of draft legislation for pre-legislative scrutiny in this session. I can confirm that where Departments publish full draft bills, we will endeavour to produce memorandums for your Committee setting out the case for new delegated powers. We would be grateful to the Committee for its thoughts on such draft bills.
In most cases it will not be possible to produce draft regulations alongside draft bills. Whilst it is our intention to set out the rationale for delegated powers and how those powers would be used, producing draft regulations alongside draft bills would not allow for informal consultation with stakeholders on points of detail ahead of publication. Draft bills generally set out the overarching framework for a policy, so it is important that we have time to consult with colleagues within Government and beyond on the detail of a policy. In some cases this will involve formal consultations, but in most instances this will involve informal discussions with stakeholders as a policy is developed or needs to be adapted. In many cases Departments will know the key tenets as to how a delegated power will be used, but the minutiae will either be subject to spending controls within Government, discussions with industry or will be commercially sensitive. I would like to reassure you that if it is possible and appropriate, Departments will publish draft regulations alongside draft bills.
I look forward to working with your Committee.
11 August 2017