Post-Brexit select committee changes highlight Lords–Commons differences

The UK’s decision in 2016 to leave the EU raised in short order the question of whether and how the select committee structures in the two Houses of Parliament should change in response. The most obvious question was whether, after ‘getting Brexit done’, there should continue to be one or more dedicated select committees in each House for scrutiny of EU-related matters; and, if so, which one(s).

As of early February 2021, a year after the UK left the EU, and a month into its new post-transition EU relationship under the Trade and Cooperation Agreement, each House retains one select committee dedicated to the scrutiny of EU-related affairs.

In the House of Commons, as things stand, this committee is to be the pre-Brexit-era European Scrutiny Committee (ESC). This is the contemporary incarnation of the committee which the House established when the UK joined the then-EEC in 1973. What had been, since October 2016, the Commons’ second committee focused on EU-related matters, the Committee on the Future Relationship with the EU (CFREU), ceased to exist on 16 January. On 1 February, the ESC asserted its post-transition-period role by launching an inquiry into ‘The UK’s new relationship with the EU’, to which the Chancellor of the Duchy of Lancaster, Michael Gove, is due to give evidence on 8 February.

In contrast with the Commons, on 13 January the House of Lords agreed to abolish the current version of the select committee which it had established after the UK’s EEC accession, the European Union Committee, and establish a new committee instead, the European Affairs Committee (EAC). The EAC is expected to be appointed by April. The EAC’s creation comes as part of a major overhaul of the Lords’ select committee line-up which has been agreed by the House in stages over the last 15 months.

Contrasting Lords and Commons processes

While the contrast in the post-Brexit fates of the two Houses’ EU-focused committees is striking, even more so is the difference between the processes that have led to this outcome.

This is especially the case given the common factor that both Houses have had major reviews of their select committee systems conducted by their Liaison Committees since the EU referendum, in part to consider the select committee implications of Brexit.

The outcomes so far of the debates over the two Houses’ post-Brexit select committee line-ups reflect the difference between government control of business in the Commons, and the largely self-governing nature of the Lords.

House of Commons

In the House of Commons, the continuing existence of the ESC, and the demise of CFREU, have come about by default.

The ESC exists under a ‘permanent’ Standing Order of the House (now SO No. 143), in this case one essentially agreed in 1974. That is, the Standing Order – and thus the Committee – persist unless and until the Order is amended or repealed. By contrast, CFREU existed under only a temporary Order, agreed by the House in January 2020 with a lifespan of one year (to match the post-Brexit transition period). The Order was agreed despite the government having already announced that it would be abolishing, at the end of that month, the Department for Exiting the EU, which the Committee had originally been established to shadow.

After 16 January 2021, for the House’s EU-focused select committee line-up to be different from that which now exists, either or both of these Orders would have had to be amended or repealed.

In theory, an opposition party, a backbencher or a select committee could move a motion to amend or repeal a Standing Order establishing a select committee (except the Backbench Business Committee), in one of the timeslots in which they control the business of the House. However, these slots are few, especially in the case of select committees, and the government controls their timing. In practice, motions on Standing Orders are put to the House in government time, by the government.

Ministerial statements that a decision relating to select committees is a ‘matter for the House’ are somewhat disingenuous: as a general rule, this applies to the decision itself, but not to whether the House will have an opportunity to take it.

The operation of the government’s control of decision-making on select committees is well illustrated by the recent cases not only of CFREU but also of the International Development Committee (IDC):

