Written evidence from Thomas Caygill, Doctoral Candidate in the School of Geography, Politics and Sociology, Newcastle University – RIS0008

 

1.                                                       This submission will address question 8 and question 10 of the detailed questions under the ad hoc committee section, in so doing it focuses upon the post-legislative scrutiny undertaken by the House since 2012.

2. The submission is informed by my doctoral research on post-legislative scrutiny in the UK Parliament. The research involved the coding of post-legislative scrutiny committee recommendations and the corresponding government responses as well as interviews with Clerks and Chairs involved in post-legislative scrutiny inquiries.

3. In relation to the undertaking of post-legislative scrutiny in the House of Lords, all interviewees agreed that it is an important task for the House of Lords to undertake through ad hoc committees, as inquiries are much more in depth than committees in the House of Commons can provide. As such I recommend that the Liaison Committee should continue to appoint at least one ad hoc committee per session to undertake post-legislative scrutiny and where there is capacity, appoint additional committees. There was also agreement that the format works well, as it has been used many times. However while the format is generally seen to work well, there are changes that could be trialled or made to ensure the process improves further.

Question 8: Are the current arrangements for following up committee reports (especially those of ad hoc committees) appropriate?

4. The fact that ad hoc committees dissolve after the publication of their report is seen as one of the weaknesses, if not the main weaknesses of House of Lords ad hoc committees. This severely limits the ability to do follow up, which is in sharp contrast to a sessional committee.

5. There are a number of downsides that come with the Liaison Committee’s chosen method of following up inquiries through written correspondence. The first is that requiring ad hoc committees to highlight the most important recommendations might signal to the government that there are going to be certain recommendations that the committee won’t follow up on and as such create an incentive for inaction in these areas. Secondly the Liaison Committee secretariat does not have the civil service contacts and relationships that Chairs and the secretariat of the ad hoc committees build up during a nine month inquiry.

6. It was noted in interviews that while some formal follow up is better than none, there is a belief that following-up in writing doesn’t make a great difference. That being said the Committee should be praised for its ingenuity in attempting to find a solution to this problem.

7. My wider research into post-legislative scrutiny, including in the House of Commons found that, follow up rarely goes beyond routine questioning of Ministers at an annual oral evidence session or written correspondence.

8. It was also noted that former committee and secretariat members are meeting informally after a government response is received. One Clerk noted that they circulated the government’s response to Members and that although they were no longer Clerk of that particular committee they did still retain an interest in the issue. So there is clearly an informal process going on here but they do not have the powers of a committee. While it is positive that Members can organise and apply pressure themselves, the lack of being able to reconvene as a committee following the government’s response (and potentially later to follow up) is seen as a major failure of post-legislative scrutiny in the Lords. It has been suggested that Committees should be reconvened around one year after the government responds to a report. I concur with such suggestions and recommend that the Liaison Committee consider trialling the reconvening of ad hoc committees one year after the government responds to inquiries.

9. In relation to the debates on ad hoc committee reports that take place following the publication of the government’s response, it was noted that this process doesn’t necessarily take a report any further forward in terms of getting the government to agree to recommendations, unless you get a direct commitment from Ministers. Floor time in the House brings publicity both within and outside the House, but how much it brings is questionable. Indeed one Chair acknowledged that it gave added publicity, but said it didn’t really do anything to further the recommendations. Another noted that one of the downsides of debates is that there isn’t always a specific Minister available to respond to departmental points (unlike the Commons). That being said there is more debate in the House of Lords on the contents of reports, especially in terms of post-legislative scrutiny, than there is in the House of Commons and I recommend that ad hoc committee reports should continue to be put forward for debate, after the government has responded.

Question 10: How should the work of post-legislative scrutiny committees be developed?

10. The response to this question is informed by the following key themes; the selection of legislation and post-legislative review memoranda

Selection of legislation

11. With regards to the selection of legislation for post-legislative scrutiny it was noted that on top of asking Members for ideas the committee office also does research to see what legislation is suitable for post-legislative scrutiny. While having a wide choice is important, it is worth highlighting that recently the Scottish Parliament’s Public Audit and Post-Legislative Scrutiny Committee invited views from stakeholders and members of the public on which Acts the Committee should examine. They used a checklist[1] and shortlisted five Acts to form part of their work programme. The trialling of such a scheme would not only help widen the choice facing the Committee but also ensure there is an element of public engagement in the process. I recommend that the Liaison Committee liaise with the Public Audit and Post-Legislative Scrutiny Committee of the Scottish Parliament with the aim of trialling such a scheme. It is my understanding that so far such innovation has not been tried at Westminster.

