Post Legislative Scrutiny at Parliaments: The Case of Chile and UK
| Autor | Constanza Toro |
| Cargo | Comisión de Constitución, Legislación y Justicia de la Cámara de Diputados, Valparaíso, Chile |
| Páginas | 293-314 |
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018), pp. 293-314
POST LEGISLATIVE SCRUTINY AT PARLIAMENTS
THE CASE OF CHILE AND UK
Constanza toro*
“Post legislative scrutiny appears to be similar to motherhood and apple pie in that
everyone appears to be in favour of it. However, unlike motherhood and apple pie, it is not
much in evidence”.1
Abstract
The article develops a comparative study between Chile and UK
regarding the functioning of its system of post legislative scru-
tiny. To assess this issue, the different types of legislative scrutiny
are briey introduced to then focus on the scrutiny carried by
Parliaments after the legislation is enacted. The comparison be-
tween both countries is made according to the compliance with
the standards of: (i) effectiveness, (ii) efcacy and (iii) efciency.
The article examines how the Chilean and UK system of post le-
gislative scrutiny achieve each of these goals, concluding that the
UK model is overall a more successful system of post legislative
scrutiny. Nevertheless, some recommendations are put forward
to further improve the system of post legislative scrutiny in both
countries.
Keywords: Chile, United Kingdom, Parliament, Post le gislative scrutiny, evaluation of
legislation.
1. INTRODUCTION
The ultimate goal of legislation is to actually be applied and achieve the results
it pursued when proposed and enacted. Many factors can inuence this process, from
policy design, to the drafting process and also its implementation. Similarly, many
actors play a role along this process, including government, legislature, courts, etc.
In this article I’m going to focus on a specic aspect linked to achieving successful
legislation: post legislative scrutiny by Parliaments.
To examine this issue, I will look at the cases of Chile and UK, offering a com-
parative analysis that will shed light on the components of post legislative scrutiny.
The comparative criteria to assess both models will be the standards set by Luzius
* Comisión de Constitución, Legislación y Justicia de la Cámara de Diputados, Valparaíso, Chile
(constanza.toro@gmail.com). Article received on October 12, 2017 and accepted for publication
on February 27, 2018.
1
House of Lords (2004), Par. 165.
Constanza Toro
294
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018)
Mader to evaluate legislation: (i) effectiveness, (ii) efcacy and (iii) efciency,2 since it
was considered a comprehensive evaluation framework, able to account both for the
technical side of this type of assessment, as well as for the performance of legislation
as a public policy tool. The hypothesis of this article is that the UK model of parlia-
mentarian post legislative scrutiny better complies with Mader’s criteria, even though
it works as a diffuse system of evaluation.
The methodology followed in this article is the following: I will rst introduce
the topic of legislative scrutiny, the different types of controls and how they interact
between them. Then, I will explain Mader’s criteria and the meaning of the three
standards that will guide our analysis. Afterwards, I will develop the comparative
analysis by examining the Chilean and the UK model of parliamentarian post
legislative scrutiny and how they comply with each standard. A case-study will be
presented to further show how both Parliaments evaluated mental health legislation.
Finally, I will present some conclusions highlighting some recommendations that
could strengthen both models.
2. GENERAL ASPECTS OF LEGISLATIVE SCRUTINY
There are multiple ways of evaluating legislative policy. Therefore, it is
necessary to introduce some conceptual clarications, in order to delimitate the
specic area of parliamentary post legislative scrutiny. A rst distinction could be
drawn depending on who is carrying the evaluation: the Government, Parliament,
an independent agency, an expert commission, or other possible actors. A second
classication, focus on the moment the evaluation is done, recognizing that it could
be carried out before the policy is in place, which is known as ex-ante, pre-legislative
or prospective evaluation; or once the policy is already in place, known as ex-post,
post-legislative or retrospective evaluation.3
The UK Department for Business, Innovation and Skills (BIS) refers to post
legislative scrutiny (PLS) as one of the three types of ex-post review, together with
policy evaluation and post-implementation review (PIR). Although both post-imple-
mentation review and post legislative scrutiny are ways of policy evaluation, they are
not synonymous. Therefore, policy evaluation is the most generic term to refer to a
systematic evaluation of a regulatory policy. The PIR instead, is meant to be a com-
plement of the ex-ante evaluation done in the context of an “impact assessment”.
PIR is then, a “revised version” of the impact assessment; while PLS is a review of
how the legislation is working in practice.
According to BIS, post legislative scrutiny “primary audience is Parliament, it
includes a review of the extent to which the legislation and the supporting secondary
legislation has been brought into force. Unlike PIR, it includes a review of the extent
to which the legislation and the supporting secondary legislation has been brought
2 Mader (2001), p. 119.
3 Some authors add a third instance of evaluation, during the legislative process. Karpen (2004), p. 310.
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