House of Commons - Legacy Report

Legacy Report - Liaison Contents

6 Linking with the House

48. The last five years have seen select committees playing a more prominent role in the business of the House. One aspect of this is the time given by the Backbench Business Committee for committee reports to be presented on the floor of the House and for specific reports or recommendations to be debated on a substantive motion. We very much welcome the adoption of new Standing Order No. 22D, agreed on 2 December 2013, which formalises the procedure for select committee statements on the floor of the House on a similar basis to ministerial statements. Since then 13 reports have been presented in this way, compared to 17 in the three previous years. Also important have been the opportunities committees themselves have taken to follow up their reports by linking them to debates in the House on legislation and tabling amendments to bills under consideration.

49. These are recent examples of the House agreeing to motions endorsing select committee recommendations:

·  Thursday 11 September—Carbon taxes and energy-intensive industries: Resolved, That this House welcomes the measures announced in the 2014 Budget Statement which reduce cost pressures created by the imposition of carbon taxes and levies; notes that without such measures, there is a serious risk of carbon leakage; further notes, however, that UK manufacturing still pays four times as much for carbon compared with main EU competitors because of taxes such as the carbon floor price; and calls on the Government to build on the measures announced in the Budget by producing a strategy for energy-intensive industries, as recommended by the Environmental Audit Committee in its Sixth Report of Session 2012-13, HC 669, in order to produce a fairer and more efficient system which delivers genuine potential for investment in a low-carbon economy.—(Alex Cunningham.)
·  Thursday 8 January—Higher education funding: Resolved, That this House notes the Third Report from the Business, Innovation and Skills Committee, Student Loans, HC 558, and the Government response, HC 777; and calls on the Government to outline proposals that will sustain funding for the sector while addressing the projected deficit in public funding.—(Mr Adrian Bailey.)
·  Thursday 8 January—Gibraltar: Resolved, That this House notes the Second Report from the Foreign Affairs Committee, Gibraltar: Time to get off the fence, HC 461, and the Government response, Cm 8917; endorses the Committee's position that the behaviour of the current Spanish government towards Gibraltar is unacceptable; regrets that trilateral dialogue between the UK, Gibraltar and Spain remains suspended; believes that the time has come for more concerted action; and invites the Government to review its policy towards Spain on Gibraltar.—(Sir Richard Ottaway.)

·  Tuesday 27 January—Accommodation for young people in care: Resolved, That this House notes the Second Report from the Education Committee, Into independence, not out of care: 16 plus care options, HC 259, and the Government's response, HC 647; welcomes the progress made and the commitment to improve the care provided to these vulnerable young people shown in the Government's response; regrets that the Government has not gone further by exploring with local authorities how to ban the use of bed and breakfast accommodation for this age group and by moving to inspect and regulate all accommodation provided to children in care; and calls on the Government to do all it can to improve the accommodation and care given to these young people.—(Mr Graham Stuart.)

50. There have also been cases of the House specifically asking select committees to examine particular issues. The most obvious examples of this are the setting up of the Parliamentary Commission on Banking Standards and the Committee on Governance of the House of Commons. The House also resolved on 15 July 2013 to request three existing committees (European Scrutiny, Home Affairs and Justice) to report on the opt-outs from the EU justice and home affairs provisions. More commonly the House appoints joint committees with the House of Lords to examine draft bills, such as those recently on Modern Slavery and on Protection of Charities. While we welcome this, we remain concerned that insufficient consideration is given to the option of allowing a draft bill to be considered by an existing select committee with the relevant knowledge and experience.

Pre-appointment hearings

51. In this Parliament, pre-appointment hearings have become a regular practice. The Government has agreed a list of public positions for which the nominated ministerial appointee is given an oral evidence session with the relevant departmental select committee. Since 2010 there have been some 73 such pre-appointment hearings.[16] In four cases the committee has recommended that the appointment should not proceed. Of these, the government persisted in the appointment in two cases and the appointee withdrew or was not appointed in two cases.

