Our wide-ranging recommendations to the House of Lords Liaison Committee’s review of Lords scrutiny committees, summarised here, aim to improve legislative scrutiny, facilitate more effective horizon-scanning, address post-Brexit scrutiny challenges, and much more.
On 16 May the Hansard Society gave evidence to the House of Lords Liaison Committee for its review of the Upper House’s investigative and scrutiny committees.
The Society also made a written submission in advance of the evidence session. (Links to the transcript and our written evidence, when published, will be alongside this post.)
We made wide-ranging recommendations - for new committees addressing legislative standards, devolution, and horizon-scanning; and on committee scrutiny during the post-Brexit transition period and of post-Brexit trade policy.
Our Lords Liaison Committee evidence formed part of the Society’s long-running strand of work on parliamentary select committees and ways of improving their effectiveness.
The first full-scale review of Lords scrutiny committees in 25 years
The Liaison Committee’s inquiry, launched in January, is the first full-scale review of Lords scrutiny committees in 25 years. The Committee is especially interested in: ways in which the Lords committee system can best add value to the work of the Upper House, complement Commons select committees, and address the implications of Brexit; the balance between one-off fixed-term ad hoc committees and the – more-or-less permanent – sessional committees; and public engagement. The Committee wants to consider these issues in light of evidence about the strengths and weaknesses of the House of Lords committee system as it operates currently.
The Committee launched its inquiry by publishing a consultation document, and is taking evidence from researchers, external stakeholders, MPs and Peers.
We identified important strengths of the Lords select committee system, including its flexibility; the long-term, high-quality and often cross-departmental nature of its inquiries; the access that Lords committees have to time on the floor of the House for debates on their reports; and the fact that Lords select committees are reliably up-and-running more quickly after general elections than their Commons counterparts.
But we also noted weaknesses, suggesting that the rotation system for Lords select committee membership could be examined to reduce the risks of losing expertise; and that the system of ad hoc committees could be reformed to increase transparency around the choice of inquiry topics, strengthen inquiry follow-up, and perhaps allow the launching of new committees more than once a year.
New committees for legislative scrutiny, devolution and horizon-scanning
Our main recommendations are for several new Lords scrutiny committees, in three areas:
1. Improving legislation and legislative scrutiny
A Legislative Standards Committee
This is a longstanding Hansard Society recommendation which, in the apparent absence of House of Commons interest, would be better implemented only in the Lords than not at all. Such a committee would allow Parliament to play a part in holding the government to account so as to maintain and improve legislative standards, a field where there is considerable scope for improvement.
A permanent Post-Legislative Scrutiny Committee
With the need for improved post-legislative scrutiny widely recognised, this committee would take over and expand on the limited, piecemeal work in this area done most often by Lords ad hoc committees. In our oral evidence, we made clear that post-legislative scrutiny should encompass delegated as well as primary legislation. More systematic post-legislative scrutiny would, again, help to improve the quality of legislation, by creating a larger evidence base and enabling a greater learning process.
We also repeated our 2014 recommendation that the remit of the Lords Delegated Powers and Regulatory Reform Committee (DPRRC) be expanded so that the Committee could report on delegated powers in bills when they are introduced, rather than only when Commons-first bills reach the Lords.
2. Devolution and strengthening relations among the UK’s legislatures
We recommended a permanent Lords committee on devolution, to provide a dedicated forum to examine devolution-related issues, in recognition of their increasing importance. As well as improving awareness and scrutiny of these issues at Westminster, such a committee could help strengthen relations among the UK’s legislatures by acting as a focal point and perhaps bringing their members and/or committees together.
In our oral evidence, we also suggested that the remit of such a committee might include the UK’s regions, alongside its nations.
3. ‘Future Forum’: horizon-scanning and policy foresight
We recommended a permanent committee to work on policy foresight and horizon-scanning. This could reduce the need for ad hoc committees, and perhaps also subsume the Lords Communications and Science and Technology Committees. The subject matter of such a committee would be more likely to engage the public than that of many Lords committees, and the new body could become a laboratory for innovation in public engagement and consultation.
In our oral evidence, we also mentioned financial scrutiny – for example, of tax administration – as a further area where there is scope for Lords committees to pick up work that Commons select committee are unable or unwilling to address.
