Review of House of Lords Investigative and Scrutiny Committees: towards a new thematic committee structure Contents

Chapter 4: Delivering a new committee structure

The development of our current structure

45.House of Lords committees have developed piecemeal over the past five decades, and there has been no previous attempt to consider the overall committee structure. The lack of a guiding logic to committee structure has resulted in significant gaps arising in scrutiny. On occasion, the work of the special inquiry committees (formerly known as ad hoc committees) has filled scrutiny gaps, but not in a systematic fashion. The principal policy areas that have suffered from a lack of detailed scrutiny are social affairs and public services, including health and education, though there are inevitably other omissions, not least because the current sessional committees cannot be expected to examine all areas of policy exhaustively.

46.Compelling evidence to the review has suggested that introducing a thematic structure for House of Lords committee work would best deliver against the five principles set out in Chapter 3, and would offer the most coherent approach to filling the current major gaps in scrutiny.

A thematic structure

47.A range of proposals for a thematic structure were received by the Committee. Lord Stern of Brentford submitted the idea of a structure to “reflect the main strategic and thematic challenges facing the nation today and the functions of government.”38 This submission suggested six broad themes, the economy, home affairs, health and welfare, foreign affairs, defence and security, and the constitution and local government. Those themes aimed to “provide the right top-level balance between the key challenges for the nation, for society and internationally, and the opportunity to drill down into more detailed areas of scrutiny.”39

48.Similar structures were proposed by a variety of different members, each of whom offered slightly different themes including:

49.This broad concept was also supported by other members of the House including Lord Norton, Lord Hollick, Lord Hennessy of Nympsfield and Lord Inglewood, although none submitted a proposal of possible themes. Drawing these proposals together, we conclude that the case for moving towards a new thematic structure is compelling. Our current committee structure is already to a large extent a thematic structure, and we are seeking to build upon and augment it, rather than aiming for reinvention, which would be unnecessary. The following table of proposed thematic committees shows additions to the titles of existing committees, where there are any, and a proposed new committee.

50.We recommend that the House move towards an expanded thematic structure for its committees along the following broad subject areas:

Current committees

Proposed committees

Communications

Communications and Digital

Constitution

Constitution

Economic Affairs

Economic Affairs

International Relations

International Relations and Defence

Public Services

Science and Technology

Science and Technology

Alongside a Continuing European Union Committee (see paragraph 51 below).

Delivering a new structure

51.In terms of making this expanded thematic structure a reality, this report is only a staging post. Further work will be required by this Committee once the outcome of Brexit is known. Our EU Committee and its six sub-committees will be ‘ring-fenced’ until we can analyse the implications of Brexit for these committees, how much dedicated EU scrutiny will need to be retained, and the extent to which their functions may be dispersed amongst current and possible new committees. For example, there may be substantial tasks to be taken forward by other committees in the event of certain Brexit outcomes. Some policy areas, for example energy and the environment, and home affairs, are principally covered by EU committees at present. Post Brexit, the issues which these committees consider would be likely to need to be absorbed elsewhere. Scrutiny of issues impinging on devolved or local government responsibility would fall within the remits of the appropriate thematic committee.

52.We believe that the terms of reference for committees are an opportunity to expand further the work and role of committees outside their title, ensuring more comprehensive coverage of major policy areas. Therefore, we recommend that key thematic inquiry areas for each committee should be recognised within their orders of reference. Suggested language is proposed below:

53.Whilst many of these thematic areas fall within the existing remits of sessional committees others—particularly health and education—have not been comprehensively covered by previous House of Lords committees. Whilst many other themes are carefully scrutinised from one angle by the six sub-committees of the European Union Committee, health and education do not fall directly within any of their remits. It has also been striking that many of the proposals put forward by members of the House for special inquiry committees in recent years have fallen within those areas. Recent inquiries which have been carried out on topics such as social mobility, intergenerational fairness and regenerating seaside towns have helped to fill some of these scrutiny gaps. As well as this, many of the proposals received as part of our review recommended specific committees on topics falling into these categories. Examples include committees on disability,43 education44 and more general home and social affairs committees included in submissions from Baroness Kidron, Baroness Tyler and Baroness Prashar, as described in paragraph 48.

54.We considered the evidence received by witnesses and the requests by a number of committee Chairs to give committees the power, and associated resources, to appoint sub-committees, thus providing the flexibility to follow-up previous inquiries, to respond to emerging issues as they arise and generally provide more comprehensive coverage. This flexibility is lacking under the present system.

