Laws Fit for Purpose? Post-Legislative Scrutiny after the Covid-19 Crisis
Alex Brazier is an Associate at Global Partners Governance. He was formerly Director of the Parliament and Government Programme, Hansard Society and previously a Committee Specialist to a House of Commons Select Committee.
The Coronavirus pandemic is testing existing laws, government policies and public services in a way that few could ever have envisaged. At the moment the overwhelming priority for government and Parliament is dealing with the crisis.
However, at some point, the immediate crisis caused by Covid-19 will have passed. Inevitably, and rightly, that will be the time to look to the future and to plan for the years ahead.
But there is also a strong case for government and Parliament to take stock and assess what has worked well and what has not. One element of this assessment is to look at the effectiveness of existing legal frameworks. Sometimes, critical or unexpected events, such as Covid-19, can test whether laws have proved to be adequate or whether reform is needed.
Post-Legislative Scrutiny: One way to make this assessment is by undertaking Post-Legislative Scrutiny (PLS) which involves Parliament, usually through its committees, scrutinising and evaluating the effects and consequences of a law. If appropriate, the committee may make recommendations for changes to the law or to how it operates in practice. PLS also enables MPs to listen to the views and experiences of those affected by the law and to be responsive to their concerns.
Identifying Success: It is important to note that PLS should not be exclusively about identifying problems with legislation or showing that its objectives have not been met. On some occasions, the law may have worked well and PLS can be useful in highlighting models of good policy and practice so that future legislation can learn the lessons of a successful approach.
How to Undertake PLS: The methods used and outcomes of PLS are similar to those of parliamentary committee oversight or policy inquiries. The committee covering the law’s subject area will usually undertake the PLS inquiry and will follow normal inquiry procedures e.g. collection of information and views (written and oral methods), analysis of information, committee deliberations, report publication with recommendations for legal amendment or reform of how the law works in practice.
Further information and material on the ways that parliamentary committees undertake effective inquiries, including the methods used for PLS, can be found in the Global Partners Governance Guide to Parliaments Number 10, Parliamentary Committees and Oversight Inquiries at the following link:
What criteria should be used in PLS? The nature of PLS will be determined, to a certain extent, by the subject matter and provisions of the law. However, some key standards and criteria for PLS can be identified:
- Has the law met its policy objectives?
- Has the law had any unintended consequences (good or bad)?
- What have been the law’s administrative impacts?
- Is the law clear, unambiguous, and well-drafted? Has the law had any legal challenges?
- Has the law impacted differentially, even perhaps unfairly, on different groups within society?
- Is there sufficient knowledge and understanding of the law?
- Has the law provided good value for money?
- Can any good practice be learned from the law’s implementation?
- Has the political and legal context changed meaning that the law is no longer needed?
Choosing a Law for PLS: Given that MPs are always pressed for time, only a small number of laws can be selected for PLS based on factors, such as:
- Representations from the public or organisations calling for review
- Concerns raised by MPs about the operation of the law
- Public petitions to Parliament
- Media coverage that a law is not working well, reflecting public concerns
- Legal challenges or comments from members of the judiciary
In the context of Covid-19, a broad range of laws may be suitable, reflecting the fact that the crisis has touched almost every aspect of life, although some more clear choices may include:
- Health Provision and Funding
- Social Care Framework
- Welfare provision and social security benefits
- Finance and taxation for private companies and enterprises
- Employment and self-employment legal framework.
Gathering information: Who to approach? Once a law has been selected for PLS, the next stage for committees is to gather information about how it has worked in practice, including methods such as:
- Logging complaints from the public, including those raised with MPs
- Commissioning opinion polls and questionnaires to ask questions to a cross-section of the public
- Inviting information from social media, including blogs and web-forums
- Conducting interviews, hearings and focus groups with targeted individuals or groups
- Commissioning case studies and research involving different communities, regions, social and economic groups, to provide a range of experiences and perspectives
- Identifying different stakeholders for information requests, including:
- Local or Regional Authorities
- Professional groups and private businesses
- Experts and academics
- Public bodies such as Audit Institutions and Regulators
- Civil Society Organisations and Representative Bodies
Global Partners Governance has produced a Guide to Parliament Number 8, Post-Legislative Scrutiny, which describes the purposes, methods, and outcomes of PLS.
The Guide also provides examples of how PLS has been used in different countries including the United Kingdom, Honduras, and Iraq.
Making an Impact: Recommendations, Reports and Follow-Up: The outcome of a PLS inquiry will be usually be a published report containing the committee’s judgement on the law and stating its conclusions and recommendations for government action. The report should be widely disseminated and sent to interested organisations and individuals.
But publishing the PLS report is not the end of the process. If the committee is not satisfied by government’s response to the report, or perhaps if the government has not responded at all, the committee should keep pressing for action, possibly by holding further meetings with a minister or officials.
Conclusion: In the post-Covid-19 period, Parliaments should take a central role in representing and responding to public views about the impact of laws and government policies. Effective PLS can strengthen and improve the legislative and governmental system.