Legislative Scrutiny Research Articles

Anayasal Bir Tasarım Olarak AB Yarı Başkanlık Hükümet Sistemi

The article attempts to depict the governmental system of the EU on the basis of the characteristics of its executive institutions, intra-executive relationships, the relationships between the executive and legislative institutions, and the combination of supranational (the Community method) and intergovernmental nature of decision-making in the post-Maastricht period of European integration. Sui generis characteristics of the EU do not preclude a systemic configuration on the basis of comparative analysis with statal governmental systems. The article asserts that post-Maastricht European integration has led to the gradual establishment of a semipresidential governmental system in the EU. This system accordingly involves particularly on the one hand the deliberative dual-executive authority in the EU, namely the European Council with accumulated prerogatives and the Commission with a subordinated role compared to the dominant position of the European Council, though being subject to legislative scrutiny, or the Council with an occasional executive role in certain fields, and on the other hand the expanded powers of the European Parliament, as the lower house.

Parliamentary committee witnesses: representation and diversity

ABSTRACT Issues of diversity in elected bodies have received considerable attention in recent years, in particular with regard to the characteristics of elected representatives. This article explores a rather different dimension relating to representation and diversity, the witnesses that appear before parliamentary committees in their scrutiny of government actions and legislation. It draws on Pitkin and Saward’s conceptions of representation and the case of witnesses who provide oral witnesses to the Scottish Parliament’s committees. The article suggests that the application of such ideas to the selection and characteristics of witnesses, and in particular to the views expressed by MSPs and parliamentary officials, is helpful in highlighting the different understandings of and aspirations for ‘representation’, including the variety of perceptions of the advantages and disadvantages of these.

How parliaments monitor sustainable development goals – a ground for application of post legislative scrutiny

ABSTRACT The United Nations 2030 Agenda is a global framework for sustainable development. This article sheds light on the engagement of parliaments to control the implementation of sustainable development goals (SDGs). For this purpose, institutional and non-institutional measures from a wide range of parliaments were evaluated and a general assessment framework has been developed, leading to the determination of a set of basic types of dedicated parliamentary bodies that handle SDG related issues and the nature of their cooperation with extra-parliamentary stakeholders. In this context, the Post-Legislative Scrutiny concept, which assesses both legal and impact dimensions of the implementation of law, has been studied, in order to prove whether it constitutes a viable long-term contribution in accelerating the achievement of the SDGs. Based on examples of good practice, the article presents tangible recommendations and urges parliaments to upscale action related to improving efficiency in the achievement of the SDGs.

The analytical capacity of budgetary administrations: the case of the Euro area

PurposeThe objective of this study is to analyze the role that budgetary analytical capacity (BAC) plays for fiscal discipline in a sample of Eurozone countries in the postcrisis period.Dessign/methodology/approachBuilding on the policy capacity literature, an index for the BAC is constructed by including OECD budgetary data from three dimensions: reliability of projections, openness to legislative scrutiny and transparency. The proposed BAC index is validated by checking that larger values of the index are associated with the higher fiscal discipline scores across countries.FindingsControlling for the economic cycle, BAC index is positively associated with fiscal discipline. The association is stronger for the index as a whole than for the three separate dimensions.Research limitations/implicationsThe study is done on the limited sample of countries, and it is not feasible to validate results over time.Practical implicationsBudgetary policymakers can improve fiscal discipline by enhancing the three pillars that support the BAC.Social implicationsStronger BAC can help to improve the quality of public decision-making and overcome political opportunism.Originality/valueThis is the first study that introduces the concept of BAC, makes it operational and suggests its relevance for supporting fiscal discipline.

A deliberative approach to post legislative scrutiny? Lessons from Australia’s ad hoc approach

ABSTRACT The elusive concept of post legislative scrutiny (PLS) is slowly starting to capture the attention of Westminster inspired Parliaments around the world with its promise of improving the implementation and quality of law making through systematic review, with benefits of the citizen on the ground. Assumptions are made within the idea of PLS about who should be responsible for the scrutiny (the Parliament) and how it should occur in practice (often led and supported by Executive agencies). However, in many jurisdictions, including Australia, the term ‘PLS’ is not well known because the act of post-legislative scrutiny occurs on an ad hoc basis, without any clear systematic or prescribed framework for monitoring how, when or why it might occur. This gives rise to concerns that the quality of PLS occurring in jurisdictions like Australia might be lacking and demands for a more structured approach. This article shares these concerns but argues that the experience of PLS in Australia offers important insights how to invest PLS systems with the type of deliberative features that are necessary to ensure that scrutiny of implementation and lawmaking delivers meaningful outcomes for citizens on the ground.

