Insights into Editorial: Post-legislative scrutiny to improve quality of laws
07 June 2016
With over 2,500 Acts just at the central level, India has one of the highest numbers of laws on its statute books. However, when it comes to implementation India has been consistently poor.
Reasons for poor performance:
- Design issues.
- Capacity constraints.
- High level of corruption.
- Absence of post legislative scrutiny or review of the laws.
Why have ex-post law reviews?
Since there is no requirement for an ex-post evaluation of laws, policy-makers and bureaucrats have no systematic evidence about the efficacy and performance of a law. They mostly use anecdotes and evidence provided by non-official sources such as corporates or NGOs and advocacy groups to argue for or against an amendment in a law.
- These reviews can be designed to assess whether the objectives and the anticipated effects of a piece of legislation have actually taken place on the ground.
- They can also identify any unintended effects that may have arisen from the legislation.
- Another benefit would be the systematic collection of data that would be a pre-requisite of any evaluation of this kind.
Examples from other countries:
- In the 1990s, many European countries as well as the US, Australia and Canada developed “better regulation” policies, which included ex-ante and ex-post evaluation of legislation.
- Among European countries, the UK required laws to be reviewed within three to five years of enactment. These reviews are conducted by existing Departmental Select Committees on the basis of a memoranda provided by a government department. All Acts passed since 2005 are reviewed with a few exceptions such as budgets, very technical acts and trivial acts.
- In Germany, ex-post evaluation is systematic and based on a standardized methodology set out in guidelines for public administrators.
- France requires mandatory periodic evaluation of legislation, which is enshrined within the law itself.
- In the US, each standing committee, except Committee on Appropriation, is required to review and study, on a continuing basis, the application, administration, execution, and effectiveness of the laws dealing with the subject matter over which the committee has jurisdiction.
- In Australia, most laws have to be reviewed within two years and they expire after 10 years.
- In Canada, a most laws have review and sunset clauses.
The Law Commission or an expert committee could first decide, with inputs from government and non-government stakeholders, the scope of post-legislative scrutiny by defining its boundaries, the types of legislation that require scrutiny, benchmarks of a successful legislation, the procedure for scrutiny, the body that should undertake the scrutiny and the time-period of the scrutiny. India could then incorporate within its legislation, a provision for systematic review of the law.
According to a 2006 report of the UK Law Commission on Post Legislative Scrutiny, “the purpose of the review is to discover whether a law is working out in practice as it was intended and if not, to understand the reason and address it quickly and cost-effectively.” Various governments have taken small steps in the direction of designing better laws such as making pre-legislative scrutiny of Bills mandatory through public feedback and identifying laws that need to be repealed but there is little discussion yet regarding the need for post-legislative review of laws. Therefore, it is high time for the government to come up with regular post-legislative evaluations. This should translate them into better laws. The present government’s promise of delivering “good governance” could also get a boost if it adopted post-legislative evaluation as a policy tool.