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Last updated: 25 March 2010
Post-legislative scrutiny: Background
41.1 In March 2008 the Government established a new system for promoting the post-legislative scrutiny of Acts. The new system complements, but does not replace, any of the existing processes for post-legislative scrutiny, namely:
41.2 The new system is intended to respond to calls that once an Act has been passed insufficient attention is paid to whether it has been well implemented (or implemented at all) and to its actual effects. It promotes a more systematic approach, with Government working with Parliament in an area Governments have recognised as a relative weakness in the legislative process. It should benefit Government by:
41.3 At the same time, the intention is to ensure that such scrutiny is proportionate to need. In particular, it is not envisaged that there should be a full in-depth review of every Act.
Review of Acts within Government under existing processes
41.4 Post-enactment review work within Government will remain important and departments should continue to carry out whichever of the following may be appropriate:
The new system for supporting Parliamentary review of Acts
41.5 The central new commitment is that the responsible department will, within the period 3-5 years after an Act has received Royal Assent, submit to the relevant Commons departmental Select Committee a Memorandum reporting on certain key elements of the Act's implementation and operation.
41.6 Exceptions and variations to this rule are listed below, but the objective is to ensure that in all appropriate cases the relevant Select Committee, facilitated by information provided by the department on the basis of an initial assessment of the Act, can give systematic consideration as to whether it would be appropriate for a fuller review to be carried out.
41.7 The relevant Government department in each case is the department responsible for the Act at the time a Memorandum is to be submitted or discussed with the relevant Committee, irrespective of whether it was the responsible department at the time the Act was passed.
41.8 The relevant Committee will be the department's normal departmental Select Committee (for the Cabinet Office, the Public Administration Select Committee). If there is any doubt as to which is the appropriate Select Committee, departments should seek advice from the Cabinet Office Parliamentary Adviser.
41.9 The process will apply to Acts which began life as a Private Member's Bill, as well as Government Bills, since such Acts form part of the body of primary legislation for which departments are responsible.
41.9 If a department plans to submit a Memorandum within 3-5 years after Royal Assent as required, there is no particular need to discuss it with the Select Committee beforehand – though if the Memorandum is to be submitted towards the end of the 5-year limit, the Committee might contact the department earlier to ascertain its plans. Where the department plans to submit a Memorandum on a different timescale or not to submit a Memorandum at all, it must contact the Committee as described below.
41.10 Memoranda need not be submitted (nor will it be necessary for the department to contact the Committee to explain why no Memorandum is being submitted) for the following categories of Acts:
41.11 There will be other occasions on which the department and Committee can agree that no Memorandum is required. Examples where departments may wish to consider proposing this might include:
41.12 This is not an exhaustive list of cases where a Memorandum might be considered unnecessary and there may be other situations in which a department wishes to propose this. But equally there may be cases within this list where a Memorandum is still appropriate. Non-submission of a Memorandum would be the exception and the department will need to make its case to the Committee.
41.13 Where the relevant Commons departmental Select Committee agrees that a Memorandum is not required, this does not preclude any other Parliamentary Committee (in the Commons or Lords) with a legitimate interest requesting a Memorandum from the department under their existing powers.
41.14 There will also be cases where a department considers that it would be more appropriate to submit a Memorandum outside the 3-5 year post-Royal Assent timeframe, for example where:
41.15 In these, or any other circumstances it considers appropriate, a department is free to propose to the relevant Committee that the Memorandum be submitted later than five (or earlier than three) years after Royal Assent. It will be for the department to make the case to the Committee (remembering that the Select Committee would anyway be free to ask the department for a memorandum at any time, even without these new arrangements).
41.16 The timing of ‘3-5 years’ runs from the actual date of Royal Assent rather than the calendar year (though in practice Committees may be unlikely to be unduly concerned about precise dates).
Contents of Memorandum for Committee
41.17 The Memorandum itself will not constitute full post-legislative scrutiny of the Act. But it should be sufficient to allow the relevant Select Committee, or other Parliamentary bodies, to decide whether fuller post-legislative scrutiny would be appropriate.
41.18 The Government's March 2008 White Paper, Post-Legislative Scrutiny: The Government's Approach [External website] (Cm 7320) sets out requirements for the content of a Memorandum. These are minimum requirements rather than limitations on what a department may wish to include in a Memorandum.
| Points and bullets from White Paper | Comment/guidance |
| (a) Summary of the objectives of the Act | Drawn from documentation and commitments made at the time of the passage of the Bill, but Memorandum will provide an opportunity for reference to any changed context which might in practice have altered these objectives |
| (b) Implementation – information on when and how different provisions of the Act had been brought into operation – information highlighting any provisions which had not been brought into force, or enabling powers not used, and explaining why not |
Largely factual information, save for the explanation of why any provisions have not (yet) been brought into force or enabling powers not used |
| (c) Secondary legislation etc – a brief description or list of the associated delegated legislation, guidance documents or other relevant material prepared or issued in connection with the Act |
A comprehensive summary of secondary legislation and other documents issued in connection with the Act. If necessary or appropriate it need only be in list form, but should at least include dates of issue and a headline indication of the purpose or scope of each document (it may overlap with information given under the previous heading) |
| (d) Legal issues – an indication of any specific legal or drafting difficulties which had been matters of public concern (e.g. issues which had been the subject of actual litigation or of comment from Parliamentary Committees) and had been addressed |
Opportunity to summarise any legal issues which have arisen publicly, either in the courts or elsewhere, and the response |
| (e) Other reviews – a summary of any other known post-legislative reviews or assessments of the Act conducted in Government, by Parliament, or elsewhere |
Information should be included on any other assessments or reviews of the Act of which the Department is aware. These might be Governmental, Parliamentary (including NAO reports) or from other sources such as academic studies (in some cases the existing studies may have led the Committee to agree that no new Memorandum was required) |
| (f) Preliminary assessment of the Act – a short preliminary assessment of how the Act has worked out in practice, relative to objectives and benchmarks referred to at point (a) above |
Not in itself a full post-legislative scrutiny of the Act, though it should be sufficient for a Parliamentary Committee to assess whether such scrutiny is needed |
For examples of previous memoranda, see the Electoral Registration (Northern Ireland) Act 2005 memorandum or the Railways Act 2005 memorandum.
