When I chaired the Constitution Committee in the Lords, one of our major reports was on Parliament and the Legislative Process. Later this year will mark the tenth anniversary of its publication. We examined the whole legislative process, including pre- and post-legislative scrutiny. We were keen not only to see pre-legislative scrutiny (examining Bills in draft) as the norm, but also to see Acts of Parliament scrutinised to see if they were achieving their intended effect.
Sometimes Acts of Parliament have unintended and negative consequences. The bad cases one hears about. Others may not get any publicity: they may simply not be having much effect at all or having a different effect to that intended. What we considered remarkable was the extent to which there was no systematic study of legislation. For government and parliamentarians, the end product of legislation was Royal Assent: that was the measure of success, not the effect of the measure.
Following publication of our report, the proposal for systematic post-legislative scrutiny was referred to the Law Commission Its report basically endorsed what we said. In 2008, the Government introduced post-legislative review. Most Acts three to five years after enactment are reviewed by the relevant Departments and their reports published and sent to the relevant departmental select committee in the Commons.
This constitutes a step forward, but there is still much to be done by Parliament. Departmental select committees rarely have time to undertake reviews of Acts. The Constitution Committee recommendation (endorsed by the Law Commission) for a Joint Committee on Post-Legislative Scrutiny has yet to be implemented.
Nonetheless, there has been some recent progress. The House of Lords in recent sessions has appointed ad hoc committees to undertake post-legislative scrutiny of particular measures. Baroness Butler-Sloss chaired a committee to review adoption legislation. We then appointed committees to examine the Inquiries Act 2005 and the Mental Capacity Act 2005.
This ties in with my earlier post about utilising parliamentary time effectively. During the recent debate on the report of the Constitution Committee on the constitutional implications of coalition government, some peers suggested that rather than have extended recesses we should use the time of this forthcoming session – when the legislative load is expected to be light – to engage in more post- legislative scrutiny, enhancing the one ad hoc committee that has been established (on the Extradition Act). Reviewing Acts to see if they have achieved their purpose is something we should be doing and something that would play to our strengths. Instead of waiting for government to bring forward Bills, we could usefully take the initiative to check that what law we have is doing what it is supposed to be doing. Royal Assent should be seen as the start of a process – not the end of one.