55.We do not consider that the case has been made at present for all thematic committees to have the power to appoint a sub-committee—and as noted above, it is imperative to await the outcome of Brexit and its impact on the EU committees before considering firm decisions on the potential for any re-allocation of existing resources. We propose, however, that committee Chairs should be able to make an annual request to the Liaison Committee for the power and resources to appoint a sub-committee, prior to the re-appointment of the relevant committee in the next session. We suggest that any such request should usually be received by the end of February. The Liaison Committee would then assess whether or not to support such a request, based upon the case presented and the resources available at that time. If necessary, following Liaison Committee consideration, such requests would be referred to the Finance Committee and House of Lords Commission for consideration of any resource implications.

56.Whilst we recommend moving to a system of thematic committees, it is not envisaged that this new system will broadly change the way in which committees currently work nor the way they are appointed. We believe this new structure will allow committees to maintain and use the strengths of in depth, detailed inquiries that House of Lords committees currently carry out.

57.As noted above, the main area in which dedicated scrutiny coverage is currently lacking is around key public services, including health and education. This was referenced in several submissions from members and topics which would fall under this heading figure prominently in each year’s list of proposals for special inquiry committees. This glaring scrutiny gap requires action now.

58.Funding has been retained centrally for one additional unit of investigative committee activity since 2012, but never used—despite the overall number of committees, and committee activity, increasing significantly in the interim period. We consider that now is the time to use this resource to create one additional committee as an initial outcome of this review—the Public Services Committee.

59.We recommend the appointment of a Public Services Committee in the next session, with terms of reference which require it to consider public services, including health and education.

Special inquiry committees

60.Special inquiry committees have proved an important mechanism for enabling the House to examine topical and cross-cutting policy areas. They have also provided a welcome opportunity for backbench members to propose ideas for inquiries and for more members of the House to be involved in committee activity. We accordingly recommend no change in either the number of special inquiry committees which should be appointed each session, nor in the way in which members of special inquiry committees are appointed. We did consider whether and how to integrate special inquiries into the wider thematic structure, but we resolved, to retain the current number of three per session (post-legislative scrutiny is considered separately in Chapter 5).

61.Nevertheless, we need to address weaknesses which have been highlighted during the review. The two major weaknesses of the current special inquiry system, which were consistently highlighted in evidence we received, related to member involvement in topic selection, and the limited ability for follow-up once an inquiry has concluded and the committee has been disbanded.

62.Currently, the Liaison Committee invites proposals from Members for special inquiry committees. The Committee considers the list of proposals, which is often very lengthy, and asks staff to scope a small number (around 8–10) of the total received for further consideration. The Committee then considers the shortlisted proposals, each with an accompanying scoping note, and proposes three special inquiry committee topics. A report is then put to the House for agreement.

63.Concerns have frequently been raised about the process, principally relating to suggestions that the topic selection process is not sufficiently transparent. Lord Alton of Liverpool stated that the current system “appears opaque and gives little confidence that outcomes are based on the merit of arguments.”45 We received a variety of suggestions from witnesses about how to improve this process. Whilst we wish to reassure all Members that we give very careful thought to the special inquiry committees we recommend, we concede that there could be a perception that the process appears too closed.

64.We therefore envisage that, in future, the Liaison Committee should, as now, shortlist not more than 10 special inquiry topics for consideration, and that the lead member of the House who has proposed the topic should have the opportunity of making their case at the following meeting of the Liaison Committee.

65.We recommend that, in future, the member of the House who has proposed a shortlisted special inquiry topic be invited to appear before the Liaison Committee to present their case in person. The Committee will then consider their representations before deciding which inquiry topics to propose for the agreement of the House. We hope that this new process will reassure Members that their case has been heard, loud and clear.

66.A second and significant weakness relates to the very limited ability of special inquiry committees to follow up their work which Lord Cameron of Dillington deemed “probably the most important part of the whole exercise”.46 Special inquiry committees, on agreement of their reports, cease to exist; they cannot, as sessional committees can and do, return to the topic of an inquiry in the future and assess progress against their recommendations. The Liaison Committee, 15 months or so after publication of the special inquiry committee reports, does write to the relevant Minister seeking an update, but this very limited action is inadequate; it is the capacity for public evidence sessions and engagement which is vital. There is, however, no easy answer to overcoming the problem of follow-up.

