Pre-appointment scrutiny hearings: parliament’s bark delivers a stronger bite than MPs realise

For the past decade House of Commons select committees have held pre-appointment scrutiny hearings with preferred candidates for some of the most senior public appointments. Many select committee chairs and members consider these to be a waste of time because there is no power of veto. However, research published in a new Constitution Unit report suggests that they have much more influence than committees realise. Robert Hazell outlines these findings.

Although little remarked upon at the time, one of Gordon Brown’s more significant constitutional reforms was the introduction of pre-appointment scrutiny hearings. Following his 2007 White Paper The Governance of Britain, the government agreed that candidates for 50 of the most senior public appointments would be scrutinised by the relevant select committee before the government confirmed their appointment. Some select committee chairs and members consider such hearings a waste of time, because they have no power of veto; but Constitution Unit research has shown that they have more influence than select committees realise.

In the last ten years select committees have conducted just over 90 pre-appointment hearings (for a full list see here). The Constitution Unit has conducted two evaluations of their effectiveness: first in 2009, studying the first 20 hearings; and second in 2016-17, when we looked at the next 71. We found three cases where the candidate withdrew following a critical hearing; and two instances where statements or disclosures at a hearing subsequently triggered a resignation. So pre-appointment scrutiny undoubtedly has an impact, even though committees have no formal power of veto: they are an important check on the integrity and effectiveness of senior public appointments, and a curb against ministers abusing their powers of patronage. And their effectiveness cannot be measured solely by the number of negative reports – the select committee hearings also help to deter ministers from putting forward candidates who would not survive this additional public scrutiny.

The puzzle remains that select committee chairs do not recognise how much influence they wield. There are two reasons for this. First, the baleful example of Washington: when pre-appointment scrutiny was introduced, many MPs anticipated that the hearings would be like confirmation hearings in the US Senate, which does have a power of veto. Second, although pre-appointment scrutiny does provide an important check, it is rare for an individual committee or chair to have experience of thwarting an appointment: there have only been five such cases in the last ten years. So for most committees, most of the time, pre-appointment scrutiny can feel like a bit of a chore.

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2017 select committee chair elections: a short guide

The new parliament is the third in which chairs will be elected by the whole House. These elections take place on Wednesday, with 28 chairs to be elected (though only 11 are being contested). Andrew Kennon discusses these elections and some of the trends that have developed over the seven years the system has been in operation.

Wednesday 12 July could prove to be the next best indicator (after the votes on the Queen’s speech) of how effective the new House of Commons will be at performing its constitutional role. It is the day when 28 people will be elected by their fellow MPs to chair select committees in these tumultuous times. No other parliament in the world has yet entrusted the choice of committee chairs to a secret ballot of all MPs. The system was the unexpected outcome of the expenses scandal and the imagination of the resulting reform committee, chaired by Tony Wright MP, to find ways of rebuilding the reputation of the House of Commons.

Direct elections

Chairs of select committees were first elected by the whole House in 2010 and then again in 2015, so the system is still fairly new. But members have quickly learnt how to get the best out of the system. Notably members of newer intakes have used the elections to ensure that their generation does not have to wait decades for their share of the spoils. Chair by-elections in 2014 saw two of the 2010 intake, Sarah Wollaston and Rory Stewart, securing the chairs of the Health and Defence committees, and other members of the 2010 intake were elected to chairs in 2015. It would be good to see more of the 2010 MPs taking the helm of committees now and some of the more recent arrivals staking a strong claim. The last thing we need is an American approach of longevity as the determinant of chairmanships

The distribution of chairs between parties in 2017, based on their strengths in the House, is only slightly changed since that of 2015 – the Conservatives have given up the chair of the Science and Technology Committee to the Liberal Democrats. It would have been possible, within the same number, for a more imaginative re-distribution of committees between parties to have taken place. This would certainly have occurred if there had been a change of party in government.

