Franklin DeVrieze, Senior Governance Advisor
One of parliaments’ key roles is to make laws which meet the needs of a country’s citizens.
Beyond the primary function of adopting legislation, parliaments should be able to evaluate whether legislation does achieve its intended outcome.
Earlier this year, Westminster Foundation for Democracy (WFD) started working with partnering parliaments across South-Eastern Asia to help develop their ability to review how a new law has worked in practice since it came into force.
In January, we organised a first series of workshops on ‘post-legislative scrutiny’ in the Burmese parliament. Our primary aim was to review contemporary approaches to assessing the efficacy of legislation. We also wanted to define which practices are most relevant to Burma and support the development of a Burma-specific approach.
Experts from the United Kingdom, the United States of America and Indonesia shared their experiences in overseeing the implementation of laws. It emerged how the Indonesian parliament is leading on post-legislative scrutiny within Asia. This provided a basis for peer-to-peer exchanges with the Burmese parliament. During our initial workshops, the Secretariat leadership of the Burmese parliament showed strong interest in post-legislative scrutiny and saw opportunities for greater adoption. It was noted how it could help make parliamentary committees more active and functional. It could also maximise use of the Secretariat’s existing structures and resources.
Importantly, the workshops revealed that law implementation is a complex matter as it depends on the mobilisation of different state mechanisms, funds and actors. It does not happen automatically and several incidents can affect its course: changes in facts on the ground, diversion of resources (e.g. defunding), deflection of goals, resistance from state and private stakeholders and changes to rules in related policy areas. Often there are risks that laws are voted but not applied, that ‘secondary legislation’ is not adopted or that there is no information on the actual effects of the law.
As parliaments across Asia start to pay more attention to law implementation and begin to create specific procedures to oversee it, we identified four main benefits:
- It strengthens democratic governance: legislation adopted by parliament should be implemented and applied in accordance to the principles of legality and legal certainty.
- It allows to identify potential adverse effects of new legislation, for example on fundamental rights, and to act to prevent them.
- It enables the consistent appraisal of the how laws respond to the issues they intend to regulate.
- It enables the legislator to learn from experience both in terms of what works and what does not, how effective implementation is in meeting objectives, with an eye to making better legislation in future and reducing the need for corrective action.
Taking into consideration current activities in several legislatures, WFD is in the process of finalising a comparative study which describes in further detail the process and rationale of ‘post-legislative scrutiny’, presents relevant facts and trends in selected countries, and identifies opportunities relevant for the parliamentary strengthening programming of the Foundation. The draft comparative study will be discussed at a seminar with academics and practitioners in April 2017 and made available to country offices as well.
Should a parliament which benefits from WFD programme support want to analyse its role in overseeing legislative implementation, practical questions would arise: what form it should take, what priority should it have, and when should it be used. Therefore, we are also creating a methodological tool to enable parliaments and WFD country offices partner up in this important area.
Should a parliament consider that it has the intention to engage on post legislative scrutiny but limited resources, WFD might suggest developing a pilot by which a parliament examines the implementation of a limited set of laws (two to three) over a limited period of time (e.g. two years). After this, the pilot project can be evaluated and lessons learned identified for more generalised uptake. Our advice to partners is that any new approach to conducting post-legislative scrutiny work in a parliament is open for the public to see its relevance and potentially participate in the evaluation of legislation and policies as in the experience of the UK Parliament. The comparative study will highlight a couple of relevant examples of public inclusion in post-legislative scrutiny, including in the UK.