Enhancing long-term governance

This article explores how the New Zealand Parliament scrutinises the quality of long-term governance and considers how such scrutiny could be made more systematic, proactive and rigorous. The analysis is based, among other things, on extensive interviews with current and former MPs and other active participants in the policy process. Interviewees were generally critical of the existing system of parliamentary scrutiny: it was variously described as ‘weak’, ‘inadequate’, ‘cursory’, ‘patchy’ and ‘unduly partisan’. Scrutiny of long-term matters – such as governments’ strategies, foresight, planning and risk management – was seen as inferior, on average, to other forms of scrutiny, especially the scrutiny of legislation. Drawing on the suggestions of interviewees and the experience of legislatures in several other parliamentary democracies, we outline and assess various options for parliamentary reform.

THE ROLE OF THE PEOPLE IN POST LEGISLATIVE SCRUTINY: PERSPECTIVES FROM MALAYSIA AND AUSTRALIA

The purpose of this article is to critically examine the role of the people in the process of reviewing the implementation and effectiveness of existing laws, described in the emerging literature as ‘post-legislative scrutiny or ‘PLS’. Examining the options for citizen engagement with legislative review is critical for all parliamentary democracies grappling with the challenge of rebuilding trust between citizens and institutions. This is because reviewing the content and purpose of proposed and the implementation and impact of existing laws is a way for parliamentarians to give effect to their democratic promise. The methodology employed is qualitative in nature with a tiered approached to identifying and examining the extent to which individuals and non-government actors can contribute to parliamentary review processes in two Westminster-inspired parliamentary democracies: Australia and Malaysia. Using case study examples and examining both structural and cultural features of the systems of legislative review in both systems, this article directly challenges some of the assumptions previously associated with PLS in the existing literature. Experiences of different ‘ad hoc’ forms of PLS in both Australia and Malaysia suggest that there could be substantial benefits for lawmakers and citizens by moving toward a more deliberative, ‘bottom up’ approach to PLS in the future.

Parliamentary Rights Scrutiny and Counter-Terrorism Lawmaking in Australia

This paper evaluates the impact of pre and post-enactment scrutiny of Australia’s counter-terrorism laws enacted from 2001 until 2018. Parliamentary scrutiny of rights-engaging laws is particularly critical in the Australian content, as Australia relies on a parliamentary model of rights protection at the federal level. The evaluation framework employed in this Paper considers a range of evidence to provide a holistic account of the impact of legislative scrutiny on the content, development and implementation of Australia’s counter-terrorism laws. This includes consideration of the legislative impact of scrutiny on the content of the law, the role scrutiny plays in the public and parliamentary debate on the law, as well as the hidden impact scrutiny, may be having on policy development and legislative drafting. The results are surprising. This study finds that parliamentary rights scrutiny, particularly by parliamentary committees, has had a rights-enhancing (although rarely rights-remedying) impact on the counter-terrorism laws. Further, this research finds that the hidden or behind-the-scenes impact of parliamentary scrutiny provides a particularly fertile ground for improving the rights-protecting capacity of the Australian legislative scrutiny system. These findings and the evaluation framework employed in this Paper have application and benefits for other jurisdictions seeking to understand and improve the quality of their legislative scrutiny regimes.

Always the bridesmaid, never the bride?: Legislating in English and Welsh

Abstract Welsh has official status in Wales, where it is spoken by approximately 20 % of the population. All adult speakers of Welsh are also able to speak English. The National Assembly for Wales and the Welsh Ministers legislate in both Welsh and English. The Government of Wales Act 2006 provides that the English and Welsh texts of any Act of the Assembly or any subordinate legislation enacted or made in both English and Welsh are to be treated, for all purposes, as being of equal standing. This paper examines the role legislating bilingually plays in confirming the official status of the Welsh language; how the bilingual texts are produced by a process of collaborative translation within an administration where English is the dominant working language; how they are scrutinised by a legislature where legislators are free to use either or both languages, but where, in practice, English dominates; and how they are promulgated in both languages in the form in which they are enacted or made, but only routinely updated in English. It further considers what the principle of ‘equal standing’ may mean and how effect may be given to it; how these bilingual texts may be interpreted by the public and the legal profession, domains in which English dominates; and what implications the production, scrutiny, promulgation and interpretation of bilingual legislation have for the accessibility of the law in Wales.

Legislative Control over Executive Law‐making: Delegation of Quasi‐legislative Powers to the European Commission

AbstractMost EU legislation consists of executive acts of the European Commission. The Lisbon Treaty introduced a new type of EU executive legislation – delegated acts, which give the European Parliament formal powers of legislative scrutiny equal to those of the EU Council. Thus, the use of delegated acts could reinforce the institutional balance of power and help reduce the EU's democratic deficit. We studied the situations when the Parliament and the Council agreed to grant the Commission the right to adopt delegated acts, considering the preference constellations of legislative and executive actors and legislative complexity. Using a novel dataset on post‐Lisbon legislation, we found that delegated acts are more likely in cases of high legislative complexity and when the Council sees the Parliament as an ally vis‐à‐vis the Commission. However, the European Parliament gets no say over executive measures when doing so could shift policy outcomes away from the Council's preferences, raising doubts about the effectiveness of parliamentary control.

