Review of House of Lords Investigative and Scrutiny Committees: towards a new thematic committee structure Contents

Chapter 5: Legislative Scrutiny

Introduction

87.Legislative scrutiny committee activity is particularly important in the House of Lords for three main reasons. First, by supporting detailed and authoritative scrutiny it helps the House fulfil its function as a revising chamber. Second, it complements the work of the House of Commons which, unlike the House of Lords, routinely appoints ‘standing committees’ to consider bills off the floor of the House during their passage. The House of Lords, by contrast, has developed highly-regarded committee expertise in particular areas such as the scrutiny of delegated powers. Third, and on a practical note, as few members of the House of Lords employ staff to support them in their parliamentary role, members can rely heavily on committee reports and other briefings to assist their scrutiny of legislation.

88.Over the past two decades the House of Lords has developed a considerable reputation for the work of its committees scrutinising delegated powers and delegated legislation. We strongly endorse the work of the Joint Committee on Statutory Instruments, the Delegated Powers and Regulatory Reform Committee (DPRRC) and the Secondary Legislation Scrutiny Committee (SLSC), and note that the reports of the DPRRC and SLSC are frequently referred to in debates in both Houses of Parliament. As there is widespread agreement as to the importance of these committees this chapter focuses on suggestions for the expansion of the pre-legislative and post-legislative scrutiny activity of Lords committees, with the overall aim of improving legislative standards.

Pre-legislative scrutiny

89.The practice of publishing some bills in draft form has become increasingly widespread. Between 1992 and 1997 the Government published 18 such draft bills for consultation but none were subjected to parliamentary scrutiny. Since 1997 a number of joint committees have been appointed on an ad hoc basis to consider draft bills. The evidence received frequently results in substantial changes being made to the bill before it is eventually introduced in final form.56 Although draft bills may also be considered by a Commons departmental select committee or a Lords select committee there is obvious benefit in this scrutiny being conducted on a joint basis, as it means that members of each House can benefit from considering the evidence and consider possible amendments, thereby potentially saving time on the floor of the House during consideration of the Bill when introduced into Parliament.

90.In 2003 the Government stated that it would “proceed on the presumption that bills will be published in draft for pre-legislative scrutiny unless there is good reason otherwise”,57 but this has not proved to be the case, with the number of bills being produced in draft form before they are introduced declining from 2003 onwards. In January 2011, Lord McNally told the Lords that the then Coalition Government were “committed to simplifying and improving the quality of legislation”, and would do so “by publishing (bills) in draft for pre-legislative scrutiny where possible”.58 The Constitution Committee has consistently endorsed the use of pre-legislative scrutiny by Lords select committees and joint committees, where appropriate, and has regretted that the procedure has not been relied upon to a greater extent.59 The witnesses to this review were united in their support for the scrutiny of draft bills.

Box 2: Witness support for pre-legislative scrutiny

“The pre-legislative scrutiny is vital. There is lots of scope to undertake that work, and particularly to make sure that the legislation coming through is of the required standard.”60

“It might be more important to place greater stress on pre-legislative scrutiny so that you do not make the mistakes in the first place that require you to scrutinise them afterwards.”61

“I absolutely agree with the points about pre-legislative scrutiny because it is bringing to bear analysis and objectivity to a piece of legislation. We are a revising Chamber and we want to add value. The way in which we do that is both by pre-legislative and post-legislative scrutiny.”62

“In 10 or 20 years’ time, I hope every Act will have had prelegislative scrutiny and postlegislative scrutiny, and that where it has not been enacted or it has been proved to be ineffective it is expunged from the statute book automatically after a five-year period.”63

91.Joint committees on draft bills are typically required to complete their work within a 12 week period, in order not to delay the introduction of the bill itself. This means that the committee’s work is intensive, which is demanding for both members and staff. Despite the widespread agreement as to the importance of pre-legislative scrutiny, tThe flow of draft legislation has been inconsistent, as the chart shows:

Figure 2: Volume of pre-legislative scrutiny since 1997

Line graph showing numbers of draft bills published, scrutinised by joint committee, subject to scrutiny by committees

92.This uncertainty of workflow presents a dilemma, particularly in terms of staffing, where there is a choice between maintaining a staff team of three, who might not then have a committee to support, or wait until a draft bill has been published with a view to pre-legislative scrutiny. For obvious reasons of economy, the latter course is the one usually followed, but given the time needed to recruit staff (typically a minimum of three months) that risks dedicated staff not being recruited until after the committee is due to report.

