House of Lords - Constitution - Fourteenth Report

Select Committee on Constitution Fourteenth Report

CHAPTER 5: Post-Legislative Scrutiny

165. Post-legislative scrutiny appears to be similar to motherhood and apple pie in that everyone appears to be in favour of it. However, unlike motherhood and apple pie, it is not much in evidence.

The importance of post-legislative scrutiny

166. The importance of post-legislative scrutiny was put in context in a thoughtful submission to us by Jean Corston MP, writing in her capacity as Chairman of the Joint Committee on Human Rights:

"As legislators, we need to pay as much attention to what happens after we have finished our specialised task of making the law as we do to the processes by which we achieve the law. The professional deformation against which we perhaps have to be most wary is supposing that legislating is the most effective way to achieve our ambitions, and that lawmaking is a precise science which can result in a perfect product. Our responsibility does not begin with a Bill's introduction to Parliament or end with the royal assent. Improving the efficiency with which we process legislation is only a small part of improving our effectiveness" (Vol. II, pp.164-167).

167. We have stressed the importance of looking at the legislative process in its totality. As Sir Michael Wheeler-Booth and Professor Vernon Bogdanor put it, "all too often, Parliament forgets about legislation once it has reached the statute book" (Vol. II, p.187, para.10). There are occasions when some post-legislative scrutiny occurs but, as Peter Riddell told us, it is "patchy at best" (Vol. II, p.27, para.9). It tends to occur only because of a realisation that something has gone wrong. An obvious and much cited example is that of the Child Support Act 1990 setting up the Child Support Agency. Alan Beith also drew attention to a more recent example with the Constitutional Affairs Committee in the Commons:

"In our case it was the legislation which set up CAFCASS, the Children's and Family Court Advisory and Support Service, which clearly was working very badly; indeed, we published an extremely critical report which led in the end to the dismissal of the entire board and a fresh start—quite a painful process, but undoubtedly a form of post-legislative scrutiny" (Q 146).

168. This example shows the potential of post-legislative scrutiny but also points to a flaw in its current usage: that is, its employment only when problems become apparent. There is rarely an attempt, and certainly no practice, of Parliament regularly reviewing legislation to ensure that it has achieved what was intended.

169. Legislation may not fulfil its intended purpose. That may come to Parliament's attention if it has palpable negative consequences. It may not come to Parliament's attention at all if it simply has no effect. In some cases, it has no effect for the simple reason that Ministers have not brought the provisions of Acts into force. It may have unintended consequences, but not of a nature to provoke groups or citizens to object.

170. There is, we believe, a strong case for regular post-legislative scrutiny to determine if legislation has achieved its purpose. As Peter Hain told us, "there is no point in passing legislation if it is not having the desired impact or it is having a different impact" (Q 57). Regular scrutiny will determine if Acts have done what they were intended to achieve; if not, it may then be possible to identify alternative means of achieving those goals. Scrutiny may also have the effect of ensuring that those who are meant to be implementing the measures are, in fact, implementing them and in the way intended.

171. Such scrutiny may also impose a much greater discipline on Government. We have already touched upon the fact that Ministers often see achievement in terms of getting their "big bill" on to the statute book. They may engage in greater circumspection if they knew that in future the measure of their success was not so much getting a measure on to the statute book as the effect that it had.

172. As such, post-legislative scrutiny may improve the quality of Government. It may also contribute to improvement in the legislative process. Assumptions about the legislative process derive from observations and experience of the process itself up to royal assent. Margaret Beckett advocated post-legislative review "in order to illuminate and see what lessons can be learnt for the future handling of the legislative process" (Vol. II, pp.159-161). As Lord Grenfell noted, post-legislative scrutiny would be a means of assessing the utility of pre-legislative scrutiny (Q 486). We have stressed throughout this report the importance of ensuring that Parliament has mechanisms to ensure that bills are fit for purpose, but how does Parliament know that the bills, once enacted, have actually proved fit for purpose?

173. The case for greater post-legislative scrutiny is, we believe, compelling. It is one widely accepted by those who gave evidence to us.[93] The question then becomes not one of principle, but rather one of how to give effect to it. A problem with carrying out post-legislative scrutiny is, as several witnesses reminded us, one of resources.[94] Limited resources constrain the capacity for extensive post-legislative scrutiny and some witnesses advocated selective post-legislative scrutiny. "Post-legislative scrutiny is, in my view", Lord Elis-Thomas told us, "best exercised selectively. I would not advocate any system of mandatory parliamentary post-legislative scrutiny for all Acts of Parliament" (Vol. II, p.170, para.5).

Selecting measures for post-legislative scrutiny

174. The problem with selective post-legislative scrutiny is one of determining the method of selection. If left to Government, the danger is that there will be certain measures that it does not want to be scrutinised and where, arguably, the case for scrutiny may be particularly compelling. If left to Select Committees, there is the danger they will focus—as now—on the high-profile Acts that have gone wrong, a tendency that is understandable given limited resources and the need to prioritise workloads.

175. We believe that there is a case for regular, indeed standard, post-legislative scrutiny. We are conscious of the burdens already placed on Parliament. The scrutiny that we propose, as we shall explain, need not necessarily be resource-intensive.

176. In terms of achieving a standard method of post-legislative scrutiny, we have already proposed the means for evaluating measures: that is, providing in the Explanatory Notes to a Bill the criteria by which to assess whether it has fulfilled its purpose. Which bodies, though, should engage in such scrutiny?

