Pre-legislative scrutiny in the British parliament

The UK parliament has, since the end of the second world war, had a somewhat well-deserved reputation for being less than assertive. In some sessions of parliament in the 1950s, not a single government MP broke ranks to vote against their whip and it was only in the 1970s that MPs began to rebel in any numbers again.

The House of Lords, with an overwhelming Conservative majority in theory and a decent likelihood of Conservatives winning a vote in practice was relatively assertive during Labour governments (who swiftly overturned any amendments they didn’t like passed by the Lords) and relatively quiescent during Conservative ones (who rarely needed to overturn any they didn’t like). Until the late 1990s, when the composition was reformed leaving a hung chamber, they too were reluctant to repeatedly insist on their choice of amendments. This left a parliament that was rather toothless when faced with bills they didn’t like.

Even today, a government defeat in the House of Commons is rare and governments are loath to change their bills if they can quickly overturn Lords amendments in the Commons. Part of it is the culture of government – ministers see their accomplishments in terms of bills passed not policies achieved and having your bill amended can be seen as an affront to your authority. Much of the legislation before parliament is, strictly speaking, unnecessary. Much could be achieved without legislation but ministers view it as more of an achievement to get the policy enshrined in hard-to-alter law rather than to simply see the policy put into action and to make it hard to alter by its success.

In the 1960s, the then-Labour government flirted with departmental Select Committees (which were shut down when they became too interested in policy) and there was pressure from MPs to allow them to look at subjects the government wanted to legislate on before they had drafted a bill, though not much came of it.

In 1971, the Renton report was published, advocating amongst other things pre-legislative scrutiny for bills by a joint committee of both houses. These particular recommendations weren’t acted upon, but Select Committees were tested by the Labour government again in 1975 when a few ad-hoc ones were tasked with examining potential policies of the government in the form of pre-legislative scrutiny advocated a decade before. These had a decent impact where they were used – one, on tax credits, was widely seen to have improved the drafting of the bill when it was finally done and the other, on a wealth tax, actually forced the government to stop its proposals after the evidence was heard – but their use was very limited.

The return of departmental Select Committees under Thatcher in 1979 led to calls for Select Committees to examine proposed government policies before they had legislated. The official line for the next nearly twenty years was that departmental Select Committees were free, if they so chose, to conduct pre-legislative scrutiny. They rarely did, however. Performing post mortems on government policy was usually quite enough for the timid committees of the 1980s who did not like straying into controversial territory for fear of igniting excessive partisanship amongst members.

As calls grew amongst MPs and especially peers for more input into legislation before it was drafted, John Major’s government experimented with publishing bills in draft for general consultation. These bills were never put before a committee for examination however. The government was more happy to consult on a draft bill – but not with its own MPs and peers!

This all changed with Tony Blair’s government. Starting cautiously, the experiment with pre-legislative scrutiny continued until an average of one in five bills was subjected to pre-legislative scrutiny. This is the latest incarnation of the process: a select committee, sometimes of both houses, examines a draft bill hearing evidence from experts and producing recommendations that the government may or may not accept. The report produced then heavily influences debate as the bill goes through parliament with MPs and peers often securing concessions from the government implementing the recommendations not accepted by the government initially. This allows for much more parliamentary influence than normal.

Here’s the data on the percentage of draft bills published and given pre-legislative scrutiny in each session since the start of draft bills being examined by select committees:

1997-8: 3.77%
1998-9: 19.35%
1999-0: 4.88%
2000-1: 7.14%
2001-2: 12.82%
2002-3: 27.78%
2003-4: 27.03%
2004-5: 5.88%
2005-6: 5.17%
2006-7: 8.33%
2007-8: 22.58%
2008-9: 7.41%
2009-10: 10.00%
2010-12: 13.89%* (start of parliament, extra-long session)

*Session not yet complete

As you can see, sessions just after an election tend to have fewer draft bills published and examined as do sessions just before one. The main reason after an election is that new governments tend to want to have something to show for their first six months to a year, and you wouldn’t be able to do that as easily with pre-legislative scrutiny. As to before an election, the sessions are usually too short to effectively scrutinise them in the time available if they want the bill to go through before being lost.

Currently, there are four pre-legislative Joint Select Committees examining draft bills (the Draft Defamation Bill, the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, the Draft Financial Services Bill and the Draft House of Lords Reform Bill) and one departmental Select Committee examining a draft bill (Draft Groceries Code Adjudicator Bill). Of course, not all pre-legislative scrutiny has a draft bill in front of it. For example, the Joint Select Committee on Privacy and Injunctions will report prior to any legislation being drafted – similar to the committees back in the 1970s.

Looking to the future, the House of Lords Select Committee on the Constitution has long advocated pre-legislative scrutiny for the vast majority of bills and the Leader’s Group on Working Practices (leading to the Goodlad report) wants the government to have a presumption in favour of pre-legislative scrutiny for all bills which embody a major policy change. We have heard that before however – back in 2002, the House of Lords’s Tordoff Group on Working Practices published a report recommending that “virtually all major government bills should as a matter of course be subject in draft to pre-legislative scrutiny by Parliament” and, despite a brief rise just after the report, it has actually become less common!

The question remains, however, how much this is simply a reaction to the lack of a committee stage before second reading and the weakness of British public bill committees. By far most Western European parliaments send the bill to committee to be potentially rewritten before the chamber as a whole expresses a view. Only Ireland, Spain, Denmark and us do it the other way around. Even more than this, we are extremely rare in having our legislative committees completely ad-hoc with members not acquiring any expertise through long-term membership. Members, particularly government members, are not appointed to public bill committees unless they agree to be completely loyal.

Apart from a few brief mentions in the 1990s which ended in a proposal by the Modernisation Select Committee in 1997 which was promptly rejected, there has been no major call to introduce an earlier committee stage in the UK* and to an extent pre-legislative scrutiny of draft bills seems to be an attempt to rectify this. It’s still arguably weaker than a full ‘first reading committee’ because although it takes place earlier in policy formation the committee can only recommend amendments to the government rather than actually amend the bill itself.

In time, perhaps, we will see pre-legislative scrutiny as a normal part of the legislative process in the UK, perhaps even taking on more formal powers and becoming first reading committees. It would be interesting to see the difference in reaction by governments to pre-second reading committees abroad and UK pre-legislative committees and whether they seek to overturn committee recommendations.

*It’s part of the mythos of the British parliament that it is a chamber-oriented legislature not a committee-oriented one. This is changing and has been for the last thirty years, as my previous post on committees in the House of Commons shows, but it is still far behind European (or even some Commonwealth) equivalents.
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