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Legislation: Pre-legislative Scrutiny

Volume 721: debated on Thursday 28 October 2010


Asked By

To ask Her Majesty’s Government whether drafts of all their Bills should be subject to pre-legislative scrutiny.

No, my Lords. Although we are committed to bringing forward as many draft Bills as possible, it is not always possible to do so—for instance, where Bills have deadlines for Royal Assent. This Session, the Government will publish in draft at least four Bills.

I thank my noble friend the Leader of the House for having taken this Question, which has constitutional effect. May I, by leave, ask two questions for clarification? What consideration have the Government given to the three group reports that favoured mandatory reforms of pre-legislative scrutiny of draft government Bills, as was spoken to—I see the noble Baroness, Lady Royall, looking at me—on three occasions: 25 January, 28 February and 12 July? The other question is very short: to ask whether and, if so, when a new formal, wholly effective structure shall be set up?

My Lords, my noble friend is entirely correct that this is an important issue. For some years now there has been good practice from the former Government and this Government in attempting to publish Bills in draft and apply a process of pre-legislative scrutiny. The reason why there is not a mandatory structure for this is in part that it is not possible to have formal pre-legislative scrutiny early on in the Parliament. Some departments, through the process of consultation and the publication of Green Papers and White Papers, already allow for a certain element of pre-legislative scrutiny, although not necessarily the one preferred by my noble friend.

My Lords, will the noble Lord the Leader of the House concede that pleading resource constraint does not constitute a credible argument against publishing as many Bills as possible in draft? Does he recall what the Liaison Committee in another place concluded in 2001 in its report, Shifting the Balance: Unfinished Business? It said:

“We repeat our view that the benefits in terms of better thought out and properly examined legislation will be out of all proportion to the modest expenditure involved”.

Is that not still true today?

My Lords, I had not yet raised the question of resources. Although resources count, they should not necessarily be the be-all and end-all of the subject. I do not wish to give the impression that the Government are in any way opposed to pre-legislative scrutiny. We are committed to it; it improves the quality of legislation and provides an opportunity for public engagement. We have a group, chaired by my noble friend Lord Goodlad, looking at working practices, and I know for a racing certainty that this is one of the issues that it will be looking at.

My Lords, I recognise my noble friend’s role in engaging with our Liaison Committee in this House, but would the Government be prepared to invite Members of both Houses to consider the wise recommendations of the Constitution Committee, as far back as 2004, that the two Houses should establish a Joint Liaison Committee so that the opinions and particular expertise of this House could be fully taken into account in considering whether or not to establish Joint Committees for pre-legislative scrutiny?

My Lords, there is no bar to Joint Committees of both Houses being involved in pre-legislative scrutiny. We have already proposed that, this Session, there should be a Joint Committee on pre-legislative scrutiny when a draft Bill is published on the future of your Lordships’ House. Whether there should be a formalised structure of a Joint Liaison Committee is another matter altogether, and one that I am certainly prepared to consider.

My Lords, does the noble Lord the Leader of the House agree that it is especially important that constitutional Bills have pre-legislative scrutiny? I recognise the difficulties he cited about it being early in this Parliament, but might he not regret the fact that the Parliamentary Voting System and Constituencies Bill came so early in this Parliament? That is a Bill that should have been subject to pre-legislative scrutiny. May I also suggest to him that the Public Bodies Bill should be subject to pre-legislative scrutiny? There has been little or no consultation on it but it will affect millions of our citizens.

My Lords, I do not agree with either the general premise of the noble Baroness’s argument or the specific examples. The Parliamentary Voting System and Constituencies Bill was published on 22 July and the Committee stage in another place did not begin until October. So there was plenty of time, albeit there was a Summer Recess, for it to be examined.

My Lords, does my noble friend agree with me that there should be a presumption in favour of pre-legislative scrutiny? Does he think it desirable that if a Bill is brought forward without pre-legislative scrutiny, the Minister sponsoring the Bill should at least make a Statement to Parliament explaining why the Bill has not been so subject?

My Lords, I am sure that my noble friend will find as the Parliament gathers pace that there are more and more Bills for pre-legislative scrutiny. I made the case at the beginning that—in the very first Session of a Parliament, particularly when many of the ideas we are bringing forward were tested at the anvil of election and, indeed, while we were in opposition—it would be unfair to have a mandatory basis for pre-legislative scrutiny.

My Lords, perhaps I may remind the Government of a Bill that they introduced early in the 1992-97 Parliament—a raves Bill dealing with the tragic deaths of young people in nightclubs in Scotland. It was a three-clause Bill and we subjected it to pre-legislative scrutiny. The major clause was the third one. The then Minister, after the pre-legislative scrutiny and the visits we made, informed me that the Government were withdrawing that clause. Does that not tell us that Parliament, left on its own, can foul up in the most magnificent way, and therefore that the need for pre-legislative scrutiny of every Bill is urgent?

My Lords, I totally agree with the broad thrust of the noble Lord’s argument—that pre-legislative scrutiny is important and useful. The noble Lord is also right. If you look at many of the Bills that were passed over the last 13 years, you wonder how many of them would have been improved with a bit more pre-legislative scrutiny.