By Franklin De Vrieze, Senior Governance Adviser, Westminster Foundation for Democracy
How do the national parliaments of France and the UK assess the impact of the legislation they have adopted? In this article, Franklin De Vrieze compares the role of parliamentary committees and the outcome of the legislative impact assessments in both countries. It is based on the recent Westminster Foundation for Democracy publication, Post-Legislative Scrutiny in Europe.
A growing number of parliaments want to know the extent to which the laws they have adopted are being implemented and have an impact. Such evaluation is called post-legislative scrutiny (PLS). It has been included in regular parliamentary practices around the world, in different ways and according to different procedures.
In this article, I will compare the PLS practices in the bicameral parliaments of the UK and France. While recognizing the different political systems of both countries, the comparison will focus on the role of parliamentary committees in PLS and on the outcome of the process of PLS.
The French National Assembly in Paris ©Assemblee Nationale
Role of French parliamentary committees regarding PLS
Both chambers of the French Parliament are characterised by standing committees that assume both legislative and oversight roles. The committee that has dealt with making a certain decision is responsible for assessing how that decision has been implemented. Follow-up and evaluation have thus become a natural task for parliamentary committees in France.
The French National Assembly has set up several mechanisms related to PLS. Firstly, implementation reports concerning laws which require rules of a regulatory nature (secondary legislation) are presented before standing committees. Secondly, temporary assessment, monitoring missions and commissions of inquiry can be set up. The work of fact-finding missions can last for several months, during which the members carry out interviews and visits. The process concludes by filing an information report. Thirdly, more permanent structures are developed, such as the MEC (an assessment and monitoring mission in charge of evaluating the results of certain public policies) set up within the Finance Committee of the National Assembly, the MECSS (the Assessment and Monitoring Mission for Social Security Financing Laws) set up within the Social Affairs Committee of the National Assembly and the Senate, the Commission for the Assessment and Monitoring of Public Policies (CEC), and the parliamentary delegations.
In the French Senate, the PLS function is conducted by a Délégation, a group of Senators specifically charged with analysis and assessing the extent to which the government has enacted the dispositions necessary in order to put laws into practice. The work of the French Senate Délégation is carried out in conjunction with the sectoral committees, as well as the secretariat of the Prime Minister’s Office, which itself maintains records of legislative implementation within ministries. While the PLS approach in the French Senate has been carried out consistently over the past decades, it is not enshrined in the rules of procedure of the Senate, but established through a resolution of the Bureau and subject to revision as needed.
Victoria Tower of Westminster Parliament in London ©House of Lords 2016, Roger Harris
Role of UK parliamentary committees regarding PLS
A good portion of the activities of the departmental select committees in the UK House of Commons (HoC) involves PLS, even if Members do not explicitly describe it this way.
Over the past 12 years, the UK Government and Parliament have taken a more systematic approach to PLS. Government departments are expected to prepare and publish memoranda on the acts passed by parliament within three to five years of the act entering the statue books. The memoranda present a ‘preliminary assessment’, intended to be relatively ‘light touch’ but of sufficient depth to allow an informed judgement as to whether a fuller assessment by the relevant parliamentary committee is worthwhile. These memoranda are presented to departmental select committees in the HoC. With regards to the House of Lords (HoL), in 2012, the Liaison Committee promised to appoint at least one ad hoc committee per session to undertake PLS on a subject chosen by it.
There are differences in how the two Houses of the UK Parliament select legislation for PLS. Since PLS is one of the tasks of departmental select committees in the House of Commons, it is at their discretion to determine when to undertake scrutiny on a piece of legislation. There are a number of reasons why a committee may decide to undertake PLS and select the legislation that it does, including representations by stakeholders or sectors of industry, receipt of the memorandum by a Department on the implementation of a specific law, or when there is a reasonably high level of interest among the Members.
The Liaison Committee in the HoL is more proactive than its HoC equivalent when it comes to PLS, as it formally recommends which committees are set up and what topics are examined. Lord Norton thus rightly stated that “in the House of Commons, PLS has been committee-driven, whereas in the House of Lords it has been chamber-driven.”
The UK Parliament tries to ensure complementarity in PLS and avoid duplication between the two houses. Lord Norton’s view is that in the HoL the process of selection has been more self-contained and pro-active, opting for reviews that are deemed important, timely, play to its strengths, and are not overly politically contentious. Whereas the HoC will examine an act if it knows the government is thinking of making changes to it, the HoL prefers not to engage in work it deems already underway.
