Joint Committee on Draft Communications Bill Report


(i) The resilience and adaptability of the proposed legislation

380. The draft Communications Bill is a well-prepared and well-considered document. It reflects an extended and generally effective process of consultation by the Government. We understand and support the broad purposes of the draft Bill. Our central task has been providing means to enable the Government or Parliament to make a good Bill better.

381. One of the policy aims of the Government is to establish a new policy framework "characterised by both resilience and adaptability for the future".[730] Many of our foregoing recommendations have been designed to enable the final legislation to be more resilient than the proposals in the draft Bill. We have also examined ways of ensuring that the final Bill is not based on transient assumptions about technology or the nature of markets, but there are good grounds for caution in this respect.

382. The Culture, Media and Sport Committee has argued that legislation "must concentrate on identifying firm principles and objectives and offering a pragmatic and flexible approach to implementing them" if the legislation is not "to be out-of-date before Royal Assent".[731] NTL similarly drew attention to the fact that legislation has often "dealt with the issues of the moment, not the issues of the future" and has consequently required rapid revision: the framework being considered now will only begin to take effect in 2003 in a communications sector that is changing rapidly.[732] These changes are by their nature unpredictable. As David Doherty of Telewest noted:

    "If this Committee had been sitting around in 1992 thinking about the next ten years, it would … in all likelihood … have missed the Internet, it would probably have missed broadband and digital which are the three major transformers of the modern industry over the past ten years. So I find it difficult to sit here and be convinced that in 2002 we will know what is going to happen in 2008 and 2012."[733]

383. The Government has sought to respond to this problem in two ways. First, it has sought to make the draft Bill "technology-neutral". In general terms we support this aim, even though it may cause frustration to particular sectors that seek special mention or special privileges in the legislation. Second, the Government is proposing that Parliament grant it extensive powers by means of delegated legislation to rewrite substantial parts of the Bill to enable the regulatory framework to adapt to changes in technology, in the relevant markets and, if appropriate, in public attitudes on matters such as taste and decency.[734]

384. The new legislative framework could be said to rest on five pillars: (i) the creation of a single regulator with functions across the electronic communications sector; (ii) the implementation in United Kingdom law of the system for authorisation for electronic communications networks and services established by the EC Directives; (iii) more coherent application of competition law across the communications sector; (iv) the creation of a mechanism for adaptable media ownership rules; and (v) the updating of pre-existing broadcast licensing regimes. We cannot predict whether all of these pillars will prove equally resilient: the frequency with which broadcasting legislation has required change in the past and the potential for rapid technological change in the future cast real doubt on the staying power of the fifth pillar; the fourth pillar as currently conceived is only likely to stand with sweeping enabling powers; the third pillar is relatively unproven; the second pillar is innovative; the first pillar involves a substantial organisational challenge.

385. We make these points not with the aim of questioning the rationale for the five pillars. Rather, we wish to emphasise that it would be mistaken to assume that each and every aspect of the new framework will prove enduring. In legislating this year and next, Parliament should not imagine that it will be absolved of the duty both to examine the implementation of the new framework with great care and to be prepared to return to the process of legislating again should the need arise.

386. In view of the considerable likelihood that new primary legislation may well become necessary in the medium term, we urge the Government to re-examine the general scope of, and particular proposals for, seeking power to amend the new primary legislation by means of subsequent secondary legislation. There are some occasions in this Report where we have supported these powers, but there are others - most notably in respect of media ownership law and the remits of individual licensed public service broadcasters - where we view the powers sought as unjustified. In each instance that appears in the final Bill, it will be important for both Houses to give the most careful consideration as to whether they wish to see the prospect of future primary legislation on the matter greatly diminished.


387. Before considering problems we have encountered during our work and the improvements we would wish to see in the process of pre-legislative scrutiny, it is right to pay tribute to the Government's decision to invite both Houses to agree to the establishment of this Joint Committee. This was a voluntary decision by the Government to enable its proposals to be subject to much more detailed scrutiny than would otherwise be the case. For example, we doubt whether departmental Select Committees of the House of Commons, with the many other commitments they face, would have been able to undertake an inquiry of this scale and intensity. We were encouraged by the positive commitment of Tessa Jowell and Patricia Hewitt to this process, reflecting in the following statement by Tessa Jowell: "We are entirely convinced that the quality of the legislation that will emerge will be improved by the effects of your deliberations and your hard work".[735] We welcome the Government's decision to enable the draft Communications Bill to be considered by an ad hoc Joint Committee and the positive spirit in which the Ministers have so far responded to our work.