• CFREU. Facing the default demise of his Committee in January 2021 under its temporary Order, and when it was evident that any post-transition agreement with the EU would be reached only very late if at all, on behalf of his Committee CFREU Chair Hilary Benn MP in December 2020 asked the Commons Leader, Jacob Rees-Mogg MP, to move a motion to extend the life of the Committee by six months. This was to allow it to scrutinise either any agreement or the implications of a ‘no-deal’ outcome. On 6 January, Mr Rees-Mogg declined, pointing to the existence of “many routes of scrutiny” without the Committee. Answering on the issue on 4 February, Mr Rees-Mogg also re-affirmed the government’s “general position … that, by and large, select committees should reflect the departments that they cover”.
• IDC. The IDC was established in 1997 under a permanent Standing Order, to shadow the new Department for International Development (DFID). When the government announced in June 2020 that it was merging DFID into the Foreign and Commonwealth Office, Mr Rees-Mogg indicated initially that he was likely to move a motion to abolish the Committee, in line with the general principle that policy scrutiny select committees in the House of Commons should normally shadow departments. However, in the face of a campaign during autumn 2020 by IDC Chair Sarah Champion MP, backed by other MPs, Mr Rees-Mogg reversed his position and announced that he would not, after all, be moving any such motion. In the course of the exchanges, Procedure Committee Chair Karen Bradley MP said that Ministers’ expectations that the “work of the IDC would not continue [following the disappearance of the department] should not be automatic”.

In these two cases, the Commons Leader acceded to a committee’s request that it should continue to exist in one case but not the other; the House has lost one non-departmental select committee and gained another; in both cases the outcomes have been in line with the existing Orders of the House; and in neither case did the House debate the matter.

With respect to Commons’ EU-focused committee(s), there may be arguments for:

• retaining the current line-up; or
• replacing ESC with a new committee; or
• for having no dedicated committee and ‘mainstreaming’ EU-related work through other committees, perhaps with a steering role for the Liaison Committee.

The existence of divergent views among MPs on these questions was evidenced by CFREU’s final report, in which a large majority of Members removed the proposal in the Chair’s draft that there should be a new European Affairs Committee.

Regardless of MPs’ positions or the merits of the various possible options, the problem as things stand is that there is no guarantee that the House as a whole will be able to hold a debate on the way in which it wishes to scrutinise EU-related matters in future.

House of Lords

In the House of Lords, the select committee line-up that is coming into being has come about through multiple debates and decisions by the House, taking place on the basis of select committee work:

• In October 2019, the House debated and endorsed the Liaison Committee’s July 2019 report arising from its major review of the House’s select committee system, with the need for further work flagged once greater certainty was achieved about Brexit outcomes.
• In February 2020 the House established a new Public Services Committee, fulfilling a recommendation in the Liaison Committee report aimed at plugging a scrutiny gap.
• In March 2020, the House approved a Procedure Committee report endorsing further decisions taken by the Liaison Committee in January, in initial reflection of the UK’s EU exit.
• In June and September 2020 respectively, the House established new committees on COVID-19 (which may not prove permanent) and the post-Brexit common frameworks, again implementing Liaison Committee proposals, this time made in standalone reports.
• In January 2021, the House agreed the recommendations in the Liaison Committee’s second, December 2020, report arising from its select committee review. As a first implementing step, the House established an International Agreements Committee (IAC), previously a sub-committee of the EU Committee, as a select committee in its own right.

Compared with the Commons, the key feature of House of Lords’ procedure enabling this process is that select committees have access to time on the floor of the House for their reports to be debated and, under some circumstances, can move an amendable motion that the House agrees with a report.

New Lords’ select committee line-up

While the process of select committee-related decision-making in the Commons favours the status quo unless the government decides on change, the process in the Lords over the last three years has led to a thoroughgoing post-Brexit overhaul of the House’s select committee structures. Especially notably, in the shape of the International Agreements Committee (IAC) the Westminster Parliament has acquired its first treaty committee.

At the start of the Liaison Committee review process in January 2018, the line-up of House of Lords ‘sessional’ (effectively permanent) select committees exclusively or partly conducting policy scrutiny comprised the European Union Committee, with six sub-committees, plus five other committees.

The line-up of Lords sessional committees that is now in prospect, as shown in the Liaison Committee graphic below, will comprise the new European Affairs Committee and a single sub-committee on the Northern Ireland Protocol, plus, for the time being, 13 other committees.

Source: House of Lords’ Liaison Committee, 5th Report of Session 2019-21, HL Paper 193, 15 December 2020

Banner image: House of Lords/Roger Harris

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