This document discusses post-legislative scrutiny, the process of reviewing laws after they are passed. It outlines the origins of post-legislative scrutiny in the UK and the current processes used by the House of Commons and House of Lords. It provides the example of a House of Lords committee that recently reviewed the Inquiries Act 2005. While post-legislative scrutiny allows various stakeholders to have input, government departments often reject recommendations to change laws and civil servants involved may lack expertise in the issues. Therefore, the value of post-legislative scrutiny in improving laws remains unclear.

1. © House of Lords 2011
Post-legislative scrutiny of statutes
Why and how?
Michael Collon, Clerk, House of Lords Committee Office
Date: 11 September 2014

2. © House of Lords 2011
Outline
• Legislation: the non-involvement of Parliament
• The origins of post-legislative scrutiny
• Current scrutiny by Commons and Lords
• One example: the Inquiries Act 2005
• Involvement of civil servants in post-legislative scrutiny
- during the inquiry
- after the report
• Involvement of civil servants in pre-legislative scrutiny
• Is it worth the effort?

3. © House of Lords 2011
La Reyne Le Veult

4. Then what?
Until 2004, very little. No Parliamentary involvement unless something
went badly wrong.
2004: Report of Lords Constitution Committee
Government departments should undertake a review of all significant
legislation, other than Finance Acts, 3-6 years after its entry into force.
The review should compare the working of the Act against the criteria
in the Explanatory Notes. It should include consultation with interested
parties, similar to consultation at the pre-legislative stage.
The review should be deposited with the appropriate Commons
Departmental Select Committee.
© House of Lords 2011

5. 2005: Government kicks it into touch
“We have asked the Law Commission to undertake a study of the
options”
2006: The Law Commission response
“We recommend that consideration be given to the setting up of a
new Parliamentary joint committee on post-legislative scrutiny. Select
committees would retain the power to undertake post-legislative
review, but, if they decided not to exercise that power, the potential
for review would then pass to a dedicated committee.”
2008: Another Government response
“The Government accordingly proposes that henceforth the
department currently responsible for a particular Act should in most
cases – generally between 3 and 5 years have elapsed after Royal
Assent – publish a Memorandum, for submission to the relevant
departmental select committee.”
© House of Lords 2011

6. © House of Lords 2011
10 years later: the current position
• No Joint Committee on post-legislative scrutiny has been set up.
• Memoranda are sent to the Commons Committees.
• Over 70 memoranda have been sent and Commons Committees
have reported on the following Acts :
– Gambling Act 2005 (Culture, Media and Sport Committee, July
2012)
– Freedom of Information Act 2000 (Justice Committee, July
2012)
– Charities Act 2006 (PASC, May 2013)
– Mental Health Act 2007 (Health Committee, July 2013)
– Serious Crime Act 2007, Pt 2 (Justice Committee, Sept 2013)

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Lords post-legislative scrutiny
The Lords does not have Departmental Select Committees. Post-legislative
scrutiny is carried out by ad hoc Committees set up to
scrutinise specific Acts:
• Session 2012-13: Adoption and Children Act 2002 and
Children and Adoption Act 2006
• Session 2013-14: Mental Capacity Act 2005
Inquiries Act 2005
• Session 2014-15: Extradition Act 2003 (ongoing)
The Committee is dissolved once it has reported and so has no
power to follow up its report. But the members do.

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Scrutiny of Inquiries Act 2005
• October 2010: Ministry of Justice submits memorandum to Commons
Justice Committee, which decides not to carry out post-legislative scrutiny.
• March 2013: Lords Liaison Committee recommends setting up an ad hoc
Committee for post-legislative scrutiny of the Act.
• May 2013: Lords ad hoc Committee is set up to report by end February
2014. The object: to consider not just the Act, but the whole field it covers,
so wider terms of reference: “to consider the law and practice relating to
inquiries into matters of public concern, in particular the Inquiries Act 2005”.
• What happened before the Act? How was it defective? Why was legislation
needed? What was the Act designed to achieve? To what extent has it
succeeded?
• Not just what the Act says, but how it operates.

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Whose views matter?
• MoJ Ministers and officials
• Chairmen of inquiries before the Act and under the Act:
Lord Cullen (Piper Alpha, Dunblane)
Lord Gill (ICL Explosion)
Prof Sir Ian Kennedy (Bristol Royal Infirmary)
Lord Bichard (Soham murders)
Sir Robert Francis QC (Mid Staffs NHS Trust)
Sir Brian Leveson (Culture, Practices and Ethics of the Press)
• 3 Secretaries to inquiries; 3 Counsel to inquiries
• Interest groups: Liberty, INQUEST, Rights Watch UK
• Core participants: Christopher Jefferies (Leveson), Julie Bailey (Mid-
Staffs)
• Inquiry panel members, assessors, academics

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Involvement of civil servants in
post-legislative scrutiny
• It’s probably not the officials who were the Bill team involved, so
no ownership of the Act.
• Other civil servants have subjected the Act to scrutiny and
written a memorandum on it.
• Yet other civil servants will be involved by the time the Act gets
to the Committee.
• They (and their ministers) may not have the same knowledge or
interest as in pre-legislative scrutiny.
• This may affect the quality of their written and oral evidence.
• It may also influence their response to the report.

