2016–17: Insights from the last ‘normal’ parliamentary session?

Dr Ruth Dixon of the Blavatnik School of Government, University of Oxford, who was a Parliamentary Academic Fellow in 2018–19, discusses the efficacy of parliamentary scrutiny during 2016-2017The post was originally published on the House of Lords Library blog but has been kindly shared with the PSA Parliaments group.

An academic fellowship with the House of Lords Library allowed me to analyse the 2016–17 parliamentary session—my study was published as a Library Briefing Note last July. In retrospect, 2016–17 may have been the last ‘normal’ session that we can expect for some time. In this post, I explore what we might learn from that session in these unusual times.

The  2016–17 session was not without incident, of course. In June 2016, Prime Minister David Cameron resigned following the EU referendum. In April 2017, Cameron’s successor Theresa May unexpectedly asked Parliament to agree to hold a general election. MPs voted for the election and ended the parliamentary session about a month early. Nevertheless, with a small Conservative majority, the government’s legislative programme was more-or-less complete by that time and the session ended in an orderly way.

Subsequent sessions have been far more turbulent. Theresa May lost her majority in the 2017 election and failed three times to win parliamentary support for her EU withdrawal agreement. After May’s resignation, Boris Johnson became Prime Minister. The subsequent election of a majority Conservative government in December 2019 could have led to a return to more familiar parliamentary politics. But as we know, the coronavirus pandemic has meant that Parliament is now operating under decidedly abnormal conditions.

Lessons from the 2016–17 session

So how can the 2016–17 session inform the current situation? I believe it offers two main lessons.

First, we can see how Parliament reacted to an unexpected event, the announcement of the 2017 general election. Of course, a ‘snap’ election is not unprecedented but this one took legislators and officials by surprise, both because the Prime Minister was understood to have ruled out the possibility and because the Fixed Term Parliaments Act 2011 was meant to make such elections less likely. Nevertheless, Parliament showed how quickly it could adapt its procedures and timetables to complete the government’s programme in the five sitting days remaining—the so-called ‘wash-up’ period. Legislation was drafted to enable local taxes to be collected in the absence of a Northern Ireland Executive and to allow appointment of ministers should Stormont be reconvened while the Westminster parliament was suspended. The Government compromised on its massive Finance Bill, cutting it to about a fifth of its original length. Just three government bills were lost, though they were already expected to be carried over to the following session had there not been a general election. Time was also made for conventions to be observed such as farewell speeches from long-serving MPs, one maiden speech, and tributes to retiring MPs and officials.

Second, Parliament did not simply act as a ‘rubber-stamp’ either during wash-up or before it. One or more stages of nine government bills were debated across the two chambers during wash-up. The Lords insisted on amendments in several cases and government concessions were made in the form of ‘amendments in lieu’. As my study reported, the UK Parliament is assessed as ‘weak’ in international comparisons relative to the executive government and the second chamber is often portrayed as lacking influence and legitimacy relative to the elected chamber. There are fewer opportunities for opposition MPs or government backbenchers to make substantial changes to bills than in many other legislatures and the Commons can overturn Lords amendments. Nevertheless, when it chooses to use its powers, Parliament can make a difference.

How parliamentary scrutiny affected the Children and Social Work Act 2017

An example occurred during the passage of the Children and Social Work Act 2017. Initially, this bill does not appear to have been considered controversial by the Government. The bill was introduced first in the Lords—which is not usually the case for controversial bills—and scrutiny committees had not raised particular concerns. One of the bill’s proposals, however, attracted critical attention. It proposed that any aspect of children’s social care legislation could be waived for up to six years by the Secretary of State by secondary legislation at the request of a local authority. This was intended to allow local authorities to pilot innovations in children’s social care and to reduce the regulatory burden on social workers. As noted in a Lords Library briefing at the time, children’s charities and advocacy groups voiced their opposition even before the bill entered parliament. They argued that these provisions could remove valuable statutory protections and duties towards children.

