Policy learning and system change – devolution’s missed opportunity (so far) 

It’s been a busy couple of months.

A few weeks ago, I was fortunate to get to speak at the University of Glasgow’s Centre for Public Policy conference. The theme of the conference was about what we need to stop doing and start doing in Scotland to deliver better policy outcomes. I spoke about why we need to start measuring what matters to inform better policymaking.

I have also been out and about with colleagues in recent weeks in Belfast, Edinburgh and Cardiff meeting policy stakeholders to discuss challenges and opportunities around embedding deliberative and participatory approaches into our parliaments. I’ll be in London for a similar meeting later in March.

In addition, Carnegie UK’s CEO, Sarah Davidson, recently gave evidence to the Scottish Parliament’s Finance and Public Administration Committee reflecting on the role of the Committee over this parliamentary term and the importance of this function continuing into the new session.

And finally, informed by all the point above, last week in the office (well on a Slack thread really) we were discussing and debating the various essential things needed to deliver systems change at government level. Spoiler alert: 1) it’s complex; 2) a lot of it is about fixing incentives and 3) yes, we really are that cool to be talking about that on a Friday.

In trying to get my head around all of this, it strikes me that there is a common thread that runs through much of these challenges and topics. Basically our governments and our legislatures are not well set up for reflection, analysis and review of how they work.

The scrutiny gap

It’s a tricky question to answer and opinions on all sides can be hard to prove. However, one useful proxy for a state’s capacity to be genuinely reflective would be to examine its parliament’s use of post-legislative scrutiny. Sadly, doing so does not make for encouraging reading and it’s something that’s harder to get consistent data on than you might imagine.

On the numbers I was able to find, since devolution:

• The Scottish Parliament has passed around 60 – 80 Acts per session but undertaken only a single digit number of post-legislative scrutiny inquiries per session.
• A typical Welsh Senedd session will pass between 20 – 30 Acts (although they have not always had the power to pass formal Acts) but also undertakes only a tiny number of formal post-legislative scrutiny inquiries.
• Stormont will pass about 30 or so Acts per session but similarly would seem to undertake only low single-digits of post-legislative scrutiny inquiries (or similar) per session.

I want to note upfront that the numbers above may not be fully accurate. It turns out that due to the different ways in which this data is recorded across various official websites, it is trickier than I anticipated to accurately map the passing of Acts to the right parliamentary session. Similarly, there are not really consistent records across our legislatures of post-legislative scrutiny or inquiries undertaken. Which is all somewhat indicative of wider data collation challenges across our parliaments.

Nonetheless, even with these caveats and even if they are just indicative, these numbers generate a few compelling bits of insight:

• Firstly, they suggest a pretty significant and concerning scrutiny gap between legislation passed and legislation examined across our devolved parliaments.
• Secondly, it highlights that Holyrood’s prolific legislating rate is an outlier, even in the context of it having the most substantive devolved powers. In the 2016 – 2021 parliamentary session alone they passed more than 80 Acts but undertook only two post-legislative scrutiny inquiries (on the 2002 Freedom of Information Act and the 2016 Lobbying Act).
• Finally, if we use this data as an imperfect proxy for a legislative system’s ability to attend to itself rather than just legislate, the findings are pretty damning.

When devolution was established across Scotland, Wales, and Northern Ireland, the ambition was for a new kind of politics – one that was more responsive and agile than the established Westminster model. Decades later, we have succeeded in becoming prolific lawmakers. But we have failed to build the policy feedback loops essential for a system that actually improves lives. We are really good at the ribbon-cutting of new legislation, yet we rarely return to the site to see if the building is still standing.

This might all seem very technocratic (and it is), but it matters.

Legislate less, deliberate more

The next phase of devolution, and the incoming session in Wales and Scotland, should be characterised by a shift in posture: legislate less and deliberate more. This might be seen as a hard sell if it is interpreted as politicians should “do less” but this is about getting more done that achieves better impact for people at scale.

To my mind there are three things needed to make this happen:

• Normalise reflection and scrutiny: Post-legislative scrutiny should not be a “nice-to-have” for a committee or a bill. It should be a normalised and expected requirement for any major legislative Act. Looking ahead there is an opportunity to consider how future scrutiny inquiries or review clauses could include an evidence-based assessments of an Act on our collective wellbeing. This could, for example, look to assess the impact of legislation after five years or so against the outcomes of the National Performance Framework in Scotland or the Future Generations and Wellbeing Act in Wales.

• Institutionalise deliberative democracy: Instead of rushing to the next Bill, governments and parliaments should use the space they have to engage in deeper and more institutionalised deliberation with citizens. This is not about more consultation, it’s about using established and proven mini-public methods to supplement and complement existing parliamentary processes to unlock more power, capacity and greater depth of insight to inform legislation that meets people’s needs. We will have more on this coming soon via our Engaging Democracy programme, so watch this space.

• Improve how we share what works: This is a major recurring theme in our engagement with policymakers across the UK. A big part of devolution was supposed to be about experimentation and learning about what works to address shared policy challenges in different places. But despite more than 25 years of passing laws, this aspiration for shared learning has never really taken hold. As we look to the next quarter century of devolution, improving the leadership, structures and culture around how we learn across nations will be essential to inform good future policy making. The team at PolicyWISE have been doing great work in this space that is worth following.

The devolution dividend

The dividend of devolution was never meant to be a higher volume of output on the statute book. It was meant to be a better quality of life for people in places.

After 25 years of devolution, Scotland, Wales and Northern Ireland have built remarkably productive legislatures, but not reflective ones. Across all three, only a tiny percentage of Acts ever receive formal post-legislative scrutiny. This scrutiny gap represents a missing feedback loop in our policymaking system. To deliver the original promise of devolution – improved wellbeing, not just more laws – the next parliamentary sessions must normalise post-legislative review, institutionalise deliberative democracy, and radically improve how nations share what works.

If we want our policy making to actually improve our lives and wellbeing then our parliaments must be brave enough to stop and ask: did that actually work? If our devolved policy systems cannot learn, then they will struggle to meaningfully improve.