Term limits

There are term limits for select committee chairs and this rule will bite unexpectedly as a result of the early general election. Several chairs first elected in 2010 will – if re-elected again now – have to stand down in mid-2018 under the current rule, causing by-elections for those chairs. Some that this would have applied to are not running again but Clive Betts (Communities and Local Government), David TC Davies (Welsh Affairs), Sir Kevin Barron (Standards) and Bernard Jenkin (Public Administration and Constitutional Affairs) are offering themselves for re-election. Three of these have now been re-elected unopposed but Clive Betts faces a challenge – with the exception of Ian Mearns, on the Backbench Business Committee, all other Labour incumbents are elected unopposed.

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Why democrats should welcome a hung parliament

Much commentary has presented the hung parliament that resulted from last week’s general election as a source of damaging instability. In this post Albert Weale argues that democrats should in fact welcome a hung parliament, where a parliamentary majority approves measures on the basis of the merits of the arguments rather than on the basis that they were included in the majority party’s manifesto.

The UK now has a hung parliament. Does that mean that British government is no longer strong and stable but weak and wobbly? To listen to much commentary, you would think so. But for democrats there are good reasons for welcoming a hung parliament.

The prevalent view of parliamentary democracy in Britain runs something like this. General elections are occasions of accountability of governments to the people. Parties stand on their manifestos, and if they secure a majority of seats, their democratic responsibility is to implement what they have promised. Through the Salisbury convention, the House of Lords will not frustrate measures promised in the manifesto. If the people do not like what the governing party has done, they have the opportunity to get rid of that party at the next election.

In this way of thinking, the first-past-the-post electoral system occupies a crucial role. It may not deliver a fair representation of political opinion, at least as judged by the test of proportionality, but it does secure stable government. It magnifies a simple plurality of the popular vote into a majority, often a large majority, of seats in the Commons. With such a majority, a government has no excuse for not implementing the programme for which it has received a mandate. That is simply democracy.

If politics were simply a matter of a contest between left and right, with the two major parties drawn towards the centre ground, this view of democracy might have something to be said for it. In the real world it has nothing to be said for it.

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The election of the Speaker: myth and reality

When the newly elected House of Commons meets on Tuesday, its first task will be the election of the Speaker. In this post, Andrew Kennon explains how this will work and separates some of the myths surrounding the process from reality.

When the newly elected House of Commons meets for the first time on Tuesday, the first business – even before swearing in all MPs – will be election of the Speaker. John Bercow, who won his Buckingham seat with a majority of over 25,000 on Thursday, is expected to be re-elected unopposed, though prior to the election there was some talk of a challenge. What are the myths and realities surrounding this process?

Is the Speaker always re-elected unopposed?

This is what has happened in practice. Every Speaker who has been re-elected to the House – normally with other parties not putting up rival candidates in the constituency – has been re-elected to that post. But the House is given the opportunity to say ‘yes’ or ‘no’. Only if the answer is ‘no’ does it proceed to a full election.

The possibility of rejecting the incumbent has been raised in the media under Speaker Bercow. He was first elected in 2009, about a year before the 2010 general election. At that point, he was a Conservative MP on the opposition side of it he House. There was some speculation after the 2010 election that the new Conservative government would oppose his re-election, but this did not materialise. The same occurred after the 2015 election.

So: this is practice but not binding.

Does a new Speaker always comes from the Government side of the House?

This is what happened in practice until 1992 when Betty Boothroyd was elected. There is no reason to regard it as a convention.

Does the Speakership alternate between the two main parties?

Since Speaker Martin (Labour) succeeded Speaker Boothroyd (also formerly Labour) in 2000 this cannot be said to be a firm rule. Between 1965 and 1992 successive Speakers did come from the opposite side of the House to their predecessor – but, equally, they also came from the party in government at the time of their election. The House’s freedom to make its own choice among an array of volunteers probably means that any sense of it being the ‘turn’ of a particular party is out of date.

