The Dutch model of pre-legislative scrutiny could help the UK produce better law

Parliament has increasingly been engaged in pre-legislative scrutiny in recent years. In this post, Anthony Zacharzewski of the Democratic Society considers the Dutch approach, which provides for independent scrutiny and advice to legislators as part of an established assessment framework. There are various ways we could apply this model to the UK, he argues, with the goal of producing better law.

What can the UK learn from the model of pre-legislative scrutiny in the Netherlands? Credit: Daniel Foster (CC BY-NC-SA 2.0)

De Raad van State

The Dutch Council of State is an ancient institution, established in the early 16th century. Its modern version is responsible for various administrative justice roles. Aside from members of the royal family, who are members but may not vote, the Council is made up of 28 State Councillors and a number of special councillors – the current membership is 70. Many are lawyers, but there are also subject-matter specialists.

The Council has a Legislation Division, supported by 16 staff, which examines the quality of proposed legislation, from legislative, policy and practical aspects. It is barred from commenting on the political dimensions of proposed legislation.

Legislation (covering Bills, statutory instruments and treaties) are sent to the Council before it is introduced to Parliament. The Cabinet can also request scrutiny of what in the UK would be called Private Members’ Bills. The average workload of the Council is 700 items of legislation per annum.

The Council has a written assessment framework for legislative quality, which tests three aspects of the proposed law by applying a policy test, a legal test and a technical test:

The policy test considers whether (a) there is a real problem to be addressed; (b) whether the legislation is an effective solution to the problem; and (c) whether the legislation as drafted can be effectively implemented.

The legal test considers whether (a) the proposal is compatible with higher duties under the constitution and ECHR; and (b) whether the proposal is well-integrated into the legislative framework around it.

The technical test looks at the drafting of the law for internal consistency, clear structure and comprehensibility.

If the Council decides that legislation is not ready for introduction, it sends it back with advice to the Cabinet. The advice is non-binding, and can be ignored. The relevant Minister has to make a response to the Cabinet, indicating which areas of recommendations will be taken into account, and which not, and both the Council’s report and the Ministerial response are published alongside the legislation when it is introduced into the House (or in the case of statutory instruments, promulgated).

As a side note, the role of the Council of State has become more controversial in the Netherlands in recent years. The minority government currently in office is supported by the hard-right PVV led by Geert Wilders. Bills that address PVV issues have been strongly criticised by the Council of State for potential breaches of human rights, particularly around criminal punishments and issues related to Islam in Dutch society. As a result, the current government has ignored Council of State advice more than any previous government, while the number of negative recommendations to Cabinet has increased by more than 60%.

Could a similar model work in the UK?

The most desirable features of the Dutch council of state model are that legislation is scrutinised by an independent body, and advice is given initially in private to allow the government time to respond and amend proposals, but then made public. The (ultimately) public nature of the advice ensures that ministers and officials have an incentive to avoid criticism by not producing Bills that are deemed unacceptable or poorly drafted. The set analysis framework is also a useful model for thinking about the different ways in which law can be described as “good”.

It is possible to see a “British Council of State” working in four ways, each with a higher degree of publicity and independence than the last. Using existing government bodies as models, these are:

PBL-Plus model. Under this model, the existing Parliamentary Business and Legislation (PBL) Cabinet committee and its staff would devise an assessment framework for new legislation along the lines of that used by the Council of State in the Netherlands. New bills, though perhaps not statutory instruments, would be assessed against the framework using information from civil servants and from Cabinet Office staff. This would be essentially a “legislative impact assessment”. It could be made public or not, but either way would be a Government document. This is the closest to existing practice, and hence the least difficult to implement. However, it lacks the independent legal view that the Dutch model has, and the requirement for Government to demonstrate how it is taking advice into account.

CPB model. In this model – named after the Dutch Centraal Planbureau (CPB) which reviews the economic impact of public spending plans – a group of civil servants separate from PBL committee secretariat, perhaps part of the Ministry of Justice or of the Parliamentary Counsel’s office, would act as the scrutinisers of legislation, and negotiate improvements with the Bill Team. The team would be civil servants, but with a brief to be rigorous in their analysis, and they would draw on expertise from departments and their own legal knowledge. The final assessment would be published with the Bill on introduction, but there would not necessarily be acknowledgement of internal discussions. This model keeps pre-legislative scrutiny within the walls of government, although advice would probably be retrievable under the Freedom of information Act once a Bill had been passed. As with any inside/outside issue, the team gains more internal trust by being part of the same organization, but by the same token loses the pressure of independence and public scrutiny.

OBR model. Taking the independence and openness one step further up, the Government could create an “Office of Legislative Responsibility” which like the Office for Budget Responsibility (OBR) would be a non-ministerial Department of small size, devoted to the specific task of assessing legislation and reporting its findings. This is something that would work very much like the Dutch model, with a staff supporting a panel of experts and lawyers. Advice here, as with the Council of State, would be made public and the government would have a chance to respond, but staff would be civil servants, and the structure would sit within the government.

NICE model. Finally, at the most independent and open level, an organization completely outside the government structure could be set up to carry out this pre-legislative scrutiny, a “National Institute for Legislative Excellence” like the National Institute for Health and Care Excellence (NICE), which judges the cost-effectiveness of medical treatments for the NHS. This model could sit within the legal structure, as an adjunct to the Administrative Court, or could be part of the Parliamentary structure perhaps reporting to the Speaker or the whole house in the manner that the National Audit Office does. In either case, this would be a body that conducted its deliberations with the intention of making them public, and which was staffed by a team of specialists and lawyers supporting either a permanent group of administrative practitioners or a panel. This would be the most significant step towards strong independent scrutiny, but would also need the resources to understand the subject matter which the bills were discussing, in sufficient depth to make reasonable assessment of the policy.

—

This post was originally published on The Democratic Society blog. It represents the views of the author, and does not give the position of Democratic Audit or the London School of Economics. Shortlink: https://buff.ly/1boeZK8

—

Anthony Zacharzewski runs the Democratic Society, which he founded in 2006. Demsoc are building democratic reform at local, national and European level with projects such as Democratic Conversation, NHS Citizen and Future Europe. Before starting Demsoc, he worked for fifteen years in Whitehall and local government.