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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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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Select committees and the snap general election

In this post, former Clerk of Committees Andrew Kennon discusses the impact of the snap general election on House of Commons select committees. He notes that although many committees produced several reports between the announcement of the election and dissolution, many inquiries were left unfinished. All evidence already collected will remain publicly available but there is no guarantee inquiries will be resumed, especially where a new chair is elected.

One feature of the announcement of a general election is always the loss of some legislation which had not completed its passage through parliament. But what of uncompleted select committee inquiries? Bills which did not through by cross-party agreement in the dying days of the parliament may well be revived in the new parliament, especially if the same party remains in government. The same does not apply to select committee inquiries.

Two years into a parliament, select committees will have up to a dozen inquiries, announced and at different stages, on their work programme. The snap election was announced on Tuesday 18 April and the House of Commons sat for the last time on Thursday 27 April – very little time in which committees could wrap up current inquiries. Only reports fully drafted and on the point of agreement can be finished. This leaves, for each of the 30 or so committees, several inquiries on which evidence has been taken and others which are just being started.

It is nonetheless impressive that several committees managed to agree and publish three or more reports in the dying days of the 2015–17 parliament. All credit to Defence, Education and Justice for producing three reports each but the prize must go to Work and Pensions, with five reports out in the last week – Frank Field was probably the outstanding chair of the 2015-17 parliament.

As a committee clerk, working with the chair to plan the committee programme, I often lived with the uncertainty in the fourth year of a parliament about when exactly an election would be called. The only other panic was in the autumn of 2007 when Gordon Brown had his Grand Old Duke of York moment about a sudden election.

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Brexit presents parliament with daunting challenges but steps are being taken to help it meet them

Brexit presents parliament with daunting challenges, both politically and procedurally. In this post Arnold Ridout, Counsel for European Legislation at the House of Commons, highlights some of these and explains what steps are being taken to held ensure that parliament performs its role effectively. The post is adapted from a talk he gave at a Constitution Unit seminar on ‘Brexit at Westminster’, held on 13 March.

As Counsel for European Legislation in the House of Commons I can be called upon to assist the House or any of its select committees on EU law matters. I have a formal role with the European Scrutiny Committee and the Committee for Exiting the EU, both of which have standing orders explicitly providing for assistance to be given by Speaker’s Counsel. For this purpose I generally represent her.

Uncertainty

I do not know if it is fair to say that parliament as an institution was as ready for the referendum result as the government was. There was a good deal of uncertainty at that time as to the very basics, such as the Brexit process itself and even more as to what role parliament would play. In some ways that might be regarded as an advantage; by leaving a clear field on which parliament could put down its markers, and influence at an early stage the formulation of the process and the policy. On the other hand it created the risk of lack of focus or focus on the wrong issues. In particular, it was unclear what tools were available to parliament to exert its influence. This remains the case to a certain extent.

The government has now committed to putting ‘the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament’. This is important as having a final say on the outcome could give parliament a real handle on the negotiations. However, if the Article 50 notice is not revocable, or revoked, then the choice for parliament looks like ‘deal or no deal’. Five eminent lawyers disagree and have gone as far as suggesting not only that the Article 50 notice is revocable, but that a further act of parliament is required to either agree the deal or authorise the UK’s departure from the EU without any deal. If correct it means that parliament has a further, and unilateral, chance to decide whether the UK leaves the EU or not even after the Article 50 notice has been served.

The government has committed to ensuring ‘that the UK Parliament receives at least as much information as that received by members of the European Parliament.’ We do not yet know with certainty what that entails, and in particular whether it includes something similar to the arrangement in trade negotiations whereby the European Parliament receives ongoing explanations as to how its view has been put into effect during negotiations.

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Democracy means democracy: parliament’s role in Brexit negotiations

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What role will parliament play in the Brexit negotiations and what does this show about the UK’s ever-changing constitution? On 15 September the Constitution Unit hosted Paul Evans and Christopher Johnson, two experienced clerks at the Commons and Lords respectively. Toby Shevlane reports.

