Reviewing the review: a three-dimensional approach to analysing the 2017–2020 review of the House of Lords investigative and scrutiny committees

ABSTRACT

Between 2017 and 2020 a comprehensive review of the framework of investigatory scrutiny committees in the House of Lords was undertaken. This process led to a far-reaching set of recommendations and reforms. Although carefully couched in the language of evolutionary change, this article argues that these reforms possess a transformational dynamic that is difficult to deny. The challenge, however, is likely to emerge from the existence of a largely hidden disjuncture between the accountability ambitions embedded within this reform agenda and the institutional, constitutional and political matrixes within which the ‘new’ committee system in the Lords is expected to operate. A three-dimensional lens emphasising inter-, intra-, and extra-institutional dimensions is utilised to expose and dissect the existence of potential disjuncture and, through this, offers a ‘review of the review’ informed by broader literatures on legislative organisation and policy analysis that will be of interest to both practitioners and scholars.

KEYWORDS:

• House of Lords
• select committees
• scrutiny
• accountability
• cross-cutting
• thematic

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The main review was conducted between 2017 and 2019 and resulted in the publication in July 2019 of the Liaison Committee’s report (HL 398, 2019). In December 2020 a further report was published by the Liaison Committee (HL 193, 2020) which concluded its 2017–2019 review by identifying emerging scrutiny gaps, arising primarily from the loss of scrutiny coverage of major areas of public policy resulting from the post-Brexit demise of the EU Committee and its subcommittees. In this sense, the 2020 report’s recommendations built upon and completed the recommendations of the 2019 report, and hence it is appropriate to treat both reports as a whole.

2 The primary focus of this paper is upon the thematic investigatory committees of the House of Lords rather than those focused upon specific aspects of legislative scrutiny referred to by the Liaison Committee as ‘forensic scrutiny’ of legislation (HL 398, 2019, para. 4d), most notably the Secondary Legislation Scrutiny Committee, the Delegated Powers and Regulatory Reform Committee and the various temporary pre-legislative and post-legislative committees.

3 On the distinction between institutions and organisations (see North, 1990; Peters, 2016, pp. 57–58). Peters concludes that although the two may be considered separately differentiation may be difficult in practice.

4 The appointment of ad hoc committees for pre-legislative scrutiny and post-legislative scrutiny became of increased significance in the decades after 1997 (when the parliamentary processes for pre-legislative scrutiny were formalised). Although the practice of pre-legislative scrutiny has not lived up to the aspirations of its supporters, both in terms of the limited volume of bills submitted, and the limited time and resources available to conduct scrutiny, nonetheless, the value of such scrutiny has continued to be endorsed within the Lords. Since 2012 ad hoc committees have also been appointed to conduct post-legislative scrutiny. Within five years of the appointment of the first committee, post-legislative scrutiny was declared to be ‘an established role for ad hoc committees in the House of Lords’ (HL 144, 2017 para. 17); and by 2019 nine post-legislative scrutiny committees had been active. However, the verdict on the effectiveness of these committees remains open. Norton (2019, p. 346) captures well the ambiguities of assessment in his conclusion that post-legislative scrutiny in the Lords ‘is limited, but consistent’.

5 In many respects the Brexit process – both pre-referendum and post-referendum result – constituted a ‘critical juncture’ (for an overview of the concept of critical juncture see Capoccia, 2016). In some variants of historical institutionalism, moments of institutional indeterminacy and fluidity, occurring in relatively short periods of time, may constitute ‘punctuated equilibria’ and provide opportunities for institutional innovation (see Lowndes, 2017, p. 67). In this vein, Connolly et al. (2022) note, that in the context of the political uncertainties associated with Brexit, a major reform of the Lords’ committee system was to a large extent ‘inevitable’ as the House of Lords had to “face up” to the institutional implications of Brexit’. Indeed, the Liaison Committee acknowledged directly that ‘the Brexit vote has profoundly changed the political context’ (HL 398, p. 81), and that the review exercise had been ‘driven, in part, by the need to adjust our committee structure to reflect the new relationship with the EU’ (HL 193, 2020, para. 11).

6 Essentially, the European Union Committee and its six subcommittees had evolved into something resembling a scrutiny ecosystem. This ecosystem provided a capacity to examine many domestic policy areas within the broader frame of EU competencies (such as agriculture, fisheries, food, energy, emissions trading, the environment, as well as policing, migration, asylum policy, trade and regulation, criminal frameworks and judicial co-operation). A newly created European Affairs Committee, operating in a post-Brexit context, would have a far more restricted remit and would leave scrutiny gaps in policy areas previously covered in the EU committee ecosystem. This provided both a challenge to fill these gaps and an opportunity to systematise further thematic scrutiny in the creation of new cross-cutting committees.

7 Motions to appoint the memberships of the new sessional committees were moved and recorded in the Minutes of House of Lords Business on 14 April 2021.

8 Although no change to the method of selection for committee chairs and members was proposed in the Report, some disquiet was evident about the continuing role of party whips in the selection process in oral evidence (HL 398, 2019, Q. 51; Q. 58), written evidence (HL 398, 2019, RIS0006; RIS 0044; RIS0052) and in debate (HL Debates, 13 January 2021, col. 744). Lord McFall did acknowledge in the debate on the Liaison Committee’s Report that the issue of the election of chairs was ‘still on the agenda’ (HL Debates, 13 January 2021, col. 745).

9 Of the 61 committee inquiries conducted in the 2017–19 parliament, cabinet ministers provided oral evidence on only three occasions (Jeremy Hunt twice, in two different roles as Health Secretary and Foreign Secretary, and Matt Hancock as Health and Social Care Secretary). 47 other ministers, either ministers of state or under-secretaries, provided oral evidence.

10 Russell and Benton (2009, p. 15) use the term ‘specialism’ but take this to mean ‘the more precise expertise that the peer has’. They are surprised to find (2009, p. 42) that ‘there are so few peers with specialisms in engineering … There are also very few with specialisms in energy, and in conservation and the environment generally, which is clearly now a policy field of enormous importance. For example, we found nobody whose specialism was waste management, recycling, water, flooding, forestry, etc, and bigger areas such as climate change might be considered underrepresented. There are also few peers with specialisms in transport (particularly road transport, including buses). As already noted there are also relatively few peers with main specialisms in heritage matters, and leisure industries, and relatively few peers have main specialisms in school education, and none evidently in early years or adult education’.

11 The legislative scrutiny committees are supported by staff from the Legislation Office.

12 The Liaison Committee did, however, later acknowledge the importance of virtual committee proceedings in sustaining inquiries during the COVID-19 crisis (HL 103, 2020, paras. 5-7).

Additional information

Notes on contributors

John Connolly

John Connolly is Professor of Public Policy at the University of the West of Scotland, Paisley, UK. He is a former public servant having previously worked in senior policy and evaluation positions in Scotland before joining the University of the West of Scotland in 2013. His main research interests include governance reform, the politics of crisis management, evaluation, health security and social inequalities. He is the editor of the flagship journal of the Academy of Social Sciences – Contemporary Social Science.

Matthew Flinders

Matthew Flinders is Founding Director of the Sir Bernard Crick Centre and Professor of Politics at the University of Sheffield, UK. He is also Vice President of the Political Studies Association of the United Kingdom and is currently Chair of the Universities Policy Engagement Network. He is the author or editor of fourteen books and has published over two hundred peer-reviewed research articles, chapters and papers on various aspects of British politics, governance and public policy.

David Judge

David Judge is Emeritus Professor of Politics, University of Strathclyde, Glasgow, UK. His main research interests include representative democracy, the UK parliament, and the European Parliament.