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Post-legislative scrutiny of climate and environment legislation: Guide for parliamentary practice
This guide for parliamentary practice outlines an approach to assessing the implementation and the impact of climate and environmental legislation at national level.
Summary of the guide
Parliaments have a key role in responding to the clear, present danger posed by current rates of environmental decline and a warming climate through its legislative, representative and scrutiny functions. First, through scrutiny and enactment of appropriate legislation and regulatory frameworks and, second, in reviewing the implementation of those laws. Because, where legislation has been enacted, implementation has not always matched the legislative ambitions. Further, where legislation is in force, the ambitions may not match what the science demands. Parliaments therefore have responsibilities to scrutinise policy, even where not by required law, and to debate the issues of the day, thereby fulfilling their representative function.
Post-legislative scrutiny (PLS) is the practice used to monitor and evaluate the implementation of legislation, ensuring laws benefit constituents in the way originally intended by lawmakers. PLS can be used to provide oversight of the implementation gap – that is, the gap between ambitions legislated for and those actually delivered. PLS can also provide a window through which legislative ambitions can be increased – to accord with what the science demands. This report provides a range of tools and examples of how parliamentarians can effectively address specific climate or environmental laws. It also details practices that can be used to supplement PLS of laws not specifically environment- or climate-focused.
Climate and environment in all scrutiny
This report demonstrates the advantages of placing a climate and environmental “lens” over the business of legislating and PLS. Parliamentarians can use the concept of sustainable development, and the Sustainable Development Goals (SDGs), as an analytical frame for this; for example, as demonstrated in the Scottish Parliament’s sustainable development impact assessment tool. As a start, such an approach should involve parliamentarians moving beyond simply asking ‘what is the economic cost?’ to asking, ‘what is the carbon cost?’ and ‘what is the value of this resource?’, since economic decisions can have an effect on the environment, and environmental protection and resource management expenditures can have economic impacts.
Embedding questions of sustainability in everything a parliament does can benefit from both political and institutional support:
- Political recognition of the urgency of the climate and ecological crises is often a prerequisite to action. Whilst actions such as MPs declaring a ‘climate emergency’, parliaments amending rules of procedure to create an environment committee, and/or legislating for commitments to protect the environment and meet the SDGs are all useful; underpinning those is a requirement to have access to, understanding of, and ability to interpret, an evidence base. Reliance on good quality knowledge and expertise is necessary to allow politicians to access the best platform from which to make decisions on law or policy as was the case with the enactment of the UK’s ground-breaking Climate Change Act in 2008.
- Institutional support, that is from parliaments themselves, and those who work in them, is needed to equip politicians with the tools to provide effective oversight of climate and environmental issues. MPs need access to the most relevant, recent and cutting-edge information and research – both through in-house resources, and in accessing the best external advice and evidence. The financial and human resources dedicated to this will determine to a large extent the quality of scrutiny. Internal expertise and research support can be complemented or added to through parliaments establishing relationships with technical or advisory bodies, academic institutions or individual experts. More than ever the idea of participative democracy – that is, the voices of those experiencing issues first-hand or developing the solutions – is bringing greater insight and buy-in to parliamentary activities in these areas.
To deliver effective cross-cutting analysis through PLS, coordination of activities including research, stakeholder engagement, and engaging with external research agencies is key. Coordination can be embedded in the remit of a particular committee, as in the House of Commons’ Environmental Audit Committee. Or, it can be embedded in the remit of all committees. Either way, communication is essential. Parliaments may consider a range of tools to ensure effective coordination:
- Committees of Chairpersons: Chairs of all of the committees may participate in a committee of chairpersons that considers issues of cross-cutting relevance to committee oversight practices and specific committee inquiries. This committee could:
- take decisions on disputed issues related to the scope of work of committees
- help to coordinate joint committee sessions, establishing procedures, processes and resource allocationsconduct hearings with the head of the government as is the case with the UK House of Commons’ Liaison Committee.
- Official to official:committee and research staff may meet up to regularly share information on, and help shape, committee work plans, and future areas of scrutiny in order to avoid unnecessary duplication of work – recognising that decisions over committee work will always ultimately be taken by committee members and Chairs.
- Publishing future work plans: committees may decide for full transparency in all of their work, including publishing future work programmes (already a commonplace activity in many parliaments). Through publishing and publicising their work programmes in this way they can highlight what issues they will focus on. This can have the added benefit of helping to direct external partners’ focus onto these subjects as well, which can in turn be utilised by the committee.