67.Professor Matthew Flinders noted that without adequate follow up of special inquiries “there is an accountability cliff that it goes off.”47 This opinion was shared by a large number of witnesses including Thomas Caygill who said “the fact that ad hoc committees dissolve after the publication of their report is seen as one of the weaknesses, if not the main weakness of House of Lords ad hoc committees”.48 Baroness Pitkeathley reiterated the importance of improving follow-up, arguing that it is “not only good for the Committees and policy, but it is very good for the reputation of the House to see how we influence policy.”49 Witnesses suggested various methods to improve the follow up of special inquiry committees, including a dedicated follow-up committee, and the regular re-convening of previously dissolved special inquiry committees.

68.After much consideration, we have decided upon the following proposal. We recommend that at an appropriate period of time after the publication of the special inquiry committee’s report, receipt of the Government’s response and a debate in the House, the Chair of the former Committee may write to the Chair of the Liaison Committee and make the case for the Liaison Committee to hold a small number of evidence sessions to follow up the special inquiry committee’s recommendations. If the Liaison Committee accepts the case for follow up, then it will co-opt the Chair and three members of the former committee (ensuring one member from each group, including the Chair) onto the Liaison Committee with a view to holding two or three evidence sessions, as necessary, ideally in one meeting. This would be followed by a very short Liaison Committee report, to which the Government must respond in the usual fashion.

Joint and specialist scrutiny committees

69.We considered the work of joint committees as well as that of the House of Lords Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee during our review. All the comments we received were favourable, and both Houses rely heavily on the scrutiny work of these committees.

70.We recommend that the work of the following joint committees (in addition to occasional draft bill joint committees) should continue largely unchanged:

71.The remit of the Delegated Powers and Regulatory Reform Committee is wide-ranging. In relation to delegated powers its remit is “to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny”.

72.The Committee considers Bills when they are introduced into the Lords (at present there is no equivalent committee in the Commons). The Government provides a memorandum for each Bill, identifying each of the delegations, its purpose, the justification for leaving the matter to delegated legislation, and explaining why the proposed level of Parliamentary control is thought appropriate. The Committee examines whether the delegations in each Bill are appropriate. The Committee is careful to restrict its consideration to the delegation in question, and not the merits of the overall policy.

73.The Committee’s recommendations are made in reports to the House, usually before the start of the Committee stage of the Bill. They are frequently referenced in debates on legislation in both Houses.

74.The Secondary Legislation Scrutiny Committee (SLSC) examines the policy merits of statutory instruments and other types of secondary legislation that are subject to parliamentary procedure. The Committee’s criteria for reporting are set out in its terms of reference.

75.To deal with the increased number of instruments resulting from the European Union (Withdrawal) Act 2018, the SLSC divided into two sub-committees, Sub-Committee A and Sub-Committee B, from October 2018 to April 2019. These sub-committees met weekly and had the same remit as the main Committee, which did not meet regularly during this period.

76.We recommend that the work of the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee (SLSC) should continue, whilst noting the representations by the Chair of the SLSC that some modification of the terms of reference of that committee may be needed in relation to the scrutiny of treaties.

Scrutiny of treaties and trade and other agreements

77.Treaties are defined in the Constitutional Reform and Governance Act 2010 (CRAG) as written agreements between States or between States and international organisations, which are binding in international law. Treaties are negotiated and signed by the Government, exercising the royal prerogative.

78.We acknowledge the recommendation by the EU Committee and other witnesses that the House of Lords should, through a designated committee, scrutinise negotiations with third countries, and any agreements that emerge from those negotiations. We note that the Constitution Committee has also concluded that a dedicated treaty committee (whether joint or appointed by either or both Houses) is required to provide effective parliamentary scrutiny of treaties.50

79.Again, we will reflect upon this issue further once there is greater clarity on our future trading and international relationships, also taking account of any additional resource demands created by these new requirements. Specialist resources are likely to be required and resource implications may need to be considered by the House of Lords Commission.

Committee financial and staff resources

80.The costs of the great majority of committees are met from the Committee Office budget, which is around £4.2 million. The Committee Office remained within the resource outturn for 2009/1051 for eight years, despite the increase in ad hoc/special inquiry committees, the introduction of post-legislative scrutiny and, in 2016, the establishment of the International Relations Committee. This was achieved, despite the marked increase during the same period, of the frequency of meeting of some committees, including the Joint Committee on the National Security Strategy and the Liaison Committee. There has also been a substantial increase in the amount of committee-related activity apart from formal meetings, for example running seminars and other outreach events.

81.Staff costs52 account for most of the budget—around three-quarters of the overall spend in 2009/10, increased to seven-eighths at present. The current staff resource allocated to most House of Lords committees, and to the EU sub-committees (with the exception of the Justice sub-committee), is three members of staff. As previously discussed, most of these staff are based in the Committee Office, which has a current staff complement of about 70 staff. Twenty-six of these staff currently serve the EU Committee and its six sub-committees,53 whose work requires the additional assistance of legal advisers.

