Before the end of the last century, parliamentary scrutiny of bills was generally found wanting. It was the area in which Parliament was arguably in greatest need of reform. As the 1993 report of the Hansard Society Commission on the Legislative Process noted, ‘As a result of inadequate or defective consultation, it is argued, bills are too often introduced to Parliament “half-baked” and with lots of the detail insufficiently thought out’.
One way of improving legislation is through pre-legislative scrutiny, the government publishing a bill in draft and submitting it for consideration by a departmental select committee in the Commons or, for bills that are especially complex or of constitutional significance, a joint committee of both Houses. Pre-legislative scrutiny enables the committee to take evidence and make recommendations before the government has become rather set in terms of what it wants enacted. Once a bill is formally introduced, government tends not to be too keen on seeing changes during its passages. Some ministers can be especially proprietorial. Pre-legislative scrutiny can also produce a more bipartisan approach, especially in the case of joint committees.
When I chaired the Constitution Committee of the House of Lords, we produced a report, Parliament and the Legislative Process, recommending that pre-legislative scrutiny should be the norm and not the exception. That was in 2004. The government appeared sympathetic to our proposal. It appeared likely that pre-legislative scrutiny would become more prevalent. In the event, performance has been patchy. Some ministers are reluctant to have ‘their’ bills submitted for such consideration – they are either too grand and/or insecure – and government appears unwilling to commit the resources necessary for the exercise.
To see how many bills have been referred for pre-legislative scrutiny in recent years, I tabled a question to the Leader of the House, asking ‘how many Government Bills since May 2015 have been published in draft and referred for pre-legislative scrutiny by a joint committee or committee of either House; and what proportion these constitute of all Government Bills introduced in that period’. The answer, on Wednesday (3 July), was:
‘Since May 2015, 13 Government Bills have been published in draft and referred for pre-legislative scrutiny by a joint committee or committee of either House; this constitutes 14.43% of all Government Bills introduced in that period.’
In other words, only one in six government bills has been subject to such scrutiny. This is disappointing, both in absolute and comparative terms. In the 2010-15 Parliament, a total of 31 bills were submitted for pre-legislative scrutiny.
Pre-legislative scrutiny is not simply an issue for parliamentary scholars. Its use can improve the quality of law in this country. Law affects everyone, so ensuring better quality legislation is a public good. Not devoting resources to it is a false economy.
This is something I shall be pursuing. It is important that government recognises that it is in its own interest to get the detail of legislation right.