52. One difficulty which has arisen is the failure of a government department to disclose to a committee, at the time of the pre-appointment hearing, information which might affect the committee's judgment about the suitability of the proposed candidate. In October 2013 the Justice Committee held a hearing with the nominee for the post of Chief Inspector of Probation. The candidate, Paul McDowell, had declared to the Department, as part of the recruitment process, that his wife, Janine McDowell, held a senior position in a company which was a supplier of services to the criminal justice system, but this declaration of interest was not conveyed to the Committee. The Committee approved the appointment without that knowledge.

53. The potential conflict of interest subsequently became more acute when the company was announced as a preferred bidder for provision of probation services in six areas of the country under the Transforming Rehabilitation programme, and Janine McDowell was successful in obtaining a promotion to a more senior post within the company. Following discussions between Mr McDowell and the Ministry, in the course of which the Committee's views were sought, Mr McDowell tendered his resignation.

54. In this particular case it is not possible to say whether the Committee would have reached a different view on Mr McDowell's suitability had the declaration of interest (which existed at the time of appointment) been provided to it, but it must be axiomatic for the integrity of the pre-appointment process that the department discloses to the committee any material facts which might be thought to affect their judgment on the suitability of the candidate for the post. This is now recognised in Cabinet Office guidelines which were not in force at the time.

55. In its own Legacy Report, the Science and Technology Committee noted the lack of diversity among candidates submitted to it for the pre-appointment process. The Committee recommended the publication of amalgamated equality data, by department, for those shortlisted for posts subject to this process. We endorse this recommendation.

56. We attach great importance to the right of select committees to take evidence from people nominated by ministers for public appointments. There is no desire to make this an arduous process which may deter good candidates from applying, and committees stick carefully to the procedural safeguards within the process. In many cases, where the appointment is to a post with some regulatory or supervisory role over parts of government, the pre-appointment hearing should be the start of a constructive relationship between the appointee and the committee, both of which have a positive interest in the accountability of that part of public money and administration. It can also help set the agenda for the post-holder.

57. In our report on Select Committees and Public Appointments in 2012, we said[17]

62. The issue has been raised in connection with pre-appointment hearings of certain appointments which are made outside the regulatory control of the Office of the Commissioner for Public Appointments, without open advertisement or open competition. The appointments most frequently cited in this context are those of certain ambassadors who are drawn from outside the career diplomatic service and the UK's EU Commissioner.

63. We recognise that these appointments fall into an entirely distinct category from those regulated by the OCPA. They do not, therefore, lend themselves to the processes we describe in this report for parliamentary involvement in the different stages of regulated public appointments. However, that very lack of public regulation means it is all the more important that there should be some parliamentary oversight of such exercises of ministerial prerogative. We recommend that persons who are offered political appointments, other than appointments of Ministers, made under the exercise of prerogative powers, should have their appointments submitted to scrutiny by an appropriate select committee before the appointment is confirmed.

58. In our view, the pre-appointment process has worked well. The ability of committees to take oral evidence from someone about to be appointed to a public position is not confined to the specific posts listed by the Government. For instance, the Treasury Committee took oral evidence from Mark Carney on his appointment as Governor of the Bank of England. We also note that both the Foreign Affairs and the European Scrutiny Committees took oral evidence from Lord Hill of Oareford as the UK's new EU Commissioner. In 2010 the Treasury Committee fought for, and won, a statutory veto over both the appointment and dismissal of members of the new Budget Responsibility Committee. This unique power safeguards the independence of this institution.