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Managing the new parliament: some challenges for Theresa May’s minority government

The unexpected election result leaves the Conservatives seeking to establish a minority government, with support from the Democratic Unionist Party’s ten MPs. With fewer than half the seats in the House of Commons, and barely more than half when adding the DUP, Theresa May’s new government will face many additional challenges in parliament. Meg Russell explores some of the clearest examples.

Following weeks of speculation about the general election result, few were contemplating the prospect of a minority government led by Theresa May. The Prime Minister proposed the election in the clear expectation of an increased House of Commons majority, citing (in a rather exaggerated manner) difficulties in parliament. Instead she now doesn’t have a majority at all. With one seat still to declare, the Conservatives are on 318 in a 650-number House. Combined others (excluding seven Sinn Féin, who do not take their seats), have 324. May’s government is hence liable to be outnumbered without relying on the support of the 10 DUP members, with whom she has opened talks.

The Prime Minister’s initial statement gave little detail of the form that the relationship with the DUP is likely to take, but it is assumed that she will seek a single-party minority government rather than a formal coalition. The Constitution Unit’s December 2009 report Making Minority Government Work suddenly looks like essential reading, for politicians and politics-watchers alike. As it sets out, there are various options in a situation where a government lacks a single-party majority. One is a formal ‘confidence and supply’ arrangement, whereby another party (or parties) pledge to support the governing party (or parties) in confidence votes and on essential funding decisions; another is for the government to simply negotiate support for policies on a case-by-case basis. A coalition is the most formalised arrangement, with both parties signed up to a programme and liable to both have ministers in the government.

Our report emphasised (as repeated more recently on this blog by one of its authors) that minority governments are not unusual in other democracies, and can be relatively stable. Nonetheless, particularly in the UK context where majority governments are the norm, such an arrangement will present a number of fresh (or enhanced) challenges for the government in managing its relationship with parliament. These may affect all kinds of areas of policy; but the Prime Minister will be perhaps most troubled about their impact on the Brexit process.

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Re-assessing the (not so) Fixed-term Parliaments Act

On Monday 22 May the Constitution Unit hosted a debate on the Fixed-term Parliaments Act. Against the backdrop of an early general election and a Conservative manifesto promise to scrap the Act, Carl Gardner and Professor Gavin Phillipson (Durham) argued the merits of the Act and the potential legal implications of its repeal. Kasim Khorasanee reports.

The Fixed-term Parliaments Act 2011 was enacted under the Conservative-Liberal Democrat coalition government to regulate when general elections were held. Previously general elections were required at least every five years but their exact timing was a matter of royal prerogative, in practice exercised by the Prime Minister. The Act fixed the length of each session of the House of Commons, unless an early general election could be called. The Act set out two mechanisms to call an early general election. The first – which was relied upon to call the 2017 general election – required at least two thirds of the Commons (434 MPs) to vote in favour of an early general election. The second was triggered if a no confidence motion was passed by the Commons and not reversed within 14 days.

Carl Gardner

Carl Gardner, a former government lawyer, led the defence of the status quo ante. He began by highlighting the risks in allowing politicians the freedom to redraw constitutional rules – both in terms of unintended consequences and selfish intent. The Act was a key case in point. Nick Clegg, as Deputy Prime Minister, had made the case for the Act by suggesting fixed terms would bring greater stability to the political system and allow politicians to focus on governing by removing the distracting uncertainty around election timings. In practice the intense speculation over whether Theresa May would call a general election in late 2016, followed by her surprise announcement to do so in mid-2017, had demonstrated the flaws in Clegg’s arguments. Gardner drew attention to David Laws’ book 22 Days in May which underlined the fact that the Act had been drawn up as a calculated political compromise designed to stabilise the coalition government in power.

