Last week, there was an online seminar, organized jointly by the Westminster Foundation for Democracy and Hull University Centre for Legislative Studies, to mark the publication of Parliaments and Post-Legislative Scrutiny, originally published as a special issue of The Journal of Legislative Studies. The work draws together various studies of the significance and development of post-legislative scrutiny.
People’s lives are shaped by what is permitted or prohibited by law. Law can constrain or empower individuals, regulate industry, and impose taxes, fines and provide for terms of imprisonment for those who transgress the law. Legislatures are the bodies that have to assent to law, but approving law should not be seen as the end of the process. A law may not have the effect intended. It may have unintended effects or simply have no effect. The wording may be overly broad or ambiguous.
One can argue therefore that for law to be ‘good’ law – achieving its purpose – it needs to be revisited. It needs to be assessed in terms of whether it is achieving its desired effect. Hence the case for the legislature to review whether a measure has achieved what it was designed to achieve. It is important, though, that post-legislative scrutiny is not a re-run of arguments of principle that may have occurred at the time the measure was passed. It is essential that it is assessed against what it was designed to achieve, not against what some may have preferred it to say.
The case for post-legislative scrutiny is valid at any time, but arguably even more so at the present time. Legislatures have variously passed emergency legislation to confer extraordinary powers to deal with the coronavirus pandemic. There is a powerful case for putting in place systematic post-legislative scrutiny for measures passed in haste, especially where those measures are not subject to sunset clauses. Even if they are, there is a case for post-legislative scrutiny to determine what lessons may be drawn in the event of a similar crisis occurring again.