Financial scrutiny

59. Departmental select committees have as one of their core tasks the monitoring of government expenditure but it our belief and ambition that the examination of financial and administrative underpinning of government activities should be at the heart of every select committee policy inquiry. As the Better Government Initiative told us "We think there is still scope, however, for each Select Committee to look more closely at the inputs, outputs and value for money achieved across the whole of a relevant Department as well as at specific policy and delivery matters."[18]

60. One way in which the Liaison Committee has helped enable and encourage committees in this task has been through engaging in dialogue with government, with the support of the Scrutiny Unit, on improving transparency and accountability to Parliament in the use of public funds. Examples of where this has taken place include consultation on new, simplified accounts for government departments, which will come into effect from 1 April 2015, and the Clear Line of Sight (also known as Alignment) project to better align the measures of government spending used for various purposes, including the departmental Budgets set by Government, the Estimates voted upon by Parliament and the Accounts prepared by the National Audit Office.

61. One area where we continue to work with the Government on increasing the transparency of, and accountability for, public money is in the treatment of the levies under which energy companies are required to support initiatives which impose costs upon consumers through their fuel bills. The Office for National Statistics has classified such arrangements as 'imputed' tax and spend. We, together with the Committee of Public Accounts and the Energy and Climate Change Committee, and with the support of the National Audit Office, reached agreement with the Government that relevant departments (currently DECC and DfT) should produce an annual, separate report setting out the amounts raised and outcomes achieved under each relevant levy which are susceptible to select committee scrutiny. The Energy and Climate Change Committee published a report on these levies and led an Estimates Day debate on their implications for consumers as well as the arrangements for parliamentary oversight. Ongoing engagement between the Committee staff, the Scrutiny Unit and government officials has helped to ensure that the annual reporting arrangements for these levies meet the needs of parliamentarians. It remains the case however that there is no route for the House to approve such levies.

62. We have considered, but are not attracted to, the option of proposing amendment to Standing Order No. 54 to enable imputed taxes to be considered on Estimates Days. The motions on Estimates Days relate only to expenditure directly by government bodies so debates on levies which do not involve direct expenditure by government would not amount to effective control. Levies—recognised by the ONS as tax and imposed by Government—should be subject to control by the House of Commons and capable of separate debate on a substantive motion. We remain in discussion with the Government on how best this might be achieved.

63. While most committees have for some time held an annual evidence session with Ministers and officials on the running of their department, making use of departments' published annual reports and accounts, committees are now able to augment this by making use of updated information from new mid-year reports too. These reports, which were first produced in 2013-14 and are now in their second year, were introduced as a direct result of a specific recommendation by the Liaison Committee in 2009. The reports contain updated spending and performance information. We welcome that the Government has been willing to work with us both formally and informally on making the reports timely, accurate and useful in linking spending to policy outcomes. There is growing evidence that committees are finding them useful and using them more. We acknowledge though that it is early days and that further work is required to ensure that the burden placed upon departments in producing mid-year reports is justified by the benefits to committees' scrutiny activities.

64. The resources and expertise of the Scrutiny Unit have very greatly helped committees undertake the important work of scrutinising how taxpayers' money is spent by departments and other public bodies. The Scrutiny Unit has also enabled the Liaison Committee to develop a positive engagement with the Treasury about the clarity of financial information published by government.

Scrutiny of legislation

65. As the Political and Constitutional Reform Committee said in its 2013 Report, Ensuring standards in the quality of legislation, "We consider pre-legislative scrutiny to be one of the best ways of improving legislation and ensuring that it meets the quality standards that Parliament and the public are entitled to expect".[19] More draft legislation has been published by the Government this Parliament than in any preceding Parliament. The long 2010-12 session saw 11 draft Bills published, followed by an unprecedented 15 draft Bills in 2013-14, almost all of which were scrutinised by either a select or joint committee.

66. This Parliament has also seen an increase in the number of sets of draft clauses published for pre-legislative scrutiny. But it is still only a minority of legislative proposals that are published in draft. We believe there is scope to go further and that the benefits of pre-legislative scrutiny in terms of improving the quality of legislation which reaches the statute book and in easing the passage or controversial, technical and complex bills through their parliamentary stages warrant the inevitable increase in resources required if committees are to scrutinise more draft legislation.

