The parliamentary bodies provide essential scrutiny. But as the government embarks on the most immense constitutional challenge in living memory, are they able to do their job properly?by Alex Dean / July 16, 2018 / Leave a comment
Westminster watchers and parliamentary obsessives are used to watching MPs squirm, but late last year there was a classic of the genre.
On 6th December David Davis, then still in the cabinet, appeared before the Brexit Select Committee. The arch-Leaver began in characteristically relaxed fashion, but was quickly put under agonising pressure. There had been a suggestion the government had conducted meticulous impact assessments, judging the effects of departure on different sectors of the British economy. What followed was excruciating to watch.
Hilary Benn, Committee Chair, proceeded to list sectors and asked whether the government really had any evidence. He probed on the automotive industry, then moved to financial services. Davis began to look deeply uncomfortable. Still the political theatre went on. “The answer’s going to be no to all of them,” Davis eventually conceded. No analysis existed, contrary to previous claims.
It was an astonishing admission and generated instant headlines. Shock rippled through Westminster. It was not the first time Benn had caught Davis out. It would not be the last. Dominic Raab, Davis’s replacement, will dread his first appearance in front of the panel.
That wintry afternoon was an illustration of just what select committees can do. At their best, they offer an unrivalled opportunity to pool expertise, publish serious analysis and hold devious ministers to account. They are a crucial cog in Britain’s parliamentary machine.
As Brexit uncertainty consumes political life, effective scrutiny is more important than ever. But was Benn’s grilling of Davis an exception to the rule? Conversation with leading constitutional experts confirms all is not well. Select committees increasingly face immense difficulties in doing their job. They are coming under unprecedented strain.
The select committee system has existed in one form or another since the 19th century: the public accounts committee dates back to 1857. In the Commons, modern committees were brought in under Margaret Thatcher when then-Leader of the House Norman St John Stevas sought to reassert the authority of parliament. Within months over a dozen were up and running and there are now many more: over 30 in the Commons alone. Previously selected by the whips, chairs have since 2010 been allocated in proportion with a party’s seat share and then mostly voted on in a secret ballot of all MPs. The Lords has fewer committees, with chairs chosen either by the whole house or by its Committee of Selection.
The stature of Commons committees has grown accordingly, with chairs of the largest, like the Treasury Select Committee, now commanding a great deal of respect in Westminster. They have the power to appoint special advisers and—in theory—to summon witnesses. The government is expected to respond to their reports within two months.
Can they deliver in this most important of political eras? “The scope of scrutiny, and the confidence with which select committee inquiries are prosecuted, has grown considerably” said Gina Miller, who fought for parliamentary sovereignty at the Supreme Court last year. She is not alone in her optimistic assessment. Ann Taylor, former Leader of the House of Commons, told me committees have “shown their value” and produced “many detailed reports” that explain how to “deliver Brexit effectively.”
Select committees have certainly worked tirelessly since the referendum. According to Lewis Lloyd at the Institute for Government there have been upwards of 70 Brexit papers since then.
But hard work is not enough. Look closer and the truth is that the system—though heftier than it once was—is in trouble. And it could not be happening at a worse time.
“The most obvious weakness is in resources” says Colin Talbot, Emeritus Professor of Government at Manchester. He’s right, and this was the problem most frequently cited during my research for this piece. The system is quite simply creaking under all the strain.
This problem has several facets: the first point is that MPs are under enormous time pressure.
Vernon Bogdanor is Britain’s foremost constitutional scholar, and explained to me that due to MPs’ “numerous other duties,” including a “massive load of constituency work,” they “do not have sufficient time to do the necessary research on Brexit matters.”
This is in itself concerning. But the reports are still appearing, so where are they coming from? In practice what is happening is that MPs—even the chairs—are piling work onto committee staff. “Sometimes the greatest input comes from the clerk,” said Bogdanor.
Committee clerks are knowledgeable and deserve their traditional reputation as diligent and hard working. They have always played a significant role in the production of committee reports. But if Bogdanor is right, there is a problem. For that is not how select committees are supposed to work. The idea is that MPs produce reports in reasonable collaboration with committee staff, not that they fall back on them altogether.