After extensive debate, the Lords voted at report stage to remove the provisions, arguing that innovation in children’s social care did not require such far-reaching powers. When the bill reached the Commons, ministers argued that the provisions were too important to let drop. Despite the concerns expressed across the chamber in the second reading debate, the clauses were reinserted in revised form at committee stage. Unusually, that was not the end of the matter. Opposition outside parliament grew, and a petition with over 100,000 signatures was presented to the government. Finally, a meeting of opponents from both Houses with the Secretary of State for Education resulted in the clauses being removed from the Bill at Commons report stage—the government’s amendments pre-empting further opposition in the Commons or a possible defeat in the Lords.

Continuing importance of scrutiny in Parliament

Even—indeed especially—in a crisis, Parliament’s scrutiny function remains essential. While the Government must be able to use emergency powers, its ability to bypass parliamentary scrutiny should be used with discretion. For example, the Government has attracted criticism for amending the ‘lockdown’ regulations three times using an urgent procedure that requires only retrospective parliamentary approval when Parliament could in principle have debated and voted on the proposals before they came into force. Temporary changes to children’s social care provisions—reminiscent of those rejected in 2017—have also drawn criticism from the Children’s Commissioner.

In 2017, Parliament showed that it could react rapidly and effectively to an unexpected event. In the far more serious situation of Covid-19, parliaments across the world have made radical changes.  In the UK, the Commons swiftly introduced hybrid working—even enabling online voting—albeit temporarily. The House of Lords has been meeting largely remotely and started hybrid proceedings on 8 June. It plans to introduce online voting from 15 June. Parliament has a long history of holding the executive to account—there is no reason why the Commons or the Lords should allow this important function to be attenuated during this crisis.

Dr Ruth Dixon is a Research Fellow at the Blavatnik School of Government, Oxford. This blog has been reproduced from an original posting at the House of Lords Library blog.

July 2020 Newsletter

Dear All

We hope that, wherever you are, you are keeping safe and well. We have some updates for you, including:

1. Our Annual Conference: Deadline Approaching!
2. Parliamentary Media & Communication: Request for Academic Contacts
3. Welcome to our New Membership Officer, Caroline Bhattacharya!
4. Join our New PSA Parliaments Facebook Group
5. Recently on the Blog
6. Recent Publications that have Caught our Eye

We will be taking a break during August and not distributing a newsletter. If you have any notices/messages you would like us to circulate to the group when we return in September, please let us know by emailing us.

Best wishes

Stephen (@Stephen_R_Bates), Louise (@LouiseVThompson), Seán (@S_Haughey), Gavin (@GavinHart10) and Caroline (@CarolineBha)

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Post-Legislative Scrutiny in Paris and London

How do the national parliaments of France and the UK assess the impact of the legislation they have adopted? In this article, Franklin De Vrieze compares the role of parliamentary committees and the outcome of the legislative impact assessments in both countries. It is based on the recent Westminster Foundation for Democracy publication, Post-Legislative Scrutiny in Europe.

A growing number of parliaments want to know the extent to which the laws they have adopted are being implemented and have an impact. Such evaluation is called post-legislative scrutiny (PLS). It has been included in regular parliamentary practices around the world, in different ways and according to different procedures.

In this article, I will compare the PLS practices in the bicameral parliaments of the UK and France. While recognizing the different political systems of both countries, the comparison will focus on the role of parliamentary committees in PLS and on the outcome of the process of PLS.

Role of French parliamentary committees regarding PLS

Both chambers of the French Parliament are characterised by standing committees that assume both legislative and oversight roles. The committee that has dealt with making a certain decision is responsible for assessing how that decision has been implemented. Follow-up and evaluation have thus become a natural task for parliamentary committees in France.

