It is broadly accepted that parliamentary scrutiny of legislation is a ‘good’ thing and that, if possible, there should be more of it. It is also broadly accepted that it is often ineffective and wrongfully subverted. As a result, most commentaries in this area focus on improving and enhancing scrutiny throughout the legislative process rather than considering why legislative scrutiny is so important to begin with and what it ultimately seeks to accomplish. In some ways this is surprising, as Sir Stephen Laws comments, ‘how can you reach conclusions about the ways to improve a process without a clear idea of what the process is intended to achieve?’[1]
To gain that clearer idea, in this blog I intend to make three arguments about the purpose of legislative scrutiny:
- Scrutiny enhances the technical quality of legislation;
- Scrutiny ensures accountability; and
- Scrutiny facilitates policy influence.
Technical quality
Perhaps the most obvious benefit of effective scrutiny is the production of workable legislation on a technical level. In theory ‘good’ procedure results in ‘good’ legislation, whereas ‘bad’ procedure risks the enactment of ‘bad’ legislation that cannot function in practice. But what do we mean when we say ‘good’ law? What makes one piece of legislation more effective than another and why can the adequacy of scrutiny impact outcome to such an extent?
A sensible place to start when considering these questions is to look at the Office of Parliamentary Counsel’s definition of ‘good’ law. They define such laws as laws that are ‘necessary, effective, clear, coherent and accessible’. In comparison, ‘bad’ laws are ‘ineffective, inaccessible, disjointed, unclear and unnecessary’. Thus, it’s clear that the definition of ‘good’ law extends beyond the technical drafting of a statute to encompass the quality of the legal policy. If a law is deemed to be unnecessary or its legal policy ineffective, it may be classified as ‘bad’ regardless of how accurately and transparently its provisions are drafted.
The most effective evidence of the relationship between scrutiny and ‘good’ law is to be found when looking at cases of Parliament producing unworkable legislation, and perhaps the most infamous example of such legislation is the Dangerous Dogs Act 1991 (DDA). The Act was intended to enhance public protection from ‘dangerous’ dog attacks. New criminal offences were created and a breed specific ban on dog ownership was introduced. The DDA was introduced in a knee-jerk reaction to hostile public opinion; the legislation was drafted in haste and rushed through Parliament in a matter of days, subverting effective scrutiny and hampering the statute. Not only was the Act littered with drafting errors, but it proved to be unworkable in practice when lawyers and judges struggled to apply its provisions during criminal proceedings. Hood, Baldwin and Rothstein highlight how the Act’s central policy was heavily criticised – in particular, s.1 of the Act, which created a breed specific prohibition relating to Pit Bull Terrier types, operated poorly as ‘two studies in 2014 and 2018, suggested that members of the public and professionals within dog shelters had difficulty in identifying these dogs and other breed types.’ The DDA also failed to achieve its policy objective as no evidence was found to suggest that the frequency of dangerous dog attacks reduced after the DDA’s passage. Ultimately the DDA was widely condemned as ‘bad’ law and had to be amended retrospectively.
The DDA’s drafting errors and subsequent failure was no surprise given the lack of scrutiny it received. Drafters provide invaluable experience and are capable of subjecting policy ideas to ‘rigorous intellectual and legal analysis’. When legislation is rushed through Parliament as the Dangerous Dogs Act was (in only one day), it denies drafters the opportunity to contribute in this way.
Similarly, the clarity and the cohesion of the DDA’s legal policy was also lacking. As evidenced by practitioner’s inability to apply the new legislation within criminal proceedings. Here, consultation with external lawyers practicing within the policy area during the drafting process would have helped. As the Select Committee on the Constitutionadvises: ‘early, informal consultation (with lawyers) on the wording of draft legislation can mitigate the risks of unintended consequences and ensure that legislation has been thoroughly ‘stress-tested’ by the time it is introduced’.
Other scrutiny mechanisms may also enhance the technical quality of a law. For example, select committees may examine draft bills, producing reports and suggesting amendments to the text. MPs and Peers also have the opportunity to scrutinise a bill and propose changes to a bill’s wording or legal policy during debates in Parliament. Due to the fast-tracking of the bill, the DDA failed to receive the benefit of any of these additional pre-legislative measures, detrimentally affecting the quality of the enacted law.
Accountability
A key purpose of legislative scrutiny is to ensure executive accountability. Scrutiny not only operates to ‘call the government to account’ for its actions, but it also introduces Parliamentary checks and balances that act to prevent executive abuses of power.
Perhaps most notably, Parliament relies heavily on the work conducted by a number of specialist ‘scrutiny’ committees. Scrutiny committees are responsible for reporting on new legislation, highlighting perceived flaws in a bill, and suggesting potential amendments. Crucially, committees can require the responsible minister to provide evidence addressing the intended purpose and potential consequences of any draft provision. Not only do these evidence sessions enhance transparency, they also provide an opportunity for the government’s legislative proposals to be tested directly via oral questioning. The content of these evidence sessions will be reported to Parliament to inform debate and published in the public domain.