67. Despite raising concerns over the notice given of publication of draft legislation and the time afforded to committees to conduct pre-legislative scrutiny in our 2013 Report on Select committee effectiveness, resources and powers, it has remained a matter for concern in the latter part of the Parliament. The Treasury Committee had been expecting to scrutinise a draft Bill on National Insurance Contributions in the autumn of 2013 only to be told shortly before the House rose for the summer recess that no draft Bill would be published and that the Bill itself would be introduced in the autumn. We accept that, by its nature, draft legislation is prone to some uncertainty, but we urge the Government to make better efforts to provide the House with timely information on its plans for draft legislation; for example, the draft Northern Ireland (Miscellaneous Provisions) Bill was published on 11 February 2013, and the Northern Ireland Affairs Committee was asked to report its recommendations to the House by 25 March—a period which included the February recess.

68. One healthy development in the practice of pre-legislative scrutiny is the extent to which committees have been able to collaborate, work co-operatively and share expertise when examining draft legislation. The temporary select committee appointed to examine the draft Local Audit Bill was in practice a joint endeavour between members of the Communities and Local Government Committee and the Committee of Public Accounts; different aspects of the draft Children and Families Bill were examined respectively by the Justice and Education Committees without undue duplication of effort and to good effect; and, as we reflect on the Parliament, the Political and Constitutional Reform Committee, the Scottish Affairs Committee and the Treasury Committee are considering, to various degrees and in various ways, aspects of the recently published draft clauses to give effect to the Smith Agreement on devolution.

Post-legislative scrutiny

69. There has been some activity in post-legislative scrutiny of Acts which have been in force for some years. Certain committees have undertaken major post-legislative scrutiny inquiries. For instance, the Justice Committee carried out a major inquiry into the operation of the Freedom of Information Act 2000,[20] and also carried out scrutiny of the working of Part 2 of the Serious Crime Act 2007, which set out offences of encouraging or assisting crime.[21] The Public Administration Committee carried out extensive post-legislative scrutiny of the Charities Act 2006, highlighting legal difficulties with the Act and recommending changes in the operation and powers of the Charity Commission. This was followed by the Joint Committee on the Draft Regulation of Charities Bill, under the chairmanship of Lord Hope. Similarly, the Culture, Media and Sport Committee conducted a wide-ranging inquiry on gambling, which included post-legislative scrutiny of the Gambling Act 2005.[22] As a final example of a full post-legislative scrutiny inquiry, we would point to the work of the Communities and Local Government Committee on the Greater London Authority Act 2007.[23]

70. Other committees have not found a full-blown post-legislative scrutiny inquiry to be necessary but have sought other means of discharging this function. For example, the Education Committee sought and published the answers to detailed written questions supplementary to the Government's own post-legislative assessment of the Education and Inspection Act 2006, the Childcare Act 2006 and the Children and Adoption Act 2006.[24]

71. We are also aware of work carried out by committees of the House of Lords in this area. For example, ad hoc committees reported on both the Inquiries Act 2005,[25] and the Mental Capacity Act 2005.[26] The House of Lords Committee on Adoption Legislation also conducted post-legislative scrutiny as part of its work in the field of adoption and considered, but did not limit itself to, scrutiny of the Adoption and Children Act 2002 and the Children and Adoption Act 2006.[27]

72. Committees can be at their most effective when following up their work on bills by producing reports which influence debate in the House and tabling amendments which ministers find it hard to resist. For instance, members of the Environmental Audit Committee tabled amendments to the Infrastructure Bill (on fracking and the air quality remit of the Strategic Highways Company) and the HS2 Bill, reflecting recommendations from those three EAC reports. In 2013, the Energy and Climate Change Committee tabled an amendment to the Energy Bill, based on the Committee's pre-legislative scrutiny, that set an emissions target that would require power plants to cut their carbon emissions substantially by 2030. Although this amendment was narrowly defeated by 23 votes, it was one of the largest rebellions of this Parliament up to that point.

