One of the features of government restructures is that it poses an administrative challenge for parliament, which then has to decide how to maintain proper scrutiny of the new machinery of government. Long-serving Commons official David Natzler explains how changes such as those made at the start of the month will affect parliament and poses possible solutions to some of the potential logistical problems.

On 7 February Prime Minister Rishi Sunak announced the creation of four new government departments. Responsibility for energy and the policy of ‘net zero’ was transferred from the Department of Business, Energy and Industrial Strategy (BEIS) to a new Department for Energy Security and Net Zero (DESNZ). The remaining parts of BEIS were merged with the existing Department for International Trade (DIT) to create a Department for Business and Trade (DBT). And a new Department for Science, Innovation and Technology (DSIT) was founded, comprised of the existing Government Office for Science, together with the digital responsibilities hitherto in the Department for Digital, Culture, Media and Sport (DCMS). DCMS reverts to its original 1992 responsibilities, when it was created as the Department of National Heritage.

Parliament plays no role in this process, unlike in some other countries, including Canada. It is an accepted part of the prerogative powers of the Prime Minister to create and wind up departments of state, constrained only by the statutory limit on the numbers of those paid as Cabinet ministers. No primary legislation is required: Transfer of Functions Orders will presumably be laid in due course, but these are subject only to the negative procedure and are tabled after they take legal effect. The costs of such reorganisations, expertly analysed in 2019 by the Institute for Government, could in principle be challenged under parliamentary processes for approval of expenditure, but that is not easy to envisage in practical terms. These latest changes seem to enjoy a large measure of cross-party support. But that does not diminish the case for greater parliamentary involvement in changes in the structure of government. It surely cannot be right that the Prime Minister has almost untrammelled power to determine how the UK is governed.

The changes have consequences for parliament, and for House of Commons select committees in particular. Such reorganisations are far from uncommon. In the era since the launch of departmental select committees in 1979 there have been several such changes. Some have involved little more than a change of nameplate, such as the replacement of the Department of Social Security by the Department of Work and Pensions. In other cases – most recently in the preservation of the International Development Committee despite the merger of the Department for International Development with the Foreign and Commonwealth Office – the Commons decided not to reflect a strict departmental structure in its committees.

Other reorganisations have required more significant rejigging. The creation in 1997 of the super-department of Environment, Transport and the Regions under John Prescott was paralleled by a super-committee working through two sub-committees. Its successors, the short-lived Department of Transport, Local Government and the Regions and the Office of the Deputy Prime Minister, were similarly reflected in adjustments to the departmental select committee system. Under the coalition government of 2010-2015 a select committee was created to scrutinise Deputy Prime Minister Nick Clegg’s role in its programme of constitutional and political reform. In 2015 this committee merged with the Public Administration Committee to form the Public Administration and Constitutional Affairs Committee.

The Department for Science, Innovation and Technology (DSIT)

There is already a departmental select committee ready and waiting to take on scrutiny of DSIT: the Science and Technology Committee. Originally established back in 1966 as a ‘subject’ committee as part of the Crossman reforms, it operated until the introduction in 1979 of the new departmental committee structure. It was revived in 1992, notionally as a departmental committee to scrutinise the then Office of Science and Technology. In the face of some resistance from the science and technology lobby, a freshly constituted select committee replaced it from the start of the 2007-08 session, after Gordon Brown created a new Department of Innovation, Universities and Skills (DIUS). The Chair and eight other members of the Science and Technology Committee joined the new committee, along with several members from the previous Education and Skills Committee. In March 2008 the word ‘Science’ was added to the committee’s name.

The department and the committee had a short shelf life. In June 2009, DIUS was merged with the old Department for Trade and Industry (DTI), which became the Department for Business, Innovation and Skills (BIS). The committee was replaced with a resuscitated Science and Technology Committee, charged with oversight of the Government Office for Science. It is that committee which now needs only a tiny tweak to its orders of reference to become the Science, Innovation and Technology Committee; that will at least helpfully distinguish it from its Lords counterpart, which was established in 1979 as the Science and Technology Committee in response to the decision of the Commons not to re-establish its own committee on that topic.

The Department for Culture, Media and Sport (DCMS)

The dropping of ‘Digital’ from the DCMS brief has no real effect on the select committee structure. The Chair and members can be assumed to be as committed to scrutiny of the slightly smaller remit of the department and its suite of non-departmental public bodies as they were on appointment to the committee in 2020.

The Department for Business and Trade (DBT) and the Department for Energy Security and Net Zero (DESNZ): lessons from 2016

One outcome of the 2016 Brexit referendum was a significant change in the machinery of government, involving the creation of two new departments, the Department for Exiting the European Union and the Department for International Trade. The Department for Energy and Climate Change created in 2008 was folded into the former Department for Business, Industry and Skills (BIS), which became the Department for Business, Energy and Industrial Strategy (BEIS). It is in practice that change which has now been reversed.

