Pre and post legislative scrutiny in the House of Lords

© House of Lords 2015

Post-legislative scrutiny in the House of Lords

Tansy HutchinsonNovember 2015


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Outline• 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



Pre-legislative scrutiny: a view from the Lords onad-hoc joint committeesTimetable: 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 goThe 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!



Pre-leg – an example of indirect effect in the LordsDraft 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.



Post Legislative Scrutiny – the historyWhy do it: many reasons, but essentially overcoming tendency to think ‘job done’ once all the debate and initial flurry of activity has died down2004: 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”


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.”



Post-legislative scrutiny in the Lords• 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.


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 topicAlso: becoming practice to have one post-legislative scrutiny committee each year



Post Legislative Scrutiny – not just the legislationLaw 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



Why is this important?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.



Pre and Post-Legislative scrutiny of the Mental Capacity Act – an example of it working well (ish)

Pre-leg and the Act1989: Law Commission requested to carry out a comprehensive investigation of all areas of the law on decision making affecting those who lack capacity1995: Law Commission recommends a single comprehensive piece of legislation1997: Green Paper1999: policy statementJune 2003: draft Mental Incapacity BillNovember 2003: report of the Joint Committee on the Draft Mental Incapacity Bill2005: Mental Capacity Act becomes Law2007: Deprivation of Liberty safeguards added with minimal consultation and very little Parliamentary scrutiny



Pre and Post-Legislative scrutiny of the Mental Capacity Act – an example of it working well (ish)Post leg2010: Post Legislative Memorandum sent to e Commons Justice Committee2012: 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 upResults• 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



And the cycle begins again….

Government Response (eventually): Request to the Law Commission to review the law on deprivation of libertyLaw 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….



Practical issues and challenges for post-legislative scrutiny committees

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.



Practical issues and challenges for post-legislative scrutiny committees

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.

Government & Nonprofit

Pre and post legislative scrutiny in the House of Lords