73. We welcome the report from the Political and Constitutional Reform Committee on Legislative Standards.[28] In their written evidence to the Liaison Committee, the Better Government Initiative said "we therefore strongly support the PCRC Report on Legislative Standards—in particular its recommendations for a Code of Legislative Standards, agreed between Government and Parliament, and a House Legislative Standards Committee to monitor their application—and were very disappointed when the Government summarily rejected both proposals [saying]: 'It is the responsibility of government to bring forward legislation of a high standard'."[29]

EU Scrutiny

74. The European Scrutiny Committee published a major report on Scrutiny Reform in November 2013 and we considered the recommendations relating to departmental select committees early in 2014. We agreed with the European Scrutiny Committee that there had been examples of highly effective engagement across select committees in the current Parliament, but that more could be done, particularly to share information.

75. One of the recommendations of the European Scrutiny Committee drew from the experience of the Scottish Parliament, proposing that select committees should be required to appoint a Member as an EU Reporter, taking lead responsibility for bringing relevant documents being considered by the European Scrutiny Committee to the attention of their colleagues. We welcomed this as a proposal but did not wish to go as far as proposing that it should be obligatory. Two Committees then appointed Reporters: the Business, Innovation and Skills Committee and the Justice Committee. Their experience has been broadly positive, and we conclude it represents a successful trial of the EU Reporter as a concept. So while we continue to take the view that these appointments should be made at the discretion of the committee concerned we hope that more select committees will choose to appoint EU Reporters in the new Parliament.

76. The European Scrutiny Committee's report also included recommendations about the future scrutiny of the annual Commission Work Programme. We note that over the course of this Parliament the European Scrutiny Committee has developed its scrutiny of the Programme. It now tends to be recommended for debate on the floor of the House, and comments are sought from departmental select committees and others with an interest. We look forward to refining this process further, in line with the European Scrutiny Committee's recommendations, in the new Parliament.

77. We note that most of the European Scrutiny Committee's other recommendations have not been accepted by the Government, and that both that Committee and the Procedure Committee have been critical of the Government's engagement with EU scrutiny reform. There have also been problems with debates on documents referred by the European Scrutiny Committee not taking place, particularly on the floor of the House, which in our opinion is deeply regrettable. We note that the Leader of the House stated in oral evidence to the European Scrutiny Committee that such delays were primarily a matter of concern to that Committee.[30] We emphasise that such delays are also a matter of concern to this Committee, and we trust that they will not be repeated in the new Parliament.

16 Data on pre-appointment hearings is published on the Committee's website. Revised guidance was published by the Committee in November 2013 Back

17 Liaison Committee, First Report of Session 2010-12, Select Committees and Public Appointments, HC 1230, paras 62-63 Back

18 Better Government Initiative (SCE 0019) Back

19 Political and Constitutional Reform Committee, First Report of Session 2013-14, Ensuring standards in the quality of legislation, HC 85, para 115 Back

20 Justice Committee, First Report of Session 2012-13, Post-legislative scrutiny of the Freedom of Information Act 2000, HC 96-I Back

21 Justice Committee, Sixth Report of Session 2013-14, Post-legislative scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007, HC 639 Back

22 Culture, Media and Sport Committee, First Report of Session 2012-13, The Gambling Act 2005: A bet worth taking? HC 421 Back

23 Communities and Local Government Committee, Fourth Report of Session 2013-14, Post-legislative scrutiny of the Greater London Authority Act 2007 and the London Assembly, HC 213 Back

24 Education Committee, Post-legislative scrutiny: Education and Inspection Act 2006, Childcare Act 2006 and Children and Adoption Act 2006 Back

25 Report of the Select Committee on the Inquiries Act 2005, Session 2013-14, The Inquiries Act 2005: post-legislative scrutiny, HL Paper 143 Back

26 Report of the Select Committee on the Mental Capacity Act 2005, Session 2013-14, Mental Capacity Act 2005: post-legislative scrutiny, HL Paper 139 Back

27 Select Committee on Adoption Legislation, Second Report of Session 2012-13, Adoption: Post-Legislative Scrutiny, HL Paper 127 Back