How Parliament will scrutinise changes to Retained EU Law (REUL) has been a matter of concern since the Government announced it would introduce the ‘Brexit Freedoms’ Bill. The Minister for Brexit Opportunities has now suggested Legislative Reform Orders (LROs) as a possible solution. But what are LROs and what would this mean for scrutiny of REUL?
The long-term near-absence of Labour participation in the work of the House of Commons European Scrutiny Committee means that the Committee is not operating as a fully cross-party Committee. Especially given the way in which the Committee’s role is changing since Brexit, this needs fixing, fast.
Senior Researcher, Hansard Society
Dr Brigid Fowler
Senior Researcher, Hansard Society
Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.
After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.
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The House of Commons European Scrutiny Committee (ESC) has today (21 July 2022) published the report of its inquiry into Retained EU Law (REUL), which is intended to inform the House ahead of its consideration of the Government’s planned Bill on this subject (which is now expected after the summer break).
In its report, the Committee indicates that it expects to be involved further in the REUL reform process.
But it is worth turning to the minutes of the meeting at which the report was agreed (on 18 July) for evidence of a problem that needs addressing more urgently, and certainly before the Committee gains any further responsibilities: namely, the near-absence of Labour participation in the Committee’s work.
The minutes from 18 July show that, yet again, the ESC agreed a report with only one out of its five Labour Members participating.
The last time that the ESC agreed a report with more than one Labour Member participating, or with any Labour Member participating other than Jon Cruddas, was 13 months ago, in June 2021.
In effect, the European Scrutiny Committee is no longer operating as a fully cross-party committee.
Procedurally, there is nothing out of order in the Committee’s proceedings: the eight Conservative Members could on their own easily furnish the Committee’s quorum of five. But the situation highlights the way in which relatively relaxed quorum requirements may allow full cross-party working to break down through non-attendance, rather than through the public splits over policy that often garner more attention.
Low attendance at Select Committees is not a new problem. Over 12 years ago, as part of the ‘Wright reforms’ of Select Committees just before the 2010 General Election, the House agreed an attendance benchmark of 60% of meetings to try to address the issue.
Low attendance at the ESC is also not an exclusively Labour-related problem. The Conservative MP Andrea Jenkyns, for example, had effectively ceased to participate in the Committee’s work before she was replaced as an ESC Member on 4 July. Over the post-2010 period, there are instances of low-to-non-existent ESC participation by Members from all relevant parties.
Of MPs from the two main Westminster parties, Labour Members have maintained lower attendance at the ESC than their Conservative counterparts throughout the post-2010 period, but their attendance rate broadly tracked that of the Conservatives. However, as is shown by the chart below, since the 2019-21 Session Labour MPs’ ESC attendance has diverged radically from Conservatives’.
European Scrutiny Committee: Average attendance rates of Conservative and Labour Members, 2010-22, by parliamentary Session • Percentage of meetings attended per Session (or part thereof during which MP was a Member of the Committee)
In the post-2010 era, the current ESC situation is distinguished by three features:
Among the ESC Members from a single party, the prevalence of low attendance. In effect, only one out of Labour’s five Members on the Committee is participating in its work.
The extremely low levels of attendance involved. Overall, the ESC has met the 60% attendance benchmark in only one of the 10 completed parliamentary Sessions since 2010, but it has at least always exceeded 40%. At the individual level, of the 177 instances in which an MP was a Member of the ESC for all or part of one of the 10 completed post-2010 Sessions, we count only 32 (18%) in which a Member’s attendance rate for the relevant Session (or part thereof) dropped below 10%. In the current Session, the attendance rates of the ESC’s Labour Members apart from Mr Cruddas are running at zero.
The length of time for which Labour Members’ low attendance has been persisting. MPs’ performance against the 60% benchmark is supposed to be assessed after each parliamentary Session; but three Labour ESC Members were into their third Session (2019-21, 2021-22, 2022-23) with attendance rates below 10% before just one of them was replaced at the end of June. A fourth Labour Member has not been recorded as participating in an ESC meeting since joining the Committee in November 2021.
We can find only one comparable situation in the ESC’s post-2010 history: after the 2010 General Election, when the Liberal Democrats formed the coalition Government with the Conservatives, there was virtually no participation by the ESC’s Liberal Democrat Members until mid-way through the 2013-14 Session.
The long-term non-participation of two Labour MPs on the ESC, Stephen Kinnock and David Lammy (until he was replaced on 27 June), is in line with the fact that, a month after they were appointed to the ESC for the 2019 Parliament, both took up positions on the Labour front bench. As stated by the Liaison Committee in its major 2019 report on the Select Committee system, “it is generally held that for the larger parties, front bench spokespeople should not hold positions on select committees”.
