By Franklin De Vrieze, Senior Governance Adviser, Westminster Foundation for Democracy
Public expectations of parliament’s legislative success have evolved substantially, from getting laws on the statute book to ensuring that laws are brought into effect and their implementation has an impact, as well argued by Lord Norton.
Working with parliamentarians worldwide, I have noticed that, over the past couple of years, more parliaments start monitoring the implementation of the laws they have passed. Despite perceptions that assessing law implementation is not an exciting issue, Members of Parliament advocate that they need the tools to assess to what extent legislation is implemented as intended and has the expected effects.
Several issues can affect the course of law implementation, such as changes in facts on the ground, diversion of resources, deflection of goals, resistance from stakeholders and changes in the legal framework of related policy fields. Making it even more complex, implementation of legislation and policies may also be undermined by power asymmetries, exclusion, state capture and clientelism.
Hence, implementation of legislation depends on the clarity of the legislative text, its compatibility with other laws, constitution and international obligations, available resources (human, financial) to implement the law, timely issuing of secondary legislation, and the accessibility of legislation to those in charge for its enforcement.
Despite these challenges, the UK Law Commission has suggested four overarching reasons why parliaments should prioritise monitoring and evaluating the implementation of legislation: 1. to ensure the requirements of democratic governance and the need to implement legislation in accordance with the principles of legality and legal certainty are being met; 2. to enable the adverse effects of new legislation to be apprehended more timely and readily; 3. to improve the focus on implementation and delivery of policy aims; and 4. to identify and disseminate good practice so that lessons may be drawn from the successes and failures revealed by this scrutiny work.
Therefore, Post-Legislative Scrutiny (PLS), or ex-post evaluation of legislation, is an important instrument for increasing government accountability and is part of the oversight role of parliament.
PLS is a two-pillars concept. In a narrow interpretation, PLS looks at the enactment of the law, whether the legal provisions of the law have been brought into force, how courts have interpreted the law and how legal practitioners and citizens have used the law. In a broader sense, PLS looks at the impact of legislation; whether the intended policy objectives of the law have been met and how effectively. Therefore, there are two dimensions to PLS: (1) to evaluate the technical entrance into force and the enactment of a piece of legislation; (2) to evaluate the policy outcomes and the impact of the legislation.
A parliament can consider three binding instruments to fortify its ability to carry out PLS: a ministerial undertaking, review clauses in legislation or sunset clauses. While a ministerial undertaking is a political commitment at the time of the debate of the bill, a clause for a mandatory review of the law is much stronger because it has the force of law. The review clause needs to indicate who will conduct the evaluation, when it should take place, and whether it is for the entire law or specific provisions of the law. Inserting a sunset clause means that legislation automatically ceases in its effect after a specific period, unless a review is conducted and has concluded that it needs to be kept in place. However, even when no binding commitment to PLS is made during the passage of the bill, parliament still has the ability to conduct PLS and it should be able to do so on any matter it chooses; because it is a part of its oversight role.
Analysing emerging practices of PLS in various countries and recognizing that often the government and executive agencies are responsible for implementation of legislation, parliament often relies to a large extent on government information. However, a diversification of data sources, such as from CSOs, international organizations and independent oversight institutions, considerably contributes to parliament’s ability to PLS.
The Institute for Advanced Legal Studies of the University of London and the Westminster Foundation for Democracy (WFD) have established a cooperation regarding the topic of PLS. As a first step, an Academic Seminar was organized in July 2018, resulting in a Special Issue of the European Journal on Law Reform, dedicated to PLS. In July 2019, IALS and WFD organized in London the first Certified Course on PLS, followed by a second Certified Course in Belgrade for the parliaments of the Western Balkans in November 2019.
Through its country programmes around the world, WFD is increasing public awareness on the importance of assessing implementation of legislation, supporting parliaments in pilot projects on PLS and encouraging institutionalization of PLS in the parliamentary procedures and structures.
For instance, in Indonesia, it was identified that strengthening the promotion and protection of human rights can benefit from a correct assessment of the implementation of legislation, identifying its impact, remedying possible gaps and addressing unintended consequences of legislation. We learned that some human rights problems emerge because, among others, implementation of legislation gets stuck and discriminatory practices are entrenched at the level of sub-national secondary legislation or delegated legislation as issued by the provincial governments in the country. Human rights implementation often suffers from poor understanding of the law, gaps in legislation or reliance on local discriminatory patterns. To overcome such challenges and to ensure that citizens benefit from equal opportunities and equal protection under the law, there is need for a more comprehensive approach to PLS which fully considers discriminatory secondary legislation at sub-national level.
Experiences in other countries applying PLS are encouraging. In Georgia, the Environment Committee conducted PLS on the law facilitating the tax reduction for the import of electric vehicles in the country. The PLS inquiry identified key gaps in the legislation, for instance related to how to deal with electric waste of the imported electric cars. In Cape Verde, women MPs secured more resources and new secondary legislation to ensure implementation of the 2011 Law on Gender Equality, alongside a new roadmap of the national gender policy.
Experiences in various countries indicate that PLS is not a “luxury good”, beyond the reach of newer or less established parliaments. Parliaments at various stages of institutional development have undertaken PLS successfully, and the reason for that is that PLS is undertaken in a wide variety of ways, in accordance with the legal framework, parliamentary practice and available resources. PLS thus becomes a useful tool contributing to better governance and effective legislation.
Franklin De Vrieze is a Senior Governance Adviser, Westminster Foundation for Democracy
 Norton, P. (2019), Post-Legislative Scrutiny in the UK Parliament: adding value, The Journal of Legislative Studies, Vol. 25, DOI: 10.1080/13572334.2019.1633778
 De Vrieze, F. (2018), Principles for Post-Legislative Scrutiny by Parliament, WFD.
 UK Law Commission (2006), Post Legislative Scrutiny, LAW COM 302.
 De Vrieze, F. (2019). Introduction to Post-Legislative Scrutiny, European Journal of Law Reform 21 (2): 84-86.
 Khariroh Ali (2019), Scrutinizing Indonesia’s Local Bylaws and Its Impacts on Women and Vulnerable Groups in the Regional Autonomy Era, Presentation at Academic Conference on PLS in Asia, Yangon.
 Kuchava, K. (2019), First Post-Legislative Scrutiny in Georgia: Steps Towards Generating Result-oriented Laws, Paper presented at Academic Conference on PLS in Asia, Yangon.
 Azevedo-Harman, E. and Godinho Gomes, R. (2019), Post-Legislative Scrutiny of the Law against Gender-Based Violence. The Successful Story of the Cabo Verde Parliament, European Journal of Law Reform 21 (2): 92-96.