Outcomes of PLS in France
Regarding the outcomes of the PLS in the French National Assembly, an annual overview on law enforcement comprising the scrutiny reports from all committees is submitted to the “Conference of the Presidents” of the National Assembly. The subsequent dialogue with the government focusses primarily on the fulfilment of formal implementing duties than on the evaluation of the economic, environmental, and/or social impact of each piece of legislation.
In the French National Assembly, ex-post evaluation has led primarily to the reinforcement of fact-finding and inquiry tools. Findings of the reports are used in parliamentary debates and in letters to the Prime Minister or the concerned Minister.
In the French Senate, the 2017 annual report of the Délégation noted that “the rate of publication of enabling texts has reached approximately 90%, an increase compared to the 80% of last year and the 65% of the session 2013-2014”. In the 2018 report, the chairperson noted that while the percentage of enabling measures enacted by the government had increased again, there was often a delay in government responses to parliamentary questions regarding the application of laws. The annual report on the implementation of the legislation is, in general, discussed with the government in a debate in the plenary chamber.
Outcomes of PLS in the United Kingdom
Dr Tom Caygill’s research on PLS in the UK Parliament has highlighted the differences in the types of recommendations being made by both houses: the ad hoc committees of the HoL are making proportionally more recommendations calling for action in relation to legislation and more recommendations relating to policy and practice as compared to the HoC.
Regarding the first, this can be explained by the fact that the HoL often takes a more technical approach to scrutiny, mixed with the expertise and time its committees have to undertake their inquiries. Regarding the second, this could be a reflection that the HoL is willing to pressure the government with stronger recommendations on the basis of expertise and experience. However, the stronger a recommendation is, the more likely it is rejected by the government. Overall acceptance of PLS recommendations by the UK government stands at 39%.
In comparison with the HoC, the HoL makes fewer recommendations calling for further research and review. This can be explained by the fact that PLS committees in the House of Lords hold their inquiries over an entire year and therefore have more time to undertake a more detailed review and potentially reach firmer conclusions than committees in the House of Commons.
Still, the extent of PLS has remained limited. Dr Caygill called it the “post-legislative scrutiny gap”. The UK government has only published a limited number of PLS memoranda, which has decreased each year since 2012. There is an issue with these memoranda being picked up by departmental select committees and with committees deciding to conduct a PLS inquiry. Part of the reason why committees are not engaging more systematically in PLS might be related to events taking over. These can be both political events like elections, new policy announcements which divert the attention of the committee away from tasks such as PLS, or committee work programmes being overtaken by parliamentary and legislative cycles.
If committees in the HoC do follow-up after a report is published, it is often limited to correspondence or annual oral evidence sessions, rather than undertaking a follow-up inquiry. In the HoL, the challenges for follow-up are procedural as the ad hoc committee is dissolved after the publication of its report. The House of Lords Liaison Committee does provide some limited written follow-up. As they are aware of these weaknesses, both the HoC and HoL Liaision Committees have since re-emphasised the importance of better following-up on inquiries.
The French Parliament decides autonomously about which laws to select for PLS, based on its own criteria and priorities. It seems that the formal monitoring of law enactment prevails over impact assessment. While the National Assembly and the Senate aim for follow-up to the findings and recommendations of the PLS reports, the PLS reports are rarely voted upon; and the interaction with the government on its follow-up is mostly developed informally.
In the UK, the HoC select committees and the HoL ad-hoc PLS committees always consider the initial government memorandum regarding the law under review. They put more emphasis on assessing the impact and possible unintended consequences of the law. The UK government provides a written response to each of the findings and recommendations of the PLS report within two months of publication of the report.
The comparison between France and the UK indicates how different parliaments put more emphasis on one or the other of the two dimensions of PLS: firstly, to evaluate the technical entrance into force and the enactment of a piece of legislation; and secondly, to evaluate its relationship with intended policy outcomes and the impact. To the extent that parliaments seek to carry out both dimensions, PLS facilitates continuously improvement of the law itself and policy implementation. PLS thus contributes to increased governance effectiveness and accountability.
Franklin De Vrieze, Senior Governance Adviser, Westminster Foundation for Democracy