By Jack Manners, CPA UK

Ahead of its upcoming Commonwealth-wide legislative strengthening seminar on modern slavery in supply chains and gender-based violence, due to be held in Westminster in the Autumn, CPA UK sat down with Baroness Nicky Morgan to reflect upon her experiences as someone who has legislated and influenced legislation in both Houses of Parliament.  

In the second edition of a three-part series ‘How to Strengthen Legislation’, Baroness Morgan of Cotes discusses how post-legislative scrutiny operates in the UK Parliament and how a parliamentarian can use parliamentary instruments to strengthen and review existing legislation.

For Part 1 'Building Credibility, Leveraging Influence and Depoliticising Amendments' click here.

Post-legislative scrutiny is not flashy, but it has a “massive role in parliament” in terms of strengthening and reviewing existing legislation, Baroness Morgan begins.

Primarily, Morgan says this occurs through two parliamentary instruments ‘Departmental Select Committees’ and House of Lords’ ‘Special Inquiries’.

The latter looks “at how particular Acts of Parliament have stood up to the test of time”, while in the former “parliamentarians are genuinely there to find out about an issue, to scrutinise the work of the department and yes, occasionally to say that we think an act of Parliament is out of date”.

“Of course, some become outdated much more quickly.”

“The cross-partisan nature of the committees is a “massive strength”. "[They're] one of the things that work best [in parliament]. People leave the politics at the door.”

“The cross-partisan nature of the committees is a massive strength" and “one of the things that work best [in parliament]. People leave the politics at the door.”

Although rare according to Morgan, she says Select Committees may decide that an Act of Parliament needs reviewing as a result of: “the committee members themselves deciding that something needs to be looked at”; legislation being passed with a timed review so automatically appears on the “committee’s radar”; gathering evidence, when someone may conclude that a piece of legislation is “now out of date”; or, based on either their own expertise or local representation, a  member of parliament writing to the committee to request that they “consider looking at this piece of legislation because ‘I think it's out of date/my constituent thinks it’s out of date’.”

Here, Morgan makes clear the immense investigative opportunities that arise from being on a Committee and the lesser-known secret of campaigning to it directly – from a non-partisan position grounded in subject-based credibility or local representation.

However, Morgan says that Departmental Select Committees are chiefly focused on “responding to more immediate concerns” and are “slightly less suited to post-legislative scrutiny”. When this does occur, it is “usually more of a side product”. 

In the Lords, there are a limited number of Select Committees. Here, post-legislative scrutiny primarily operates through special enquiries which “tend” to deliver a “forensic look at a particular act of Parliament or a particular issue, to see whether the law around that needs to be updated.”

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Morgan makes clear the immense investigative opportunities that arise from being on a Committee and the lesser-known secret of campaigning to it directly – from a non-partisan position grounded in subject-based credibility or local representation.

Yet, at the same time, Morgan recognises the limitations of this process – ultimately, there isn’t enough time or capacity in the Lords to have multiple special inquiries into existing legislation – Peers are invited to put forward a maximum of four every year, each of which can take up to a year to complete.

With almost 800 members of the House of Lords, these inquiries are extremely limited and therefore require members to build a substantial case for them while gathering colleagues’ support.

In terms of identifying which legislation the inquiries will investigate, Morgan says that often it stems from “a combination of people's own expertise and knowing that something's outdated or needs to be looked at”.

Crucially, members must use their ‘credible voice’, built after years of parliamentary campaigning on a particular subject, to advocate for the inquiry. “The one I'm most aware of because its campaigners are so effective is the ‘Computer Misuse Act’ – some feel that it's just out of date and needs to be modernised”.

“The one I'm most aware of because its campaigners are so effective is the ‘Computer Misuse Act’ – some feel that it's just out of date and needs to be modernised”.

 “But I think there's a huge scope there – on whether you should have some more systematic way of reviewing old legislation, as Parliament is going along just to try to keep the statute book as up to date as possible.”

Ultimately, Morgan says that legislation has to constantly be reviewed though doubts whether the UK or any country has got post-legislative scrutiny “quite right”.

“Even as we were passing it, we were mindful of the fact that technology is changing so quickly that this is just the starting point for legislation. And how do you keep legislation like that nimble to keep up with change that advanced?”

First elected to the Commons in 2010, Baroness Nicky Morgan quickly found her way to the cabinet table, notably serving in government as Secretary of State for Education and Minister for Women and Equalities from 2014 to 2016, and as Secretary of State for Digital, Culture, Media and Sport from 2019 to 2020. She ascended to the House of Lords in 2020, the UK parliament’s upper house which is responsible for scrutinising and reviewing legislation.

For more information on the UK Branch of the Commonwealth Parliamentary Association and the Legislative Strengthening Seminar to be held in Westminster in Autumn 2024 see:  https://www.uk-cpa.org/news-and-views/commonwealth-parliamentarians-continue-mission-to-eliminate-forced-labour-and-violence-against-women-and-girls