By the Lincoln Policy Group
The Lincoln Policy Group established a research project in 2014 that aims to develop understanding of how the parliamentary scrutiny process affects and is affected by the use of evidence and expertise. We considered the roles of contested values alongside evidence in influencing the quality of parliamentary scrutiny as well as legislative and policy outcomes. We have recently published a project report and this blog piece summarises our key preliminary findings.
We decided to focus on policy as legislation. While this does not encompass many of the variety of meanings that have been ascribed to policy, it reduces the challenges associated with determining whether something is or is not a policy, or for that matter what ‘the policy’ is. The research used a case study design and a variety of sources of evidence, including documentary records and interviews with key actors, and focused on two pieces of legislation, the National Minimum Wage Act 1998 and the Academies Act 2010. These were chosen as they were flagship policies of the Labour government elected in 1997 and the 2010 Coalition government, represent different types of legislation, reflected considerable preparatory work by the parties while in opposition, were foreshadowed in general election manifestos, and were intended to have significant impacts upon key policy areas.
The National Minimum Wage Act has been widely viewed as a ‘success’, while the Academies Act has resulted in a significant increase in the number of Academy schools, although there are mixed judgements on its impact on educational achievement. A case study approach was taken in order to track the passage of the two Acts in depth. Generally speaking, the ‘aims’ of the policies were taken as those identified in parliamentary debates. Claims about the aims of the policies identified in interviews are used in a supplemental way, and contribute to understanding what might be seen as ‘unspoken’ aims of legislation.
Our research found significant similarities in the approaches of both governments and oppositions in terms of the scrutiny of the two pieces of legislation. There was a clear tendency on both sides to present their arguments as principled and philosophical in nature, rather than as detailed and specific. Despite the preparation that both incoming governments had done in opposition, there was relatively little use made by the governments of detailed evidence during the passage of the Bills, let alone by the opposition parties. Similarly, there were very few references to anticipated outcomes that might be measured at some point in the future, perhaps because governments are unwilling to create potential hostages to fortune. Moreover, there was little discussion in the debates by either supporters or opponents of evidence of input from experts, or indeed by external actors more generally.
For both Bills there was a lack of pre-legislative scrutiny, although it is questionable whether it would have made any difference in these circumstances, given each government’s clear prioritisation of each measure, and the preparation that the parties had undertaken in opposition. Indeed, what a period of pre-legislative scrutiny might have allowed would have been time for critics outside Parliament to organise their opposition, perhaps particularly against the Academies Bill, where there may have been less consensus on the desirability of the measure, and for a government determined to press ahead with particular policies, that could lead to delays and difficulties. In addition, each government clearly claimed an electoral mandate to proceed with their programme.
Both Bills therefore benefitted from being introduced by a newly elected government with claims to legitimacy, while the work done in opposition contributed to the confidence of those responsible for introducing each measure in relation to their intended ends, and also with regard to their responses to critics. In both cases this was enhanced by the framing of the arguments by the government: in the case of the National Minimum Wage Bill these included that the Conservatives had lost the argument, and that the measure was at least as concerned with benefits for the economy as with fairness and social justice; for the Academies Bill, some of the principal arguments were that the measure built upon Labour’s academies programme, that it drew upon positive developments in countries such as Sweden and the United States, and it would also help counter Britain’s falling position in international league tables.
Given these factors, it is perhaps understandable that in both cases in Parliament the opposition and other critics tended to identify a number of issues early in the process and stuck with them, and that as with the government’s arguments, these often reflected broad philosophical positions. It is also unsurprising that amendments in both cases were relatively minor, and were not seen as ‘big wins’ by opponents. In both there was, however, no consensus among those involved in the quality of scrutiny. Those in opposition tended to feel that they had done their best in both instances, although they also recognised that there were a variety of factors that had mitigated against their positions. Although views varied, ministers, special advisers and civil servants were more sceptical about the quality of parliamentary scrutiny, and not just in relation to these measures, but often more generally.
These findings have implications for post-legislative scrutiny, whether by Parliament or others, as, unless the aims of a bill are made relatively clear and specific, post-legislative scrutiny is likely to have to rely on post hoc judgements of intentions and how these might be measured. The two cases examined suggest that there is considerable scope for further improvement in terms of the use of evidence and expertise in the process of legislative scrutiny. In our view, a system of robust or policy enhancing scrutiny would likely include the following elements:
- processes of pre-legislative scrutiny (e.g. pre-legislative planning/research/consultation by the government, submission of draft bills);
- parliamentary time provided for debate at each stage;
- the use of evidence and expertise to inform parliamentary debate;
- the inclusion of extra-parliamentary policy stakeholders in legislative debate;
- multiple structures/mechanisms for debate (e.g. readings in both Houses, effective use of legislative committees);
- evidence of impact (e.g. redrafted bills, number of amendments, etc.);
- evidence of independence of the legislative process from the government (e.g. relative dominance of ‘rules’ versus ‘government discretion’ in determining parliamentary scrutiny in given cases);
- opportunities for post-legislative scrutiny.
In addition, it might also be anticipated that concern for enhancing policy making through parliamentary scrutiny would be reflected in an appropriate framing of legislation facilitative of effective and ‘objective’ evaluation of policy and policy outcomes, rather than broad claims and assertions. Arguably, the ability to scrutinise policy by reference to such criteria would itself be an important mechanism for enhancing the quality of policy.
The Lincoln Policy Group comprises the following academics: Phil Begley, Catherine Bochel, Hugh Bochel, Andrew Defty, Jan Gordon, Kaisa Hinkkainen, Ben Kisby, Steve McKay, Gerry Strange. For more information about the University of Lincoln’s School of Social & Political Sciences, please click here.