House of Lords Select Committee on the Merits of Statutory Instruments

What happened next? A study of Post-Implementation Reviews of secondary legislation

In this Inquiry report published on 12 November, the Committee found that most departments are failing properly to examine whether each significant piece of secondary legislation is achieving the outcome intended for it. Departments do not know whether their legislation is effective, and are missing opportunities to improve the quality of both their policy formulation and delivery methods. In particular departments need to do more to evaluate how the original instrument performed before bringing forward amending regulations.

The NAO conducted a benchmarking study for us: it found that 46% of the sampled SIs with Impact Assessments from 2005 had not been subject to any evaluation of their effectiveness after 4 years, and only 29% had received a full post-implementation review. Although this figure is rather distorted because a few Departments seem much better geared up for the process than the rest.

The report's main recommendations are:

  • Government should take a more active role in supervising both Impact Assessment (IA) and Post-implementation Review(PIR) systems to ensure that the approach is appropriate and the reviews are done. The formats for both should be more closely aligned in terms of content and method.
  • Departments should ensure that all IAs include a clear statement of the baseline position against which the change introduced by the legislation can later be measured to assess whether the success criteria have been met.
  • Departments should propose arrangements for PIR in the consultation exercise on the draft regulations that are appropriate and proportionate to the content of the regulations. This applies just as much to public sector legislation as to that which affects business.
  • All PIRs/evaluations on Statutory Instruments should be published online, alongside the original IA.
  • Each Department should establish and maintain an online register of its legislative portfolio to track PIR commitments, aid consolidation, and also to smooth transition when machinery of government changes are made

Cumulative impact of statutory instruments on schools

The Merits Committee's report concluded that the Government should adopt a less heavy-handed approach in its relationship with schools. The Committee argues for less Government reliance on Regulations, in order to leave greater room for the professionalism of practitioners to deliver the objectives of improving education.The inquiry was prompted by the observation that in the 2006-07 session schools were the subject of around 100 different sets of Regulations made by the Department for Children, Schools and Families (DCSF).

The government response agreed to use common commencement dates and we received further comments on that response from some of the witnesses. The House debated the Merits Committee's report on 19 June (see Hansard Report). We are pleased to note that DCSF has continued to progress this agenda, their latest letter is included in our end of session report


Inquiry and Special Reports

Follow up to the Inquiry into the Management of Secondary Legislation

The Committee's Report on the Management of Secondary Legislation , was published 27 March 2006. It commented on a number of aspects of the way that this legislative process is currently managed across Whitehall, and made 20 recommendations on how its quality and planning might be improved. The Government response left  much to the initiative of individual departments. Two years later the Committee returned to the issue to see whether  Departments had indeed made progress.

The Report “The Management of Secondary Legislation: follow-up” was published on 12 March 2008. Broadly it  makes the following recommendations:

  • Departments need to take a more active approach to ensure that senior policy officials systematically check the material they intend to lay before Parliament for efficacy, accuracy and completeness;
  • Non-compliance with the 12-week consultation requirement should be exceptional and always explained fully. The analysis of a consultation exercise is not an afterthought but should drive policy. The full analysis should always be available when the SI is laid, as should any other supporting documents. EMs should better and more accurately summarise the results of consultation;
  • Departments should routinely produce and publish plans for the secondary legislation to be made in consequence of a new Act: this could lead to  less and better focused legislation.
  • More resources should be devoted to consolidation and simplification, at the very least to the publication of on-line consolidations; and
  • the Minister for Better Regulation could do more to publicise and encourage the setting of (measurable) policy objectives and success criteria in impact assessments, and the regular adoption of post-implementation review.

End of session reports

At the end of the each session we publish an analysis of  the work of the Committee, this gives an overview of any key issues relating to quality or process that the Committee has noted in mass of  SIs we have seen over the period.

End of session report 2008-09 is incorporated into the last scrutiny report of the session