Pre and post-legislative scrutiny, House of Lords

Post-legislative scrutiny of statutes
Why and how?

Michael Collon, Clerk, House of Lords Committee Office
Date

27 February 2014

© House of Lords 2011

Outline
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Legislative process: 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 pre-legislative scrutiny
- during the inquiry
- after the report
• In post-legislative scrutiny
- during the inquiry
- after the report
• Is it worth it?

The way to the statute book is long and hard
Minister’s bright idea

Pressure group

Civil servants
Expert
Groups

Public
Consultation

Law
Commission

Green paper
White paper

Policy approval
drafting permission
Instructions to Counsel

..... and Parliament is fully involved .... until
Draft Bill
Pre-leg scrutiny
Amendment
Queen’s Speech
Introduction

First Chamber
Second Chamber
Ping-pong

La Reyne Le Veult


..... And then what?
Until 2004, very little. No Parliamentary involvement unless
something went badly wrong.

One example from Sir Alan Beith MP, then chairman of the
Constitutional Affairs Select Committee: “The legislation
which set up CAFCASS, the Children’s and Family Court
Advisory and Support Service, which clearly was working
very badly; indeed, we published an extremely critical report
which led in the end to the dismissal of the entire board and
a fresh start—quite a painful process, but undoubtedly a
form of post-legislative scrutiny.”


2004: Inquiry by the House of Lords Constitution
Committee into Parliamentary involvement in
the legislative process
Evidence of Jean Corston MP, Chairman of the Joint
Committee on Human Rights:
“As legislators, we need to pay as much attention to what
happens after we have finished our specialised task of making
the law as we do to the processes by which we achieve the
law ..... Our responsibility does not begin with a Bill’s
introduction to Parliament or end with the Royal Assent.”


Recommendations of the 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
Departmental Select Committee.

2005: Government’s response: kick into touch
“What is meant by “post-legislative scrutiny” is often ill-defined.
It could range from a wide-ranging policy review to a quite
limited and technical evaluation of the effectiveness of the
drafting.

We have asked the Law Commission to undertake a study of the
options, and to identify, in each case, who would most
appropriately take on the role.”


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.
A new joint committee will be best placed to decide which
legislation should be reviewed.”


2008: Two more years - another Government
response
“There are clear benefits in selective post-legislative scrutiny of
Acts. Such scrutiny will help to improve the legislation itself, not
only after it has been reviewed – if this leads to amendment – but
also when it is being first formulated since the knowledge that it
will be subject to some form of review after enactment should
help to focus preparatory work more clearly.”
“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.”

The current position
• No Joint Committee on post-legislative scrutiny has been set up.
• Memoranda are sent to the Commons Committees.
• By January 2013 58 memoranda had been sent but only 2 Acts
had been subject to Commons scrutiny:
– Gambling Act 2005 (Culture, Media and Sport Committee,
July 2012)
– Freedom of Information Act 2000 (Justice Committee, July
2012)
• Three more Commons scrutinies in 2013:
– Charities Act 2006 (Public Administration Committee)
– Mental Health Act 2007 (Health Committee)
– Serious Crime Act 2007, Pt 2 (Justice Committee)

Lords post-legislative scrutiny
• Is carried out by ad hoc Committees
• Session 2012-13: Adoption legislation
• Session 2013-14: Mental Capacity Act 2005
Inquiries Act 2005
• Liaison Committee is currently considering which Acts
should be subject to post-legislative scrutiny in 2014-15.


Scrutiny of Inquiries Act 2005
• October 2010: Ministry of Justice submit 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 set up, to report by
end February 2014.


What’s the object?
• Not just to consider 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”.
• Look at the Act in context: what happened before?
• How was it defective? Why was legislation needed?
• What was the Act designed to achieve?
• To what extent has it succeeded?


Whose views matter? Evidence from
chairmen of inquiries
• Some before the Inquiries Act:
Lord Cullen (Piper Alpha, Dunblane)
Lord Gill (ICL Explosion)
Prof Sir Ian Kennedy (Bristol Royal Infirmary)
Lord Bichard (Soham murders)
• And some under the Act:
Robert Francis QC (Mid Staffs NHS Trust)
Sir Brian Leveson (Culture, Practices and Ethics of the
Press)

Other witnesses
•
•
•
•

3 Secretaries to inquiries
3 Counsel to inquiries
Interest groups: Liberty, INQUEST, Rights Watch UK
Core participants
Christopher Jefferies
Julie Bailey
• Panel members, assessors, academics
• MoJ Minister and officials

• And written evidence in response to the call for evidence

What will the report say?
HOUSE OF LORDS

Select Committee on the Inquiries Act 2005

Report of Session 2013–14

The Inquiries Act 2005: post-legislative scrutiny
Ordered to be printed 26 February 2014 and published 11 March 2014
Published by the Authority of the House of Lords
London : The Stationery Office Limited
£price

.... and more when published
• Many of the witnesses thought the Act by and large was a
good framework for inquiries, and worked well.
• Nevertheless some amendments were needed.
• The Inquiry Rules came in for more criticism.
• Most criticism was reserved for non-statutory matters, e.g.
the procedure for setting up and running of inquiries.
• The report, like all Committee reports, is evidence-based.
• Members will however have their own assessment of the
evidence.
• So buy a copy on 11 March !


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.


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."

Draft Care and Support Bill report
• 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.

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.

.... 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, e.g. 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
- passed by the Lords by a large majority
- removed in the Commons in Committee
- may be re-instated on ping-pong???


Involvement of civil service 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-leg.
• This may affect the quality of their written and oral evidence.


Involvement during the inquiry
• Often it is not the Act but its implementation which needs
looking at.
• Mental Capacity Act 2005: officials assumed the Act was
basically fine, and working well.

• The evidence to the Committee showed it was not working
well, and certainly not as well as the Department thought..
• Even before the end of the inquiry, DH set up a highpowered Committee to supervise the further
implementation of the Act.


.... involvement after publication of report
• No need to digest the report in a hurry, or respond in a
fixed time (they think) - but the Committee need a response
within 2 months.
• Some recommendations will, if accepted, need primary
legislation, so no urgency in the timetable (they hope).
• But most recommendations – including important ones – will
not need legislation, and the Committee will expect action.

• The Committee no longer exists, but the members do.
• So does the Lords Liaison Committee, which will now be
following up some recommendations.

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
• Inquiries are 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.

.... 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 postlegislative assessment and scrutiny process in this instance.”
(Justice Committee’s report on Serious Crime Act,
September 2013)

Michael Collon
Clerk to the House of Lords
Select Committee on the Inquiries Act 2005
collonm@parliament.uk
020 7219 3326


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