CHAPTER 6: FURTHER CONCLUSIONS |
(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".
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be out-of-date before Royal Assent".
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.
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,
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
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.
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
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.
(II) THE MERITS, LIMITS
AND FUTURE OF PRE-LEGISLATIVE SCRUTINY
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".
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,
"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."
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."
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.
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".
By 1 July, the Government was expecting the draft Clauses "by
the beginning of August".
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".
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.
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
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.
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.
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
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.
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.
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
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
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
HC (2001-02) 539-I, para 2. Back
Ev 58; Q 216. Back
Q 242. Back
Annex 6, Appendix 1, para 4. Back
Q 950. Back
HC Deb, 14 May 2002, col 657. Back
HL Deb, 21 May 2002, cols 643, 644. Back
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
Ev 383. Back
Cm 5554, p 8. Back
Policy, para 1.3. Back
Q 341. Back
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
HL Deb, 22 November 2001, col 1288. Back
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
HC (2001-02) 539-I, para 17; HL Deb, 7 May 2002, col 1029. Back
Policy, para 6.2.1. Back