388. Our own starting point for this inquiry was the belief that pre-legislative scrutiny is an entirely worthwhile process. This is also a view expressed on many occasions by the Government. The Rt Hon Robin Cook MP, Leader of the House of Commons, has stated:

    "If Parliament wants a real influence on the shape of public Bills, it has to get in on the act much earlier than Second Reading, when party positions are already set in stone, so it needs to see Bills in draft … pre-legislative scrutiny will be of benefit to both the House and the Government in making sure that when Bills come before Parliament, they are better thought-out and their rough edges have been rounded-off."[736]

—  The Leader of the House of Lords, the Rt Hon Lord Williams of Mostyn, has said:

    "I have no doubt that if we can achieve more pre-legislative scrutiny, we will have better Bills and a significant lessening of the need to return to the same topic … It is often easier for the Government to accept changes to a draft Bill than to seem to accept the humiliation of a change once policy is set."[737]

—  The principle of pre-legislative scrutiny has attracted support on a cross-party basis in the House of Commons and from all parts of the House of Lords.[738]

389. Even at this stage of the legislative process, we see reason for optimism that the first objective we set out at the beginning of this Report - to enable the process by which Parliament makes the law to be more inclusive - will be achieved. Our inquiry has been able to throw light on the Government's thinking for particular proposals in the draft Bill. It has enabled a wide range of organisations and individuals to make specific points about the legislative proposals and convey to us as parliamentarians the anxieties that are felt about the operation of current regulatory regimes as well as the pitfalls in establishing a new one. They have been able to do this not only through the formal process of evidence-taking but also through the online forum, the conduct of which has broadened and strengthened our understanding of public concerns about the issues under examination.

390. While pre-legislative scrutiny has undoubted merits, it also has difficulties, a number of which we have been forced to grapple with during our inquiry. First, we have been asked to examine a draft Bill that represents only part, albeit a large part, of the Bill that will be presented to Parliament in due course. We have known from the outset that some important issues - including certain new aspects of the radio licensing regime and provision for impact assessments and Gaelic broadcasting - would be included within the final Bill, but would not be the subject of draft Clauses. This has limited our capacity to comment constructively on some matters.

391. We received some draft Clauses on media ownership at the end of May, which just about enabled us to integrate consideration of these Clauses with our wider invitation for evidence. We were informed that draft Clauses on newspaper ownership would be available "as soon as possible in the light of the Enterprise Bill". We timetabled oral evidence from the newspaper sector at the end of our evidence sessions in what we hoped was the reasonable expectation that the relevant draft Clauses would be available. In late June we were told that the Government's plan was to publish these draft Clauses "by the end of July".[739] By 1 July, the Government was expecting the draft Clauses "by the beginning of August".[740] Only at our insistence did the Government provide us with the policy detail for the draft Clauses. This has proved better than nothing, but a poor substitute for the actual draft Clauses. The timing has also made it impossible to hear and analyse considered evidence on the details of these proposals.

392. The Government, in establishing the terms for its consultation process, muddied the waters for our pre-legislative scrutiny. In soliciting responses to its consultation, the Government asked "that you do not offer drafting suggestions but concentrate on the substance of the Bill and what it will deliver".[741] We understand that the purpose of this statement was to discourage proposed changes to the drafting without clarity as to whether a substantive change in policy was being sought in consequence.[742] However, this created the impression to some of those giving evidence that we would not be concerned with the potential for detailed, but possible quite significant, changes to the proposed provisions. We have interpreted our orders of reference as requiring us to focus first and foremost on the proposed provisions of the draft Bill, from their wording to their likely practical effect. The terms of the Government's own invitation for consultation have made this process harder, not easier.

393. The Government has failed to reflect the spirit of pleas by earlier ad hoc Committees undertaking pre-legislative scrutiny that such Committees be enabled to be up and running before the draft legislation under consideration is available for scrutiny.[743] We were only appointed in the last week in April and were not able to hold our first meeting until 9 May; the draft Bill was published on 7 May. We suspect that the Government gave insufficient thought to the difficulties facing an ad hoc Committee composed of members with varied and often onerous parliamentary responsibilities in establishing modus operandi such as regular times for meeting, in gaining familiarity with the process facing us and with each other and in acquiring a shared level of knowledge about the policy and technical background to the draft Bill. All of these processes could usefully have been accomplished in the period before the draft Bill was published. The Government made a commitment in principle to establishing a Joint Committee as early as November 2001.[744] It must be possible for the Government's business managers and the "usual channels", where there is cross-party agreement on the principle of pre-legislative scrutiny, to establish a Committee a few weeks before a draft Bill is published. We recommend that the Government give an undertaking that it will provide an opportunity for both Houses to debate and come to a decision on the establishment of any future Joint Committee proposed to be appointed to consider a draft Bill at least two sitting weeks before the publication of the relevant draft Bill, and further in advance if possible.

394. Finally, the timetable set for our work by the two Houses at the instigation of the Government has created major difficulties for us. The specialist resource of Parliamentary Counsel that prepares Government Bills and draft Bills is finite. It is inescapable that most of that resource will be devoted to drafting of Bills and amendments to Bills that need to pass through all stages in both Houses in a single parliamentary session. In consequence, there is an expectation that draft Bills will not emerge in the early part of a session.[745] For this reason, the pre-legislative process has sometimes been linked both in practice and principle with proposals for carry-over of Bills between parliamentary sessions. In cases where carry-over is envisaged or agreed upon, possibilities open up for less compressed timetables for pre-legislative scrutiny and subsequent formal stages. This would almost certainly result in the making of better law.

