This document discusses post-legislative scrutiny in the House of Lords. It provides background on how post-legislative scrutiny developed over time in response to recommendations. The House of Lords now establishes ad hoc committees each year to review particular Acts after they are passed. These committees examine both the technical aspects of legislation and its real-world impact. The Mental Capacity Act is used as an example of how post-legislative scrutiny can reveal issues with implementation and lead to improvements in the law.

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Post-legislative scrutiny in
the House of Lords
Tansy Hutchinson
November 2015

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Outline
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• A (very) little bit on pre-legislative scrutiny
• The development of post-legislative scrutiny
• Post-legislative scrutiny in the House of Lords
• Case study: the Mental Capacity Act Deprivation
of Liberty Safeguards
• Some thoughts on what works well and what
less well

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Pre-legislative scrutiny: a view from the Lords on
ad-hoc joint committees
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Timetable: unpredictable and dependent on:
• The Government producing a draft Bill to an agreed timetable
• Both Houses agreeing motions in a timely manner
But regardless:
• Get no more (often less than) 12 sitting weeks for the entire process, need to
meet twice a week to take evidence
• Enough Members available to be quorate twice a week
• Staff must be in place and ready to go
The members are appointed only for the duration of the inquiry – the dynamics
and expectations need to establish themselves quickly.
The secretariat is also assembled solely for the inquiry and comprises staff from
the two Houses. Working together well takes good communication and team
work!

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Pre-leg – an example of indirect effect in the
Lords
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Draft Care and Support Bill
• The Government accepted most recommendations in part or full, but rejected
23
• 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.

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Post Legislative Scrutiny – the history
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Why do it: many reasons, but essentially overcoming tendency to think ‘job
done’ once all the debate and initial flurry of activity has died down
2004: Report of Lords Constitution Committee recommends:
• 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.
2005: referral to the Law Commission: “We have asked the Law
Commission to undertake a study of the options”

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Post Legislative Scrutiny – the history (cont)
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.”

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Post-legislative scrutiny in the Lords
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• No agreement on a joint approach. The Government suggested that it
should be for Commons committees to decide whether to involve Lords
or joint committees.
• This left the Lords with no direct involvement in post-legislative scrutiny.
• 2011: a wide-ranging review of the House of Lords Working Practices
recommended that a permanent post-legislative scrutiny committee be
set up, to review up to four Acts per year.
• 2012: the House agreed instead, on the advice of the Liaison
Committee, to establish ad hoc committees each year to review
particular Acts; establishment of the first ad hoc post legislative scrutiny
committee examining Adoption legislation.
• 2013: two ad hoc committees - to review the Mental Capacity Act and
the Inquiries Act.
• 2014 & 2015: one committee (2014 - Extradition Act; 2015 - the impact
of the Equality Act 2010 on disabled people.

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Lords post-legislative scrutiny -
characteristics• Topic decided by the House, on the advice of Liaison Committee – can be
one or more Acts.
• Sometimes there will have been pre-legislative scrutiny, sometimes not.
• Ad hoc: the inquiry is it’s only task.
• Time-limited: given a deadline by the House and the Committee is dissolved
once it has reported.
• Powers tailored to topic: some travel, some can report more than once. All
can call for people, papers and documents.
Choice of topic: Factors taken into account
• Make best use of the knowledge and experience of Members of the House
• Complement the work of Commons departmental select committees
• Address areas of policy that cross departmental boundaries
• Capable of being confined to one session
• One ad hoc should be on an international relations topic
Also: becoming practice to have one post-legislative scrutiny committee each
year

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Post Legislative Scrutiny – not just the
legislation
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Law Commission: “For the purposes of this report, we understand
post-legislative scrutiny to refer to a broad form of review, the
purpose of which is to address the effects of the legislation in terms
of whether the intended policy objectives have been met by the
legislation and, if so, how effectively. However this does not preclude
consideration of narrow questions of a purely legal or technical
nature.”
This is reflected in the Lords’ approach:
• Adoption Committee: looked at ‘adoption legislation’ not one specific Act;
looked at effect of law
• Mental Capacity Act Committee: mostly a good law, but still a 143 page
report, with over 200 submissions and 2000 pages of evidence mostly on
implementation
• Equality Act and Disability Committee: looking at the impact of the Act on
disabled people, not just if it’s well written

