A tale of two Houses? Post-legislative Scrutiny in the House of Commons and House of Lords

As the House of Commons returns this week, Tom Caygill discusses the different approaches the two Houses of Parliament take to undertaking post-legislative scrutiny.

Post-legislative scrutiny is undertaken in both Houses of Parliament and in the last decade a more systematic approach has developed. Since 2008 government departments have been required to prepare and publish memoranda, assessing whether an Acts of Parliament have met their key objectives, within three to five years of them entering the statue books. These memoranda are then presented to departmental select committees for additional scrutiny. Additionally since 2012 the House of Lords Liaison Committee has been appointing at least one ad hoc committee to undertake post-legislative scrutiny per session. There are, of course, differences between the two Houses in terms of composition and also differences in terms of how each House undertakes scrutiny. As such as part of my PhD research into post-legislative scrutiny I have attempted to assess whether there are any differences in how both Houses conduct post-legislative scrutiny.

This post will address whether there are any differences in the type and strength of recommendations produced, as well as any differences between the proportion of these recommendations being accepted or rejected between the two Houses. During the time period I am assessing (2005/06 session to the 2015/16 session) the House of Commons had undertaken eleven inquires and the House of Lords had undertaken five.

On a basic level there is a difference in the types of committee undertaking post-legislative scrutiny in each House. Different because ad hoc committees are (usually) appointed for a full session to look into a particular issue and their members put themselves forward for appointment on the basis of their interest in the issue that will be under scrutiny, as opposed to departmental select committees which are, of course, appointed for the life time of a Parliament. As a result of this there is also a difference in terms of the amount of time committees in both Houses can spend on post-legislative scrutiny. For ad hoc committees, it is likely to be their only task, so they can spend an entire session on post-legislative scrutiny, whereas with departmental select committees, it will likely be one of a number of tasks these committees are undertaking. This is reflected in the average number of post-legislative recommendations that committees in both Houses are making (19 per report in the Commons, 39 per report in the Lords).

In terms of the output of post-legislative scrutiny there are differences in the types of recommendations being made by both Houses. The table below shows that committees in the Lords are making a greater proportion of recommendations calling for action in relation to legislation, and policy and practice.

Type of Recommendations from each House

In relation to the production of more recommendations calling for action relating to legislation, this is not surprising on the basis that the House of Lords often takes a more technical approach to scrutiny, as it does during the formal legislative process. Such technical scrutiny of how the Act is operating could be leading to a greater proportion of legislative recommendations. Additionally, although this requires further research, there is some indication from my research interviews that both Houses view post-legislative scrutiny slightly differently, with the Commons focusing more on holding the government to account and the Lords focusing slightly more on the content of the Acts themselves. Finally there is also a difference in terms of recommendations calling for research and review, with the Lords calling for fewer. This could be down to the fact that committees in the Lords are able to hold an inquiry over an entire session and as such have more time to undertake a more detailed review than committees in the Commons.

Strength of Recommendations made from each House

The second table shows that there is only a limited difference between the House of Commons and the House of Lords in relation to the strength of the recommendations that committees in both Houses are producing. This suggests that there is some consistency. The first table showed a larger proportion of recommendations calling for some kind of legislative action coming from the House of Lords, which are more likely to be classed as stronger recommendations. However with no recommendations calling for large change and a similar same proportion of recommendations calling for medium change, it appears that the legislative recommendations that the House of Lords are making are not extreme in their strength (minor amendments to an Act were placed in the medium category). This is not surprising as the vast majority of post-legislative scrutiny inquires so far have concluded that the legislation they have been assessing has been operating fine.

 Government acceptance of recommendations by House

The third table shows the acceptance of recommendations between both Houses. With regards to fewer Lords’ recommendations receiving no response, this is surprising to some extent on the basis that ad hoc committees dissolve following the publication of their report and as such the committee is not constituted to receive the government’s response, scrutinise it and follow up unlike departmental select committees. This is seen as one of the challenges of undertaking post-legislative scrutiny in the Lords, although there are other benefits such as the time these committee have to undertake such scrutiny. That being said the House of Lords Liaison Committee does follow up in writing on certain recommendations that ad hoc committees consider to be a priority but this is often seen as being less effective than most Chairs would like.

This could also be down to the Lords producing clearer recommendations on the basis committees are more likely to reach consensus due to the nature of the House and its membership. Contentious issues in the Commons are perhaps more likely to see recommendations weakened in order to reach a consensus on them. Contention in the Lords is less of a problem as the Acts selected for post-legislative scrutiny tend to be less contentious. The reasons for a greater proportion of recommendations receiving no response in the House of Commons could be down to the government wanting to kick the issue into the long grass in the hope that the committee would forget. In relation to a greater proportion of Lords’ recommendations being rejected, part of this difference might be explained by the higher proportion of recommendations receiving no response in the House of Commons (i.e. the government might ignore recommendations so it doesn’t have to reject them),

Returning to the original question, although there are differences in terms of how departmental select committees and ad hoc committees are composed and operate, there is still a remarkable similarity in terms of the strength of recommendations that are being made in both Houses. However with the vast majority of post-legislative scrutiny inquiries concluding that the legislation under review is operating as planned, this may not be surprising.

Notes

Tom Caygill is an ESRC-funded PhD student in the School of Geography, Politics and Sociology at Newcastle University. His main interests are the scrutiny of government, the legislative process and parliamentary reform. He tweets @thomascaygill.

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