By Thomas Caygill
All too often, once legislation has entered the statute book, Parliament assumes that is the end of the matter and the end of its role. However it has been noted by the House of Lords Constitution Committee that Parliament’s responsibility for legislation should not end once legislation has entered the statute book. This is where post-legislative scrutiny enters the picture.
Since 2012, government departments have been required to publish memoranda, assessing whether Acts of Parliament have met their key objectives within three to five years of the Acts entering the statue book. Parliament then has the opportunity to select such memoranda for further scrutiny and it is often departmental select committees and ad hoc committees (created by the House of Lords) who then provide that more detailed scrutiny.
Post-legislative scrutiny is an important mechanism which allows Parliament to revisit legislation following Royal Assent to assess the implementation of the Act and whether the Act is operating as intended. For example, the confusion and concern during the 2015 General Election campaign surrounding the implications and potential consequences of the Fixed Term Parliament Act (should the result have ended with a hung parliament), highlights why post-legislative scrutiny is an important mechanism to ensure that the Act can operate as intended, in all scenarios (though this is technically not due until after the 2020 general election).
The need for post-legislative scrutiny is placed within the context of a large numbers of bills being enacted each year, a lot of which, due to practical constraints, do not receive the fullest scrutiny during the formal legislative process. The aim of post-legislative scrutiny is not to stem that flow but rather to reflect upon what lessons can be learned from Acts of Parliament in terms of content and in terms of drafting and passage.
The previous Labour Government, in its response to the Law Commission’s report acknowledged such reflection as one of the key benefits of post-legislative scrutiny. There are, however, further benefits which the government outlined:
- It allows Parliament to assess whether legislation is working out as intended;
- It can contribute to better regulation;
- It can improve the focus upon implementation and delivery; and,
- It can identify and disseminate good practice.
However, while post-legislative scrutiny seems to be a good thing, and though there is a lot we know about post-legislative scrutiny, there is also a lot which we still do not know, especially about the processes in the UK Parliament. I am currently undertaking research in this area with four key questions in mind. First, what is post-legislative scrutiny? While we have some understanding of what it is (as indicated above), defining post-legislative scrutiny is no easy task as it often means different things to different people. It can range from a wide-ranging policy review to a quite technical review of the drafting of legislation. This was certainly true in previous research I carried out on post-legislative scrutiny in the Scottish Parliament. There was no formal definition of what constitutes post-legislative scrutiny and as such due to its wide nature; it is possible for post-legislative scrutiny to be undertaken unconsciously during other routine work/inquiries. As such, this question requires further consideration for the UK Parliament.
Second, how is post-legislative scrutiny undertaken? There are numerous forms which it can take. Indeed, it has been acknowledged that there is a need for flexibility (Office of the Leader of the House of Commons, 2008; Standards, Procedures and Public Appointments Committee, 2013) in order to avoid a one size fits all approach. This is due to the fact that post-legislative scrutiny can range from a wide ranging policy review to a smaller technical examination of drafting. Previous research on the Scottish Parliament showed that post-legislative scrutiny could be undertaken in a number of ways, from a formal inquiry to a one-off evidence session. Post-legislative scrutiny can also focus on an entire Act, on certain provisions within an Act, and on a policy area involving more than one Act. Thus, we need to map out exactly how post-legislative can be, and is being, undertaken by the UK Parliament.
The House of Lords Constitution Committee, in its report entitled Parliament and the Legislative Process noted that there was an increased use of post-legislative scrutiny but that it is patchy at best. This leads to the third question: how extensively have formal processes of post-legislative scrutiny been carried out by the UK Parliament? To date there is no comprehensive list of post-legislative scrutiny inquiries or reports. However previous research on the Scottish Parliament showed 15 Acts of the Scottish Parliament receiving post-legislative scrutiny of some sort between 1999 and 2014. Ten of those Acts were reviewed formally by a committee (in which a report was published and a government response was received), through eight inquiries (some inquires assessed more than one Act). This was in comparison to 220 Acts passing within the same time frame. This indicates that, in comparison to the number of Acts passed, the number of Acts receiving post-legislative scrutiny was limited. Is the same true of the UK Parliament?
Finally when asking the questions of what, how and when in relation to post-legislative scrutiny, it also raises a fourth question of the impact of post-legislative scrutiny. My research on the Scottish Parliament showed the majority of recommendations made by committees required no or little change. As such it was then not surprising that most of the recommendations were either fully or partially accepted. Regression analysis also showed that the more contentious a piece of legislation, the more likely it was to receive stronger recommendations for change. In terms of acceptance of recommendations it was not surprising to see it was more likely to see recommendations rejected if they required big policy change. This research on the Scottish Parliament sets a benchmark off which the findings from this research can be compared and it will be interesting to see the similarities and differences between the two parliaments.
My aim over the next two years is to answer these questions, in order provide a much clearer understanding of post-legislative scrutiny and its operation within the UK Parliament.
Tom Caygill is an ESRC-funded PhD student in the School of Geography, Politics and Sociology at Newcastle University. His main interests are the scrutiny of government, the legislative process and parliamentary reform. He tweets @thomascaygill.