The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. When the previous issue came out in November, the lack of a withdrawal agreement was a cause of great uncertainty. Four months later, a deal has been reached with the EU, but it has failed to gain parliamentary support and what will happen on 29 March remains an open question. As our editorial team says below, the current crisis is testing our constitution on multiple fronts and the strain is starting to show. This post is the opening article from Monitor 71; you can download the full issue (as well as past editions) here.
This Monitor appears less than three weeks before the date set for the UK to leave the European Union. Remarkably, the form that Brexit will take – indeed, whether it will happen at all – remains highly uncertain. The coming days and weeks will be crucial in determining the UK’s future direction. Brexit has placed the UK’s political and constitutional system under great strain. That is partly because it is so contested – dividing the main parties internally and risking alienation between the popular majority who backed Leave in 2016 and the parliamentary majority who opposed it. The 2017 general election added to these challenges by resulting in a minority government. Meanwhile, the political task is immensely complex and the stakes exceptionally high.
This strain has manifested itself in numerous ways. The Independent Group (TIG), created on 18 February (see page 12) and currently including 11 former Labour and Conservative MPs, is the largest breakaway from the main parties since the ‘Gang of Four’ founded the Council for Social Democracy – precursor to the Social Democratic Party (SDP) – in 1981. Labour disquiet is widespread, and Deputy Leader Tom Watson has proposed an intra-party grouping of social democrats to stem further defections. The Conservatives have their own party-within-a-party, in the strongly pro-Brexit European Research Group. After many false starts, it forced a vote of no confidence in Theresa May’s leadership of the party in December, which she won by 200 votes to 117. Continue reading →
In September the Commons Public Administration and Constitutional Affairs Committee published their report into Pre-Appointment Scrutiny Hearings. Robert Hazell gave evidence to the committee’s inquiry on the subject; here he discusses the report’s conclusions, and describes the events that led to its being undertaken, including two Constitution Unit studies that evaluated the effectiveness of such scrutiny.
The recently published report of the Commons Public Administration and Constitutional Affairs Committee (PACAC) was the product of an inquiry undertaken at the request of the Commons Liaison Committee, because of growing concerns amongst Select Committee chairs that pre-appointment scrutiny hearings were a charade, especially when the government ignored committee recommendations. The Liaison Committee and PACAC both heard evidence from the former Constitution Unit Director, Professor Robert Hazell, who explained that pre-appointment hearings were more effective than MPs recognised, and suggested ways in which they could be made more effective still.
Pre-appointment scrutiny hearings were introduced by Gordon Brown, when he became Prime Minister in July 2007. In his Green Paper The Governance of Britainhe proposed:
… that the Government nominee for key positions … should be subject to a pre-appointment hearing with the relevant select committee. The hearing would be non-binding, but in the light of the report from the committee, Ministers would decide whether to proceed. The hearings would cover issues such as the candidate’s suitability for the role, his or her key priorities, and the process used in the selection.
The Cabinet Office and the Liaison Committee subsequently agreed a list of just over 50 key positions which would be subject to the new procedure. Ten years later, by the end of the 2015-17 Parliament, there had been almost 100 scrutiny hearings, involving almost every single departmental Select Committee. The Constitution Unit conducted an early evaluation of the first 20 hearings in 2009-10, and a second study in 2016-17, looking at a further 70 hearings.Continue reading →
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.