93.We strongly endorse the importance of scrutiny of draft bills. While accepting that it is inevitable that there will be peaks and troughs in the availability of draft bills, we consider that the Government should attempt to provide greater certainty as to the timetabling of pre-legislative scrutiny committees. We recommend that committees should, where appropriate, consider undertaking the scrutiny of a draft bill within their terms of reference.

Post-legislative scrutiny

The origins of post-legislative scrutiny

94.In 2004 the Constitution Committee conducted a review of the legislative process. The Committee reported that post-legislative scrutiny was rarely conducted and when it was, it was usually in reaction to emergent problems with an Act. The Constitution Committee recommended that post-legislative scrutiny should become regular practice to determine if legislation had achieved its purpose.64 The Committee specified that Acts, other than Finance Acts, be reviewed “within three years of their commencement, or six years following their enactment, whichever is the sooner”.65 The Constitution Committee also recommended that Government departments conduct post-legislative reviews, as they had greater resources. The reports produced from these reviews should then be presented to the relevant Departmental Select committee for them to determine whether further review is necessary.66

95.In response to the Constitution Committee’s report, the Government requested the Law Commission to conduct an inquiry into post-legislative scrutiny. The Law Commission published its report in October 2006. The Commission supported systematic post-legislative scrutiny and recommended “the setting up of a new joint Parliamentary committee on post-legislative scrutiny”.67 It did not support a prescribed time frame for conducting reviews and thought that flexibility was needed to accommodate different types of legislation and reviews.68

96.In 2008 the Government responded to the Commission’s findings, taking the position that the Commons committees should decide whether to conduct post-legislative scrutiny. To facilitate this, the Government announced a formal requirement for an explanatory memorandum to be produced on the implementation of legislation three to five years after Royal Assent. The memorandum would then be submitted to the relevant Commons committee for their consideration. The Government’s Command Paper stipulated that memorandum would contain:

“information on when and how different provisions of the Act had been brought into operation information highlighting any provisions which had not been brought into force, or enabling powers not used, and explaining why not a brief description or list of the associated delegated legislation, guidance documents or other relevant material prepared or issued in connection with the Act an indication of any specific legal or drafting difficulties which had been matters of public concern (e.g. issues which had been the subject of actual litigation or of comment from parliamentary committees) and had been addressed a summary of any other known post-legislative reviews or assessments of the Act conducted in Government, by Parliament, or elsewhere a short preliminary assessment of how the Act has worked out in practice, relative to objectives and benchmarks identified at the time of the passage of the Bill.”69

97.The Government also advises that departments should discuss with the relevant Commons committee when a memorandum should be produced in the three to five year period or indeed whether it may be unnecessary to produce one.70 There is no obligation on Commons committees to undertake post-legislative scrutiny. Between December 2008 and the dissolution of Parliament in April 2010, Government figures suggest that seven memoranda were published. Under the previous Coalition Government and up to January 2013, 58 government post-legislative scrutiny memoranda were published and only three were the subject of dedicated reports by committees.71

Post-legislative scrutiny by House of Lords committees

98.The first House of Lords post-legislative scrutiny committee was appointed in the 2012–13 session to examine adoption legislation. In 2013–14, exceptionally, two post-legislative committees were appointed, and one has been appointed in each subsequent year. A total of eight House of Lords post-legislative scrutiny committees have now reported, and this work is now well-established. Whilst pre-legislative scrutiny committees typically have a tight 12-week timeframe, in order not to delay unduly the Bill’s progress through Parliament, House of Lords post-legislative scrutiny inquiries have lasted between 9–12 months.