Parliament and Human Rights

This paper was originally included in Parliament and the Law, an edited collection of essays supported by the UK Study of Parliament Group and published by Hart/Bloomsbury in 2018. This draft is included here for the first time with the kind permission of the publisher and with access to the underlying statistical research in advance of a conference on Parliament and the Courts organised by the Canadian Study of Parliament Group. The paper considers the effectiveness of the UK Parliament's Joint Committee on Human Rights (JCHR). In an evidence based analysis, it examines the impact of the committee's legislative and thematic reports. The underlying statistical research examines the impact of reports by the JCHR on Government legislation. The associated Excel tables, published by the Study of Parliament Group, provide details of the JCHR’s legislative scrutiny between 2010 and 2017. They also evaluate the impact of the JCHR recommendations published in reports in the 2014–15, 2015–16 and 2016–17 parliamentary sessions (and, in particular, whether they led to any changes to Government legislation). The authors recorded all the conclusions and recommendations made by the JCHR over the three parliamentary sessions and assessed whether they sought to amend Government legislation. They then tracked whether the recommendations were taken forward by any Member of Parliament, or the Government. Amendments that were won on division, or agreed to without debate or division, were logged. Impact was recorded where there was direct evidence of a Committee recommendation being a driver for change. The authors acknowledge that the decisions they reached on impact must, on some occasions, be subjective. They were assisted in verifying some of their conclusions by former JCHR staff.

Scrutinising European Union legislation in light of subsidiarity: the Maltese Parliament

ABSTRACTOne of the main objectives of the Lisbon Treaty was to increase the democratic legitimacy of the European Union (EU). Member state parliaments were, therefore, equipped with new tools for monitoring compliance of EU draft laws with the principle of subsidiarity. The aim of this article is to shed some light on the unicameral Maltese Parliament’s ex ante subsidiarity scrutiny of European legislation. Based on the island’s historical and cultural background, the Kamra tad-Deputati confers great importance to the application of subsidiarity, although it is still in its learning curve over the rapid and effective implementation of such procedures.

Establishing a Legislative Scrutiny Framework

Establishing a Legislative Scrutiny Framework

A Place at the Table? Parliamentary Committees, Witnesses and the Scrutiny of Government Actions and Legislation

Issues of diversity in elected bodies have been highlighted in recent years, both with regard to elected representatives themselves, and, more recently, in respect of the treatment of those working in such institutions, especially women. This article focuses on another aspect of diversity, inequality and representation, the voices heard by parliamentary committees in their scrutiny of government actions and legislation.The article discusses the current position in the Scottish Parliament (and other UK legislatures) with, for example, around three-fifths of witnesses at Holyrood being male, and highlights both ‘demand’ and ‘supply’ factors that influence the make-up of committee witnesses. It also identifies a number of functions that witnesses can play for committees, and how these relate to diversity and representation, and suggests that there may be benefits to committees and legislatures in hearing from a wider range of voices.

Evidence-informed or value-based? exploring the scrutiny of legislation in the UK Parliament

ABSTRACTThis article argues that three types of factor – process, subject and political circumstance – are likely to affect the extent to which claims of evidence are made during legislative scrutiny. It draws upon case studies of the National Minimum Wage Act 1998, the Academies Act 2010 and the Welfare Reform and Work Act 2016, utilising interviews with those involved and information from Hansard. The article concludes that these cases highlight that while there might be potential benefits from a yet more robust legislative scrutiny process, including greater use of pre-legislative scrutiny and the ability of public bill committees to take evidence from a wider range of witnesses and on all bills, subject and political factors would be likely to mean that the use of claims of evidence would continue to vary widely.

The Myth of Line by Line Scrutiny

When I gave evidence to the House of Lords’ Constitution Committee’s inquiry into the legislative process on 13 June 2018 I said as follows: On the parliamentary website, you will see lots and lots of references to line-by-line scrutiny of legislation in Committee in both Houses. Parliamentarians referring to legislative scrutiny always talk about line-by-line scrutiny. It ain’t anything of the kind. It is quite a false claim. The main reason it worries me is that I do not think it is a deliberately false claim, but often we do not remember how patchy the scrutiny is in both Houses. I expect to be told, ‘Oh, yes, that’s the Commons, but we’re much better here’, but you are not. The Smart Meters Bill, which went to Grand Committee, so there was no pressure of time at all, was quite a technical Bill of 12 pages, with 14 or 15 clauses of significant importance to consumers and to insolvency law. It was a serious Bill. You took it in Grand Committee from half-past three until quarter-past six. Clauses 4 to 14 were taken on the nod with no debate. A massive Henry VIII provision on insolvency law was included and was not given line-by-line scrutiny. I would not call that rigorous scrutiny. Was it line-by-line scrutiny? It was not. I ask myself why. I am not saying it was bad scrutiny; it was good. The scrutiny you gave it was clearly effective, but it was not line by line and I see no reason why it should not have been line by line. What worries me is not even the fact that I do not think scrutiny in either House is very good at a technical level, although I do not think it is. What worries me more is that you perhaps think it is better than it is.