82.In contrast, the House of Commons Committee Office has expanded considerably over the past decade, from about 180 staff in 2010 to about 300 in 2019. This expansion has in part been due to increased activity by Commons committees following the introduction of elections for committee Chairs, and in part due to the establishment of new cross-cutting committees such as the Environmental Audit and Women and Equalities Committees. The standard staff team for each committee is six staff, although particularly active committees such as the Foreign Affairs and Treasury Committees have several more, and a few committees have fewer staff. The Commons Committee Office also includes, in contrast to the Lords Committee Office, specialist staff dealing with social media. We discuss this further in Chapter 6 below.

83.Apart from staffing costs, the other main growth area in terms of expenditure has been in paying the House of Lords contribution to the budget for the Parliamentary Office of Science and Technology (POST). This has increased in recent years, and was about £188,000 for 2018/19, with significant increases bid for over the next three years, in part in response to a withdrawal of Economic and Social Research Council (ESRC) funding. The POST contribution forms the second biggest item in the Committee Office budget after staff costs. Other major expenditure includes specialist adviser fees and expenses (for example travel), about £150,000 pa, and Committee travel, about £140,000 pa.

84.In 2012 the House Committee54 published a report on Grand Committee and Select Committee Resources55 following the Liaison Committee’s report recommending an increase in the number of ad hoc committees. It announced “We have agreed to additional provision for the Committee Office of up to £225,000, subject to the House agreeing the Liaison Committee report.” In the event the Committee Office made economies, principally by bringing printing and publishing in-house, thereby saving around £300,000 each year, and therefore did not make use of this provision.

85.Three scrutiny committees are staffed by the Legislation Office, namely the Delegated Powers and Regulatory Reform Committee, the Statutory Instruments Scrutiny Committee (which in 2018–19 had two Sub-Committees to assist with the work of scrutinising Brexit-related statutory instruments) and the Lords share of the costs of the Joint Committee on Statutory Instruments. These three scrutiny committees rarely hear oral evidence, and thus do not incur witness expenses or significant evidence processing costs. They do not undertake committee visits. The budget for these three committees is met by the “delegated powers and delegated legislation” section of the Legislation Office budget. This was £557,000 for the financial year 2018/19 and £730,000 for 2019/20, because of the need to scrutinise a greatly increased number of Statutory Instruments. This increased financial and staff resource was agreed by the Commission in the usual way in order to respond to the specific circumstance. It is envisaged that this standard procedure would be followed in the event of the need for additional resource being needed at a future date for other additional scrutiny work (for example in relation to Treaties), by which time the need for increased resource for Statutory Instruments scrutiny is expected to have ceased.

86.The combined total of the committee-related costs in the budgets for the Committee Office, Legislation Office (Delegated Legislation) and Communications Department is around £5 million. By way of comparison, the total resource expenditure of the House of Lords as a whole in the 2018/19 financial year was around £160m.


38 Written evidence from Lord Stern of Brentford and Alun Evans (RIS0039)

39 Q 28 (Alun Evans)

40 Written evidence from Baroness Kidron (RIS0040)

41 Q 56 (Baroness Prashar)

42 Written evidence from Baroness Tyler of Enfield (RIS0044)

43 Written evidence from Baroness Thomas of Winchester (RIS0041)

44 Written evidence from Lord Forsyth of Drumlean (RIS0053)

45 Written evidence from Lord Alton of Liverpool (RIS0002)

46 Q 143 (Lord Cameron of Dillington)

47 Q 22 (Professor Matthew Flinders)

48 Written evidence from Thomas Caygill (RIS0008)

49 Q 144 (Baroness Pitkeathley)

50 Constitution Committee, Parliamentary Scrutiny of Treaties (20th Report, Session 2017–19, HL Paper 345) para 62

51 The Committee Office resource estimate for 2009/10 was £4,333,758. The Committee Office combined resource expenditure outturn for 2018/19 was £4,211,641 (provisional figure).

52 The salary of the Chairman of the EU Committee is also met by the Committee Office budget.

53 Many of these staff have additional procedural or other responsibilities, including staff serving the Justice Sub-Committee, who also support the Joint Committee on Human Rights.

54 The House Committee was a precursor to the House of Lords Commission, whose terms of reference include: “To provide high-level strategic and political direction for the House of Lords Administration on behalf of the House”.

55 House Committee, Grand Committee and Select Committee Resources (3rd Report, Session 2010–12, HL Paper 282)




© Parliamentary copyright 2019