Parliament has a responsibility to monitor that legislation is implemented as intended and has the expected impact. ‘Post-Legislative Scrutiny’ can help increase government accountability and fulfill parliament’s oversight role. But how exactly do parliaments review the impact of legislation? In a blog based on his presentation at our 2017 Legislatures in Uncertain Times conference, Franklin De Vrieze (Westminster Foundation for Democracy) discusses the parliamentary experience across different democracies and identifies shared principles.
In many countries, major political efforts and resources are invested in drafting, debating and approving legislation, but then, often, there is little follow-up on the implementation, or even little precise knowledge on the state of implementation of legislation. Isn’t it the job of government to implement legislation, one can wonder? Yes, it is; but it is the role of parliament to oversee, monitor and evaluate to what extent the government has implemented the legislation and how successful it is. Therefore, Post-Legislative Scrutiny (PLS) is an important tool for increasing government accountability.
PLS is a broad concept, which consists of two dimensions. Firstly, PLS looks at the enactment of the law, whether the legal provisions of the law have been brought into force, if secondary legislation has been enacted, and how courts have interpreted the law. Secondly, PLS looks at the impact of legislation, whether the intended policy objectives of the law have been met and how effectively.
Earlier this year, Westminster Foundation for Democracy (WFD) published a Comparative Study on PLS. The Study examines how parliaments have taken an active role in overseeing the implementation of legislation in different countries, working with different political systems. The Study provides an in-depth analysis of the mandate and responsibility for PLS; participants, processes and scope of PLS. Interesting insight emerged from comparing practices from – for instance – the UK, Belgium, Indonesia, South-Africa and Switzerland.
In the United Kingdom, the Westminster Parliament has a well-established system of PLS. This foresees that all select Committees may conduct PLS as part of their routine scrutiny work. In addition, a Government Memorandum on the implementation of legislation is due to parliament between three to five years after a law is adopted. Upon receipt of the memorandum, parliament decides whether a further inquiry is necessary. In the devolved Scottish Parliament, PLS has been included recently in the remit of the “Public Audit and Post-Legislative Scrutiny Committee”, as an explicit responsibility, while all other committees continue to have the faculty to conduct PLS within their policy area.
In Belgium, the two Houses of the federal parliament, established a Joint Committee on PLS during the previous legislature. The Joint Committee identified three occasions to examine legislation:
(1.) a petition by individuals or organizations highlighting problems with implementing legislation which is in force for minimum of three years;
(2.) a ruling by the Court of Arbitrage or Constitutional Court which has an impact on the system of Rule of Law; and
3.) the Annual Report of the General prosecutor to parliament. In practice, petitions related to the system of rule of law and administrative burden on citizens and companies were the issues of most interest to the Joint Committee.
In Indonesia, the Standing Committee on Legislation (BALEG) of the House of Representatives monitors the implementing of legislation and regulations, challenges at the Constitutional Court, and the functioning of implementing agencies. BALEG refers the results of its PLS work to the subject Committees for follow-up. The Parliament Secretariat has established a Centre for Post-Legislative Scrutiny, as a separate structure with its own expert staff.
In South Africa, PLS is conducted by an external panel of 17 senior experts whose task is to review legislation post-1994 (end of the apartheid regime and transition to a democratic state), including leading academics and policy specialists, chaired by the former Speaker. Its work is directed to four policy areas: poverty; unemployment and inequality; creation and equitable distribution of wealth; land reform, restitution, redistribution and security of tenure; nation-building and social cohesion. The focus is thus on a thematic review of legislation rather than a review of single legislative acts. The expert panel conducts public hearings in nine provinces; and the project is still ongoing.
In Switzerland, there is a constitutional obligation for parliament to evaluate the effectiveness of legislation. Therefore, the Parliament secretariat established a specialized service, Parliamentary Control of the Administration (PCA), which conducts PLS research on behalf of the Committees. The PCA conducts several large research projects per year.
Based on the comparative analysis of practices in these and other countries, WFD has identified best practices or principles for effective PLS by parliaments. Key principles cover the parliament’s mandate to conduct PLS, the scope of PLS, the role of parliamentary Committees, and the timeframe for conducting PLS.
Mandate
Securing a binding requirement for PLS at the time when the bill is debated in parliament is the most effective way to guarantee that PLS will indeed take place. A parliament may consider three binding instruments to fortify its ability to carry out PLS: a ministerial undertaking, review clauses in legislation or sunset clauses. However, while such binding requirement is useful, it is not necessary. Also in cases when no early commitment to PLS is made during the passage of the bill, parliament has a primary responsibility to oversee the implementation of legislation. It is then the responsibility of parliament to identify when it will trigger PLS, such as for instance requests by citizens and organizations trough petitions, media reports highlighting problems with specific laws; members of the judiciary pointing at gaps, flaws or contradictions in legislation; and regular committee work.
Scope
Parliament needs to carefully identify the pieces of legislation that are selected for reviewing their implementation. It is better to review a limited number of laws per year, rather than reviewing multiple acts a year in a less thorough manner. Best practice indicates that it is best to review laws related to a state of emergency and laws adopted under fast track procedure. It is also useful to review secondary or delegated legislation at the same time as reviewing the primary act.
In most circumstances, PLS avoids a simple replay of policy arguments from the time when the merits of the law were debated, but rather focusses on the enactment and impact of the law. Nevertheless, in some cases such as for instance when reviewing obsolete legislation (e.g. colonial), PLS might also inform an updated discussion as to whether the objectives as such were optimal, and if the law needs to be amended or repealed all together. The same exception to the rule of no policy-replay applies to emergency legislation, which is often adopted without proper parliamentary scrutiny in time-pressured circumstances. In addition, when analysing the impact of legislation, one needs to consider the cumulative effect of legislation, as legislative impact is rarely the effect of one single law.
Timeframe
For PLS findings to be as relevant as possible, it is useful to conduct the review between three to five years after enactment of the law. A too early review runs the risk that there is insufficient evidence for a mature judgment on the impact of legislation. Some legislation does take time to come into effect, because different parts of the law might have different commencement dates, for instance. While it is hard to establish a general timeframe for PLS, between three to five years after enactment looks reasonable.
Gender equality
PLS provides an opportunity to assess the impact of legislation on issues which cut across different Acts, such as gender equality or rights of minorities. As legislation frequently affects men and women differently, systematic analysis and evaluation of law and policy, based on how they impact women, men and other relevant demographic groups can help to identify and avert or redress any potential disadvantages they may create. To do a gender analysis of the impact of legislation, there is need for the collection of evidence, with sex-disaggregated data or qualitative assessments of government services.
Access to information
For Post-Legislative Scrutiny to be as effective as possible, access to government-held information is vital. In the UK, access is secured through the agreement between parliament and government for an outline ministerial memorandum on the implementation of legislation, at least three years after enactment of the law. If such framework between government and parliament is not in place, parliament itself needs to take the initiative to collect relevant information and secure access to governmental information. Parliament can request government to submit information, answer to questions etc. In addition, a performance audit by the Auditor General’s Office can also be a useful source of information.
Citizen engagement
Public engagement in PLS enables access to additional sources of information, increases the credibility of findings and enhances public trust in democratic institutions. The results of the PLS inquiries, e.g. the PLS Committee report, need to be publicly accessible, if possible using open data and document standards.
Notes
Franklin De Vrieze is a Senior Governance Adviser -at Westminster Foundation for Democracy (WFD) Follow him on Twitter: @FranklinDVrieze