Legislators have a duty to ensure that new laws have the intended impact. So it's welcome news that the Scottish Parliament plans to introduce a system of post-legislative scrutiny
The Standards, Procedures and Public Appointments Committee of the Scottish Parliament is in the process of completing its inquiry into post-legislative scrutiny.
A seemingly dry task. But consider this: recent legislative reforms in Scotland include the creation of single police and fire services that claim not only performance improvement, but the realisation of a significant level of savings. Shortly, a bill to reform health and social care will also come before Parliament that has the potential to radically change how services to older people are delivered.
The crucial questions that are not addressed by Parliament include: Is the legislation having the impact that we anticipated? Did we need legislative intervention? Are the expected savings being realised?
Generally, this type of process is referred to as post-legislative review, and the Scottish Parliament is the latest of the UK legislatures to address what is an ongoing issue for all lawmakers.
The background is that the standing orders of the Scottish Parliament provide considerable detail on the process of the scrutiny of draft legislation. They are silent, however, on requiring an assessment of how that legislation has performed. In practice, for the subject committees of the Parliament, consideration of draft bills will take up a considerable amount of what is already limited committee time.
The Committee inquiry has been undertaken on the basis that legislation should be reviewed after it has been introduced, and is not questioning if it should be done. The questions facing the committee include the shape of the scrutiny, when it should take place and what the assessment triggers should be.
Introducing new legislation is an expensive process. Draft bills will be developed, tested with experts and scrutinised by committees. After bills are passed into legislation, MSPs will generally move on to the next item of draft legislation.
What is at last being recognised is that we can and should do things differently, and that the responsibility of MSPs does not stop when legislation has been passed. MSPs have a duty to understand the consequences of their decisions and be certain that legislative intervention is having the intended impact. At the moment in Scotland, as in Wales, Northern Ireland and the UK Parliament, further intervention generally comes during committee inquiries or some form of service or policy failure.
What might effective post-legislative scrutiny look like? The UK Parliament recognised the need for better post-legislative scrutiny in 2008 when Harriet Harman, then Leader of the House of Commons, set out the government’s approach in a report. She proposed that legislation should be reviewed three years after implementation.
The basis of review is a memorandum submitted to subject committees by the government. But the number of post-legislative scrutiny inquiries has remained low, meaning that the process has yet to be fully effective.
So is there a better approach? In Scotland, evidence provided to the Committee inquiry point towards an improved process of pre-legislative scrutiny beginning with greater challenge to ensure that the case has in fact been made for new legislation and that any existing laws have been properly tested.
A more integrated model of scrutiny would link better pre-legislative scrutiny not only to ongoing scrutiny but would also prescribe the need for post-legislative scrutiny and set a timescale when this would be done. A focus on affordability, prioritisation and value for money could be the basis throughout the whole life of the scrutiny cycle and would lead to a more integrated methodology and a structured conclusion by the reviewer.
We await the Committee’s final report but it is expected that the missing link in the scrutiny process will finally be formalised.
Don Peebles is policy and technical manager at CIPFA in Scotland
