Post leg scrutiny 2014 House of Lords

© House of Lords 2011

Michael Collon, Clerk, House of Lords Committee OfficeDate: 11 September 2014

Post-legislative scrutiny of statutes

Why and how?


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?


La Reyne Le Veult


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

2004: Report of Lords Constitution CommitteeGovernment 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: 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.”


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)


Lords post-legislative scrutinyThe 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.


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.


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


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.


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.


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.


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.


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."


Report on Draft Care and Support Bill• 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.

• 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.


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.


.... 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)

Documents

Post leg scrutiny 2014 House of Lords