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Last updated: 08 July 2009
Suitability of Bills for publication in draft
22.1 The Government is committed to publishing more of its Bills in draft before they are formally introduced to Parliament, and to submitting them to a Parliamentary Committee for Parliamentary pre-legislative scrutiny where possible. The Prime Minister and the Leader of the House of Commons have both indicated that they are keen to increase the number of Bills published in draft.
22.2 Legislation Committee particularly welcomes proposals to publish in draft from departments that have not traditionally done so, and will give consideration to proposals to publish parts of a Bill in draft where it is not feasible to publish the whole Bill in draft.
22.3 The Chair of Legislation Committee will ask Ministers to consider whether Bills for which they are bidding for legislative time are suitable initially for publication in draft, as well as inviting bids for Bills specifically intended for publication in draft in the first instance.
22.4 There are a number of reasons why publication in draft for pre-legislative scrutiny is desirable. It allows thorough consultation on the Bill while it is still in a more easily amendable form, and makes it easier to ensure that both potential Parliamentary objections and stakeholder views are elicited. This can assist the passage of the Bill when it is introduced to Parliament at a later stage.
22.5 The decision on which Bills will be published in draft is for Legislation Committee, taking into account the overall requirements of the legislative programme. Some Bills may not be suitable for publication in draft, for example Bills that are needed to meet international commitments where there is little flexibility around implementation, Bills to implement Budget commitments or Bills which must reach the statute book quickly due to “real world” pressures.
Legislation Committee approval for publication in draft
22.6 Legislation Committee agreement is needed to the principle of publication in draft (“drafting authority” for a draft Bill). The Bill Minister should write to the Committee seeking agreement and setting out any preferences for the form and timing of pre-legislative scrutiny. The Minister should complete the same template as when bidding for a legislative slot, to give the Committee the information it needs on impacts, devolution, handling etc.
22.7 Immediately after the Queen's Speech, the Leader of the House of Commons writes to the House of Commons Liaison Committee listing the Bills which the Government intends to publish in draft that session, and their provisional date of publication. This allows the usual channels to negotiate scrutiny arrangements for a package of draft Bills. In advance of the Queen's Speech, the Secretariat will assess the progress of all Bills being prepared for publication in draft and confirm with departments which Bills will be included in the list sent to the Liaison Committee. The Government may however publish further draft Bills or draft clauses during the session which were not included in the letter to the Liaison Committee.
22.8 Once the Bill is ready for publication, it will need to come to Legislation Committee to be considered in the same way as the Committee would consider a Bill for introduction – although draft Bills are normally cleared by correspondence rather than by meeting.
22.9 If clearance is being sought by correspondence, the Bill Minister will need to write to Legislation Committee allowing at least 10 working days for colleagues to comment (15 working days over a recess period) and 48 hours for clearance to be arranged in time for the draft Bill to be published on the date agreed. Clearance is not granted until the Chair of the Committee has signed a letter confirming agreement to publication. The Bill Minister should attach the following papers to the letter seeking clearance:
22.10 In place of a Parliamentary Handling Strategy, details of the proposed arrangements for pre-legislative scrutiny (which are a matter for the Business Managers, and subject to agreement with the usual channels) should be included in the Legislation Committee Memorandum. This should include the timetable for completion of pre-legislative scrutiny and the Government's response to the recommendations arising from it, and any public consultation.
22.11 A Delegated Powers Memorandum is not required at this stage for Bills to be published in draft (although Legislation Committee may request one if the Bill contains a large number of, or particularly sensitive, delegated powers) but the main issues should be summarised in the Memorandum.
22.12 Where it has been agreed to publish a Bill in draft, but not all parts of the Bill are ready on time, Legislation Committee may agree to the publication of those parts of the Bill that are ready, if they form a coherent package of measures.
22.13 Draft Bills should be published and laid before Parliament as Command Papers. This need not require costly White Paper-style publication. See the guidance on “How to publish a Command Paper” [External website] and further information at Command Papers [External website]. The Explanatory Notes and Impact Assessment should be published alongside the draft Bill.
22.14 There is no requirement to seek Queen's Consent before a draft Bill is published, though out of courtesy the department might wish to alert the Palace to any draft Bill which significantly affects the Crown's interests.