In addition to the work conducted by scrutiny committees, Parliament’s ability to utilise legislative scrutiny to hold the government to account, and constrain executive law-making power, is facilitated by parliamentary procedures themselves. As Peter Davis has explained elsewhere, individual parliamentary procedures can be viewed as ‘miniature ropes’ that collectively prevent our constitutional system falling apart.[2] Each ‘rope’ plays a part in controlling the executive and protecting parliamentary democracy. A brief examination of the Legislative and Regulatory Reform Act 2006 (LRA)’s passage highlights how these ‘miniature ropes’ achieve this effect.
The LRA in its original form was a constitutionally radical proposal. It was intended to streamline the legislative process by granting Ministers an almost unfettered power to amend primary law by delegated legislation to create political change faster. The bill risked the almost total subversion of parliamentary scrutiny and failed to ensure adequate safeguarding against executive abuse of power.
The LRA’s controversial nature was initially exposed by the House of Commons Regulatory Reform Committee who produced a report highlighting concerns and proposing amendments. This report generated significant media and academic interest and individual MPs and Peers began to raise concerns during debates. Additional committees also reported in a similar manner, supporting proposed amendments, and suggesting their own. By the time the LRA reached final reading, the government had no option but to backdown and accept the vast majority of proposed amendments. Upon enactment, the scope of the powers contained in the LRA was significantly narrower than originally proposed. Returning to the idea of ‘miniature strings’, it is clear how various scrutiny mechanisms here operated in tandem to expose and interrogate an alarming policy and succeeded in holding the government to account.
Policy influence
Scrutiny mechanisms also provide parliamentarians and the public with the opportunity to influence the policy within legislation. This influence is felt, not just during the decision-making stage of the legislative process, but during the policy formation stage too.
As discussed above, debates in Parliament provide a platform for parliamentarians to examine a bill, voice their discontent, and propose policy amendments. They are also an opportunity to garner support amongst other MPs and Peers for change. Avoiding defeat, particularly in the Commons, is paramount, and thus governments are often forced to accept policy concessions and amendments in order to avoid a backbench rebellion. Similarly, in the Lords, Peers have the opportunity to table bill amendments throughout the legislative process and are often highly reluctant to back down during the process of ‘ping-pong’ between Houses. Although recent Conservative governments have been more reluctant to engage with the Lords and accept tabled amendments, policy concessions are still frequently made.
Not only are parliamentarians influential during these debates, but they also exert indirect influence during policy formation. As Russell and Cowley evidence in their study, a government’s desire to avoid legislative failure leads it to anticipate the reaction in both the Commons and Lords when formulating new policy. Due to the Commons’ ultimate veto and their ability to substantially amend the content of a bill, a government has to anticipate the reaction of their own backbenchers when formulating a new policy in order to ensure its safe passage. The fear of revolt (and consequently defeat) is so strong ministers are often willing to do deals with backbenchers regarding the content of a bill’s policy to avoid controversy.
Likewise, governments are generally wary of bills receiving a hostile reception in the Lords as discontent in the Second Chamber risks triggering rebellions in the Commons. Interestingly, ‘Lords handling strategy’ documents are circulated to government departments prior to a bill’s introduction in Parliament, evidencing the influence Peers still exert over governmental policy. It is also worth noting again here that ‘scrutiny’ committees are able to exert a similar prophylactic influence over policy as an unfavourable committee report provides the basis for non-governmental objections to a bill within Parliament. Governments are keenly aware that select committee reports can be used to legitimate policy objectives so will tailor their policy position accordingly at an early stage.
Finally, Parliamentary scrutiny mechanisms also enable non-parliamentary actors to influence the content of legislation. In particular, if the government chooses to publish a bill in draft and conduct full pre-legislative scrutiny, interested stakeholders and the wider public may have the opportunity to provide comment on policy proposals. Crucially, pre-legislative scrutiny of this kind provides the public with a platform to influence policy at the point in the legislative process when the government is naturally most amenable to change.
Conclusion
As this blog shows, there are various different benefits that scrutiny can provide at different stages of the legislative process. The purpose it serves is often multi-faceted and complex. Not only can scrutiny enhance the technical quality of legislation, but it acts to ensure Executive accountability and facilitates wider policy engagement.
Significant time has been spent in recent years criticising Conservative governments’ failure to provide adequate time for parliamentarians to scrutinise legislative proposals effectively. Subversion of scrutiny was a trend apparent in the UK’s legislative response to the COVID-19 pandemic and, more recently, scrutiny of the government’s new (and highly controversial) Anti-Strikes legislation was curtailed by the decision to fast-track the bill and restrict time for debate.Commentators are right to flag such incidents. Not only are the government’s actions fundamentally undemocratic, as my analysis shows, the price to be paid for subverting scrutiny is often a high one. It is only when time is taken to fully explore the value that scrutiny adds does the importance of the process become apparent.
Kate Dewsnip.
Kate is a Graduate Teaching Fellow and PhD candidate at the University of Liverpool School of Law and Social Justice. She is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] Sir Stephen Laws, ‘What is the Parliamentary Scrutiny of Legislation for?’ in Alexander Horne and Andrew Le Seur (eds), Parliament: Legislation and Accountability (Hart Publishing 2016)
[2] Peter Davis, ‘The significance of parliamentary procedures in control of the Executive: a case study: the passage of Part 1 of the Legislative and Regulatory Reform Act 2006’ in Public Law [2007] PL Win, 677-700.