Martin Partington: Spotlight on the Justice System

In the book (Chapter 3) I note various ways in the legislative process has changed over recent years. At present, however, there is no mention of a new process of post-legislative scrutiny that has been in place for the last 2 or three years.

The idea of post-legislative scrutiny is fairly simple. After a period following the enactment of a new Act of Parliament the question should be posed: is the Act working as it was intended to do?

The idea has been floating around academic circles for many years. The House of Lords Constitution Committee considered it in 2004. Things moved forward significantly when the former Labour Administration asked the Law Commission to consider the issue and how it could be turned into a practical reality.

Its report was published in 2006; the then Government’s reponse was published in 2008.

Since then there has been a programme of post-legislative scrutinies.

The key features of the programme are:

• not all Acts of Parliament are subject to scrutiny;

• where there is scrutiny, the review is undertaken by the relevant Departmental Select Committee – it is a process driven by back-bench MPs, taking evidence and reaching conclusions as they do in other inquiries they undertake;
• the scrutiny process is started by the preparation within the Government department concerned of a memorandum on the Act of Parliament concerned being presented to the Select Committee, who then invite wider observations and inputs from outside government on the Act’s operation.

The Law Commission’s report is at:http://lawcommission.justice.gov.uk/docs/lc302_Post-legislative_Scrutiny.pdf

The Government’s response is at: http://www.official-documents.gov.uk/document/cm73/7320/7320.pdf

For an example of a current post-legislative scrutiny exercise, see the Justice Select Committee’s inquiry into the operation of the Freedom of Information Act. In relation to this, evidence has been sought and obtained; the final report is being written.
For further information see:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/foi/
The Ministry of Justice’s memorandum which formed the basis for the inquiry is at http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/foi/

Clearly at some point there needs to be an evaluation of the scrutiny process. Are lessons being learned from the process which can be fed back into the legislative process?