Draft bills and 'pre-legislative scrutiny'

It was the case for many years before the introduction of public bill committees - and remains the case today - that a bill may be sent to a select committee for detailed examination after second reading. The select committee format has several advantages. The committee is not just a debating forum but can take oral and written evidence, involving many more people in a formal process of consultation and making the legislative process more accessible to those outside Parliament. A select committee has to return to the House the text of a bill just as a public bill committee (see page 188) does, but unlike a public bill committee it can also report its views and the reasons for its decisions. Even on highly contentious issues, select committees have a long history of operating in a consensual rather than an adversarial way, which is likely to make for more effective scrutiny of legislation.

Scrutiny of bills in draft by select committees (or joint committees of both Houses) goes several steps further. A draft bill has not begun its formal parliamentary progress, and it really is draft legislation in a way that a bill, once introduced, is not. Ministers have invested less political capital in it, and changes will not necessarily be seen as defeats. The Liaison Committee, consisting of the chairs of all select committees, described the scrutiny of bills in draft as ‘a development of great significance. It offers the prospect of properly examined, better thought out and so higher quality legislation’.

The numbers of draft bills each session is on what seems to be an upward trend: rising from three, four and nine in the sessions 2005-06, 2006-07 and 2007-08, respectively, to 11 in the admittedly long 2010-12 session, an impressive 14 in the session 2012-13, then falling back a little to six in 2013-14. So, the numbers are going up, but they need to be seen against a background of typically more than 20 government bills in most sessions.

However, draft bills are not a panacea - at least, not for governments. They add to the time before a proposal passes into law (and circumstances may change during that time); they tie up more resources in the preparation and drafting of bills, as substantial changes may be needed in the bills eventually introduced; and, as there is the opportunity for criticism well-supported by argument and evidence, they may make it harder for the government of the day to get its way. However, unless a way is found of slackening the overall pressure on a government’s legislative programme, the contribution that draft bills can make may be limited.

For pre-legislative scrutiny to work, it must be allowed enough time. We now follow the passage of a government bill (formally introduced into the Commons and not a draft bill) through Parliament. A chart showing the stages of legislation in the two Houses is overleaf.