The French National Assembly has set up several mechanisms related to PLS. Firstly, implementation reports concerning laws which require rules of a regulatory nature (secondary legislation) are presented before standing committees. Secondly, temporary assessment, monitoring missions and commissions of inquiry can be set up. The work of fact-finding missions can last for several months, during which the members carry out interviews and visits. The process concludes by filing an information report. Thirdly, more permanent structures are developed, such as the MEC (an assessment and monitoring mission in charge of evaluating the results of certain public policies) set up within the Finance Committee of the National Assembly, the MECSS (the Assessment and Monitoring Mission for Social Security Financing Laws) set up within the Social Affairs Committee of the National Assembly and the Senate, the Commission for the Assessment and Monitoring of Public Policies (CEC), and the parliamentary delegations.

In the French Senate, the PLS function is conducted by a Délégation, a group of Senators specifically charged with analysis and assessing the extent to which the government has enacted the dispositions necessary in order to put laws into practice. The work of the French Senate Délégation is carried out in conjunction with the sectoral committees, as well as the secretariat of the Prime Minister’s Office, which itself maintains records of legislative implementation within ministries. While the PLS approach in the French Senate has been carried out consistently over the past decades, it is not enshrined in the rules of procedure of the Senate, but established through a resolution of the Bureau and subject to revision as needed.

The French National Assembly in Paris ©Assemblee Nationale

 Role of UK parliamentary committees regarding PLS

A good portion of the activities of the departmental select committees in the UK House of Commons (HoC) involves PLS, even if Members do not explicitly describe it this way.

Over the past 12 years, the UK Government and Parliament have taken a more systematic approach to PLS. Government departments are expected to prepare and publish memoranda on the acts passed by parliament within three to five years of the act entering the statue books. The memoranda present a ‘preliminary assessment’, intended to be relatively ‘light touch’ but of sufficient depth to allow an informed judgement as to whether a fuller assessment by the relevant parliamentary committee is worthwhile. These memoranda are presented to departmental select committees in the HoC. With regards to the House of Lords (HoL), in 2012, the Liaison Committee promised to appoint at least one ad hoc committee per session to undertake PLS on a subject chosen by it.

There are differences in how the two Houses of the UK Parliament select legislation for PLS. Since PLS is one of the tasks of departmental select committees in the House of Commons, it is at their discretion to determine when to undertake scrutiny on a piece of legislation. There are a number of reasons why a committee may decide to undertake PLS and select the legislation that it does, including representations by stakeholders or sectors of industry, receipt of the memorandum by a Department on the implementation of a specific law, or when there is a reasonably high level of interest among the Members.

The Liaison Committee in the HoL is more proactive than its HoC equivalent when it comes to PLS, as it formally recommends which committees are set up and what topics are examined. Lord Norton thus rightly stated that “in the House of Commons, PLS has been committee-driven, whereas in the House of Lords it has been chamber-driven.”

The UK Parliament tries to ensure complementarity in PLS and avoid duplication between the two houses. Lord Norton’s view is that in the HoL the process of selection has been more self-contained and pro-active, opting for reviews that are deemed important, timely, play to its strengths, and are not overly politically contentious. Whereas the HoC will examine an act if it knows the government is thinking of making changes to it, the HoL prefers not to engage in work it deems already underway.

The UK House of Lords in London ©UK Parliament, Roger Harris

Outcomes of PLS in France

Regarding the outcomes of the PLS in the French National Assembly, an annual overview on law enforcement comprising the scrutiny reports from all committees is submitted to the “Conference of the Presidents” of the National Assembly. The subsequent dialogue with the government focusses primarily on the fulfilment of formal implementing duties than on the evaluation of the economic, environmental, and/or social impact of each piece of legislation.

In the French National Assembly, ex-post evaluation has led primarily to the reinforcement of fact-finding and inquiry tools. Findings of the reports are used in parliamentary debates and in letters to the Prime Minister or the concerned Minister.

In the French Senate, the 2017 annual report of the Délégation noted that “the rate of publication of enabling texts has reached approximately 90%, an increase compared to the 80% of last year and the 65% of the session 2013-2014”. In the 2018 report, the chairperson noted that while the percentage of enabling measures enacted by the government had increased again, there was often a delay in government responses to parliamentary questions regarding the application of laws. The annual report on the implementation of the legislation is, in general, discussed with the government in a debate in the plenary chamber.

