Merits of Statutory Instruments Committee: Post-implementation Reviews

My Lords, I very much welcome this report from the Merits Committee. I am a member of the committee but I was not at the time this report was produced. Rather, my interest stems from my period as chairman of the Constitution Committee when we produced the report Parliament and the Legislative Process. That report addressed the need for post-legislative scrutiny in respect of primary legislation. The committee’s recommendations were referred to the Law Commission and led to the Government accepting the case for post-legislative scrutiny. Most Acts are now subject to review three to five years after enactment. I very much welcome that. There is a very compelling case for secondary legislation to be subject to review and for the same reasons as primary legislation. It is important to check whether the legislation has had the intended effect, whether it has proved cost-effective, and whether there have been unintended consequences. It is not a case of simply looking to check whether something has gone wrong; it is important for identifying and disseminating best practice. It is also an important discipline on government; knowing that there is to be a review helps concentrate the mind. Enactment ceases to be the end of the process—rather, it becomes one step in a continuous process designed to ensure that legislation does what it is supposed to do. Given that, as the Merits Committee argues, post-implementation review should apply to secondary as well as primary legislation. The report is thorough and persuasive, and the Government’s response is welcome as far as it goes. It is certainly a much more constructive response than that produced the last time I was involved in a debate on a report from the Merits Committee. In the time available I want to focus on one core point, and which reinforces something that the noble Lord, Lord Rosser, has already said. In their response the Government identify three principles that should be satisfied by a system of post-implementation review. Like the noble Lord, Lord Rosser, I have no hesitation in endorsing those principles, and indeed I reiterate the point made in the response when discussing proportionality that it is important to avoid the processes that lead policy-makers to adopt a tick-box approach without adding value to the policy-making process. The response seeks to be constructive and to move forward with post-implementation review. It is always satisfying to see in a government response to a committee report the words, "The Government agree with this recommendation", as the most frequent response. It is good that progress is being made in developing the framework for post-implementation review and that next month the Better Regulation Task Force and the Cabinet Office will clarify the link between post-implementation review of secondary legislation and post-legislative review of primary legislation. My concern is with what is missing. Like the noble Lord, Lord Rosser, when reading the response I looked for what mechanism is planned for ensuring compliance. The Government aim to embed both impact assessments and post-implementation reviews within the policy-making cycle. However, the response goes on to say: ""Departments must bear the primary responsibility and accountability for their policies and for the quality of their policymaking and IAs"." How is this accountability to be achieved? The response states that the Government, ""looks to a range of stakeholders, including Parliamentary Committees, to hold Departments to account for the effectiveness of their policy making, including evaluation and PIR"." The Government will provide guidance and the Regulatory Policy Committee will provide scrutiny and analysis, but there is no mechanism within the Government for ensuring compliance, and in terms of external accountability—especially to Parliament—there is no mechanism for comprehensive and consistent accountability. In its recent report The Cabinet Office and the Centre of Government, the Constitution Committee expressed some concern that the centre was undertaking tasks that should be fulfilled by departments. Here we have the reverse situation where the centre is leaving things to departments and not undertaking tasks which, if not fulfilled by the centre, are unlikely to be fulfilled at all. Leaving it to departments retains the potential for what exists at the moment, which as the noble Lord, Lord Rosser, indicated, is essentially a patchwork quilt of PIRs. As the Merits Committee notes, some departments are much better geared to undertaking PIRs than others. Even with the changes detailed in the Government’s response, that situation may persist. The Government are not initiating a procedure that will ensure that all departments comply with what is recommended. As I have already mentioned, on the last occasion that I participated in a debate on a Merits Committee report, in commenting on the Government’s response, I noted that Ministers appeared to have been subject to departmental capture. I fear that we may be witnessing the same phenomenon on this occasion, albeit it is far more subtle and couched in a more conciliatory tone. The response here is more constructive and does seek to move forward in ensuring consistent post-implementation review. What is lacking is the means for ensuring the delivery of a consistent system. I invite the Minister to tell us precisely how the Government will ensure that such a system is delivered. I also have a comment for the House rather than for the Government. The Government look to Parliament to hold departments to account for their post-implementation reviews. The problem here, as with post-legislative scrutiny, is that there is no single dedicated committee with a specified responsibility for overseeing the exercise. Departmental Select Committees in the other place can examine post-legislative or post-implementation reviews carried out by the relevant departments. But there are two problems. First, those committees are already heavily burdened. They are not likely to have much, if any, time for examining such reviews. Secondly, there is no committee with specified responsibility for looking at such reviews overall. That is especially important in the context of identifying and disseminating best practice. I have advocated appointing a Joint Committee to consider post-legislative reviews. I shall return to that matter in debate in the House tomorrow. Such a committee could consider reviews that departmental Select Committees do not have the time or inclination to consider, identify good practice and review departmental practice. I see no reason why the terms of reference of such a committee should not include post-implementation reviews. If the other place is not willing to agree to a Joint Committee, this House should appoint its own committee on legislation. I shall end with a more general observation. My comments, again, are directed to the House. We have the Merits of Statutory Instruments Committee. I have suggested the appointment of a Joint Committee on post-legislative scrutiny. If such committees are to be effective, there needs to be a clear link with the Chamber and a willingness on the part of the Chamber to uphold committee recommendations. If a statutory instrument is clearly deficient, and that fact has been drawn to the attention of the House, I see no reason why the House should not reject that SI. I do not accept that it is a convention that the House does not vote down secondary legislation. It may be the general practice not to do so, but it is not one that merits the designation of a convention. The Government can always come back with a better-drafted instrument. If this House is more vigilant, be it through committee and a willingness not to accept poorly drafted or otherwise deficient SIs, it will ensure a more disciplined approach on the part of the Government to generate SIs which are more thoroughly thought through and properly drafted. The Government could help to avoid having to face the prospect of such action by the House by ensuring a more rigorous approach to SIs. Knowing that SIs may not be accepted and that, even if they are, post-implementation reviews will be subject to thorough scrutiny by parliamentary examination should ensure that the Government treat secondary legislation with considerably more care than they sometimes have in the past. I welcome the Government’s response as far as it goes, but I hope that I have prompted the Minister to consider how much further the Government could go.