Table 1: Historic post-legislative scrutiny committees

Name of committee

Session

Select Committee on Adoption Legislation

2012–13

Select Committee on the Mental Capacity Act 2005

2013–14

Select Committee on the Inquiries Act 2005

2013–14

Select Committee on Extradition Law

2014–15

Select Committee on the Equality Act 2010 and Disability

2015–16

Select Committee on the Licensing Act 2003

2016–17

Select Committee on the Natural Environment and Rural Communities Act 2006

2017–19

Select Committee on the Bribery Act 2010

2017–19

99.There was a striking unanimity amongst our witnesses over support for an increased focus on post-legislative scrutiny by the House of Lords. As Dr Sarah Wollaston MP observed: “Post-legislative scrutiny is not something that the Commons necessarily has the time to look at in depth. There is a particular role for the Lords in post-legislative scrutiny.”72 Mr Thomas Caygill (a PhD researcher into post-legislative scrutiny) proposed in his evidence that both Houses should receive the Memoranda, with the Commons being given first opportunity to scrutinise an Act. If the Commons did not intend to inquire into an Act, then it should be open for the Lords to consider the legislation.73

100.The effectiveness of House of Lords post-legislative scrutiny is probably best illustrated by the 2014 report on the Mental Capacity Act 2005.74 This included a lengthy chapter on Deprivation of Liberty Safeguards (DoLS) which made a large number of recommendations for improvement. The Government referred all this to the Law Commission which, in its 2017 report said:

“In the light of the House of Lords Select Committee’s report and the Cheshire West decision, the Department of Health originally asked the Law Commission to undertake a limited review of deprivations of liberty in supported living arrangements and other community settings, and to consider the learning that could be applied to the DoLS. The project was included as part of the Law Commission’s 12th programme of law reform published in 2014. Following subsequent engagement and discussion with stakeholders, Ministers agreed that it would be more appropriate for the Law Commission to consider the legislation underpinning the DoLS in its entirety.”75

101.This led to the current Mental Capacity (Amendment) Bill. It is a reasonable assumption that these reforms would not yet have happened without the Committee’s report.

102.One of the quickest Government implementations was of the recommendation of the post-legislative scrutiny Committee on the Equality Act 2010 and Disability that they should bring into force a provision, already on the statute book, requiring taxis which were free to stop and pick up disabled people rather than driving past.76 This had been strongly resisted by taxi drivers. The Committee’s report was released under embargo on the morning of 23 March 2016. At 6.00pm, six hours before the report was published, the Department for Transport issued a press notice saying it intended to implement this provision, which it did.

Box 3: Witness views on post-legislative scrutiny

“There is a lot of scope for Parliament—and this probably means the House of Lords—to be much more systematic about post-legislative scrutiny. The Government have committed to produce memoranda on Acts, five years after they are enacted. There is a degree of frustration in government about the infrequency with which Parliament picks those up and thinks about those Acts … You could have a permanent sessional committee responsible for post-legislative scrutiny, at least to ask, “What is the set of legislation that was passed five years ago? What should be the priorities for us in this Session, looking back?”77

“One of the big gaps is post-legislative scrutiny. One ad hoc committee every session looking at one Act is not enough to build up a significant body of evidence to develop the cycle of learning around legislative standards, or to influence policy debate on future legislation. That is also not something that the House of Commons does or is ever likely to in the foreseeable future. That is a very obvious gap that this House would be well equipped to fill.”78

“A committee on post legislative scrutiny… would shift things quite fundamentally in how we view legislative success. Traditionally, Ministers and some Members have treated success as Royal Assent: “Oh, we have got the Bill through. It has Assent. That is success”. No. You should assess it on whether it has had the impact it was intended to have. … It plays to the strengths of the Lords. We can do it because it is objective; it is not questioning the merits of the measure and it is not political.”79

“Post-legislative scrutiny … is important, given the complexity and the level of legislation that we have. With an area such as criminal justice, it seems to me that we have to look at that. … We are a revising Chamber and we want to add value. The way in which we do that is both by prelegislative and post-legislative scrutiny.”80

Enhancing post-legislative scrutiny

103.Noting the success of the House of Lords post-legislative scrutiny committees, and the fact that Commons committees have limited capacity to conduct in-depth reviews, we recommend that the Lords should in future play a more systematic role in post-legislative scrutiny, working in partnership with Commons committees.