Outcomes of PLS in the United Kingdom

Dr Tom Caygill’s research on PLS in the UK Parliament has highlighted the differences in the types of recommendations being made by both houses: the ad hoc committees of the HoL are making proportionally more recommendations calling for action in relation to legislation and more recommendations relating to policy and practice as compared to the HoC.

Regarding the first, this can be explained by the fact that the HoL often takes a more technical approach to scrutiny, mixed with the expertise and time its committees have to undertake their inquiries. Regarding the second, this could be a reflection that the HoL is willing to pressure the government with stronger recommendations on the basis of expertise and experience. However, the stronger a recommendation is, the more likely it is rejected by the government. Overall acceptance of PLS recommendations by the UK government stands at 39%.

In comparison with the HoC, the HoL makes fewer recommendations calling for further research and review. This can be explained by the fact that PLS committees in the House of Lords hold their inquiries over an entire year and therefore have more time to undertake a more detailed review and potentially reach firmer conclusions than committees in the House of Commons.

Still, the extent of PLS has remained limited. Dr Caygill called it the “post-legislative scrutiny gap”. The UK government has only published a limited number of PLS memoranda, which has decreased each year since 2012. There is an issue with these memoranda being picked up by departmental select committees and with committees deciding to conduct a PLS inquiry. Part of the reason why committees are not engaging more systematically in PLS might be related to events taking over. These can be both political events like elections, new policy announcements which divert the attention of the committee away from tasks such as PLS, or committee work programmes being overtaken by parliamentary and legislative cycles.

If committees in the HoC do follow-up after a report is published, it is often limited to correspondence or annual oral evidence sessions, rather than undertaking a follow-up inquiry. In the HoL, the challenges for follow-up are procedural as the ad hoc committee is dissolved after the publication of its report. The House of Lords Liaison Committee does provide some limited written follow-up. As they are aware of these weaknesses, both the HoC and HoL Liaision Committees have since re-emphasised the importance of better following-up on inquiries.

Conclusion

The French Parliament decides autonomously about which laws to select for PLS, based on its own criteria and priorities. It seems that the formal monitoring of law enactment prevails over impact assessment. While the National Assembly and the Senate aim for follow-up to the findings and recommendations of the PLS reports, the PLS reports are rarely voted upon; and the interaction with the government on its follow-up is mostly developed informally.

In the UK, the HoC select committees and the HoL ad-hoc PLS committees always consider the initial government memorandum regarding the law under review. They put more emphasis on assessing the impact and possible unintended consequences of the law. The UK government provides a written response to each of the findings and recommendations of the PLS report within two months of publication of the report.

The comparison between France and the UK indicates how different parliaments put more emphasis on one or the other of the two dimensions of PLS: firstly, to evaluate the technical entrance into force and the enactment of a piece of legislation; and secondly, to evaluate its relationship with intended policy outcomes and the impact. To the extent that parliaments seek to carry out both dimensions, PLS facilitates continuously improvement of the law itself and policy implementation. PLS thus contributes to increased governance effectiveness and accountability.

Franklin De Vrieze Senior Governance Adviser, Westminster Foundation for Democracy

Welcome to our Bonus June 2020 newsletter!

Dear all,

We hope that, wherever you are, you are keeping safe and well. Due to some upcoming deadlines, we have a short bonus newsletter for you this month, including:

  1. POST’s Parliamentary Academic Fellowship Scheme: Applications are open
  2. House of Lords Constitution Committee inquiry into the constitutional implications of Covid-19: Call for evidence
  3. Our Annual Conference: Call for Papers/Blogs

If you have any notices/messages you would like us to circulate to the group, please let us know.

Best wishes,
Stephen (@Stephen_R_Bates), Louise (@LouiseVThompson), Gavin (@GavinHart10) and Seán (@S_Haughey)

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