Post Legislative Scrutiny at Parliaments: The Case of Chile and UK

The article develops a comparative study between Chile and UK regarding the functioning of its system of post legislative scrutiny. To assess this issue, the different types of legislative scrutiny are briefly introduced to then focus on the scrutiny carried by Parliaments after the legislation is enacted. The comparison between both countries is made according to the compliance with the standards of: (i) effectiveness, (ii) efficacy and (iii) efficiency. The article examines how the Chilean and UK system of post legislative scrutiny achieve each of these goals, concluding that the UK model is overall a more successful system of post legislative scrutiny. Nevertheless, some recommendations are put forward to further improve the system of post legislative scrutiny in both countries.

Legislative Scrutiny, Co-Ordination and the Social Security Advisory Committee: From System Coherence to Scottish Devolution

This article examines the parliamentary processes available to scrutinise draft social security regulations in the UK, highlighting the democratic deficit that exists between executive power and parliamentary authority, and reviewing the unique scrutiny function of the UK Social Security Advisory Committee. The article explores the development of devolved social security powers in Northern Ireland and Scotland and the oversight gap that is now emerging between devolved and reserved powers, with the potential for unintended adverse consequences arising for claimants moving between the different systems within the UK. The article considers the oversight options that might be developed to include independent and expert oversight of devolved social security provision in Scotland, focusing on the need to enable system coherence and fairness in the treatment of claimants, regardless of their geographical circumstances.

New South Wales: an accidental case of semi-parliamentarism?

ABSTRACTThis response to Ganghof, Sebastian Eppner and Alexander Pörschke’s (GEP’s) challenging new account of government systems focuses on the extent to which their typology and arguments forces a reassessment of executive-legislature relations in Australia and particularly in New South Wales. First, I identify when and how different Australian governments might be claimed to have adopted their ‘semi-parliamentary’ model. Second, I question their claim that NSW constitutes an ‘ideal type’ case of semi-parliamentarism. Third, I explore the expectations of leading politicians in the 1970s about what would change following the reforms to the NSW Legislative Council (NSW LC), which in GEP’s terms shifted NSW from a parliamentary to a semi-parliamentary system. While the reforms were controversial, they were not seen as shifting NSW from parliamentary politics to some other type of government system. Fourth, I briefly explore the patterns of increased legislative activity and executive scrutiny exercised by the NSW LC after 1978, arguing that they are consistent with GEP’s concept of semi-parliamentarism. I conclude that semi-parliamentarism in NSW has been an accidental, unconscious development.

Legislative Erosion of the Founding Principles of the Resource Management Act 1991: The 2017 Reforms and Their Impact on Public Participation, Devolved Decision Making and Environmental Bottom Lines

This paper describes the policy basis for three principles that have been critical to the Resource Management Act 1991’s statutory scheme and to the achievement of its statutory purpose of sustainable management of natural and physical resources. They are: public participation in decision making, devolved decision making, and environmental bottom lines. It explains how the principles are expressed in the Act. It analyses changes made in the Resource Legislation Amendment Act 2017 and describes how those changes have impacted on the three principles. Particular changes identified as contributing to the erosion of fundamental principles are new alternative planning processes, reductions in public participation opportunities at the submitter and appeal stage and the centralisation of decision making power in the Minister in an ad hoc way that encourages politicised decision making. This erosion has not been compensated for by the provision of an alternative suite of principles. The changes have reduced the coherence of the Act’s legislative scheme, and the likelihood that decisions made under it will achieve sustainable management. The paper proposes that the poor quality legislative reforms are primarily a result of the highly politicised setting in which the amendments were proposed, the co-existence of housing and environment portfolios in the hands of one Minister, the balance of numbers required to pass the reforms and the complex nature of the changes, which neutralised public opposition and scrutiny other than from a core group of participants. These factors were compounded by an unorthodox select committee process. The select committee’s role in hearing from submitters and providing scrutiny of legislation on behalf of the legislature was undermined by undue executive interference and complicit officials and Government committee members. This points to a lack of accountability in the legislative process, particularly (but possibly not exclusively) in the circumstances within which these reforms occurred.