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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The Court of Appeal’s judgment on expat voting rights demonstrates that the EU has no say in whether, and in what way, the UK leaves

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 In May the Court of Appeal rejected a challenge to the exclusion of expatriates that have lived outside of the UK for over 15 years from the EU referendum franchise. Turan Hursit discusses this judgment, which she suggests was an adamant declaration by the courts that the EU has no say in whether, and the way in which, the UK leaves the EU.

There are between 1.3 and two million Britons who currently live in other EU countries. The legal status of these individuals following a potential Brexit remains unclear, depending wholly on the outcome of two years of negotiations started by invocation of Article 50 of the Lisbon Treaty, the EU ‘exit’ clause.

It is surprising, then, given the potential implications of any Brexit for expatriates, that the issue of expat voting rights has been almost entirely absent from the Brexit debate. Harry Shindler, a 94-year-old British war veteran and Jacquelyn MacLennan, a partner in a Brussels law firm, raised the issue when they brought a case, first in the High Court, then the Court of Appeal, contesting the existing restrictions on expat votes.

The Political Parties, Elections and Referendums Act 2000 currently provides that any UK citizen who takes up residence abroad can apply to be placed on the overseas electors’ list. This right ceases once an individual has been abroad for 15 years or more. The time limit has been controversial and the legal cut-off point has been changed three times from five years in 1985 to 20 years in 1989, and then again to 15 years in 2000. Last year’s Queen’s speech contained a promise to abolish the threshold altogether in a Votes for Life Bill, but this has yet to be introduced. In Shindler and MacLennan v Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs, the claimants sought to challenge the 15-year limit contained in the 2000 Act and their consequent exclusion from the EU referendum franchise.

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