A summer without select committees - and why it must never happen again

The House of Commons entrusts important tasks to its select committees that it wants done. In particular, select committees are the principal vehicle through which the elected House holds the government to account through scrutiny - including, currently, of Brexit.

But when the House returns on 5 September, it will do so still without having got its select committees back up and running after the general election. It will thus have left their tasks un-done for nearly three months - and counting. There is no guarantee that the House will re-constitute its select committees during the short September sitting. Adding on the election period, the Commons will have had no select committees for over four months at least, since Parliament prorogued on 27 April. If any other major public organisation allowed one of its core tasks to go un-done for so long, it would be accused of complacency, if not irresponsibility.

In practice, though, does the lack of select committees over the summer really matter? Select committees don’t normally meet during recesses. Even if they had been nominated before the summer, they would not have had time before the break to undertake any substantive work. And chairs have been in place since mid-July, for those committees whose chairs are elected by the whole House. Several, like Yvette Cooper, Frank Field, Nicky Morgan and Rachel Reeves, have been busy already, outlining prospective areas of work and starting to gather information and set out views.

Scrutiny gaps

But, as former Commons Clerk of Committees Andrew Kennon has suggested, there can be risks to future committee cohesion if elected chairs get too far ahead of themselves. And chairs on their own cannot formally launch committee inquiries. This means that, for Members, staff and external stakeholders, the potentially valuable summer months to do early inquiry work have been lost. And there has not even been the option of committees potentially meeting, or taking a decision by email, if a sufficiently urgent situation had arisen. When the select committees are – presumably – finally re-constituted during the autumn, they will be under pressure to start holding hearings and producing reports with less time, strategic thinking, background knowledge and evidence than they might have liked. The failure to get the committees up and running before the summer could thus lower the quality of scrutiny well into 2018.

In the meantime, scrutiny gaps have opened up. For example, counting from her last appearance in December 2016, the Prime Minister is likely to go nearly a year without a grilling by the Liaison Committee, instead of the agreed thrice-yearly sessions. And, as previous European Scrutiny Committee (ESC) Chair Bill Cash has pointed out, with no control over the flow of documents the document-based scrutiny committees (the ESC and the Joint Committee on Statutory Instruments) face a growing backlog, hampering effective scrutiny.

Brexit break

The absence of the Commons select committees has been most glaring with respect to Brexit.

There is no scope here to detail all the Brexit developments that have taken place since late April, while the Commons has been without its select committees - suffice to say that the committees could be playing Brexit catch-up for months.

The hiatus also means that the Commons will have to debate the second reading of the EU (Withdrawal) Bill on 7 and 11 September without any of its select committees having been able to examine the Bill. The previous Procedure Committee recommended that, if the Bill were announced in the 2017 Queen’s Speech, ‘the chairs and members of the [relevant] select committees … should be in place before the Bill starts its legislative journey’. If the failure to re-constitute the committees drags on, it will be hard for the Procedure Committee, for example, to make any impact from scrutinising the Bill before its committee stage in October.

Lords in the lead

Brexit has also highlighted another uncomfortable aspect of the Commons’ failure: the contrast with the Lords. The Lords nominated its select committees in 2017 on 27 June, just four sitting days after the Queen’s Speech.

The Lords is, admittedly, unencumbered by the same sensitivities over party balance on committees, or the need for parties to hold internal elections before putting forward their select committee members. However, the impression is - as in some other areas - that the unelected House takes its scrutiny responsibilities more seriously than its elected counterpart.

Brexit Secretary David Davis’s only select committee grilling between March and at least September will be his 11 July appearance before the Lords EU Committee. And it has been the Lords Committee that has waded into a wrangle with Mr Davis to try to establish the principle that he (or one of his ministers or officials) should appear before a select committee after every Brexit negotiating round, even in recess. Summer 2017 will set a precedent in this respect for 2018, when the Brexit negotiations could be in an even more critical phase. A concerted campaign between the Lords EU Committee and Commons Exiting the EU Committee might have had more force - but has been impossible because the Commons committee has no members.

Beyond scrutiny

The select committees’ lengthy absence is also affecting non-scrutiny tasks with which the House has entrusted them. For example:

• Both the Liaison Committee and the Backbench Business Committee have a role in the scheduling of business in the Chamber and Westminster Hall, which they cannot currently fulfil.
• Select committees have been at the forefront of the Commons’ efforts to engage more effectively with the public, and the e-petitions system is Parliament’s ‘public front door’. But the door remains firmly shut as long as the Petitions Committee is in abeyance.

Wright gone wrong

By hampering effective scrutiny, public engagement and select committees’ other roles, the committees’ absence over summer 2017 risks undermining the Commons’ longer-term effort to revitalise them through the Wright reforms, implemented in 2010 to help restore the House’s reputation after the expenses scandal.

The Wright Committee saw reformed select committees - more fully creatures of the House and backbenchers, not the government or party whips - as key to the development of a House of Commons which was more independent of the government and thus more credible as its scrutineer.

The introduction of elections by the whole House for some select committee chairs, and internal party elections for select committee members, were flagship elements in the reforms.

One of the points of the changes was also supposed to be that they would prevent lengthy delays in reconstituting select committees after general elections.

The House has invested significantly in the post-Wright select committees, and the reforms have borne some fruit, in terms of both public awareness and engagement, and policy influence.