Nothing in politics can be taken for granted in 2016, and perhaps our concept of democracy is no exception. It has always been the case that the democratic process requires compromises to be found between different law-makers, but have UK law-makers ever been forced to compromise so heavily with their electorate? Professor Bogdanor has recently suggested that the referendum introduced a new idea into the UK constitution: the sovereignty of the people. The suggestion is that the people have become a ‘third chamber’ of parliament, at least for constitutional issues. The constitutional division of labour is, therefore, in a state of flux, and it is worth pausing to ask: what role will these different chambers play in the Brexit process? This was the question that Paul Evans and Christopher Johnson sought to answer at a Constitution Unit seminar on 15 September.

Paul Evans

Paul Evans is currently Clerk of the Journals in the House of Commons, and will soon be the clerk in charge of the House’s select committees. He spoke expertly about the role that these committees could play in the Brexit process, especially one that is to be set up to scrutinise David Davis’ Department for Exiting the EU. A deal for such a committee has been agreed between the usual channels, which will involve a committee of 21 members with a Labour chair but a majority of Conservative members. Evans said that how this select committee will operate is yet to be decided. But he stressed the importance of collaboration and inclusiveness: it should form a collaborative relationship with the government and other committees, and the process of Brexit scrutiny should be inclusive of devolved governments and legislatures. Overall, Mr Evans also welcomed the recent high level of public interest in politics, and argued that parliament should find innovative ways of involving the public in the Brexit process as much as possible.

Christopher Johnson

Christopher Johnson is the Principal Clerk to the House of Lords EU Select Committee. He spoke first about the process that the negotiations could follow. Article 50, he said, is expected to be triggered in 2017. Then, formal negotiations will begin with the EU member states, who will be represented by the EU Commission. Mr Johnson explained that these negotiations will produce multiple treaties: a withdrawal treaty (dividing up assets, settling financial relationships, addressing EU research programmes, and deciding the ongoing rights of UK and EU citizens under EU law) as well as at least one treaty that sets out the new relationship between the EU and the UK. He envisaged one such treaty, agreed in preparation for the moment of withdrawal, covering areas where continuity would be important, such as security and fishing rights.

Mr Johnson stressed the breadth and complexity of the negotiations that will take place, and argued that no single committee would be able to scrutinise such a complex and cross-departmental series of negotiations. Mr Johnson also pointed out that the government will need to reinvent large swathes of policy currently covered by EU law, and warned that a legislative bottleneck could form in 2018/19. In response to questions from the audience, he gave his view that the current scrutiny reserve procedure would not be triggered by the negotiations, but noted that it would be open to the government to extend the scope of the current procedure.

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What role will parliament have in triggering Article 50 and shaping the terms of Brexit?

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Constitutional lawyers have been engaged in a major debate over whether parliamentary authorisation is needed for Article 50 to be triggered and the process of negotiating Brexit to formally begin. In this post Robert Hazell and Jack Sheldon move the discussion on, asking how parliament might debate the triggering of Article 50 and, once it has been triggered, what role parliament might play in scrutinising the negotiations that follow.

There has been an outpouring of blog posts discussing whether there is a legal requirement for parliamentary authorisation before the Prime Minister can trigger Article 50 and start the formal negotiations to lead to the UK’s withdrawal from the EU. However, it is probable that regardless of the legal position, the political realities will require some form of parliamentary consent. This post moves the discussion on, to ask in what ways parliament might debate the triggering of Article 50, and, once it has been triggered, what role parliament might play in scrutinising the Brexit negotiations that follow.

Controlling the use of Article 50

Whether the government wants it or not, parliament is likely to have an opportunity to express its support for or opposition to the triggering of Article 50. This could take the form of either legislation, which would formally bind the Prime Minister and government, or a debate on a resolution about the triggering of Article 50 and the conduct of negotiations.

Legislation

Some have argued for the passage of legislation to govern the Brexit process. A court action has been launched to test whether legislation is required before Article 50 can be triggered. Undoubtedly much primary and other legislation will be necessary over the coming years to achieve separation. To explain the different options, this post assumes the court action will fail, so that legislation prior to triggering Article 50 is optional, and not a legal requirement.

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