However, there has been no implementation of the Liaison Committee’s suggestion that the holding of such front-bench posts should be made an explicit bar to Select Committee membership.
With respect to the remaining two long-term low-attending Labour ESC Members, the same grounds for non-attendance do not apply.
In a step that implements a Liaison Committee recommendation, a note is now published alongside Select Committees’ attendance data pointing out that Members’ attendance rates may reflect other parliamentary commitments, as well as “such things as long-term illnesses, family illnesses or caring responsibilities”. The note also explains that an MP may have indicated a wish to leave a Committee but not yet been discharged by the House.
However, in the case certainly of the ESC, there is no sign of a further Liaison Committee recommendation, namely that Committees should in the same place “record long term or recurrent reasons for absence, which the Chair is satisfied are legitimate and which the Member concerned is content to divulge”.
Potential sensitivity and privacy concerns around MPs’ reasons for low attendance at Select Committees have always been one of the problems facing any potential enforcement regime for the '60% rule’, and one of the reasons why enforcement has been left as discretionary.
But the current ESC case highlights the way in which the arrangements around low attendance leave a transparency problem. On the basis of published parliamentary records, there is no way of knowing whether Labour ESC Members have legitimate reasons for absence which they do not want published, or have no such reasons.
And if Members lack legitimate reasons for absence, there is also no way of knowing where responsibility lies for the continuation of less-than-full cross-party working on the ESC: the Chairs of the ESC and the Liaison Committee would trigger any enforcement process for the ‘60% rule’, so have they asked the Labour Whips to identify replacement Members of the ESC, but without success, meaning that the blockage lies with Labour? Or are those two Committee Chairs, in effect, ignoring the 'rule'?
Given this situation, it is possible only to speculate as to whether Labour MPs’ near-absence from the ESC reflects legitimate grounds for low participation; a general shortage of Labour MPs willing and able to serve on Select Committees; or particular issues concerning the ESC – such as its larger-than-normal size (16), its leadership, or the post-Brexit matters that it scrutinises.
Whoever or whatever is responsible, it does not speak of a well-functioning system for it to take over two years for only one of two Labour front-benchers to be replaced on the European Scrutiny Committee; and for other non-participating Members to remain on the Committee for many months, in the absence of any public indication that there are good grounds for their absence. The current situation on the ESC increases uncertainty around the status of the House’s 60% attendance ‘rule’.
A collapse in full cross-party working is damaging for any Select Committee; but, for the ESC, it is more problematic than it might previously have been, because of the way in which the Committee’s role has been changing since the UK left the EU.
Historically, the ESC’s main role has been to conduct document-based scrutiny of proposed EU law and policy.
Such scrutiny is conducted in private, and relies heavily on the technical expertise of Committee staff.
However, since the UK left the EU in February 2020, and especially since the post-Brexit transition period ended at the end of that year, the ESC has increasingly been moving into the policy scrutiny space left by the disappearance of the temporary ‘Brexit Committee’, and has been making inquiry-based scrutiny an expanding element of its work. For example, the proportion of ESC meetings which take public evidence jumped to 50% in the 2021-22 Session (by our calculations), from a historic norm of around one-third and sometimes much lower. During an evidence session with the Committee in April, the Cabinet Office’s Brexit Opportunities Minister Jacob Rees-Mogg, who is responsible for the Government’s work on Retained EU Law (REUL), declared that the Committee was his “primary scrutineer”; and an advert for a job on the ESC staff in February 2022 said that the Committee “leads on scrutinising UK/EU affairs in the House of Commons”.
While continuing to conduct document-based scrutiny, the European Scrutiny Committee is increasingly operating as an inquiry-based committee, more akin to a departmental or policy scrutiny committee.
This kind of Select Committee work allows more scope for political (rather than purely technical) considerations; and it is also more visible to the public. This increases the reputational risk to the House from any lack of full cross-party working. (Labour Members’ absence from the April evidence session with Mr Rees-Mogg was sufficiently glaring that it made the pages of Private Eye.)
The change in the ESC’s role is particularly notable given that is taking place, formally, on the basis of legacy provisions inherited from the era of UK EU membership, not any review or reform agreed by the House.
We will be considering the ESC’s post-Brexit role further in coming months.
But whatever role the ESC plays, including potentially with respect to Retained EU Law, full cross-party working on the Committee needs urgently to be restored.
Fowler, B. (2022), When is a 'cross-party Committee' no longer cross-party? The case of the European Scrutiny Committee (Hansard Society: London)
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