But the committees’ lengthy absence now risks undermining the Commons’ own long-term efforts to build the select committee ‘brand’. And the failure to nominate the committees for so long after the election is a failure to meet a specific Wright objective. There have been instances after previous late spring elections in which one or two committees were nominated only in the autumn, but 2017 is the first time since the Wright reforms that the House has failed to get any of its select committees up and running before the summer.

What’s the problem in 2017?

At first glance, it appears that the problem in 2017 is simply timing. Given the general election date, there was simply not enough time to get the select committees up and running before the summer recess. As the table shows, since the Wright reforms the House has nominated its select committees during the period from roughly 20 to around 35 sitting days after the Queen’s Speech. In 2017, as Leader of the House Andrea Leadsom has pointed out, there were only 18 sitting days between the Queen’s Speech and the summer. Under any political circumstances, it would have been tight to get select committees nominated before the break.

House of Commons select committees: Timelines at the start of the 2010, 2015 and 2017 Parliaments

Sources: Hansard; House of Commons Votes and Proceedings; House of Commons Sessional Returns; House of Commons website; House of Commons Library

But, on closer inspection, it seems that the problem is politics, not time. This is best indicated by the fact that the Committee of Selection has not been nominated. The Committee of Selection is the body that puts the names of proposed select committee members (and public bill committee members) before the House for approval. It is the gateway body: no Committee of Selection means no other select committees (and no public bill committees).

But the Committee of Selection is itself a select committee. Its membership has to be approved by the House; and - as for other select committees - before that can happen, the places on the committee must be allocated among parties. In 2010 and 2015, the Committee of Selection was nominated 15 and 13 days after the Queen’s Speech, respectively. In 2017, there would have been time for this before the summer.

The fact that the Committee of Selection has not been nominated suggests strongly that, rather than a lack of time, matters are stuck at the allocation of select committee places among parties. And this in turn suggests that the problem is the need to reflect, within the current committee system, the election of a hung parliament and the formation of a minority government.

This has not happened since 1974, when the House had no system of permanent departmental select committees. The House is thus now operating without a precedent. At stake is whether a minority government, with an agreement with another party for support on key votes, should or should not have a majority on select committees. But in failing to resolve this issue, the House has now violated the norm that, after late spring/early summer elections, select committees should be nominated before the summer recess. This could set a damaging new precedent of its own.

Standing Order shortfall

The timely nomination of select committees was one of the aims of the Wright reforms - but it turns out that the Commons’ failure in 2017 to nominate the committees before the summer was enabled by a shortcoming in the reforms’ implementation.

When it approved its new select committee system in 2010, the House inserted deadlines into its Standing Orders to ensure that the first stages in getting post-election select committees up and running - for relevant committees, the allocation of chairmanships to parties, and the election of chairs - are achieved within at most one month of the Queen’s Speech.

The Wright Committee also wanted to set a deadline for the next stage - the nomination of committee members. The Committee recommended that ‘the principal select committees should be nominated within no more than six weeks of the Queen’s Speech and that this should be laid down in Standing Orders and capable of being enforced by the Speaker’.

But this recommendation did not make it into Standing Orders. Instead, in a motion the House merely ‘approve[d] the principle that the principal select committees ought to be appointed within six weeks of the beginning of the Session at the start of a new Parliament’.

It is this difference, between stages of the select committee election and nomination process which do and do not have deadlines in Standing Orders, that has facilitated the current existence of chairs without committees, in some cases, and not even chairs, in others.

Standing Order amendment

Should the House amend its Standing Orders finally to implement the Wright recommendation for a select committee nomination deadline?

With the government having abandoned its plans to repeal the Fixed-term Parliaments Act (FTPA), it might be thought that there is no need. Future general elections will be held on the first Thursday in May, leaving time to nominate the select committees before the summer, as in 2010 and 2015.

But 2017 has shown that the FTPA does not prevent a government from holding a general election when it wishes. The political class has a well-established preference for late spring/early summer polls. And, inasmuch as the problem is the hung parliament, not time, it would be brave to rest the future functioning of the select committee system on the assumption that this will never recur. It would thus be best not simply to assume that 2017 could never happen again.

2017 has shown that the six-week limit mooted in 2010 would not do the trick: given the timings, a six-week deadline would not have obliged the House to nominate its select committees before the summer.

Instead, the relevant Standing Order (SO 121) needs an addition something like this:

The chair or another member of the Committee of Selection shall, on behalf of the Committee, make a motion for the nomination of members of select committees appointed under the Standing Orders of this House within six weeks of the Queen’s Speech or at least two sitting days before the House rises for any adjournment of longer than one month, whichever is the earlier.

By implying a potential threat to the long summer recess, this might concentrate minds. But it also avoids tackling directly the circumstances of a hung parliament, since any attempt to limit the flexibility to deal with particular political circumstances would probably meet resistance.

If it really wanted to show that it was serious, the House could even give the Speaker a backstop power - available if the Committee of Selection failed to meet its deadline - to impose an allocation of select committee places and thus, if necessary, get the Committee of Selection re-constituted and able to fulfil its role.

The BBC’s Mark D’Arcy has suggested that during its imminent September sitting the Commons may be asked to endorse a solution that bypasses the Committee of Selection altogether, in order to get at least some select committees up and running. But this sounds like a temporary and unsatisfactory fix. The House could best ensure that it never again goes a summer without select committees by putting a provision ensuring this into its Standing Orders.