395. In the case of the Communications Bill, the linkage between pre-legislative scrutiny and carry-over does not apply. The Government has indicated that the Communications Bill will be presented in November 2002 with the aim of reaching the statute book by the end of July 2003.[746] We acknowledge that there are two sound reasons for such a timetable. First, the United Kingdom is required to give effect to the EC Directives to which Chapter 1 of Part 2 of the draft Bill relates by 25 July 2003; if the Bill is not able to receive Royal Assent by that date, the less satisfactory expedient of unamendable secondary legislation will be adopted to carry out implementation.[747] Second, we are persuaded that an unduly prolonged parliamentary process would make the transition from current regulatory regimes to the single regime of OFCOM more difficult. We also acknowledge that it would be less than ideal if the opportunity were foregone for any recommendations of this Committee accepted by Government to be reflected in the text of the Bill presented to Parliament in November.

396. Nevertheless, the time constraints that have been imposed on us have reduced the quality of the pre-legislative scrutiny process to which the draft Communications Bill has been subject. Witnesses and organisations providing written evidence have been required to prepare submissions at very short notice. The effective requirement on the Committee to conclude taking evidence before the deadline for submissions to the Government's consultation has been reached has meant that much evidence to us has a provisional air, with organisations reserving certain comments for subsequent submission to the Government's own consultation exercise. Above all, the requirement that we complete our Report before 7 August has placed a considerable strain upon our own resources, faced with the pressure to fit a gallon into a pint pot.

397. For the future, we consider it is essential that the Government recognises the additional burden faced by Parliament in undertaking pre-legislative scrutiny and the special position of Parliament in the pre-legislative consultation process. A Joint Committee ought not to be regarded as simply another participant in the Government's own consultation process, subject to the same deadlines. Such a Committee is engaged in a public and iterative process quite distinct from that by which submissions to Government consultations are prepared. The Committee is composed of members of both Houses with direct engagement in and knowledge of the parliamentary process. We recommend that, as a general rule, the Government should propose to the Houses that the deadline for a Report by a Joint Committee established to examine a draft Bill be set at least one month after the deadline for submissions to Government consultation exercises on the relevant draft Bill.

398. The Government may be tempted to respond to this and the previous recommendation by saying that these are matters not for it but for the two Houses. We urge the Government not to play with words on this issue, but to acknowledge reality: at present, pre-legislative scrutiny timetables are set entirely to suit the Government's programme of drafting and legislation. If the Government can bring itself to build these two reasonable minimum requirements into its planning from now on, it will enhance both the quality and the credibility of the process.

399. The process of pre-legislative scrutiny in this instance has been imperfect. We have made recommendations designed to remedy those imperfections. However, we would not wish to see our concerns about the process in this case overshadow a broader assessment of the value of the exercise. We believe that we have enabled the process of making the law to be more inclusive. We hope that we have established a route map that will assist both Houses in the full and detailed scrutiny that the Communications Bill merits. We are convinced that we have made recommendations in this Report to enable the Bill presented to Parliament late this year to be substantially better than the draft Bill published in May. If Parliament considers that we have achieved a more inclusive process, if it considers that we have assisted the subsequent scrutiny of the Bill and, above all, if Parliament decides that the Government has responded to our Report in an engaged and positive spirit, one that leads to a better Bill, then Parliament may also judge that the process of pre-legislative scrutiny has been worthwhile and should be developed.

730   Policy, p 3. Back

731   HC (2001-02) 539-I, para 2. Back

732   Ev 58; Q 216. Back

733   Q 242. Back

734   Annex 6, Appendix 1, para 4. Back

735   Q 950. Back

736   HC Deb, 14 May 2002, col 657. Back

737   HL Deb, 21 May 2002, cols 643, 644. Back

738   HC Deb, 1 May 2002, col 1013; HL Deb, 21 May 2002, cols 641-724; Report by the Group Appointed to Consider How The Working Practices of the House Can Be Improved, and to make Recommendations, HL Paper (2001-02) 111. Back

739   Ev 383. Back

740   Cm 5554, p 8. Back

741   Policy, para 1.3. Back

742   Q 341. Back

743   Report of the Food Standards Committee, Food Standards Draft Bill, HC (1998-99) 276-I, para 9; Joint Committee on Financial Services and Markets, Draft Financial Services and Markets Bill, HL Paper (1998-99) 50-I, HC (1998-99) 328-I, para 11. Back

744   HL Deb, 22 November 2001, col 1288. Back

745   The Government's response to the First Report from the Liaison Committee Committee on Shifting the Balance: Select Committees and the Executive, Session 1999-2000, para 40, Cm 4737. Back

746   HC (2001-02) 539-I, para 17; HL Deb, 7 May 2002, col 1029. Back

747   Policy, para 6.2.1. Back

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