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Why is this important?
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Mental Capacity Act:
Officials “Overall, our view is that the Act has been a success. When it came in,
it was certainly widely welcomed as a progressive piece of legislation that
balanced protections with empowerment, and that is still largely the case. … We
have consulted over a few minor changes to the legislation, rules, regulations
and so forth to implement the Act. The sense that we have had back from those
consultations is that the legislation as a whole is still highly regarded.”
A few months (and a lot of criticism) later:
Ministers: “coming to this afresh, I think that progress has been slow, and that
perhaps we need to give both more ministerial attention and a greater sense of
urgency to moving this forward.” (Lord McNally)
“A lot has been done, …. However, we should absolutely not be in any sense
complacent.” (Norman Lamb MP)
Post-leg Committees want to hear about impact not just if it is a well
worded law.

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Pre and Post-Legislative scrutiny of the Mental
Capacity Act – an example of it working well
(ish)
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Pre-leg and the Act
1989: Law Commission requested to carry out a comprehensive
investigation of all areas of the law on decision making affecting those who
lack capacity
1995: Law Commission recommends a single comprehensive piece of
legislation
1997: Green Paper
1999: policy statement
June 2003: draft Mental Incapacity Bill
November 2003: report of the Joint Committee on the Draft Mental
Incapacity Bill
2005: Mental Capacity Act becomes Law
2007: Deprivation of Liberty safeguards added with minimal consultation
and very little Parliamentary scrutiny

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Pre and Post-Legislative scrutiny of the Mental
Capacity Act – an example of it working well
(ish)
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Post leg
2010: Post Legislative Memorandum sent to e Commons Justice Committee
2012: letter from Liberty to the Joint Committee on Human Rights “thousands of
individuals without capacity are being deprived of their liberty…but not afforded
…protective safeguards”
2013: Mental Capacity Act Committee post legislative scrutiny committee set up
Results
• Act itself “a visionary piece of legislation for its time” that “continues to be held in
high regard” EXCEPT the Deprivation of Liberty Safeguards
• Judiciary: writing a judgment on the safeguards felt “as if you have been in a
washing machine and spin dryer.”
• Committee: “the legislation is not fit for purpose.”
• Media: “Thousands of UK citizens ‘detained unlawfully’; Patients ‘held prisoner’ in
care; Thousands of patients in care homes drugged or locked up, say Peers;
Democracy in Action (my favourite!)
• Implementation very patchy and poor, significant number of recommendations on
implementation

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And the cycle begins again….
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Government Response (eventually): Request to the Law
Commission to review the law on deprivation of liberty
Law Commission: Dramatically different scheme being consulted on,
due to report in 2017.
As well as the response to the 30 recommendations mainly focussed
on implementation….

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Practical issues and challenges for post-legislative
scrutiny committees
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Process
• Timetable: have to allow for the formation of the Committee,
including their own understanding of themselves as more than a
group of individuals.
• Timeliness of the Memorandum: Equality Act Post Legislative
Memorandum delayed. Seemed reasonable at the time but things
change.
• Understanding of post-legislative review: tendency of
Government Departments to take a narrow approach.
• Knowledge and engagement of Officials and Ministers can
vary: unlikely to be the original Bill team, will have many other
priorities. Committees unlikely to be understanding of this.
• Stakeholder engagement and interest can vary: MCA – massive
engagement; Inquiries Act - more specialised audience; Equality
Act and Disability – significant engagement but not quite as
expected.

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Practical issues and challenges for post-legislative
scrutiny committees
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Content
• The area of law under review is rarely static: the Adoption Committee
found itself conducting pre-legislative scrutiny as well, at the request of the
Government.
• More than one report may be needed: The Extradition Committee on the
European Arrest Warrant – a major political debate, requiring the
Committee to publish a short separate report.
• Members will be conscious of how realistic their recommendations are.
BUT:
• Recommendations on the legislation itself likely to require
Parliamentary time.
• The majority of recommendations will be on implementation: may
require Government Departments to change priorities, including on
spending, and re-open cans of worms.