Parliamentary pre-legislative scrutiny
22.15 Parliamentary pre-legislative scrutiny may be carried out by a variety of types of Committee. The options are:
22.16 The Bill Minister should indicate the preferred option even at the early stage of seeking agreement to the principle of publication in draft, as Business Managers will take this into account whilst considering the overall needs of the legislative programme. Once Legislation Committee has agreed the preferred option, the choice of route will still be subject to negotiation with the usual channels who may, for example, press for Lords involvement. The factors to consider include:
22.17 In general there is an expectation that the Commons departmental Select Committee will be the chosen route unless there is reason to the contrary, though there is also something of an expectation that if possible there will be one or two Joint Committees in any one session. An existing Commons Committee is the simplest approach and requires no formal proceeding in the House.
22.18 Departments should bear in mind, however, that it is for the Committee to decide whether it wishes to undertake this work. (An ad hoc Committee, in contrast, is tasked specifically to carry out the work.) It is more likely to be willing to do so if it has sufficient warning that it can build scrutiny of the draft Bill into its programme of work for the session.
22.19 Departments may therefore wish to have early informal discussions with the Clerk of the Committee (and possibly Minister to Chairman discussions), while taking care to make it clear that arrangements are provisional until Legislation Committee agreement is given and the usual channels have agreed.
22.20 An ad hoc Joint Committee requires a series of motions in each House and complex negotiation with the usual channels (over membership etc), although departments can express their preferences on Chairmanship and outdate. The necessary negotiations and motions take time.
22.21 The Bill team should discuss the options with the Cabinet Office Adviser on Parliamentary Procedure and the Government Whips' Offices in the early stage of planning pre-legislative scrutiny. In cases where the usual channels propose a Joint Committee, existing Committees cannot, if they so wish, be prevented from carrying out their own inquiry in parallel, but effective early informal discussions can help to prevent this.
22.22 Depending on other priorities in the session, a draft Bill may not be picked up for formal Parliamentary pre-legislative scrutiny by any Committee – but will still benefit from having been published in draft, given the opportunity for informal scrutiny by Parliamentarians and for public consultation.
Timetable for Parliamentary pre-legislative scrutiny
22.23 Parliamentary pre-legislative scrutiny should be completed in time for any resulting amendments to the Bill to be made in time for introduction to Parliament to the timetable agreed with Legislation Committee (assuming the Bill is to be introduced to Parliament the following session).
22.24 If the Bill is to be taken by an existing Committee, departments should liaise with the Committee Clerk to identify a mutually convenient timetable. If an ad hoc Committee is to be appointed to examine the Bill, additional time needs to be allowed for Parliamentary agreement of the motions to establish the Committee.
22.25 A date for the Committee to report will probably be set in the motions appointing the Committee. The Bill team may wish to discuss with the Cabinet Office Adviser on Parliamentary Procedure what is a realistic deadline.
22.26 It may also be helpful to discuss practicalities with the Scrutiny Unit in the House of Commons (scrutiny@parliament.uk, 020 7219 8383) and (where a Joint Committee is a possibility) with the relevant Clerk in the House of Lords (020 7219 6076).
22.27 Generally a Committee will need at least three to four months to take evidence and report (not including long recesses). In practice this means publishing before Easter, though departments should aim to publish earlier than this. Where draft Bills have been published after Easter, this has often meant that fewer than three months were available to the Committee for their consideration, sometimes leading to serious criticism.
22.28 Earlier publication means the Committee will report earlier, giving the department more time to make any changes to the Bill as a result of pre-legislative scrutiny before introducing the Bill to Parliament at the beginning of the next session.
22.29 A Committee inquiry will usually involve the following stages:
Initial information
Evidence to the Committee
Report
Government response
Wider pre-legislative scrutiny – public consultation
22.30 Parliamentary pre-legislative scrutiny is only one part of pre-legislative scrutiny; members of the public may also wish to comment on the draft Bill. Even if the Bill is not formally scrutinised by a Committee there is still enormous value to publishing it in draft for stakeholders and those who will be affected by the Bill, as it provide an extra opportunity for them to comment having seen how the legislation would work in practice.
22.31 Departments may therefore wish to publish a consultation document or White Paper at the same time as, or before, the draft Bill. This should include a copy of the Impact Assessment and, where the proposal is significant, of the Impact Statement. The normal arrangements for public consultation apply.
22.32 Departments will need to consider how this public consultation fits in with the timetable for Parliamentary pre-legislative scrutiny, bearing in mind that the Parliamentary Committee may wish to see the results of the public consultation before reporting.
22.33 Finally it should be noted that publication in draft does not guarantee introduction in the next session, as Legislation Committee will consider the relative merits of all bids for legislative time in the round, but it will be a factor taken into consideration by Legislation Committee when drawing up the provisional programme and will count in the Bill's favour. As bids for legislative time are made up to a year before the start of the session, the department must bid for a slot for a programme Bill even as it is preparing its draft Bill.