4. This exercise has been among the first such
conducted this Parliament. In view of the Committee's experience
in conducting its recent inquiry into what were in essence also
pre-legislative proposals on Strategic Export Controls[5],
we have several comments of general application on the process
of pre-legislative scrutiny by departmental select committees
:
(a) It remains unclear
how far the House expects to be advised on the principles of a
draft Bill as well as on the merits of its detailed provisions.
Were a committee to consider the fundamental purpose of a Bill
to be flawed — a view propounded by only a few respondents
in the case of the LLP Bill — it could hardly be expected
to desist from so reporting. We draw attention below to several
areas of policy where we express some continuing concerns.
(b) The extent to which a select committee can
or should be expected to arrive at a definitive view on areas
of policy on which Ministers have yet to take a view is also uncertain.
The principal outstanding issue on the LLP Bill is whether the
status should be available to all or only to regulated professionals.
A view expressed by a select committee cannot of course bind the
House: nor should it be prayed in aid by Ministers as representing
the House's endorsement of a particular view. We have concluded
that, since one of the declared purposes of such scrutiny is to
provide an opportunity for a parliamentary input before Ministers
feel committed to a particular view, it is useful to reach some
conclusions on still undecided matters, rather than being restricted
to the questions of detail and transposition of policy intent
into legislative form.
(c) The Report of the Modernisation Committee
suggested that pre-legislative scrutiny "could, and indeed
should, lead to less time being needed at later stages of the
legislative process ..".[6]
We consider that a select committee should feel free to give some
indication as to the extent of further scrutiny required in the
course of the legislative process. From our scrutiny of the
legislative proposals on the creation of LLPs, we consider that,
while unlikely to be politically controversial, the Bill merits
a Second Reading on the floor of the House; that the committee
stage can be expected to be reasonably brief; and that the draft
Regulations will require further examination by this Committee
before being laid, at which point they will require affirmative
resolution. Whatever the perceived urgency in getting the Bill
onto the statute book, the due process of parliamentary scrutiny
must not be artificially abbreviated.
(d) While some uncertainty in the timing of publication
of draft legislation can be accepted as inevitable, serious consideration
must be given to ensuring that timetables are adhered to. If,
as we hope, there is more draft legislation in the offing, of
greater complexity and controversy, the strictures of the Modernisation
Committee in its 1997 Report on the giving of sufficient notice
to Committees must be observed, if the work programmes of committees
are not to be unacceptably disrupted.
(e) Neither of the two DTI papers contained anything
approaching a full and considered analysis of the issues addressed
by the Bill (see paras 5 and 6 below). If the Government is
serious about wanting to give Parliament and its committees a
greater and more constructive legislative role, it must ensure
that draft Bills are accompanied or preceded by a full description
of the policy background, and of options considered, along the
lines of a White Paper.
(f) The DTI have been most helpful in forwarding
promptly copies of responses to their documents. There is however
room for a more streamlined process. We recommend that departments
include in the paper accompanying a draft Bill an explicit indication
to potential respondents to the consultation process that copies
of their responses will, unless confidentiality is requested,
be made immediately available to the relevant select committee.
(g) The sheer number and bulk of responses render
their printing prohibitively expensive. Each committee must of
course judge for itself how much to print. We have printed the
papers of those from whom we heard oral evidence. The Modernisation
Committee explicitly anticipated that, based on the experience
of the Deregulation Committee, " much of the evidence would
be taken in writing". [7]
It is essential that Parliament should have ready access to the
responses to a draft bill; not least in the process of scrutiny
after formal presentation. The traditional means has been to place
them in the Library. In order to increase accessibility, we
recommend that consideration be given to placing the text of responses
to draft legislative proposals on the Internet.
