How have parliaments responded to the Paris Agreement during the past five years? In which way are parliaments making sure that climate legislation does have an impact? These were some of the questions guiding the new report “Parliaments and the Paris Agreement”, published by Westminster Foundation for Democracy, ParlAmericas, INTER PARES, and GLOBE International. Based on this report, we put forward five golden rules for conducting climate-proof Post-Legislative Scrutiny.
By Rafael Jimenez Aybar and Franklin De Vrieze.
With only a few of weeks until the start of COP-26 in Glasgow, the role of parliaments in advancing international climate commitments deserves a spotlight. Parliament’s critical role in the development, implementation, and monitoring of their country’s climate objectives is often underestimated.
The recent report “Parliaments and the Paris Agreement” shows that, to date, action on climate by parliaments has gone beyond adopting climate policies and legislation. The report also notes how parliaments focus on implementation and impact, thus contributing to promoting environmental democracy by upholding the environmental rule of law.
While legislation is of critical importance to achieve national climate commitments, it is equally vital to ensure that the legislation is implemented and has the intended outcomes. This process is often referred to as Post-legislative Scrutiny (PLS) or ex-post impact assessment of legislation.
PLS can help identify implementation shortcomings, areas of improvement and good practices. While PLS can provide oversight of the implementation gap, the gap between ambitions legislated for and those delivered, PLS can also provide a window for increasing legislative ambitions in line with what the science demands.
PLS can be applied to climate-specific legislation as well as to general legislation which is not specifically environment- or climate-focused. In case of the latter, one speaks of a climate and environmental “lens” over PLS.
Based on the new report, we outline five golden rules for conducting climate-proof PLS. The five golden rules capture the do’s and don’ts for parliaments willing to engage on PLS of environment and climate legislation and PLS of general legislation with an environment and climate lens.
1. Make the work of parliament climate-proof. Climate-proof PLS is not the job of the Environmental Committee only. All committees need to be engaged. This means that parliaments need to organise their internal processes to ensure that environmental oversight spans the entirety of its work, including through inter-committee communication and environmental and climate mainstreaming in committees’ work. This requires that all MPs and staff have been informed of the national targets related to mitigation of greenhouse gas emissions and the strategy on adaptation.
For instance, the Scottish Parliament applies its sustainable development Impact Assessment Tool to all its legislation. It helps parliamentarians moving beyond simply asking ‘what is the economic cost or benefit of this law’ to asking, ‘what is the carbon cost?’. The UK Parliament Environmental Audit Committee has a cross-government mandate to consider the extent to which government departments and public bodies contribute to environmental protection and sustainable development.
2. Make all PLS inquiries climate-inclusive. For PLS of general legislation, it is important that environmental impact is explicitly included in the PLS guidance, calls for evidence, and questions used in data collection. The PLS report needs to include a section on findings and recommendations relevant to the environment and climate; going beyond findings and recommendations related to the thematic remit of that law. This is similar to the approach that says that any legislative impact report must have a section relevant to gender equality.
An example is the Indonesian Parliament which has started PLS of the ‘Law on Job Creation’ with specific attention to the risks of driving environmental degradation.
3. Employ environmental treaties as entry-point for environmental PLS. Parliaments have a key role in ratifying international environmental and climate treaties. PLS can provide a window of analysis to check on the government’s commitments and adherence to such treaties as reflected in the national law. Furthermore, delivery against international treaties takes place at national, regional, and sub-regional level. Parliaments are critical to ensure that this happens.
4. Look at the role of implementing agencies of legislation. Each law designates an institution, department or ministry for its implementation. In many countries, the piecemeal development of environmental legislation risks regulatory overlap. Through PLS, MPs can review the role of implementing agencies of environmental laws, in order to consider whether compliance and enforcement regimes exist, and what is their effectiveness, legality, and coherence.
For example, the National Assembly of Nigeria is currently assessing the Environmental Impact Assessment Act and the Act on the National Agency for the Great Green Wall.
5. Review the legislative targets. It is important that legislative targets for climate and environment are adequate, timely and achievable. Setting targets alone does not in itself improve environmental outcomes. PLS of climate and environment legislation should therefore focus its assessment not only on targets, but also performance against those targets – asking if the targets and actions to meet them are doing enough.
For example, the Canadian Parliament enacted a review clause in the Net-Zero Emissions Accountability Act to ensure a parliamentary review after 5 years of it coming into force with the aim to sharpen the targets.
Rafael Jimenez Aybar is Environmental Democracy Adviser and Franklin De Vrieze is Senior Governance Adviser at Westminster Foundation for Democracy (WFD).