Good scrutiny makes for good government. It is surprising, however, that there does not seem to be more interest among select committees – one of the key mechanisms used by Parliament to conduct scrutiny – in obtaining feedback on their work and assessing their impact on government.
Admittedly impact from scrutiny is hard to define. The ways it can change government decision-making and processes are inadequately understood. From a government perspective, there is little to be gained from evaluation which acknowledges the effect of the ‘pester power’ of select committees or gives them credit for positive change in Whitehall.
Some would argue that the unequal balance of between the executive and the legislature under our system of government makes it impossible for committee scrutiny at Westminster to have any significant impact on Whitehall. Moreover, it is rarely in the interests of the government and Civil Service to strengthen the legislature’s scrutiny function. So, as the Institute for Government has argued, it is up to backbenchers and parliamentary staff, armed with evidence from stakeholders like the Bar Council, to make scrutiny the best it can be, and thereby strengthen Parliament’s key constitutional role in improving the accountability and effectiveness of government.
In this respect they have been helped by the fact that Commons select committees have become more independent since 2010 with the introduction of secret ballots for elected chairs instead of the whips doling out appointments for good behaviour. Candidates have to compete to win votes with the result that independence and experience now matter more than a record of party loyalty or the exercise of patronage. As a result the quality of chairs overall has improved and the readiness of committees to produce reports that cause discomfort for government has increased.
High profile select committee inquiries on ‘phone hacking, banking standards and tax avoidance for example in the last Parliament attracted significant media attention on the committees’ constitutional role which has continued in the current Parliament.
Three recent examples of activity in the committee corridors at Westminster are likely to be of interest to the Bar by demonstrating the role of select committees in holding the government to account in the current hung Parliament overshadowed by Brexit.
The Secondary Legislation Scrutiny Committee is a select committee of the House of Lords which refers secondary legislation, such as Statutory Instruments, to the attention of the House which, for example, it considers to be politically or legally important or gives rise to issues of public policy likely to be of interest to the House.
The instrument laid before Parliament by the Ministry of Justice (MoJ) on 23 February (to take effect on 1 April 2018) to reform and restructure payments made under the Advocates’ Graduated Fee Scheme (AGFS) through which criminal defence advocates are paid for carrying out publicly funded work in the crown court was supported by an explanatory memorandum and an Impact Assessment (IA). The new scheme was designed to be ‘cost neutral’, at the insistence of the MoJ. But the IA stated that the changes would increase legal aid spend by an additional £9m per year. This was disputed by the Bar Council and the Criminal Bar Association in representations they made to the committee.
The Scrutiny Committee shared the Bar’s concerns and they called on the Minister, Lucy Frazer QC MP to explain the cost discrepancies which had been identified and which will be drawn to the attention of Peers. Although the Order could be ‘prayed’ against, the MoJ’s spokesman in the Lords will have to respond to the committee’s finding. This could give the Bar greater leverage to press the government to review the operation of the new scheme and assess its impact against the original policy objectives at the earliest reasonable opportunity.
The work of the MoJ came under the spotlight of the Commons Justice Committee on 7 March when the Lord Chancellor gave evidence on the ministry’s priorities to the committee which is chaired by Bob Neill MP. David Gauke was pressed repeatedly (admittedly fairly gently, it being only seven weeks after his appointment) about whether, amongst other matters, justice and legal services issues should be the subject of separate negotiations in the context of Brexit, for which the Bar Council has been calling for several months.
The Lord Chancellor was also pressed by the committee to clarify the timetable for completing the LASPO review, which seems to have slipped even further back to the end of the year, and to comment, in the context of the court reform programme, on the absence of any research having been commissioned by the ministry to evaluate plans for virtual hearings and digitisation of court processes, and in the context of the Unison case, to agree that access to justice is a public good and not simply a transactional matter. There was a tantalising reference by Mr Gauke towards the end of his appearance to ‘work within the Department on something called Justice 2030’ on which no one present seemed much the wiser.
The Commons Foreign Affairs Committee have recently reported on ‘Global Britain’, an expression which has not been precisely defined by the Foreign Office (FCO) but to which Ministers have repeatedly referred since the EU referendum. The only thing that was clear to the committee from several witnesses (which included the current and a former Lord Mayor of the City of London as well as a former Foreign Secretary, an Ambassador to the EU and an FCO Permanent Secretary) was that it was unclear what Global Britain meant, what it stood for and how its success should be measured. There appeared to be little substance behind the slogan.
It was reassuring therefore to hear from the witnesses from the City that the importance of the rule of law and the independence of our judiciary was repeatedly stressed by the Lord Mayor in his overseas visits to promote UK financial and related professional services including legal services. But it was a matter of deep concern that the FCO memorandum which had been belatedly submitted to the committee after repeated requests from the committee was so thin on the rule of law and the importance of legal services to the country’s future prosperity. The legal profession needs to be clear that the Business Department (BEIS), FCO, the Department for International Trade, MoJ and the Department for Exiting the EU all understand the sector’s needs and that the government’s narrative is cogent, clear, connected and communicated effectively.
With Brexit expected to occur in just 12 months it is likely that the work of the parliamentary select committees will change significantly.
The House of Lords Liaison Committee is currently reviewing the functioning and structure of the investigative and scrutiny select committees in the Lords, the first such review in 25 years. The committee’s chair, Lord McFall wants these committees to be at the forefront of engaging with the public in their work. The committee is currently reviewing the response to a public consultation including an evaluation of the work of Lords’ select committees. How should Parliament distinguish between their influence and that of other actors which impact on government policy? What are the best metrics for evaluation – not necessarily numbers of recommendations accepted by the government, as this would fail to distinguish between major and minor policy changes – but what weight should be attached to social media impact, for example?
There seems to be a consensus that good scrutiny does make for good government even if assessment of impact continues to be somewhat elusive. It needs to get better if Parliament is to hold the government properly to account.
Mark Hatcher, Special Adviser to the Chair of the Bar
Special Adviser to the
Chair of the Bar