Coordination is important not just to avoid duplication, but also because there could be benefits, in some cases, of committees holding joint sessions to amplify scrutiny and bring to bear the most relevant expertise in the parliament. Parliaments may consider holding wide-ranging inquiries in which individual subject committees focus in on specific sub-topics. For example, when scrutinising climate change plans, different committees may wish to consider the sectoral impacts on policies within their policy remit, as the Scottish Parliament have decided to in 2021. It is crucial that parliamentarians also consider the non-climate and environmental legislation using a “sustainable development lens”. This approach can help committees to ask what the social, economic and environmental implications are, and what if any unintended consequences there have been, on issues often considered to be beyond the scope of climate and environmental committees.
However coordination is achieved, scrutiny should be focused on the areas of greatest concern and importance. Parliaments can make use of scrutiny partners in identifying these key issues. Outside of parliaments, audit institutions and regulators are important partners. Parliamentarians should look to work with their peers in the “triangle of scrutiny” to deliver complementary and additional oversight of the government. It is essential that in working with these scrutiny partners, committees are completely transparent as regulators may be either the subject of scrutiny as an implementing agency, or a supporting partner supplying evidence and data on compliance or enforcement, or both. Audit agencies meanwhile could be a rich resource of data on Natural Capital resources, sustainable finance and costs of enforcement and non-compliance. In addition, many parliaments have mechanisms to utilise directly the expertise and human resources of audit bodies, as audit institutions typically report into or coordinate with one or more parliamentary committees.
Special factors for climate and environment laws
Significant strides have already been taken around the world to pass legislation to protect the environment and to halt climate change. But under the laws enacted, and the international treaties agreed, the world is on course to miss its target to limit warming to less than 2 degrees. PLS can therefore contribute to the scientific and ecological demands for strengthened laws and stronger outcomes through ensuring legislation in force is: effective, efficient, coherent, relevant, and accountable. To do so parliamentarians should consider:
- International environmental treaties. Many environmental issues that begin as matters of national concern rapidly become transboundary, often global, in scope. Such transboundary, global issues can by their very definition only be addressed effectively through international cooperation. Parliamentarians have a key role scrutinising both the enactment and the implementation of international environmental treaties. PLS can in particular provide a timely window of analysis to check on the government’s commitments and adherence to such treaties. Further, delivery against international treaties can only take place at national, regional and sub-regional level. Parliaments are absolutely critical to ensure that this happens. PLS offers a window through which representative participation can take place and ‘on the ground’ evidence of action or inaction can be unearthed.
- Regulatory underlap and overlap in the scope of implementing agency mandates. The piecemeal development of environmental legislation risks regulatory overlap and underlap. PLS can promote open dialogue with stakeholders, regulated industries and civil society organisations in order to identify implementation gaps and overlap in agency mandates. There is an important role for parliamentarians to identify and review the role of implementing agencies of environmental laws, in order to consider: whether compliance and enforcement regimes exist; and their effectiveness, legality, and coherence.
- Human rights and environmental rights together. PLS of climate and environmental legislation can contribute to the protection and promotion of human rights, as many human rights depend upon the environment. Through adopting a rights-based approach to scrutiny, as a complement to more traditional regulatory interventions, parliamentarians may be able to identify alternative means of enhancing environmental outcomes, including through:
- oversight of government actions pursued (or not) in fulfilling legal duties under human rights treaties and in national constitutions
- challenging the lawfulness of decisions, acts, omissions and policies of public bodies and authorities that create environmental injustice.
- Legislative targets for climate and environment are adequate, timely and achievable. Enacted climate and environmental laws often utilise secondary (or delegated) legislation. This allows ministries – or other implementing agencies – to develop detailed programmes under overall strategies/aims presented in primary legislation. However, setting targets alone does not in itself help to halt climate change or improve environmental outcomes; PLS of climate and environment legislation should therefore focus its assessment on not just targets, but the material outcomes and performance against the targets – asking if the targets and actions to meet them are doing enough.
- How it will access, use and share evidence. Limited access to complete and accurate information from agencies, facilities, and project proponents can hamstring PLS from the outset. Many climate and environmental laws can only be scrutinised in detail with access to data (on for example environmental outcomes) and information (on for example success of compliance and enforcement regimes). It is therefore essential for parliaments to find ways to access data and evidence on the implementation of legislation and the environmental impacts or outcomes. Through advocating for access to information, parliaments can promote greater transparency.
- How it will work with internal and external expert advisers. Environmental and climate issues can be highly technical. Parliamentarians may find it prudent to establish effective links to expert advisory bodies as well as to regulators. These links can be formalised through legislative provisions or be made on an ad hoc basis. In any such approach transparency is critical as is an understanding of bias, conscious or unconscious. Parliamentary staff will have to manage these partnerships to ensure the technical advice and support is focused in on parliamentary timetables, parliamentarians’ focus and responsive to their technical needs.
Image by Patrick Hendry on Unsplash
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