104.We consider that post-legislative scrutiny inquiries are better suited to retaining a dedicated post-legislative scrutiny committee under the existing system. This committee should continue to operate on the same basis as our current post-legislative scrutiny activity, with committee Chairs and members appointed on an annual basis and the topic decided by the Liaison Committee.

105.Each year Committee Office staff have conducted a scoping exercise to ascertain which Acts which have not been scrutinised by House of Commons Committees might be the subject of a post-legislative House of Lords inquiry. The results of this exercise are then put before the Liaison Committee for consideration. This exercise is made more onerous by the fact that the House of Lords does not receive Government Memoranda on Acts. It is also the case that there is no central government database of post-implementation memoranda prepared by individual government departments, nor is there an official list of post-legislative scrutiny reviews conducted by Parliament.

106.We consider that Government Memoranda on Acts should be presented to the House of Lords as well as to Commons committees, and recommend that this practice should start as soon as practicable, with the Memoranda being presented to the Lords Liaison Committee.

107.We also recommend the establishment of a central database of post-implementation memoranda, together with a list of post-legislative scrutiny reviews conducted by Parliament, with the relevant Government response.


56 Jennifer Smookler, ‘Making a Difference? The Effectiveness of Pre-Legislative Scrutiny’, Parliamentary Affairs, July 2006, vol 59 no 3, pp 522–35.

57 HC Deb, 4 February 2003, col 134W

58 HL Deb, 17 January 2011, cols 2–3

59 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173); Pre-Legislative Scrutiny in the 2006–07 Session (4th Report, Session 2007–08, HL Paper 43); Pre-Legislative Scrutiny in the 2006–07 Session: Follow-up (8th Report, Session 2007–08, HL Paper 129); and Pre-Legislative Scrutiny in the 2008–09 and 2009–10 Sessions (8th Report, Session 2009–10, HL Paper 78)

60 Q 23 (Prof Matthew Flinders)

61 Q 152 (Baroness Fookes)

62 Q 57 (Baroness Prashar)

63 Q 53 (Lord Cormack)

64 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL 173-I) p. 42

65 Ibid., p. 44

66 Ibid., pp 45–46

67 Law Commission, Post-Legislative Scrutiny, Law Com 302, Cm 6945, October 2006, p 5: http://www.lawcom.gov.uk/app/uploads/2015/03/lc302_Post-legislative_Scrutiny.pdf [accessed 23 April 2019]

68 Ibid., p 47

69 Office of the Leader of the House of Commons, Post-legislative scrutiny: The Government’s Approach, Cm 7320, March 2008, p 15: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228516/7320.pdf [accessed 23 April 2019]

70 Ibid., p 16. The Commons’ internal guidance to committees states: “At the start of each calendar year committees should agree with their department which Acts passed within the last three to five year period are to be subject to a post-legislative scrutiny memorandum in the coming year”.

71 Westminster Foundation for Democracy, Post-legislative Scrutiny (2017), p 16: https://www.wfd.org/wp-content/uploads/2018/07/Comparative-Study-PLS-WEB.pdf [accessed 23 April 2019]

72 Q 11 (Dr Sarah Wollaston MP)

73 Written evidence from Thomas Caygill (RIS0008)

74 Select Committee on the Mental Capacity Act 2005, Mental Capacity Act 2005: post-legislative scrutiny (Report of Session 2013–14, HL Paper 139)

75 Law Commission, Mental Capacity and Deprivation of Liberty, Law Com No 372, HC 1079, March 2017, Para 1.14: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2017/03/lc372_mental_capacity.pdf [accessed 23 April 2019]

76 Select Committee on the Equality Act 2010 and Disability, The Equality Act 2010: the impact on disabled people (Report of Session 2015–16, HL Paper 117)

77 Q 5 (Dr Hannah White)

78 QQ 44–41 (Dr Ruth Fox)

79 Q 50 (Lord Norton of Louth)

80 Q 57 (Baroness Prashar)




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