In 2016 the chair of the new International Trade select committee was allocated to the SNP. The Energy and Climate Change Committee, which was to be wound up, had been one of the two chairs allocated to the SNP in 2015. While the prospect of an SNP Chair of the International Trade Committee may have caused some concern among ministers, and would not have been an obvious ‘pick’ for the SNP if the chairs of other committees had been up for grabs, it was a generally acceptable solution in the circumstances.

The issue as to which party should be permitted to put up candidates for the chair of the Exiting the European Union Committee was essentially a political one. There was perceived merit in the Chair being from Labour: this avoided the yawning divide between Brexiteers and Remainers in the governing Conservative Party being exacerbated by Conservative candidates contesting the chair. In the event the veteran Labour former frontbencher Hilary Benn was elected.

DBT and DESNZ: what is to be done?

What should be done about select committee scrutiny of the two new departments created out of BEIS and DIT? The least troublesome solution would be to reflect the movement of the relevant secretaries of state, and put a simple motion to MPs to transform the existing BEIS committee and its Labour Chair Darren Jones into a DESNZ committee, and the existing DIT committee and its SNP Chair Angus Brendan MacNeil into a DBT committee. That would avoid new Commons-wide elections of two chairs, preserving the party balance agreed at the start of the 2019 parliament. There would be no need to appoint the membership of the new committees. Job done.

But there are disadvantages in practice and in principle to such a tidy solution. It is by no means obvious that the two MPs involved under this scenario would want to chair the new committees, nor that the Commons as a whole would want either the individuals or their parties in these new positions. There is a strong case for there to be new Commons-wide elections for the chairs of what are in fact new committees.

There is also some case for the party distribution of the two new chairs to be reconsidered by the parties. MacNeil was previously elected in 2015 to chair the former Energy and Climate Change Committee. It might be thought that the chair of the new and broadly equivalent ESNZ committee could sensibly be allocated to the SNP. But Labour might be expected to desire it too, given its current political profile.

It is far from a given that the two individuals to be elected as chairs would be the same as at present. MacNeil was the only candidate from the SNP for the DIT committee, but the election of Jones was contested. Given the recent change of leadership of the SNP parliamentary group at Westminster, and MacNeil’s length of service as a committee chair, it is possible that another SNP MP might put themselves forward, or even that there would be more than one SNP candidate. It is also conceivable that Labour might think that Darren Jones had earned appointment to the Labour frontbench. In any event it should be for MPs to elect the chairs.

It should also not be too casually assumed that the 20 committee members involved are happy to serve on any old committee, nor that there are no other backbenchers who would relish service on the new committees. The membership of the committees is decided in formal terms by the Commons based on proposals from the Committee of Selection, but the parliamentary parties are supposed to have an internal electoral process, which takes time. They might be seen in the Conservative Party in particular as a platform for the exacerbation of internal divisions that they could do without. But there is a strong argument that backbenchers should be freshly elected or re-elected to serve on these new committees: if for example Conservative net zero sceptics were to win one or two places on the ESNZ committee that could strengthen its authority.

We are in the penultimate session of the 2019 parliament, so the party whips may be tempted to choose the easy option. That would be perfectly procedurally proper. But the spirit of the 2009-10 Wright reforms would best be reflected in having these two new committees duly constituted, by election of their members by the parties and by election of their chairs by the Commons as a whole. The issue is one for MPs to decide on the basis of a proposition from the government. If that is not acceptable, it is incumbent on parliamentarians to put it right, even if that delays the establishment of new committees.

The rota for oral questions

A reorganisation of departments means changes in the pattern of departmental question time. Fifteen ‘major’ departments each have an hour of oral questions, including topical questions, on a five-week cycle. Five smaller departments get half an hour each on Wednesdays. The addition of one new department means that changes must be made. It is a zero-sum game: somebody will lose. As Erskine May puts it:

‘the schedule under which Ministers and other Members answer oral questions is decided by the Government. A published list or questions rota….is prepared by the Table Office on the instructions of the Secretary to the Government Chief Whip.’

A new rota appeared very promptly on the website before the half-term adjournment. DESNZ has taken over the BEIS Tuesday slot, DBT has the DIT Thursday slot, and SIT has replaced the Attorney General’s Wednesday morning session. The Attorney General has been moved to Thursdays, taking half of the DEFRA slot.

The overall outcome is that DEFRA is relegated from one hour to only 30 minutes every five weeks. The changes expose the oddity of the oral questions system: that the rota is determined by the government and does not require even the formal assent of MPs.

Conclusion

This will not be the last reorganisation of the Whitehall departmental structure, whatever the outcome of the next general election. But the precedents set now will be influential, settling how in a post-Wright world select committees are best constituted to reflect such changes. It is thus more important than ever that the Commons is seen to determine the outcome, rather than being left to pick up the pieces of a decision taken and implemented at Number 10, and that some element of accountability be introduced into the never-ending process of shifting departmental responsibilities.

About the author

Sir David Natzler is a Senior Research Associate at the Constitution Unit and co-editor of the 25th edition of Erskine May: Parliamentary Practice. He was Clerk of the House of Commons from 2015 to 2019, having previously served as Clerk of Committees and Clerk to the House of Commons Reform Committee.