SCRUTINY OF LAW

Time to act when the law doesn't stand up to scrutiny
By Joshua Rozenberg, Legal Editor, Daily Telegraph

How well is the Hunting Act 2004 working? There has been one successful private prosecution for hunting a wild mammal with dogs since the Act took effect last year. Two further cases are pending, one brought by the police and the other by the League Against Cruel Sports.

Given the apocalyptic predictions while the legislation was fighting its way through Parliament, three prosecutions does not sound very many. Should we assume that former huntsmen are now operating within the law? Or are hunters more discreet about their activities these days, relying on over-stretched rural police forces not to make a fuss?

Though the answer must be a bit of both, nobody can be entirely sure. Ultimately, there must be doubts about whether the Hunting Act was drafted in the most effective way to deter law breaking and facilitate law enforcement.

One law that was definitely not fit for purpose was the Social Security Act 1989. This was supposed to deal with "double compensation" in accident cases — where a victim received damages as well as social security benefits for the same injury. Under the Act, state benefits were deducted from compensation.

This was fine in principle — compensation should put you back to where you were, not make you better off — but in practice it left victims almost nothing at all.

Concluding in 1995 that the legislation was seriously flawed, a Commons committee said that the Act's calculations had caused "manifest unfairness". The Government agreed, and an amending law, the Social Security (Recovery of Benefits) Act, was passed in 1997.

Meanwhile, there had been eight years of unfairness. Some of this could have been avoided if Britain had in place a system of reviewing all laws after they have been in force for a while. Post-legislative scrutiny, as it is called, is widely regarded as a good idea: the key question is how best to do it.

Enter the Law Commission, the body that advises the Government on reform of the law. In a report launched, unusually, at the House of Lords, the commission recommended yesterday that there should be a twin-track approach to post-legislative scrutiny.

First, government departments should review legislation for which they had been responsible. But that would not be enough: there would need to be some sort of parliamentary oversight too. The obvious answer would be to set up a joint committee drawn from both Houses, and with power to call evidence and issue reports.

That is not to say that the existing departmental select committees would lose their powers to scrutinise legislation, something they may be better placed to do than a committee without specialist knowledge.

But if a departmental committee chose not to exercise its scrutiny power, the task would pass to a dedicated committee.

The new committee could also commission research from a body such as the National Audit Office. And it would be assisted by the present Scrutiny Unit, which currently deals with work on Bills before they are introduced in Parliament.

The idea of a post-legislative scrutiny committee is likely to be welcomed by judges, who often complain about the quality — as well as the quantity — of criminal justice legislation.

Faced with legislation that does not make sense, judges and other interested parties could send their complaints to the new committee. They could even answer questions about how the legislation might be re-drafted.

Here, though, is a potential flaw. Surely, people who were against the legislation in the first place — the hunters, to use my first example — will use post-legislative scrutiny as a means of reopening old political arguments?

"There are difficulties in this process and we are quite candid about them," Sir Terence Etherton tells me. A High Court judge, Sir Terence became chairman of the Law Commission three months ago.

"What you really want to avoid at the review stage is a re-hash of all the policy arguments. That's a difficult issue, but if Parliament sets up a joint committee it will be something they will have to work through."

Sir Terence is conscious of the fact that MPs and peers are the only people who can decide how to conduct their own affairs. The Law Commission's role has been to gather evidence from those in the know and present it to Parliament. But those consultees have told the Law Commission that introducing post-legislative scrutiny would be very important.

"Our consultations with a large number of organisations, both inside and outside Parliament, have given overwhelming support for some more systematic process of post-legislative scrutiny," he says.

Even so, the Government may be reluctant to admit that the present system produces wonky legislation that needs fixing within a few years. Does Sir Terence fear that his report will gather dust, like other worthy but ineffective recommendations from his predecessors?

"I'm not sure that's a question for me as chairman of the Law Commission," he says cautiously. "There's a matter of political will involved here." The effectiveness of a parliamentary committee will depend on its standing and the strength of its recommendations.

But, he stresses, there is a lot that can be done by government departments, and much will depend on how they develop their existing responsibilities. "There already is a Cabinet Office requirement for a regulatory impact assessment each time there is a new policy," Sir Terence says, and that includes a requirement for monitoring and evaluation.

"The difficulty is that only six of these assessments out of every 10 properly and fully comply with that requirement. It is, in fact, part of the Government's agenda that there should be better regulation so you would expect the Government to act on recommendations that will lead to better regulation."

Perhaps. It strikes me that considerable political pressure is needed if we are going to see an end to laws that are rushed through by government departments with little care or thought. But the aim is a noble one.

As Sir Terence said at the launch yesterday: "Enhancing post-legislative scrutiny could improve the accountability of governments for the legislation they pass and ultimately lead to better and more effective law."



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