One of the main roles of parliament is to create laws that meet the needs of the country’s citizens. It is also a parliament’s role to evaluate whether the laws it has passed achieve their intended outcome(s). Post-legislative scrutiny refers to the stage at which a parliament applies itself to this question: whether the laws of a country are producing expected outcomes, to what extent, and if not, why not. While there is no single blueprint for conducting Post-Legislative Scrutiny by parliament, through this publication, the Westminster Foundation for Democracy (WFD) hopes to assist and enable better organized Post-Legislative Scrutiny inquiries by parliament. This “Post-Legislative Scrutiny: guide for parliaments” provides practical guidance for organizing Post-Legislative Scrutiny inquiries in parliament.
This guide has three main sections.
The first section describes the framework for conducting Post-Legislative Scrutiny by parliament. It provides a short introduction to the why and what of Post-Legislative Scrutiny and addresses the question of which laws require priority focus for Post-Legislative Scrutiny. There are examples of typical questions addressed in ex post facto evaluation of legislation. The first section discusses use of Post-Legislative Scrutiny to pursue cross-cutting policy themes or priorities, such as gender analysis. It relies on some key issues discussed in the “Principles for Post-Legislative Scrutiny by Parliament”, published by WFD in 2017.
The second section describes the methodological steps for parliamentary staff in organizing a Post-Legislative Scrutiny inquiry. This is the most substantive and detailed section, divided over four phases: pre-planning phase, planning phase, implementation phase and follow-up phase. The guide is centred around short sections, methodological steps that allow readers to focus on individual topics or challenges. Each section includes a short bullet-point summary highlighting the main action points for parliamentary staff and MPs.
The third section of the guide offers the concluding remarks. Reviewing the implementation of legislation is closely linked to the oversight function of parliament. To take charge of this responsibility, parliaments can establish specialised committees and conduct their own analysis and/or they can rely on the information and reports provided by the government. In its policy advice and capacity building support to parliaments, WFD could suggest various options (or combination of options) on how to introduce Post-Legislative Scrutiny
- Ministries could be asked to provide regular reporting to parliament on the implementation of laws, possibly based upon the UK model where the ministries prepare a Memorandum for parliament on implementation of each law - three to five years after its enactment.
- Parliament could outsource or commission research on law implementation to external institutions, either autonomous official institutions (such as the Auditor General’s Office) or external independent institutions such as universities.
- Parliament could conduct its own inquiries on the implementation of selected laws by holding public hearings, collecting evidence and conducting in-house research by staff of the Parliament, such as through a Research Unit or Legislative Unit.
In contexts in which a parliament has limited resources to sustain a fully integrated system of Post-Legislative Review, WFD suggest the planning and implementation of a two-year pilot project approach in which the parliament examines the implementation of a limited set of laws (two to three). After this two-year period, the pilot project can be evaluated, and lessons learned identified for a more generalised and institutionalised approach. The pilot project could take the form of a Committee review of Ministry reports on the implementation of selected law(s), Committee review of outsourcing research by external institutions or Committee-led inquiries and in-house research on implementation of selected legislation. Finally, the Post-Legislative Scrutiny work needs to show its relevance to the public and needs to be conducted in a way that citizens can contribute to evaluation of legislation.
This guide contains several annexes, including a comprehensive check-list of all staff actions to be taken for a Post-Legislative Scrutiny inquiry during the planning phase, implementation phase and follow-up phase (Annex 1), and guidance for witnesses of the Post-Legislative Scrutiny hearing or consultation (Annex 2). A Glossary of Parliamentary Terms has been annexed to the guide (Annex 3), and a bibliography of relevant literature (Annex 4).
The guide has been drafted because WFD sees value in the argument that Post-Legislative Scrutiny should be a more integral part of the parliamentary process. WFD is aware of the resource constraints that parliaments face and the need for a flexible approach. The guide therefore seeks, as much as possible, to build on existing systems and procedures in the beneficiary parliaments.
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