Over the course of the Brexit process and the Covid pandemic, we have frequently seen concerns expressed by parliamentarians and commentators that there is a lack of effective scrutiny, which leads to erratic and sometimes poor decision-making.
Scrutiny by parliament can take many forms. It might occur on the floor of the House, through a forensic question posed by an Opposition spokesperson. Alternatively, scrutiny might be delivered through a detailed report by a select committee, following months of evidence gathering. It is meant to ensure transparency, accountability and better policymaking. And, up to a point, it does.
However, (and as someone who served as a parliamentary official for nearly two decades, this may sound like heresy) sometimes more scrutiny may not be the answer. Mere scrutiny, without the power to drive change, can be ineffectual.
Over the past two decades, the system of scrutiny in parliament has changed markedly. Select committees now have a large staff, with both permanent specialists and special advisers on hand to counsel MPs. The number of select committee reports has increased dramatically. Meanwhile, the libraries of both Houses now publish detailed, impartial research on all government Bills and many other government proposals and consultations, and make these available online.
The Wright Review of 2009, which led among other things to the election of select committee chairs by secret ballot, took power away from the whips (who had previously controlled appointments). The House of Commons established its own Backbench Business Committee, which gives opportunities to backbench members of parliament to bring forward debates of their choice.
All of this should ensure that our elected representatives are better informed and more able to scrutinise government effectively. Yet, when it comes to the time for decisions, it is far from clear that all of this scrutiny ultimately pays off, particularly in circumstances where the government of the day has a large majority. In part, this is because in the House of Commons the government broadly controls the parliamentary agenda, timetable and votes, and whipped MPs do not always follow the evidence.
Two recent examples expose the fact that good scrutiny alone is not enough.
The first is the scrutiny of new free trade agreements. While the government has made some concessions to parliament’s International Trade and International Agreements Committees, expanding scrutiny, it successfully whipped its MPs against clauses in the Trade Bill that would have allowed MPs to exercise power over mandates for new agreements and have parliamentary votes on new trade deals. The result is that committees can take evidence from stakeholders, have early access to the text of deals and may produce critical reports. The greater transparency and scrutiny is welcome. However, parliament’s power to constrain the government is exceedingly limited. MPs seem only to have woken up to this problem when they began to scrutinise the government’s agreement in principle for a trade deal with Australia.
The second is the government’s approach to the international aid budget. The cut to aid spending from 0.7 to 0.5 per cent of gross national income went against a manifesto commitment by the Conservative Party and was opposed by a large number of MPs, including many from the governing party. Plenty of evidence was adduced to support the argument that the cut would be counterproductive. A majority in parliament may be against the cut. The decision was resisted by the International Development Committee.
The chair argued that “the wide range of MPs opposed to the cuts from all parties shows that this issue goes beyond politics. It is simply wrong for us, as one of the richest countries in the world, to take money from our aid programmes which help people build better lives in poorer states.” Yet when MPs sought to obtain a binding vote on the decision, the government initially refused. Attempts to seek to introduce an amendment to a government Bill to overturn the cut failed on procedural grounds. Until very recently, indignant MPs found themselves in a cul-de-sac.
What practical things can be done to improve things, to ensure not just adequate scrutiny, but a greater degree of accountability and more effective checks and balances?
In the short term, parliamentarians should not forget that they are not just there to hold the government to account. They also sit in a legislature, meaning they have law-making power in their own right. Sometimes well-designed amendments to government Bills can be an effective way to try to force a vote on contentious issues. While this did not initially meet with success in respect of the international aid budget, it was reported that by threatening to use this tactic again, Conservative rebels forced a U-turn by the government. It eventually agreed to hold a binding vote on the issue. This took place on 13th July: the government won by a narrow margin (333-298) and only after setting out the conditions under which the cut would be reversed.
Traditionally, it was only legislation-focused committees, such as the Joint Committee on Human Rights, that sought to bring forward committee-supported amendments. However, with access to good legal and procedural advice, there is little today to stop departmental committees in the Commons and cross-cutting committees in the Lords from using their policy expertise to support amendments to preclude misguided government action, or even identify opportunities for positive legislative change.
Amendments with cross-party support, backed by a committee and underpinned by an evidence-based report, are likely to have greater impact than those only promoted by a single Opposition party. Such tactics may not be so effective in resisting populist measures which are also popular with MPs. But in the right circumstances, the risk of losing a vote in the Commons on legislation (even if it is slight) can concentrate minds more than the publication of an excoriating report.
Longer term, MPs might want to consider revisiting the idea of a House Business Committee, to take responsibility for the agenda in the Commons. This was recommended by the Wright Review. The Coalition Government of 2010 had promised to introduce such a mechanism but never delivered. Originally, the idea was that while the committee would guarantee that the government had the time to get its legislative programme through, it would also improve scheduling of business to ensure more effective scrutiny of legislation.
If this were combined with a greater willingness on the part of the Backbench Business Committee to allow for debates on substantive motions, we would have far stronger checks and balances. It would still be for ministers to determine how to respond to the clearly expressed view of the House, since resolutions by themselves may not have legal effect. Nonetheless, they can have political effect, and should be treated seriously by a government acknowledging that it must retain the confidence of the House of Commons to remain in office.
The experience of the House taking control of its own business during the Brexit saga might well deter any government from contemplating similar proposals again. However, the proposal first suggested by the Wright Review was based on the idea of collaboration, between backbench MPs and frontbenchers nominated by the party leaders, to assemble a draft agenda to be put before the House.
Whenever we face a political crisis, it is inevitable that there are calls for more rigorous scrutiny. This seems like an easy answer, but sometimes scrutiny alone only takes you so far. Many problems are identified by parliament. Far fewer are successfully resolved. Scrutiny only works if the government is prepared to listen to and heed honest criticism. It is not, in and of itself, a panacea to ensure effective governance and decision-making. Sometimes you also need to introduce robust measures so that you can not only identify bad decisions, but block them too.
