Pre and post-legislative scrutiny, House of Lords

© House of Lords 2011

Michael Collon, Clerk, House of Lords Committee OfficeDate 27 February 2014

Post-legislative scrutiny of statutes

Why and how?


Outline• 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 Public Law

Groups Consultation Commission

Green paperWhite paperPolicy approval

drafting permission Instructions to

Counsel


..... and Parliament is fully involved .... untilDraft Bill

Pre-leg scrutiny Amendment

Queen’s Speech

IntroductionFirst 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 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 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 JefferiesJulie 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 high-powered 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 post-legislative 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

[email protected]

020 7219 3326

mailto:[email protected]

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Pre and post-legislative scrutiny, House of Lords