Summary of the objectives of the Act41.19 The objectives of the Act will have been set out in the Explanatory Notes to the Act and any Impact Assessment published alongside the Bill, but also in any accompanying ministerial statements (for example in Parliament). Taken together, these documents should provide sufficient information to allow any post-legislative reviewing body to make an effective assessment as to how an Act is working out in practice. Preparation of these documents at the time of the Bill should take the Government's commitment on post-legislative scrutiny into account.
Preliminary assessment of the Act
41.20 This is the core of the Memorandum. As well as setting out its preliminary assessment, the department may wish to include such information as lessons learned, whether in relation to policy or administration (e.g. IT systems), or any cost benefit information. But it is not envisaged that preparation of this part of the Memorandum should – unless the department so wishes – include new in-depth investigation.
41.21 As stated above, the Memorandum is not in itself a full review of the Act and the work involved is intended to be proportionate to need. Where applicable, to avoid duplication, the Memorandum could refer to or make direct use of any other reviews or assessment of the Act of which the Department is aware, annexing those documents could to the Memorandum.
41.22 Before preparing the Memorandum, departments will wish to consult within Government and possibly also with stakeholders as appropriate. Departments should always consult with Parliamentary Counsel before preparing the Memorandum.
41.23 The new process applies only to primary legislation, in the sense that there is no separate process for post-legislative review of individual statutory instruments. However (i) the Memorandum submitted in respect of an Act would list the associated delegated legislation, summarising the implementation history of the Act, and (ii) the preliminary assessment of the Act would cover how the principal delegated legislation under the Act has worked in practice.
41.24 Any Northern Ireland policing and criminal justice legislation made by Order in Council should be treated in the same way as Acts, but since such legislation generally follows directly from equivalent England & Wales legislation it should be considered in the context of that legislation rather than on its own. There would need to be appropriate consultation between the Northern Ireland Office and the relevant UK Government department, and between the Northern Ireland Affairs Committee and other relevant departmental Select Committees.
Format and publication of the Memorandum
41.25 The Memorandum must be published as a Command Paper. This is intended to make clear the significance of the post-legislative scrutiny process. It will also help to make the contents of the Memorandum readily available to all interested parties, not just the Commons Select Committee to which it is submitted.
41.26 The Command Paper should make clear, in any introduction or preface, that it is being published as part of the post-legislative scrutiny process set out in Cm 7320, and be clearly entitled in such a way as to indicate this (for example “XX Act 2005: post-legislative assessment”). It should also indicate clearly the Commons departmental Select Committee to which it is being submitted in the first instance.
41.27 Subject to this, there is no specific template which departments should follow, since the circumstances and nature of each Act will be different; and for some Acts the Memorandum will be quite short. Departments might find it helpful to use the headings indicated in the summary above, but are free to use a layout which is appropriate in the particular case and may wish to include other information not specifically included under these headings.
41.28 A Memorandum will not usually include new policy announcements and will not routinely require any collective clearance through Cabinet committee. In particular, there is no need for the Memorandum to be approved by Legislation Committee. But if it does contain significant new policy announcements or other relevant information then these should be collectively agreed in the normal way.
For all Memorandums, departments should inform:
of their plans as to the timing of submission of a Memorandum and in due course should send a draft of the Memorandum to those listed above.
41.29 Departments are free to discuss the drafting of any Memorandum with the Cabinet Office Parliamentary Adviser beforehand.
41.30 Following consideration of a Memorandum, the Commons departmental Select Committee may decide that a fuller post-legislative scrutiny of the Act is appropriate. Such an inquiry would be carried out by the Select Committee in the same way as other Select Committee inquiries. The Committee may well ask the department for a fuller paper to inform its inquiry, in which case the department would be expected to respond according to the normal principles for requests for evidence from Select Committees. Where the Commons Committee does not instigate a fuller inquiry, the Memorandum might be taken up by another interested Parliamentary Committee, of either House.
41.31 It can reasonably be expected that if a departmental Select Committee takes up a particular Act (and associated Memorandum) for further examination then other Committees would not normally seek to duplicate this work. But this is subject to the normal principles for resolving overlap between Select committees (i.e. that different Committees may agree amongst themselves that there is a legitimate role for more than one Committee to look at a subject) and to the powers and role of the House of Lords and its committees. For example, it would be open to Committees or other interests in either House to propose the establishment of a Joint Committee to conduct a fuller post-legislative scrutiny of an Act, and any such proposal would be considered.
41.32 The new process will begin to operate in respect of Acts which received Royal Assent in 2005, but it will be reasonable to assume that Committees would not expect to receive a Memorandum in the first few months of the new process being in place. However, all departments should now be making arrangements for establishing a timetable to prepare a Memorandum on each Act receiving Royal Assent since 2005 for which they are responsible.
41.33 One of the objectives of the new system is to achieve a proper balance between the workload imposed on departments and the value to both Parliament and Government in terms of effective scrutiny. Business Managers (and, probably, the Liaison Committee) will be keeping it under review to see whether these objectives are achieved.