Source: Scottish Parliament

Institutionalising Post-Legislative Scrutiny

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This is a blog from Dr Tom Caygill, Senior Lecturer in Politics, Nottingham Trent University, who is working in the Scottish Parliament on a Scottish Parliament academic fellowship.

As with all guest blogs, what follows are the views of the author, not those of SPICe or indeed the Scottish Parliament.

Questions around how post-legislative scrutiny (PLS) can be institutionalised within legislatures is a key one facing academics and parliamentary officials. In the past 15 years, PLS has become increasingly recognised as an important tool for legislatures as part of their oversight and legislative roles. The Scottish Parliament has attempted to institutionalise PLS in several ways which has culminated in the designation of PLS as a strategic priority for committees in its sixth Session. This strategic priority aims to underpin a new approach to PLS in the Scottish Parliament. My academic fellowship with the Scottish Parliament aims to look at past and current practice to assess the impact it is having on institutionalising PLS.

PLS and the Scottish Parliament

The Scottish Parliament has been able to undertake PLS since it was reconvened in 1999 but the take up of this particular activity has been slow. Using the Scottish Parliament’s definition of PLS and my own research, Table 1 identifies the number of inquiries undertaken between the second and fifth Sessions of the Scottish Parliament.

Table 1 – PLS in the Scottish Parliament

Number of PLS Focused Inquiries
Second (2003-2007)
Third (2007-2011)
Fourth (2011-2016)
5 (data only went up to 2014)
Fifth (2016-2021)
Sixth (2021 – Present)
8 (to date)

Prior to the fifth session of the Scottish Parliament, the uptake of PLS remained relatively low and static. However in the fifth session it was decided to try and institutionalise PLS by attaching it to the remit of the Public Audit Committee, becoming the Public Audit and Post-Legislative Scrutiny (PAPLS) Committee. This experiment was an initial success and it did lead to a boost in the number of PLS inquiries being undertaken in the Parliament. The PAPLS Committee made its decisions on what to scrutinise based on topicality as well as the result of a public consultation exercise. The PAPLS Committee undertook six inquiries between 2016-2021 and a further five inquiries were undertaken by subject committees.

There is evidence here that a dedicated committee being given the formal task of undertaking PLS does lead to more of such scrutiny being undertaken. However, in its legacy report, the PAPLS Committee recommended that it be removed from its remit. They noted that it was difficult for the committee to select items for PLS because they lacked the subject knowledge and expertise which the subject committees had. As committees in the Scottish Parliament have the dual law making and oversight functions, they are able to build up detailed subject knowledge.

There was also a lack of clarity on whether the PAPLS Committee could introduce its own Committee Bills to give effect to its recommendations (as other committees were able to do). The addition of PLS to its remit also meant that it was unable to carry out more detailed scrutiny of individual audit reports as a result.

A Strategic Priority?

This is the context in which the Conveners Group made the decision to make PLS a strategic priority for subject committees, thereby introducing a new way of trying to institutionalise PLS.

The Conveners Group recommended that all subject committees from summer 2023 be encouraged to consider possibilities for PLS when looking for priorities during their yearly business planning day. Clerks and the Scottish Parliament Information Centre (SPICe) were also encouraged to present ideas to MSPs. While this doesn’t necessarily mean that PLS must be prioritised, it was designed to ensure that PLS is on an equal footing with other committee work when business planning takes place.

Since May 2023, subject committees have been asked to include a section of their annual reports on PLS to identify what work, if any, has been carried out. Although a challenge with this approach is to ensure that committees are not just crowbarring PLS into their work and are undertaking meaningful scrutiny. The Conveners Group also recommended that all this information be presented to it to review – so there is some oversight built in.

This strategic focus has also led to a more high profile presence for PLS on the Scottish Parliament’s website with a dedicated page which lists the inquiries which have been completed. Research is on-going into the effect this different approach to institutionalisation is taking, however it is already starting to see results with eight instances of PLS having already taken place since January 2022 with another two and a half years of this session to go.

This is a similar approach which the House of Commons took in the UK Parliament between 2010 and 2015, which saw the number of PLS inquiries rise (aided by the House of Lords institutionalising PLS as well). However, after the 2015 UK General Election the composition of the House of Commons Liaison Committee changed and PLS was dropped as a priority. This also led PLS to fall down the agenda of committees and saw the amount of inquiries slump (although there has been an average of three inquiries per year in the past 5 years). A key lesson from the UK Parliament’s experience here is that care needs to be taken to ensure that this process sticks. My aim is to support the Scottish Parliament in ensuring that it does.   

Dr Tom Caygill, Scottish Parliament Academic Fellow

Cover image source: SPICe