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What did the report say?
Most important recommendations:
The Act is basically good – so why does Government persist in
setting up inquiries not under the Act, which have no powers to
compel production of papers or witnesses, or take evidence on
oath? Nothing under the Act since Leveson was set up in July
2011.
Why reinvent the wheel every time an inquiry is set up? New staff,
new premises, new website, new procurement, same old
mistakes, more money wasted. Past experience must be retained
and used – more coordination between Cabinet Office and
Departments.
Do away with Maxwellisation – it wastes time and money.
The Chairman needs more discretion, the Minister less.
Better compliance with the recommendations of inquiries.

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The Government response
• All the main recommendations have been rejected.
• Did they look at the evidence? They don’t mention it in the
response, and have produced no evidence to the contrary.
• Hallett inquiry into On the Runs Letters set up in March – not
under the Act, so she had no powers of compulsion.
• Litvinenko inquiry under the Act set up in July – but only
because the court gave the Home Secretary no option.
• Woolf child sex abuse inquiry - will it be under the Act?
• Members of the Committee are meeting the Minister in
October.
• The report will then be debated in the Lords.
• Any substantial changes will have to wait years – as opposed
to weeks for pre-leg.

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Involvement of civil servants:
pre-legislative scrutiny
• The Bill team have been working on the draft Bill for a year
or more.
• It’s their baby, they are naturally defensive.
• But they can see that it might conceivably be improved.
• They are present at all except deliberative meetings.
• They can influence things.
• This may be an opportunity to eliminate some of ministers’
mistakes.
• Above all, they have the same time constraints as the
Committee.

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The report can help them .... or not
Draft Communications Data Bill report, 11 December 2012:
Home Office
“We have now considered the committee’s recommendations
carefully and we will accept the substance of them all. But
there can be no delay to this legislation. It is needed by law
enforcement agencies now.“
Guardian, 11 December 2012:
Snooper's charter is unworkable, Clegg tells May
"We cannot proceed with this Bill and we have to go back to
the drawing board."

15. Report on Draft Care and Support Bill
© House of Lords 2011
• 6 March 2013: report agreed
• 8 March: report sent to Bill team in confidence
• 19 March: report published
So officials had just 2 months to read it, decide which
recommendations to accept and which not, get policy
approval from ministers, draft instructions to Counsel for
amendments to draft Bill, put the draft Bill together, get
Cabinet approval, and draft the Government response to the
report, before
• 9 May: Introduction of the Care Bill.

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The direct effect of the report
• There were 21 recommendations for amendment of the draft Bill
which the Government accepted, and they accordingly made
amendments to the Bill.
• There were 9 recommendations for amendment of the draft Bill
which the Government accepted but said they intended to
implement through Regulations or Guidance.
• There were 14 recommendations that the Government should
consider amending the draft Bill which the Government accepted
in principle, but where they thought no legislation was needed to
give effect to the recommendations.
• Twenty-three recommendations were rejected.

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.... and the indirect effect
• The report informed debate in both Houses, but especially in
the Lords.
• Some of the recommendations rejected by the Government
were the subject of amendments.
• Older people in care homes provided by local authorities
have protection of section 6 of Human Rights Act, but not
those in private homes paid for by local authorities. An
amendment was
- passed by the Lords by a large majority
- removed by the Government in the Commons in Committee
- re-instated by the Government on Lords consideration of
Commons amendments.

18. © House of Lords 2011
So is it all worth while?
Pre-leg: definitely (unless it’s a scheme to kick a Bill into
touch)
• Joint Committees, like Lords Committees, tend to ignore the
politics and concentrate on the policy.
• Generally agreed that Bills are improved as a result.
Post-leg: the jury is still out
• Scrutiny is a useful platform for people to have their say.
• Most recommendations relate, not to what the Act says, but to
what it does – and doesn’t do.
• Too soon to be clear how seriously the Government will take
this activity.
• Over to you.

19. © House of Lords 2011
.... and finally
“Select Committees must be able to rely upon the accuracy
and comprehensiveness of post-legislative assessment
Memoranda; Committees are not resourced to complete their
own full scale analysis of all subjects covered by a
memorandum. Without full and correct analysis, whether
legal or economic or of another specialism, Committees may
not be made aware of problems with existing legislation. ...
We believe that the Ministry of Justice is taking an
excessively narrow view of the purpose of the post-legislative
assessment and scrutiny process in this instance.”
(Justice Committee’s report on Serious Crime Act,
September 2013)