Constitutional Scrutiny by Parliamentary Committee

At a time of significant structural change, the UK’s constitutional and political arrangements face unprecedented challenges. There are strong arguments to be made for increasing the level of scrutiny of constitutional reform by accountable bodies, particularly through the vehicle of the Parliamentary Select Committee.  Yet, the number of Committees tasked with examining constitutional matters has decreased; in particular, the Commons Political and Constitutional Reform Committee was not re-appointed following the 2015 General Election.  Drawing on a detailed case study of the work of this unique committee, Dr Eloise Ellis examines the implications of its dissolution for the parliamentary scrutiny of constitutional reform more broadly.

The constitutional and political arrangements of the United Kingdom are currently facing unprecedented challenges.  The expected Brexit (British exit) from the European Union on 29 March 2019 – setting aside whatever might be agreed in relation to transitional arrangements and a subsequent delay to the actual departure date to 31 December 2020 – has brought to light a myriad of related issues which are likely, in the short to medium term, significantly to disturb previously settled aspects of our famously uncodified constitution.  This is particularly so in terms of potential changes to the structure of the Union – much in terms of structural change will depend upon the actions of the devolved nations. Remember that the results of the referendum differed significantly by region and nation, with a majority in England and Wales voting for Brexit but a majority in both Scotland and Northern Ireland voting to remain in the European Union.  It may yet prove to be the case that the Union stays intact but the notion of Scottish independence is certainly far from resolved.

It is in terms of providing a decent level of, ideally impartial, scrutiny of these developments and, more crucially, an in-depth examination of the consequences of such events that the Westminster Parliament can perform a prominent and significant role.  The scrutiny function of Parliament, and its associated influence on policy, is perhaps most effective when wrought via the now firmly independent Parliamentary Select Committees.

Recently, we have observed the influence of Parliament working effectively as a bicameral system to improve the European Union (Withdrawal) Act 2018, both via raising key issues in debate and more tangibly by bringing about important amendments (For an insightful summary of this and particularly of the input of the House of Lords Constitution Committee see Elliott and Tierney).

Almost, if not all, of the Parliamentary Select Committees have a remit which will to a greater or lesser degree be affected by Brexit.  However, from the perspective of constitutional reform, as opposed, for example, to the tax implications or environmental regulations, the most relevant Committees are the Constitution Committee in the House of Lords and the Public Administration and Constitutional Affairs Committee (PACAC) in the House of Commons.

It is true that a new departmental committee was appointed, under a Temporary Standing Order of 4 July 2017, to ‘examine the expenditure, administration and policy of the Department for Exiting the European Union and matters falling within the responsibilities of associated public bodies’.   The unusually large Exiting the European Union Commons Committee with 20 members plus the Chairman has already, in its brief existence, experienced a substantial change in membership (from the original composition of the ‘Brexit’ Committee in October 2016) .  Such lack of continuity (albeit in this instance it was largely explained by the occasion of an extra early General Election in 2017 and further events such as the promotion of at least one Committee Member to a Ministerial Post, namely Dominic Raab now Secretary of State for Exiting the European Union) has proven unhelpful and counter-productive to Committee work.  It inhibits the accumulation of expertise and the building of good working relationships between Committee members.  It is also not a Committee which appears to realise the usual working style of non-partisanship and compromise.  It is perhaps unrealistic to expect that such an equilibrium could be achieved on an issue as divisive and fraught as this one, however, it is through the consensual cross-party work often to be observed in the Select Committees that the real value is added.

Whilst it is indeed necessary to have a committee to shadow the Brexit Department it cannot be said that the Exiting the European Union Committee provides the impartial consensual investigative work which the ‘constitutional’ select committees have done, particularly in recent years (following the 2010 reforms).  One need only look to the Committee’s Report on the European Union (Withdrawal) Bill to note that not only was the Report not consensual but the minutes show no fewer than eight ‘divisions’ on which the Committee members were clearly split.

By way of contrast, the Lords Constitution Committee has provided some valuable work as has the Public Administration and Constitutional Affairs Committee in the Commons. However, at times of unprecedented change this is when greater scrutiny is required from a non-partisan base.  Working in this manner was one of the most notable strengths of the (former) Political and Constitutional Reform Committee (PCRC).  The PCRC was not re-appointed after the General Election in 2015.  At the time this was perhaps understandable, if one considers that the Political and Constitutional Reform Committee was appointed (under Temporary Standing Orders) for the 2010-2015 Parliament principally to scrutinise the political and constitutional reforms being brought about under the Coalition Government.  The PCRC was, to some extent ‘merged’ with the (former) Public Administration Select Committee to form the new PACAC – a Committee viewed by some as the ‘inheritor’ of the PCRC’s remit.  However, whether or not this remit was successfully passed on is a secondary point in the wider context of the removal of an additional Committee to examine constitutional affairs.  Even if the Exiting the European Union Committee were a smaller, less unwieldly, more consensual Committee, it would be limited by its more prescriptive remit as a departmental committee.  The non-departmental, cross-cutting committees have greater freedom to select and plan their work programme which greatly enhances their ability to be truly independent.  The retention of an extra overarching, and in the case of the PCRC genuinely effective, Committee with a broad remit to consider constitutional and political reform would add to the vital scrutiny which needs to be undertaken under increasingly tight timescales.  There is no doubt that the Constitution Committee produces respected high calibre work but the Commons Committees have the added advantage of democracy, representativeness and accountability.

There is a strong argument to be made for establishing a ‘permanent’ but flexible Commons Select Committee with a core focus on political and constitutional reform and the resources to undertake in-depth scrutiny.  The United Kingdom over the past twenty years and under the helm of the past four administrations has experienced constant constitutional reform, both substantial and diminutive.  Government needs to recognise and, ideally, to welcome the cross-party scrutiny which the Inquiries and (usually) consensual Reports produced by the Parliamentary Commons Committees bring to bear on the fundamental matters underlying our constitution and to increase rather than decrease the number of Committees with such a fundamentally important remit.

Notes

Dr Eloise Ellis is a Senior Lecturer in Public Law at the University of East Anglia. Follow her on Twitter: @EloiseEllis 

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