To break the current trends of shrinking democratic space and increased inequality, it is important to ensure that the emergency powers – although vital in protecting health – are not used to shrink the democratic space.
Engaging parliaments on reviewing legislative impact
As parliaments worldwide start to pay more attention to implementation of legislation, the University of Hull and Westminster Foundation for Democracy (WFD) recently organised in London an expert seminar on Post-Legislative Scrutiny, bringing together academics, parliamentary researchers, parliamentarians and legislative impact specialists.
Lord Norton of Louth captured the evolving expectations on the increasing role of parliaments by asserting that the perception of legislative success has moved from getting laws on the statute book to ensuring that laws are brought into effect and their implementation has an impact.
Post-Legislative Scrutiny by parliament
As an emerging dimension within the oversight role of parliament, Post-Legislative Scrutiny (PLS) can be considered a broad concept, consisting of two dimensions. First, it looks at the enactment of the law, whether the legal provisions of the law have been brought into force. Second, it looks at the impact of legislation, whether intended policy objectives are met, if implementation and delivery can be improved and if lessons can be learnt.
PLS, often carried out by parliamentary committees, is a prominent feature of parliamentary democracy in the UK, and elsewhere. Lord Norton identified three main benefits emerging from PLS: (1.) It strengthens democratic governance: legislation adopted by parliament should be implemented and applied in accordance with the principles of rule of law, legality and legal certainty. (2.) It allows the identification of potentially adverse effects of new legislation and the opportunity to act to prevent these. (3.) It enables the consistent appraisal of how laws respond to the issues they intend to regulate. It also enables the legislator to learn from experience, both in terms of what works and what does not and how effective implementation is in meeting objectives, with an eye to making better legislation in future.
(Photo: Rebecca Schultz from OECD explained principles of regulatory policy and governance at the expert seminar on Post-Legislative Scrutiny.)
During the expert seminar, Dr. Jonathan Murphy put PLS in the context of ensuring parliament’s role in the full governance cycle, by including parliament in pre-legislative consultations, Regulatory Impact Assessment (RIA), legislative scrutiny (Westminster-style green and white papers), audit and PLS.
Legislative ex-ante impact assessments
Governments, ministries or executive agencies often put considerable efforts in drafting new legislation. In many countries, ex-ante RIA contribute to the preparation of new legislation. Often conducted by the sponsor of the law, RIA may look at the anticipated impact of the law on public budgetary income and expenditures, the compliance costs to the public, industry and public administration, costs to business, impact on equality between men and women and on vulnerable groups in society, environmental impact, etc.
At the expert seminar, Ms. Rebecca Shultz from the OECD elaborated on the internationally recognised principles on regulatory policy and governance, as well as the triannual OECD Regulatory Policy Outlook which monitors the implementation of the recommendations regarding regulatory assessments. Interestingly, the role of parliaments in analyzing and working with the RIA reports prepared by the executive is receiving more international attention. At the same time, as discussed at the expert seminar, the parliamentary efforts put into RIA should be proportional and targeted.
The ex-ante RIA can provide a valuable benchmark against which to evaluate the actual impact of the legislation after several years. Therefore, there is a need to analyse approaches, procedures and lessons learned from established ex-ante legislative processes (review and sunset clauses, impact statements in budget, socio-economic, environmental, gender and human rights areas) for the ex-post review process on the impact of legislation.
Legislative ex-post evaluations
In most countries, government departments and executive agencies hold most of the information on the impact of legislation. Legislative ex-post impact assessments can be helped by institutions such as the Statistical Office in terms of empirical acquisition of data and the National Audit Office or Supreme Audit Institution through performance auditing.
In many countries, parliaments and elected representatives have little information on what happens after a law is adopted. Their focus is often on getting legislation passed, and only to a limited extent on checking how well it is being implemented. Nevertheless, parliament has a role to monitor the implementation of legislation. Legislative ex-post evaluation can be used as an instrument for accountability and oversight over the executive as well as a mechanism to improve the quality of new legislation and policies.
(Photo: Dr. Elena Griglio from the Italian Senate shared her experience of establishing a parliamentary unit specialised in Post-Legislative Scrutiny.)
Practices in different parliaments indicate various triggers to carry out legislative ex-post evaluations, such as a provision in the explanatory memorandum, a review or sunset clause in the law. Other triggers are high compliance costs, issues reported in media or high-profile cases challenging the policy underpinning the legislation.
In his contribution to the expert seminar, Dr. Tom Caygill from Newcastle University explained how PLS in the UK has become more systematic during the last 10 years, primarily because government departments are required to produce a PLS memorandum three to five years after enactment of a law. The memorandum is submitted to the House of Commons which then decides whether to pursue a further parliamentary inquiry or not. While PLS is not fully mainstreamed throughout the work of select Committees yet, several triggers for PLS have been identified, such as industry pressure to review a law, scepticism regarding the information in the memoranda, the salience of an issue, and interest by Members of Parliament.
Evaluation criteria may include the progress made in achieving the objectives (main criterion), the side-effects of the law (positive, negative or unintended side-effects), the enactment of the law, the practical use of the law, and analysis whether the costs are proportionate to the results. Consideration needs to be given to the time needed after the entry into force of the legislation (for instance, between three to five years after the law entered into force) in order to have sufficient evidence to conduct an impact evaluation.
In her contribution to the seminar, Dr. Elena Griglio from the Italian Senate elaborated on different options for the institutionalisation of PLS in parliament, including experiences from establishing a parliamentary unit specialized in PLS. Dr. Dina Melham from WFD explained how legislation against Gender Based Violence (GBV) often lacks implementation in many countries around the world. She unveiled new tools for PLS of GBV legislation, including through behavioural mapping. Both presentations provided further depth to the Principles for Post-Legislative Scrutiny by Parliament.
A PLS inquiry often results in a report with findings and recommendations. The report, mostly adopted by a parliamentary committee, may also form the basis for parliamentary questions to the executive. While some of these parliamentary questions may serve accountability purposes, they may also be used for agenda-setting purposes, policy change and legislative amendments. However, as the research by Dr. Caygill reveals, there is still a way to go to ensure that Committees in Westminster follow up on the extent that their recommendations are taken forward by the UK government.
Essential for parliamentary oversight
PLS is not a luxury item or an add-on, but an essential part of parliamentary oversight and a natural evolution of the functions of parliament. While there is no single way of doing PLS that suits all parliaments, as indicated in the Comparative Study on Post-Legislative Scrutiny, PLS can be contextualised as there are a variety of ways of doing PLS. Parliaments worldwide are stepping up to the challenge of finding out if legislation is doing what it intended to do, while being realistic about resource-intensiveness. A step-by-step approach of building skills, resources and structures has proven to be most effective, as indicated in the Guide for Parliaments on Post-Legislative Scrutiny.
Franklin De Vrieze, Senior Governance Adviser, Westminster Foundation for Democracy
(Main photo: Lord Norton of Louth opens the expert seminar on Post-Legislative Scrutiny at WFD’s London Headquarters, April 2019.)
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