Brexit scrutiny considerations for transition and post-transition
We recommended that the Lords European Union Select Committee be retained, at least during any post-Brexit transition period as envisaged in the draft UK-EU Withdrawal Agreement. We have identified (in a recent transition briefing note) three overarching EU-related scrutiny tasks arising directly from the draft Agreement: monitoring new EU law and policy; scrutinising UK government actions at EU level; and overseeing the UK-EU Joint Committee. The Lords EU Committee is already engaged in the first two of these. Continued scrutiny will also be needed of the post-Brexit negotiations on the new long-term UK-EU relationship, which, again, the EU Committee is already doing.
In the longer term, the Lords select committee system will need to change to enable appropriate scrutiny of policy areas in which the UK gains substantially expanded (e.g. agriculture) or new (e.g. trade) policy competences, and of the future UK-EU relationship. The latter will depend on the nature of that relationship: the options lie on a spectrum from, on one extreme, the relationship with the EU being ‘just another’ UK international relationship that may be scrutinised as part of broader international affairs arrangements; to, on the other, it being a uniquely close relationship that potentially requires a dedicated scrutiny body and/or process.
Pending greater certainty, we suggested that the Liaison Committee could usefully gather information on EU scrutiny arrangements employed by countries with parliamentary systems but differing relationships with the EU.
For both the transition period and the longer term, we also flagged that Westminster committees should be thinking about inter-parliamentary cooperation with the European Parliament and other EU bodies (something we again referred to in our recent briefing note).
Effective scrutiny of UK international trade agreements
On trade policy scrutiny, we said that the UK’s default arrangements for Parliament’s role in treaty-making are unlikely to be adequate for post-Brexit trade agreements. An effective process for making international trade agreements is likely to need parliamentary engagement at earlier stages of the process, before and during negotiations and before signature of any agreement. A select committee scrutiny and reporting process would seem to be an appropriate and necessary part of this, and we suggested that the UK’s current European scrutiny system might act as a model.
We highlighted the strengths that Lords committees might bring to any such process, but also the political need to balance the role of the Upper House against that of the Commons. For any scrutiny system to be effective, we also highlighted the need for a shared understanding with the government on the provision and handling of information, and for legal and technical advice. We urged Lords select committees to engage with the new inquiry into trade policy scrutiny launched by the Commons International Trade Committee.
Defining clear objectives for public engagement
We reported on recent research we have undertaken on barriers to public engagement with Parliament, and said that Lords committees need to be realistic about the fact that several of them work in areas which, while important to expert stakeholders, do not readily lend themselves to broad audiences and media interest. Especially given resource constraints, we recommended that Lords select committees should define clear objectives for any public engagement, rather than undertake the activity for the sake of it.
The Liaison Committee expects to report towards the end of 2018, so as to get any reforms in place before Brexit and the start of the 2019 parliamentary session.
Before then, we are likely to submit more detailed follow-up evidence on some of our recommendations, as requested by the Committee; and we will be continuing to monitor, and make submissions to, select committees in both Houses, especially in relation to procedure, legislative scrutiny and select committee effectiveness, Brexit, treaty-making and trade.
Enjoy reading this? Please consider sharing it
Whilst the *Miller* case may be seen as a victory for Parliament, it simultaneously highlights significant constitutional weaknesses on issues such as devolution and the role of referendums. Is it time to consider whether the UK constitution needs more legal as opposed to political regulation?
In Canada, the ‘professional politician’ remains the exception rather than the rule, and MPs with prior political experience don’t have an advantage in the development of their parliamentary careers.
If the House of Commons Foreign Affairs Committee published regular 'Metrics for Global Britain' it could attach clear indicators to an otherwise politicised term, enhancing the committee's scrutiny work and providing hooks for boosting its public and media profile. In evidence to the committee published in July, we explained how.
MPs are setting up the new sifting committee for delegated legislation under the EU (Withdrawal) Act, but the new procedure simply bolts a toothless sift onto the front of existing inadequate procedures.
At a time of political upheaval – with questions being asked about the leadership, policies and competence of both main UK parties – our Audit of Political Engagement reveals some interesting findings about the ways in which Conservative and Labour supporters view these factors differently and how their importance has changed over time.
As the EU (Withdrawal) Bill arrives back in the House of Commons for consideration of House of Lords amendments, this briefing paper for MPs sets out our concerns about three amendments - 110, 10 and 4 - concerning scrutiny of delegated powers and Statutory Instruments.