Our System For Post-Legislative Scrutiny Isn't Working
6 min read
Parliament was assured it would have an enhanced ability to review how newly introduced legislation is working in practice. But Hleb Buziuk says it is far from clear this vital part of scrutiny is taking place
Parliament does have a general system for looking back at legislation. Since 2008, departments have been expected to publish a memorandum three to five years after Royal Assent explaining how the legislation has worked. A Commons select committee can then decide whether a fuller inquiry is needed. But the department and committee may agree that no memorandum is required.
FairGo, the organisation that I help lead, tested how visible that system is in practice. We examined every substantive Public General Act passed at Westminster between 2008 and 2021 – 311 in all. We counted departmental memoranda, committee inquiries, statutory reports and other formal reviews covering all or part of an act. We began in 2008, when the modern system was established, and stopped in 2021 so that every piece of legislation had entered the three-to-five-year review window.
In 137 cases (44 per cent) we found no public document meeting those criteria. The rest had at least one review or report covering all or part of the legislation. Major pieces of legislation fared better on this measure, but not uniformly. Of the 130 items pre-classified as major legislation under our published criteria, 118 had at least one such document. The 2019 and 2020 Acts of Parliament discussed here were among the 12 that did not.
This is a measure of public trace, not quality: we counted whether a document existed, not how deep it went. Not finding a document does not prove that no internal work occurred. Nor was every piece of legislation necessarily due a memorandum. Our claim is narrower: through the routes in our published methodology, we found no such public document. The underlying register and citation ledger are published with the report.
The sharpest contrast was statutory follow-up. All 78 Acts of Parliament containing a duty to review or report had at least one such document. Among the legislation without such a duty, 59 per cent had none. Part of that relationship is mechanical: the duty creates the document.
That is also the point. A statutory duty can be found, cited and chased. A promise outside legislation may leave a record without creating a trigger.
What is missing is not a verdict on whether each law worked. It is a routine public moment when ministers must explain what happened.
This is not just some theoretical anomaly – it has real-world consequences.
In March 2020, at Committee Stage in the Lords, Baroness Deech proposed a statutory review of financial provision on divorce – the law governing who leaves a marriage with what. Her amendment was to the Divorce, Dissolution and Separation Bill, but concerned an older body of law. Lord Keen of Elie later wrote that the work would likely take two to three years from commencement to report. In light of that commitment, he said, she had “no need to table a future amendment”. She did not bring the clause back for a vote.
Three years later, Deech told the House that she and Baroness Shackleton had been “misled”.
The government later asked the Law Commission to scope possible reforms. Its December 2024 report said the law needed reform but did not choose among four possible models. In June 2026, the government opened a consultation on one of them, a “codification-plus” model. The law itself remains unreformed. The Law Commission concluded that uncertainty in the law fuels disputes rather than settlement. For tens of thousands of separating couples navigating the financial remedies system each year, that means more cost and conflict.
The promised exercise was not a review of the 2020 legislation itself. It concerned a different body of law. But the assurance shaped the bill’s passage: the review clause did not return for a vote, and no statutory deadline or reporting duty took its place. Separately, FairGo found no public review of the 2020 Act of Parliament meeting our criteria. The gaps are different. Both show what can happen when follow-up is not written into law.
By contrast, the story of the Mental Capacity Act of 2005 shows scrutiny working – and implementation stalling. In 2014, a Lords committee reviewed the legislation and declared its Deprivation of Liberty Safeguards (DoLS) not fit for purpose. Parliament responded with the Mental Capacity (Amendment) Act 2019, creating Liberty Protection Safeguards to replace them. The new safeguards have never come into force.
Parliament should be able to tell, for each piece of legislation, whether it was reviewed, whether a memorandum was waived, or whether it simply fell from view
In 2023, the then government said that implementation would not happen before the end of that Parliament. In October 2025, the new government announced a further consultation for the first half of 2026. That window has passed; at the time of writing, we could find no sign on GOV.UK that it had opened, and no implementation date has been set.
England’s official 2024-25 figures show the scale of the system left in place. Local authorities received 364,900 DoLS applications. At year end, 118,850 applications remained uncompleted. Of completed standard applications, only 21.1 per cent met the statutory 21-day deadline. Those figures pre-date the Supreme Court’s June 2026 change to the legal test for deprivation of liberty, so future caseloads may differ. A regime not yet in force cannot be reviewed for its effects. But a post-legislative memorandum is meant to identify provisions that have not been brought into force and explain why. It could also tell Parliament what to expect next.
The diagnosis that DoLS were not fit for purpose came from post-legislative scrutiny itself. The 2014 committee went back, looked at how the legislation worked in practice and said so in public. Scrutiny works when it happens. Our data shows how often Parliament lacks the public record on which further scrutiny can build.
Even Parliament cannot easily establish the overall picture. Lord Norton of Louth chaired the Constitution Committee inquiry that helped make the case for systematic post-legislative review. He later asked the government which pieces of legislation were undergoing such a review and which were scheduled for 2026. The answer to both was the same: “This information is not held centrally.”
The argument is not that every Act of Parliament requires a committee inquiry. Parliament should be able to tell, for each piece of legislation, whether it was reviewed, whether a memorandum was waived, or whether it simply fell from view. A central register should identify the responsible department, record the memorandum’s status and link to it where one exists. The government should maintain that register. Until it does, Members can protect each bill one clause at a time.
Parliament is diligent about making law. The missing half of the job is finding out, in public, what the law did – and explaining when it did not take effect at all.
The next time a review is offered in exchange for an amendment, ask for three things: a duty, a date and a report to Parliament. A promise can help a bill pass. A statutory trigger turns it into an obligation that outlasts the minister.
Hleb Buziuk is founder and director of FairGo CIC
