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What does post-legislative scrutiny look like?

  • 23 July 2022
  • By Dr Tom Caygill the Higher Education and Research Act (2017) is currently due its post-legislative scrutiny, this blog on how the process is designed to work has been kindly contributed to HEPI by Dr Tom Caygill, Lecturer in Politics at Nottingham Trent University and the author of ‘The UK post-legislative scrutiny gap‘ published by the Journal of Legislative Studies as well as ‘Post-legislative scrutiny in the UK Parliament‘ for the Westminster Foundation for Democracy.

Post-legislative scrutiny (PLS) is defined by the Law Commission of England and Wales as:

A broad form of review, the purpose of which is to address the effects of legislation in terms of whether intended policy objectives have been met by the legislation and, if so, how effectively.

The need for PLS, the Law Commission argues, arises within the context of an increasing volume of legislation being enacted and the reduced parliamentary time available to scrutinise each. In addition, committee scrutiny of legislation in the House of Commons has frequently been criticised as ineffective due to executive dominance. It is against this backdrop that the importance of PLS becomes apparent. Not only does it allow parliaments to assess whether legislation is meeting its key objectives, but it also allows parliament to deal with potential problems arising from legislation as a result of the above issues. 

In 2008, the then Leader of the House of Commons, Harriet Harman MP announced that there would be a new requirement for an automatic departmental Memorandum to be published and submitted to the relevant departmental committee, generally between three and five years after Royal Assent.

As a result, the main focus of PLS activity is in the House of Commons, but since 2012 there has been increased interest from the House of Lords. In the House of Commons, PLS is undertaken by departmental select committees (sessional committees) which shadow government departments. In the House of Lords, it is undertaken by ad hoc committees, created to undertake a specific function.

There are important differences between these types of committees. Sessional committees are formed for a full parliamentary term which can be up to five years, whereas ad hoc committees cease to function after they have published their reports. The time available to committees differs. Sessional committees (such as departmental select committees) have other tasks to complete whereas ad hoc committees are given one task. This means they can spend more time on work such as PLS. One benefit of using such committees is that with nine months for one inquiry a more comprehensive, in-depth report is possible. There is a downside however, as they dissolve after they have reported and are therefore unable to follow up.

Between 2008 and 2019, there were 23 full PLS inquiries. However, there are some challenges which need to be acknowledged with the system. There has been a decline in the number of post-legislative review memoranda from government departments.

As these memoranda act as a prompt for departmental select committees in the House of Commons, this decline in publishing may mean committees are not receiving as many prompts to undertake PLS as they would usually receive. However, it should be noted that there is no requirement for committees to receive a post-legislative review memorandum before undertaking a PLS inquiry and indeed receiving a post-legislative review memo is no guarantee of further scrutiny. 

Despite some of the challenges listed above, my research has found that the most frequent recommendation that committees make during PLS is for a change in policy or practice, with 41% of recommendations calling for such action. The research also found that 85 recommendations out of 573 (15%) required legislative action by the government. My research has shown that PLS has some impact in relation to acceptance of recommendations. The data showed that 40% of recommendations were accepted (either in full or in part) within two to three months of committees publishing their reports. It should also be expected that over a longer period of time further recommendations would be accepted as a result of policy debates and pressure that PLS brings. Here, following up on inquiries and pressing the government is important. However, committees in the House of Commons as well as the House of Lords tend not to follow up fully on committee inquiries as well as they could. 

As a result of these challenges, I recommended the Committee Directorate in the House of Commons (which supports the work of committees in the House of Commons) should review the 2008 deal between the House of Commons and UK Cabinet Office, requiring government departments to review legislation within three to five years of it entering into law. This deal should also be placed on a firmer footing to ensure that these reviews are taking place and are being presented to committees.

In the meantime, the House of Commons Liaison Committee should play a more active role in ensuring committees are undertaking a greater range of tasks (including PLS) and ensure that government departments are undertaking post-legislative review as agreed. In addition, in order to ensure greater coordination with regards to PLS in the UK Parliament, I recommended that a dedicated PLS committee be established, either as a joint committee of both Houses, or as a Lords Committee.

Anyone wanting to think more about how this process might affect higher education in particular, given the impending post-legislative scrutiny of the Higher Education and Research Act (2017), might also care to read David Kernohan’s recent piece on Wonkhe about post-legislation scrutiny here.

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