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