12. In relation to the research undertaken by the Liaison Committee secretariat it was noted that the most central single source they have is the House of Commons Library memo on post-legislative scrutiny, the second is through contacting individual House of Commons Committee Clerks and the third is through Google searches. This isn’t necessarily the most productive way of finding out what Acts have and have not been scrutinised. I recommend that the Liaison Committee request that copies of government post-legislative review memoranda, that are currently send to departmental select committees in the House of Commons, are also copied to the committee. This is to ensure that the committee is up to date with which Acts have received departmental review. The House of Commons should be given first refusal, due to its primacy, but if Commons committees do not intend to undertake an inquiry it should be open to the House of Lords to select that legislation for scrutiny, taking into account the current selection criteria.

13. One final issue worth raising in relation to the selection of legislation is that my doctoral research has shown that there tends to be a party political bias in both Houses in terms of the Acts selected. Currently the House of Lords has not undertaken any post-legislative scrutiny on legislation passed by the 2010-2015 Coalition Government, despite some of that legislation now being on the statute books for seven years. While interviews noted the longer term view the House of Lords takes in relation to post-legislative scrutiny, there is currently a gap in scrutiny here.

Post-legislative review memoranda

14. While it was generally believed that government post-legislative memoranda, prepared at the request of an ad hoc committee, are useful especially in helping committees to plan their inquiries and to get an overview of the government’s position. The main issue with them appears to be the time it takes for such memoranda to arrive after being requested. It was noted that it would be useful if committees received such memorandum before the call for evidence is sent out. Therefore there may be a need to view post-legislative scrutiny committees in a different light to the other ad hoc committees based upon the time it takes to set up the committees on top of the time it takes to request and receive an updated memorandum from the relevant government department. I therefore recommend that the Liaison Committee trial making decisions on what post-legislative scrutiny committee(s) it is going to establish, earlier, so that necessary documents can be requested and received from the government departments earlier.

Outcome of post-legislative scrutiny in the House of Lords

15.                                                   In asking how the work of post-legislative scrutiny committees should develop I believe it is important to briefly summarise the outcomes of post-legislative scrutiny in the House of Lords.

16.                                                   Since 2012 and the submission of this evidence, the House of Lords has undertaken six post-legislative scrutiny inquiries. These inquiries on average have made forty-one recommendations per report in comparison to nineteen in the House of Commons. The tables below show the aggregate data on the recommendations that those six inquiries have made, in terms of the types of recommendations that have been made and whether they have been accepted by the government.

17. The tables show that most recommendations produced by ad hoc committees undertaking post-legislative scrutiny in the House of Lords call for policy change or action reltated to legislation (mostly changes to secondary legislation) and also for further research to be undertaken. Forty-two percent of those recommendations produced by committees went on to be accepted (either in full or in part) while thirty-nine percent of recommendations were rejected (either in full or in part). The data from this same research also showed that there is a strong relationship between the strength of a recommendation and its acceptance by the government, with recommendations calling for stronger actions (such as legislative change) being more likely to be rejected by the government.

Table 1: Type of Recommendations made by the House of Lords

Table 2: Government acceptance of recommendations made by the House of Lords

18. It has been noted by academics such as Meg Russell, Megan Benton and Malcolm Aldons that parliamentary committees may deploy a strategy of producing weaker recommendations that the government is more likely to accept and as a result make committees appear more influential. A number of interviewees noted that there is an attempt to avoid recommendations that will cost a lot of money or call for major legislative change as the government is likely to reject them. The focus is instead upon recommendations that are likely to make a difference. While this does not prove that a deliberate strategy is at play, at least in terms of trying to boost perceived influence, it does highlight the weakness of Parliament in terms of being able to influence and change government policy.

19. As such any changes that the Committee can make in terms of attempting to boost the influence of committees and Parliament is important.

8th March 2018

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