177. We have had various proposals put to us. John Greenway, for example, thought this scrutiny was something to which House of Commons Select Committees would be especially suited (Q 383). Dr Lewis Moonie said he would welcome scrutiny by Joint Committees (Vol. II, p.111, para.2(c)). The Hansard Society also saw the value of Joint Committees, bringing in different sets of expertise (Q 444). Paul Tyler considered that a Joint Committee would be appropriate "where it becomes apparent that legislation is so badly off the rails that it requires special attention" (Q 283). George Cunningham suggested that, given the demands already on Departmental Select Committees, there was a case for creating committees on a "twin basis", operating in the same policy field but with different roles (Vol. II, p.168, para.4).

178. We have given considerable thought to the best way to achieve post-legislative scrutiny, not least given limited parliamentary resources. We recognise the burden that would be placed on Departmental Select Committees if they were vested with responsibility for engaging in extensive post-legislative scrutiny. We believe they should be the bodies for considering the effect of legislation but we believe this can be achieved without imposing an onerous burden.

179. In order to ensure the proper scrutiny of legislation, we believe that there should be a review within a set number of years—we suggest three years—after the provisions of the Act have been brought into effect. We also believe that there should be a set period following the passage of the Act when it should be reviewed. We think six years would be appropriate. This is in order to cover cases where a Minister may not have brought the provisions into force. A review would then force a Minister to explain why it had not been brought into effect. An alternative to this latter proposal would be to utilise—as some witnesses have recommended—"sunset clauses", providing that the provisions would cease to have effect after a stipulated period.[95] We recognise there will be occasions when a review is premature, otiose—for example, if superseded by a later Act—or impractical.

180. We recommend that most Acts, other than Finance Acts, should normally be subject to review within three years of their commencement, or six years following their enactment, whichever is the sooner.

181. The periods we have recommended are maximum periods. Robin Cook thought that each Act should be reviewed a year after being passed by Parliament (Q 124). He thought this would have been useful in the case of measures such as the Child Support Act and the Dangerous Dogs Act. It would, of course, be open to committees to decide that an early review is necessary, either in the light of immediate negative responses—as from constituents—or because of the nature of the Act.

Resources

182. Given the problem of resources, we believe that pressure on Parliament can be reduced in two ways, without undermining Parliament's ultimate responsibility. The first is by relying more on departmental reviews of legislation. Peter Hain told us that "Departments are frequently involved in assessing the effects of legislation and policy at pretty well all stages. Whether it is done sufficiently rigorously or consistently is another question" (Q 57). We believe that there should be consistent reviews. We see obvious value in departments undertaking a review, based on the criteria embodied in the Explanatory Notes. This, we think, will be of considerable value to Government in assessing the effect of its measures as well as providing a greater discipline in the preparation of legislation.

183. We recommend below that Government departments should review the effects of legislation. They should do so against the criteria they had previously set out in the Explanatory Notes to the measures, and within the time limits that we have identified.

184. The review of each Act need not necessarily be an extensive exercise. Some measures may be minor and have, and expected to have, limited consequences. Others may require more attention. In his evidence to us, one former Cabinet Minister, Douglas Hogg, suggested one way to undertake each review:

"… the department with charge of the Bill, once it is enacted, should for a period of time establish a group, a working party within the department, with a special remit for taking complaints about the working of the bill, and establish a report" (Q 283).

185. We believe that there is also a case for instituting a consultation exercise, similar to that which applies with pre-legislative consultation and with a similar period for responses. We believe that post-legislative consultation has much to commend it. This could be complemented by a working party, as recommended by Mr Hogg, which would be able to consider the responses. We would envisage that, as with pre-legislative consultation, guidelines would be established by the Cabinet Office.

186. Once a departmental review is completed, we believe that it should be deposited with the relevant Departmental Select Committee. It would then be for the committee to examine the report and to determine whether further review is necessary. Given the demands on Select Committees, we recognise that undertaking a major review of its own would be time-consuming and that there would be considerable opportunity costs. The recommendations we have made for pre-legislative scrutiny have significant implications for committee workloads. Given that, we believe there is a case for the Select Committees having ownership of the review process but not necessarily carrying out the review themselves.

187. Select Committees are empowered to appoint specialist advisers. There is also a research budget on which they can draw. To date, they have not been extensive users of that budget. Some years ago, Sir John Banham, in The Anatomy of Change, recommended that each Departmental Select Committee should have a budget of £2 million a year. Giving the committees a research budget would permit them to commission independent research on the effects of an Act. This would have two benefits. One is that it would save the time of the committee. It would not need to take time examining witnesses. Another is that it would enable it to achieve an objective assessment. Witnesses appearing before committees are usually self-serving—understandably so—in what they say.

188. An alternative to commissioning independent research would be to invite a review by the National Audit Office or to expand the Scrutiny Unit so that it could engage in such an evaluation at the request of a committee. We also note the value of a practice we have commended earlier, and that is the use of seminars and other informal gatherings. A committee may find it useful to hold a seminar with those responsible for implementing, or affected by, an Act to explore whether problems have arisen and what issues, if any, deserve further investigation and evaluation.

189. We recommend that each Government department undertakes a review of an Act, against the criteria it provided in the Explanatory Notes, within the time period that we have identified, and that copies of these reviews be deposited with the appropriate Departmental Select Committee.

190. We recommend that the reviews undertaken by departments include consultation with interested parties, similar to consultation at the pre-legislative stage.

191. We recommend that money should be made available from the parliamentary budget to allow Departmental Select and other Committees, if they elect to do so, to commission research on the effect of an Act.