Vernon Bogdanor—“sometimes the greatest input comes from the clerk”
It becomes worse when you consider how few staff there are. “Committees usually have less than 10 staff to scrutinise the work of huge government departments and even bigger public services,” says Talbot. “Parliamentary staff working on Brexit,” says Brigid Fowler, Senior Researcher at the Hansard Society, are frequently “stretched.” The consequences of this are obvious: if reports are being produced by an over-worked staff they will simply be of a lower standard and have less authority.
Can anything be done? Fowler told me there have been some shifts in normal practice. The Lords European Union Committee has begun working increasingly through correspondence with ministers rather than waiting for normal report production and government response.
There has not been enough innovation like this. But resources is only one of the problems. Linked is the problem of powers. Specifically the lack of them.
In principle, select committees can summon whomever they like, and if their request is refused they have the power to issue fines and even see that the offender is held in contempt of parliament. A prison sentence is theoretically possible.
But it is just theory. In practice, as Lloyd put it, their powers are very much a “grey area.” Hannah White, a former committee clerk, has written that “historically, those found guilty of contempts could be fined or imprisoned.” But those sanctions have not been used since 1666 and 1880 respectively. For obvious practical, legal and constitutional reasons, “it is highly doubtful that the modern house would seriously consider” using them now.
Traditionally, committees have been able to rely upon informal pressure and media scrutiny. Witnesses do not want the bad publicity associated with not turning up.
But in the fraught Brexit era this method is proving insufficient. Various witnesses have refused to appear before select committees this year: Dominic Cummings, mastermind behind Vote Leave, told the Digital, Culture, Media and Sport Committee in May that he would not attend “under any circumstances.” Brexit donor Arron Banks made similar noises last month though he eventually gave way.
Whenever someone puts them to the test, committees suffer a hit. White said that each time “everyone observes the emperor has no clothes,” and that parliament cannot force witnesses to come, committees “lose a little bit of their authority.” Sarah Wollaston, who Chairs the Liaison Committee, which consists of 32 chairs from other committees, said individuals can currently “hide from being held to account.”
What to do? Some suggest that sanctions should be spelled out in legislation. Others contend that this could disturb the separation of powers between the legislature and the courts. Select committees do not tend to grab the headlines, but if more and more witnesses take a leaf from Cummings’s book and flatly refuse to turn up, there could be something approaching a low-level constitutional crisis.
There is another problem which is of a different kind. This one is to do with the turbulence in British politics itself.
Select committees have worked through trying political times before, but Brexit is something new. The country is cleaved down the middle. Hard faultlines have been exposed in both major parties. The result is that committees, just like the rest of parliament, are dramatically split.
Some difference of opinion is usual. But if unanimity becomes impossible there is a serious problem. Bogdanor said “select committees are at their best when they can produce unanimous reports.” But “there is clearly no consensus on Brexit” in the commons, “either between or within the parties.”
Talbot agreed. “the emotionally charged nature of Brexit… is a big challenge to the select committee tradition of reaching consensus.”
The problem is plain: reports have less authority, and put less pressure on the government, when half the MPs don’t agree with them. There is just less oomph there. “Why would we listen to you, when you couldn’t even get all your own members on side?” becomes the obvious response from No 10.
There is one final difficulty.
Over recent months, various British institutions have been attacked for “subverting the will of the people.” Britain’s judiciary has been smeared on the front of the papers, MPs branded “mutineers.”
It has received less attention, but on occasions when committees have spoken hard Brexit truths, some Leavers have invoked the same rhetoric. Earlier this year Jacob Rees-Mogg attacked the Brexit committee and its “high priests of Remain” after the publication of a controversial report.
This has a touch of the sinister. Careful interrogation of British departure is essential for the country’s long-term interests. Brexit is simply a task too difficult, too important, for anything else. And remember: the vote was about reclaiming parliamentary sovereignty, not discarding it.