Contribution
My Lords, this is a big Bill. The noble Baroness, Lady Smith, has spent many hours at the Dispatch Box justifying its provisions. This amendment enables her to demonstrate her confidence that it will deliver what she claims for it. The amendment requires the Secretary of State within five years of the passage of the Act to undertake a review of its operation and effect.
Post-legislative scrutiny is essential to ensuring that the laws we enact meet the various criteria of good law. The case for it has been accepted by government since 2008. It results from the report of the Constitution Committee in 2004 entitled Parliament and the Legislative Process. The Government referred the committee’s recommendations on post-legislative scrutiny to the Law Commission, which endorsed the proposal. The Government then announced that Acts would be subject to review by departments three to five years after enactment, with the reviews being published. It was then up to Parliament to decide whether to undertake detailed scrutiny. In the Commons, this has been by departmental Select Committees. In this House, since 2012, we have usually appointed each year a special inquiry committee to undertake post-legislative scrutiny of an Act or of a particular body of legislation, such as adoption law.
In practice, scrutiny by departmental Select Committees in the Commons has been somewhat sporadic. The committees have other priorities. Our practice has been to be highly selective. We cover only a fraction of measures that have reached the statute book in recent years. Those reviews that have been undertaken have variously demonstrated how Acts have been misunderstood or misinterpreted.
We are now being overtaken by other legislatures in engaging in extensive and rigorous post-legislative scrutiny. The noble Baroness, Lady Smith, said in Committee that she had been able to advise foreign Parliaments on the significance of post-legislative scrutiny. The Westminster Foundation for Democracy has done especially valuable work in promoting its use. The result is that we are now falling behind many other legislatures. That includes within the United Kingdom: Holyrood has had a dedicated committee on post-legislative scrutiny that has been effective. The Ukrainian Parliament, despite obvious pressures, has engaged in significant post-legislative scrutiny.
The Government accept the case for post-legislative scrutiny; the problem is in delivering it. The case for it is compelling. It is essential that Acts of Parliament achieve what they are intended to achieve. Some Acts prove a disaster—those, we tend to hear about—but others may have unintended, albeit not disastrous, consequences. Some may be stillborn. There may be problems with application and interpretation. We cannot know that an Act has achieved its goals without undertaking a thorough review and, in effect, as I said in Committee, completing a legislative feedback loop. Success in legislative terms should not be seen as getting a measure on the statute book—which historically has been how Ministers have tended to see it—but rather in delivering what it is intended to achieve.
The problem is in ensuring that post-legislative scrutiny is undertaken. If there was rigorous and consistent scrutiny, this amendment would be unnecessary. However, not all departments undertake such scrutiny. Some are better than others. As I said, departmental Select Committees in the Commons vary in their willingness to pursue such scrutiny. The danger is that Bills that merit such scrutiny will not receive it. There is nothing to guarantee that they will. As I argued in Committee, there is a case for putting on the face of the measure provision for post-legislative scrutiny where the Bill is large, complex, makes substantial changes to the law, is contested, and has not been subject to pre-legislative scrutiny. This Bill qualifies under those criteria.
In Committee, the Minister stressed that she was part of the Government who accepted the recommendations of the Constitution Committee and put on record that the Bill will be reviewed within five years. This was very welcome, but she did not put forward an argument as to why the requirement for post-legislative review should not be in the Bill. To say that there will be a review is not so much an argument against the amendment as the basis for accepting it. Putting it in the Bill would guarantee that there will be a clearly structured review, not one that may be undertaken by a department as a tick-box exercise. Accepting the amendment would make clear the Government’s commitment to post-legislative scrutiny and their confidence in the provisions of the Bill.