A former Clerk of Committees in the House of Commons says Brexit presents problems but also opportunitiesby Andrew Kennon / September 10, 2018 / Leave a comment
Brexit will not be over by the end of March 2019. As the unknowns become known, new policy solutions will be needed. At a time when both government and opposition front-benches are stymied on policy-making, there is a great opportunity for cross-party committees to come up with solutions which the front-benches can readily adopt. This may require committees to shift their emphasis from identifying problems and allocating blame to devising workable answers and selling them to colleagues.
Set against this opportunity is the challenge of maintaining the record of evidence-based reports at a time of unprecedented political bitterness—as much within parties as between them.
While committees have an honourable record of making unanimous recommendations based on the evidence, there are examples of where committees have become completely ineffective because they have lost the ability to reach consensus internally. Generally speaking other MPs have respected select committee reports even if they do not agree with them. The pressures of Brexit have made it harder for committees to build internal consensus. Equally there have been examples of other MPs dismissing reports they disagree within the grounds that the committee concerned is biased on the Brexit issue.
The pre-eminent role of the chair has become all the more important since the position was first directly elected by the whole House in 2010. This was a huge change—and, so far, unmatched in any other parliament. In a few cases, committees became the private fiefdom of idiosyncratic individuals, but that is less true in the current House. More significant is the calibre of the MPs who now chair the committees. Half the main 25 or so committees are chaired by former minsters and eight of them have chairs who were either cabinet ministers or members of the shadow cabinet (Hilary Benn, Harriet Harman, Nicky Morgan, Yvette Cooper, Maria Miller, Mary Creagh, Meg Hillier and Rachel Reeves).
But these names flag up a possible challenge to select committees—that their chairs are overwhelmingly MPs who did not support Brexit. Since most of them are elected by the House itself—where enthusiastic Brexiteers are in a minority—this is hardly surprising. But it does make it easier for those who wish to disparage their reports before reading them to do so. Only four chairs were pro-Brexit—Bernard Jenkin, Frank Field, David TC Davies and Bill Cash—though the latter was elected within the European Scrutiny Committee and not by the whole House.
Always bubbling away under the surface is the issue of committee powers—the ability to ensure they get the evidence from the witnesses they want. This issue comes to the surface every few years—Rupert Murdoch and phone hacking, Mike Ashley and Sports Direct—and revives the debate about how the powers can be enforced. There is a simple answer to that question, but not many people accept it: legislation to make refusal to give evidence a punishable offence.
The issue has cropped up again with Dominic Cummings refusing to attend the Digital, Culture, Media and Sports Committee to give oral evidence on fake news. The conventional view must be that he is in contempt of the House, having ignored the carefully-stepped escalation of this issue, giving him every opportunity to relent. If one person can get away with defying a committee, this sets a dangerous precedent which will weaken other committees in future. This has happened in Canada.
A less conventional view might be that this is a Brexit-related squabble which the DCMS Committee would have been wise to avoid. Parliament’s powers to secure the evidence it needs have survived over the years partly by some shrewd decisions not to pick unnecessary fights. The exercise of these powers is a subtle game which needs to be played very carefully by all concerned.
When people write about resources for select committees, they often overlook one key factor: Members’ time. Perhaps I can say lightly that one key difference with committees in the Lords is that peers do not always have another meeting to go to. In the Commons, MPs can attend all of the meetings some of the time and some of the meetings all of the time but not all of the meetings all of the time. Sometimes the chair’s enthusiasm for a particular inquiry comes up against other committee members’ duties elsewhere.
Both the House itself and its legislative committees will have to process a substantial amount of primary and secondary legislation related to B****t. No Working Time Directive can enable an individual MP to attend select committee meetings at the same time as Chamber or legislative committee meetings, which whips regard as more important. So committee productivity may be adversely affected.
One thing which undermines the effectiveness of select committees is turnover of membership—leading to a loss of both collective spirit and current inquiries. But it is inevitable as new MPs start with select committees and then accept junior front-bench positions and have to leave. Frequent reshuffles on both front-benches may continue to generate disruptive turnover.
More can be less
The 1979 re-organisation of select committees provided initially for 12 select committees related to government departments. At that time, the cross-cutting Public Accounts Committee (PAC) continued and the predecessor to the European Scrutiny Committee (ESC) had been appointed in 1973. There are now some 19 committees related directly to government departments and another six cross-cutting ones—PAC, ESC, Human Rights, Science and Technology, Environmental Audit, Public Administration and Constitutional Affairs. The risk is overlap, duplication and contradiction.
To illustrate the problem: a new European Statutory Instruments Committee has just been set up, notwithstanding the existence of the three other relevant committees: European Scrutiny, Exiting the EU and Statutory Instruments. There will be good political reasons for creating this new committee, but the task of the Liaison Committee in coordinating the work of committees becomes all the more complicated. Its challenging task is to stop the government being let off the hook by differing reports on the same issue from several committees—not to forget the same risk from Lords committees.
There is a danger of complacency in thinking select committees are the best thing since sliced bread—the post-1979 Norman St John structure is generally regarded as totally wonderful. It certainly breathed new life into the committee system and gave the House a more effective instrument for challenging Whitehall. But it has proved very hard to measure the positive impact on government (with a small g) over nearly 40 years. So, another challenge for committees is to demonstrate how their work adds value to the running of the country.
Andrew Kennon was Clerk of Committees in the House of Commons from 2011 to 2016; he is an honorary professor at King’s College London and a trustee of the Constitution Society