Reforming the legislative process

Lord Norton

I promised in response to a comment on an earlier post to discuss post-legislative scrutiny. 

  When I chaired the Constitution Committee of the Lords, we undertook a major inquiry into the legislative process.   We looked at the legislative process holistically, examining not only the process when a Bill is before Parliament but also pre-legislative and post-legislative scrutiny. 

There have been welcome advances in recent years, both in terms of pre-legislative scrutiny (though this still needs to be pervasive) and in the employment of public bill committees for taking evidence when a Bill is before the House of Commons.  It is after enactment of a measure that there remains a major, gaping lacuna.

For both Parliament and ministers, the end of the legislative process is effectively Royal Assent.  New ministers want to make a mark and get a big Bill enacted.  Success is measured in terms of getting a Bill passed, not in terms of its effect.  Parliament rarely examines whether Acts of Parliament actually fulfil their intended purpose.  We hear about Acts that prove disastrous, but not about those that have no effect or a different (but not disastrous) effect to that intended.

To address the problem, we recommended the greater use of post-legislative scrutiny.  We wanted Bills to be accompanied by published criteria by which one could judge whether, after enactment, they had fulfilled their purpose.  These could then be used as the basis for post-legislative scrutiny.  We recommended Departments engage in such scrutiny and produce reports which were then transmitted to Parliament. Parliament could then decide whether to undertake an inquiry or not into the effectiveness of the measure.

In response to our report, the Government referred the issue of post-legislative scrutiny to the Law Commission.  The Commission issued its report in October 2006, recommending reviews by Departments and for departmental select committees to have the option of undertaking inquiries if they wished in the light of those reports; if they did not wish to do so, there should be a Joint Committee of both Houses to consider if an inquiry would be justified.

The Goverment exceeded its agreed time limit for responding to the Commission’s report but eventually did so last month.  The response was more positive than I was expecting.  It is a case of two cheers.  The Government accepts the need for Departments to review the effect of Acts and for departmental select committees to have the opportunity to consider whether to pursue inquiries.  However, the Government has not endorsed the recommendation for a Joint Committee.  Without that, there is the danger of measures deserving parliamentary scrutiny being ignored.  Departmental select committees are extremely busy and will have limited time for post-legislative scrutiny.  It is essential, therefore, that there is a committee with the ability to undertake such scrutiny if departmental select committees decline the opportunity.  

This may not be the most exciting of issues – I am not expecting demonstrations in Parliament Square (‘What do we want?  Post-legislative scrutiny.  When do we want it?  Now’) – but post-legislative scrutiny has the potential to improve significantly the quality of legislation in this country.   It may also have the desirable effect of reducing the volume. 

The Constitution Committee’s 2004 report can be read at:

http://www.publications.parliament.uk/pa/ld200304/ldselect/ldconst/173/17302.htm

The Law Commission’s report is available at:

http://www.lawcom.gov.uk/docs/lc302.pdf

The Government’s response to the Law Commission report is at:

http://www.official-documents.gov.uk/document/cm73/7320/7320.pdf

6 comments for “Reforming the legislative process

  1. Julian Gall
    26/04/2008 at 8:15 pm

    It isn’t just acts of Parliament that need this scrutiny. Many regulations and other announcements have the effect of law. It would be revolutionary if each new regulation or law had to state how its results were to be judged and when. I am sure the need to do this would give legislators pause and we might not get so many new laws.

    A good example is the IR35 regulation regarding taxation of people in business. If the then Chancellor (who was it now?) had been required to say how many people would be affected and how much additional revenue would be raised, we might not have ended up with a hugely complicated set of rules where no one has any idea whether they’ve achieved anything.

  2. Bedd Gelert
    26/04/2008 at 8:36 pm

    Hmm.. Please don’t hold your breath Lord Norton..

    I remember working for a company that had decided to implement a radical concept called ‘benefits realisation’. Henceforth all project managers were to be ‘accountable’ for ensuring that the ‘benefits’ mapped and enumerated in the Full Business Case for projects would be delivered.

    What is so radical about that ? I hear you ask.. Simply that the ‘Full Business Case’ to authorise investment of funds in the said project was normally what could charitably described as a mixture of wishful thinking and creative accounting..

    Nobody had EVER stopped to really think whether business changes had the desired effect, or actually saved the amount of money appearing on the ‘back of the fag packet’ used to ‘sell it’ to senior management.

    And they weren’t about to start now – after all, if they had been getting paid simply to ‘deliver projects’ and then walk away, how would it benefit them for somebody to uncover the fact that a lot of them really needn’t have bothered as the change to the business was marginal ??

    I agree, Lord Norton, that this is a necessary, nay vital, step. But if somebody were to rumble that an awful lot of legislation is :-
    A/ Completely redundant
    B/ Totally ineffective
    C/ Might be effective, but it is never enforced..

    .. then the whole edifice will come crashing down as the illusion of progress and delivery disappears like a morning mist – and we can’t shatter the illusions of those poor little taxpayers who are paying for it all, now can we ?

    I wish you well in your endeavour, but you would find it easier to herd cats, and more feasible to unmix custard, in my opinion..

    Others may disagree..

  3. lordnorton
    26/04/2008 at 10:46 pm

    Julian Gall: I agree. In respect of delegated legislation, there is now detailed scrutiny through two committees in the Lords: the Delegated Powers Committee and the Merits of Statutory Instruments Committee. The former looks at delegated powers embodied in the Bills and whether the means of parliamentary approval are appropriate, while the former examines statutory instruments once they are laid. However, you are right that there is a need to examine the impact of decisions by regulators. There is capacity already for examining the work of individual regulators but not for examining regulators collectively as a particular species and the overall impact of regulation. The ad hoc Select Committee on Regulators (2006-07) recommended the creation of a Joint Committee on Regulators to enable such scrutiny to take place and that is a proposal I am pursuing.

    Bedd Gelert: there is more general realisation of some of your concluding points that you realise. There have been parliamentary questions abour Bills and particular provisions of Bills that have never been brought into effect. There is a Statute Law (Repeals) Bill presently going through Parliament that repeals a great many obsolete or unnecessary measures.

  4. Bedd Gelert
    26/04/2008 at 10:57 pm

    Lord Norton,
    This is good to know – but I guess the question is, how much chance is there that people in the other place can be persuaded not to keep feeding the sausage machine with quite so much alacrity ??

    Mind you, whatever progress is made in the ‘Houses Of Parliament’, one suspects that the ‘slack’ could always be taken out by ill-thought out legislation from Brussels. Not to mention the fact that in Cardiff Bay the Welsh Assembly are angling for the legislative powers given to Scotland.

  5. lordlucas1
    28/04/2008 at 6:21 pm

    It’s in the nature of government – this and the last at least – that what’s important is initiatives – something to make a splash in the media, to prove that we’ve done something. What happens after that is of no interest.

    I’m in two minds as to whether we go for post legislative scrutiny – because it’s another media-friendly story, and goes with the grain of how things work now, or whether we should try something deeper within the civil service, and work towards a system where successful delivery of a policy ranks above policy creation in terms of an official’s career path and rewards. I prefer the latter – but could it be made to work?

  6. ladytizzy
    29/04/2008 at 12:02 am

    Lord Lucas, would you expand on why you believe post-legislative scrutiny is but a media-friendly story?

    I’m unsure what the HoL does in its entirety though scrutiny of Bills, pre-enactment, must be the primary task. If you believe the House functions adequately as is, then I can understand your position, but your comment suggests otherwise, by making a less than clear case (to me) for something else.

    Thanks, Tiz

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