Law Society recommends providing for post-legislative scrutiny processes in Parliament’s rules

The New Zealand Law Society Te Kāhui Ture o Aotearoa has recommended amending the Standing Orders to provide for processes which empower Parliament to undertake post-legislative scrutiny of legislation.

The Standing Orders are the rules of the House of Representatives and its select committees, and detail how Parliament carries out its work. During each term of Parliament, the House looks at how it can work more effectively over the next three years, by undertaking a review of these rules.

The most recent review commenced in May 2022. The Law Society made a written submission, with input from its Public & Administrative Law Committee. The submission recommended various amendments to enable better scrutiny of legislation, and in particular, of bills that have been passed under urgency.

“The Law Society has recently observed an increasing number of bills being passed under urgency, and without the valuable in-depth scrutiny by the public and by select committees,” says Law Society spokesperson Debra Angus. “While this is, in certain circumstances, necessary and justified, we are concerned about the increasing use of urgency and the very limited consultation timeframes for scrutinising bills and seeking public input.”

To address these concerns, the Law Society recommended developing a process for post-legislative scrutiny of legislation, alongside ‘trigger points’ for scrutiny at the right time. These trigger points should be set out in the Standing Orders, and could include:

1. legislation that is passed under urgency;
2. representations made to a parliamentary committee, or through a public petition, that a piece of legislation needs to be reviewed due to a particular policy impact;
3. comments in a judicial decision or an inquiry that the legislation should be reviewed; and
4. legislation which contains a sunset clause, or a clause which requires a review by Parliament.

“Such scrutiny enables Parliament to examine whether the laws it has passed are fit for purpose, and whether the Government is managing the effective implementation of its policies,” says Ms Angus. “It also provides an opportunity to identify potential adverse effects of new legislation on fundamental rights.”

There are mechanisms and models within the current Standing Orders which could be developed further to carry out parliamentary post-legislative scrutiny.

For example, legislation passed under urgency could be subject to select committee scrutiny within a specified timeframe. This gives select committees the opportunity to assess how the legislation has been applied in that time, and to determine whether it remains fit for purpose.

“This is not a new or unique proposal,” says Ms Angus. “In its 2020 review, the Standing Orders Committee emphasised that rather than establishing a separate legislative scrutiny committee, existing committees could inquire into matters relating to their subject areas and carry out post-legislative reviews. However, there has been very little post-legislative scrutiny activity of primary legislation in the last Parliament. Oversight by Parliament is too important to be left to chance.”

Select committees could also:

• develop and publish a programme for post-legislative scrutiny to be undertaken during each parliamentary session;
• ask departments to identify possible pieces of legislation for post-legislative scrutiny (perhaps as part of any reviews on the activities and performance of government agencies);
• initiate post-legislative scrutiny inquiries; and
• call for public submissions, and report to the House on their findings, with a requirement for the Executive to respond to a committee’s report within a specified timeframe.

Post-legislative scrutiny will inevitably increase the workloads of select committees, and existing committees may find it difficult to prioritise post-legislative scrutiny. Therefore, an alternative option would be to establish a separate specialist committee, similar to the Regulations Review Committee, which would then be responsible for conducting post-legislative scrutiny.

“In any case, Parliament must take a more active role in evaluating whether the laws it has passed achieve their intended outcomes,” says Ms Angus.

Source: lawsociety.org.nz

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