As the climate crisis becomes an emergency, an increasing number of parliaments are stepping forward to ensure democratic accountability for environmental and climate policy making. While legislation is of critical importance to achieve national climate commitments, it is equally vital to ensure that the legislation is implemented and has the intended outcomes. Verifying if that is the case is often referred to as Post-legislative Scrutiny (PLS) or ex-post impact assessment of legislation. In this article we put forward five golden rules for conducting climate-proof Post-Legislative Scrutiny.
2024 provides a critical opportunity for parliaments to exert institutional leadership for stronger and more democratic climate action, as countries progress on their path towards decarbonization and adaptation to the local scenarios related to a global increase of temperature of at least +1.5C expected by science. Currently, all countries party to the Paris Agreement are preparing their Nationally Determined Contributions (NDCs) that outline their climate plans for the next five years, due to be tabled in November 2024.
The First Global Stocktake, concluded at COP28 in Dubai in December 2023, found that global implementation of the climate action pledges made under the first round of NDCs has fallen short of stated ambition. With the world on track to miss the goal of the Paris Agreement to limit global warming below the safer threshold of +1.5 to +2C, the next round of NDCs will need to be more ambitious than the first ones. Delivering greater ambition will require yet stronger political will, and expanding political space in society for measures which, if they truly are more ambitious, will also inevitably be disruptive for some people in the short term - even as they open opportunities for others and advance the public interest.
Sustained oversight effort on climate action by parliaments everywhere is a critical condition of success, as national parliaments are the sole institutions legally capable to exert oversight, monitoring and verification on national pledges made under the Paris Agreement.
While legislation is of critical importance to achieve national climate commitments, it is equally vital to ensure that the legislation is implemented and has the intended outcomes. Verifying if that is the case is often referred to as Post-legislative Scrutiny (PLS) or ex-post impact assessment of legislation. PLS can help identify implementation shortcomings, areas of improvement and good practices. While PLS can provide oversight of the implementation gap, the gap between ambitions legislated for and those delivered, PLS can also provide a window for increasing legislative ambitions in line with what the climate science demands.
Westminster Foundation for Democracy (WFD) has developed a bespoke methodology for carrying out PLS on climate and environmental legislation and assist parliaments in this task. Dr Maria Mousmouti drafted the manual with practical guidance on preparing, organising and following up on PLS activities, structured around 11 steps. In addition, WFD is about to publish a global mapping of parliamentary oversight on the first NDC in the run-up to and post-COP28's First Global Stocktake; and the lessons learned as relevant for the second NDCs which outline the national climate plans for the next five years.
Based on this analysis, we outline five golden rules for conducting climate-proof PLS. The five golden rules capture the do’s and don’ts for parliaments willing to engage on PLS of environment and climate legislation.
- Make the work of parliament climate-proof. Climate-proof PLS is not the job of the Environmental Committee only. All committees need to be engaged. This means that parliaments need to organise their internal processes to ensure that environmental and climate oversight spans the entirety of its work, including through inter-committee communication and environmental and climate mainstreaming in committees’ work. This requires that all MPs and staff have been informed of the national targets related to mitigation of greenhouse gas emissions and the strategy on adaptation. This familiarity could be achieved through i.e., the involvement of the parliament in the formulation of the NDCs.
For instance, the Scottish Parliament applies its sustainable development Impact Assessment Tool to all its legislation. It helps parliamentarians moving beyond simply asking ‘what is the economic cost or benefit of this law’ to asking, ‘what is the carbon cost?’. The UK Parliament Environmental Audit Committee has a cross-government mandate to consider the extent to which government departments and public bodies contribute to environmental protection and sustainable development.
- Make all PLS inquiries climate-inclusive. For PLS of general legislation, it is important that environmental impact is explicitly included in the PLS guidance, calls for evidence, and questions used in data collection. The PLS report needs to include a section on findings and recommendations relevant to the environment and climate; going beyond findings and recommendations related to the thematic remit of that law. This is similar to the approach that says that any legislative impact report must have a section relevant to gender equality. Again, familiarity with sectoral domestic targets and commitments on climate across parliamentary committees would be a critical enabler for this mainstreaming.
An example is the Indonesian Parliament which has started PLS of the ‘Law on Job Creation’ with specific attention to the risks of driving environmental degradation and undermining climate action.
- Employ environmental treaties as entry-point for environmental PLS. Parliaments have a key role in ratifying international environmental and climate treaties. PLS can provide a window of analysis to check on the government’s commitments and adherence to such treaties as reflected in the national law. Furthermore, delivery against international treaties takes place at national, regional, and sub-regional level. Parliaments are critical to ensure that this happens.
- Look at the role of implementing agencies of legislation. Each law designates an institution, department or ministry for its implementation. In many countries, the piecemeal development of environmental legislation risks regulatory overlap. Through PLS, MPs can review the role of implementing agencies of environmental laws, in order to consider whether compliance and enforcement regimes exist, and what is their effectiveness, legality, and coherence.
For example, the National Assembly of Nigeria has assessed the Environmental Impact Assessment Act and the Act on the National Agency for the Great Green Wall.
- Review the legislative targets. It is important that legislative targets for climate and environment are adequate, timely and achievable. Setting targets alone does not in itself improve environmental outcomes. PLS of climate and environment legislation should therefore focus its assessment not only on targets, but also on performance against those targets – asking if the targets and actions to meet them are doing enough.
For example, the Canadian Parliament enacted a review clause in the Net-Zero Emissions Accountability Act to ensure a parliamentary review after 5 years of it coming into force with the aim to sharpen the targets.
These five golden rules are a call to action. Because parliaments need to make sure that climate legislation has real-life impact.
Parliamentarians, parliamentary staff, legal drafters and researchers interested in enhancing their knowledge and skills in post-legislative scrutiny, in particular in the context of the climate and environmental emergency, will be pleased to know that the Institute for Advanced Legal Studies of the University of London (IALS) and WFD are teaming up for a special certified course on the topic. The course takes place online, during September 2024, and registration is still open. It is the fifth such annual course, reflecting the fruitful partnership between IALS and WFD on the topic of post-legislative scrutiny.
