Sir Terence Etherton - Law Commission

Question: How have you defined post-legislative scrutiny in your report?

 

Sir Terence: In very broad terms, what we are proposing is that there should be a more systematic practice of reviewing laws once they have been enacted and brought into force, to ensure that they are working as intended. 

 

The background is that every year there are over 10,000 pages of new legislation introduced - in terms of primary and secondary legislation. 

 

If you add European directives and regulations, the figure is doubled.

 

There is an increasing need to reflect on the effect of all these new laws to see if they are working as intended, and if they are not to discover why not.

 

This will allow lessons to be learnt to ensure that future legislation achieves its objectives in the most cost-effective way. 

 

Post-legislative scrutiny ties in with the government’s drive for better regulation, which in very broad terms is designed to achieve a situation where you have no more legislation than is necessary and such legislation you have achieves its objectives.

 

Question: Is the goal to review every law that comes out?

 

Sir Terence: No, that would not be feasible. We have to put this in the context of our proposal.

 

Our proposal is that in addition to the existing mechanisms there are for post-legislative scrutiny through government departments, departmental select committees in the House of Commons, and in other ways, parliament should consider setting up a joint committee on post-legislative scrutiny. 

 

It would not be possible to review every single act, but if such a committee is set up, it will select appropriate acts for review, decide how reviews should be undertaken and develop organically within its own broad terms of reference.

 

We feel that would be a much better application of resources.

 

Question: What are going to be some of the major benefits from this scrutiny?

 

Sir Terence: Our consultation has shown that there is overwhelming support for the principle of post-legislative scrutiny. 

 

There are four headline reasons for having more post-legislative scrutiny that have emerged from our consultation.

 

The first, as I have pointed out, is whether legislation is working as intended. 

 

The second is that it will contribute to better regulation.

 

The third point is that it will be possible to identify and disseminate good practice so that lessons can be drawn for the future from the successes and failures revealed by the scrutiny work. 

 

The fourth point is that it will improve the focus on the implementation and delivery of policy aims.

 

As well as suggesting that consideration should be given to the setting up of a new joint parliamentary committee, we have also suggested ways in which there could be greater commitment to post-legislative scrutiny by government departments.

 

Regulatory impact assessments (RIAs) provide a good place for the clarification of policy objectives and setting out of criteria for monitoring and review.

 

We suggest that RIAs should be enhanced in order to incorporate these considerations more effectively.

 

Furthermore, departments should give routine consideration to whether and if so how legislation will be monitored and reviewed.

 

Question: What are going to be some of the obstacles?

 

Sir Terence: The first thing is that parliament itself and government need to agree that it is appropriate to have some more systematic practice of review of the law, including whether it wants to adopt a proposal for a joint committee. 

 

One of the problems is actually getting that structure put in place; there must be political and parliamentary will for it. 

 

We acknowledge that there are other difficult challenges in relation to post-legislative scrutiny, including how to avoid a replay of policy arguments and how to make it workable within resource constraints.

 

Question: How will stakeholders be involved?

 

Sir Terence: If parliament decides to set up a joint committee for post-legislative scrutiny, then we support a process by which stakeholders have an opportunity to relay to the committee their concerns about the operation of legislation.

 

Interested parties should be able to play a part in the review process through consultation or by giving evidence.

 

Question: What’s the next step for this process?

 

Sir Terence: Our report is published on October 25 and we will hold a launch event on the same day in the House of Lords.

 

Then we will wait for the government to respond. 

 

I have seen Jack Straw and he has indicated that the government will respond in a timely fashion to the report and its proposals, indicating what its position is. Jack Straw is involved directly in this because he is leader of the House of Commons.

 

If the government supports it, then it will be a matter for the government to take it further and obtain political support, and whatever else is needed in order to implement the proposals. 

 

Question: What has come out of the process of drawing up the report?

 

Sir Terence: I would like to say that we were delighted to have been invited to work on this project, which is very different from our usual projects, and we hope that it will be a really valuable contribution to an important debate.

 

It is a project in which those involved in the parliamentary process and the legislative process are very interested.

 

As I have said, we have found that there has been overwhelming support for the principle of post-legislative scrutiny.

 

My final comment is to pay tribute to the team – that is, Roger Toulson, my predecessor, and Lydia Clapinska – who were primarily responsible for the conduct of the project.