Gardner went on to argue that the British constitution’s complexity and nuance had been underestimated by reformists. He noted that the Prime Minister had never been able to call elections ‘on demand’, they had always required the monarch’s explicit authorisation to do so. Furthermore there had never been popular discontent at the calling of elections or any suggestion of Prime Ministers ‘abusing’ their powers in doing so. The Act had also introduced uncertainty with respect to no confidence motions. Firstly, it was unclear whether in the 14 days after a statutory no-confidence motion the Prime Minister would be under a duty to resign, or whether they would be free to work to reverse the motion. Secondly, votes which previously might have been understood as matters of confidence – budgets, the Queen’s speech, going to war – appeared to have been stripped of this effect. Whereas Tony Blair understood losing the 2003 Iraq War vote would have meant resigning, David Cameron happily carried on after losing the 2013 Syria intervention vote. Gardner suggested that the duty for Prime Ministers to resign once they had lost the confidence of the Commons had been eroded by the Act.

Finally, on the legality of repealing the Act, Gardner asserted that where common law or prerogative powers were overridden by statute, revoking the statute would have the effect of ‘reviving’ the previous common law or prerogative. In support of this he cited the High Court decision in the famous GCHQ Case (R v The Secretary of State for Foreign and Commonwealth Affairs ex parte Council of Civil Service Unions and another [1984] IRLR 309 [73]). Although legislation such as Section 16(1) of the Interpretation Act 1978 appeared designed to prevent this reviving effect, it could be overridden by a clear expression of parliament’s will.

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When meeting a new woman MP was no longer a rarity! Recollections of the impact of the May 1997 election on parliament

The outcome of the 1997 general election, 20 years ago this month, saw the number of female MPs double overnight. The new intake of female MPs included many women who would go on to become senior figures in the Labour Party, as well as the current Prime Minister Theresa May. Oonagh Gay, a former senior official at the House of Commons Library, recalls the impact that this change, together with New Labour’s wider ‘modernisation’ agenda, had on parliament.

On 1 May 1997 120 women MPs were elected; exactly double the number elected in 1992 and representing 18.2 per cent of all MPs. 71 of these MPs were new. For House of Commons Library staff suddenly it was no longer a rarity to meet a woman MP. Previously, it was possible to recognise each woman MP and name their constituency without much difficulty. Suddenly there was a host of younger, unfamiliar, female faces to process. 101 of those 120 women elected were Labour, reflecting the landslide majority achieved by their party, and the positive action policies which it had developed in the 1990s. To Commons Library staff, women MPs were new and demanding customers, anxious to meet their constituency responsibilities and to research policy alternatives. Due to a delay in allocating offices to ,embers, the Library’s Oriel Room staff were really busy with tours of the Members’ Library, especially in the first couple of weeks or so after the election, and so got to know the new women members quite well.

Among that intake were some women who were to become major figures. Labour’s new members included Anne Begg, Hazel Blears, Yvette Cooper, Maria Eagle, Caroline Flint, Patricia Hewitt, Beverley Hughes, Oona King, Joan Ryan, Angela Smith, Jacqui Smith, Gisela Stuart and Rosie Winterton. The smaller intake of female Conservative MPs included Eleanor Laing, Caroline Spelman and … Theresa May. Some already had a public presence; others were less established in their careers and from a wide variety of backgrounds. The impression was that they tended to be slightly older than their male counterparts and to have had more experience of elected office (in local government) and the public and voluntary sector. Suddenly, the Commons appeared a more welcoming, more diverse space. This was the first change of government for 18 years, and long-serving MPs were replaced by new faces and new accents.

The unprecedented numbers of women MPs coincided with a major change in the provision of information to members. The internet and emails came into their own during the 1997-2001 parliament. So it can be difficult to disentangle the two developments. Inevitably, the culture of the Commons changed as the provision of information by electronic means became widespread, and debates in the Chamber could be watched in MPs’ offices. Portcullis House opened in February 2001, providing a significant increase in office and committee room space, and creating a lasting change in the day to day operation of MPs, as they interacted with each other, and with staff, in its sunlit atrium. The number of senior Commons staff who were female began to increase too, although the first woman Commons Librarian, Jennifer Tanfield, had already been appointed back in 1993.

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