Who chooses the scrutineer? Why MPs should resist the government's attempt to determine the Liaison Committee chair

19 May, 2020

This briefing was written by Dr Ruth Fox (Director) and Dr Brigid Fowler (Senior Researcher).

1. What does the government's Liaison Committee appointment motion say and why is it controversial?

2. What's the problem: principles or personalities?

3. Are there alternative models for determining the Liaison Committee Chair?

4. A solution: a Liaison Committee chair not simultaneously chairing another select committee and elected by the whole House

5. What about the delay that would be caused now by a whole-House election of the Liaison Committee chair?

The House of Commons is currently scheduled to decide on a government motion to appoint the members of the Liaison Committee on Wednesday 20 May. Ministers must be hoping it will be third time lucky: objections were raised when the motion was first moved on 17 March, and a second scheduled attempt on 22 April was disrupted by the transition to a hybrid House.

As it currently stands, the Liaison Committee appointment motion has three paragraphs:

• Paragraph one orders that, “for the current Parliament”, Members elected by the House or otherwise chosen to be chairs of certain select committees “shall be a member of the Liaison Committee”.

• Paragraph two lists the committees whose chairs shall be Liaison Committee members. There are 37 of them.

• Paragraph three orders that “Sir Bernard Jenkin shall also be a member, and the chair, of the Liaison Committee.”

It is this third element that is controversial (and that generated the objection on 17 March), because the government is seeking to impose its own candidate as chair of the Committee. This is contrary to established practice over the last decade, which has seen the members of the Liaison Committee choose a chair from their own ranks.

To try to preserve the existing practice, several elected select committee chairs who will serve on the Liaison Committee, organised by Harriet Harman MP, have tabled an amendment to the government’s motion. This would replace the motion's third paragraph with new text ordering that “The chair of the Liaison Committee shall be a current chair of a Select Committee.”

Conservative backbencher Peter Bone MP has tabled another amendment to replace the motion's third paragraph with new text ordering that the chair of the Liaison Committee shall not be a current chair of a Select Committee, but a member from the governing party, elected by the whole House.

Of the two amendments, for the reasons we set out below, we think the Bone amendment has more merit.

The nub of the problem is a matter of principle: as the Liaison Committee itself articulated in its 2000 report Independence or Control, “Those being scrutinised should not have a say in the selection of the scrutineers." Similarly, the Reform of the House of Commons Committee (the ‘Wright Committee’) made clear a decade ago that:

This principle is especially important in the case of the Liaison Committee. It is the only select committee before which the Prime Minister appears. It is also responsible for approving the recommendations of the Backbench Business Committee for the departments to be covered in debates on the Main Estimates (the government’s plans for the spending of money raised through taxation), and for determining the select committee reports that will be debated in the House of Commons Chamber. These forms of scrutiny all underpin the accountability of government to Parliament.

In 2010, it was decided that the Liaison Committee should not be among the select committees acquiring chairs elected by the whole House of Commons (as recommended by the Wright Committee). This left as the default process the Committee choosing its own chair from among its members. However, the possibility remained of the government seeking to appoint an additional member as chair. But once select committee chairs had been elected by the whole House for the first time, the Liaison Committee members took a firm view that the Committee’s chair should come from within their own ranks. Having been elected by the whole House, these select committee chairs were unwilling to have an unelected chair foisted on them by party managers. Their view prevailed; the motion to appoint the Liaison Committee membership was passed unopposed; and the newly-constituted Committee chose Alan Beith MP, the elected chair of the Justice Committee, to chair the Liaison Committee simultaneously. This approach was subsequently adopted in the 2015 and 2017 Parliaments, and it is this practice that the Harman amendment to the government’s current motion seeks to preserve.

The government’s attempt to impose its own choice of Liaison Committee chair in this Parliament is thus a regressive move that runs counter to the spirit and practice of the valuable reforms that have been made to Commons select committees since 2010. The government has sufficient patronage already at its disposal; the chair of this influential committee should not be added to the list. If MPs – particularly government backbenchers – support the government’s proposition they will be turning the principle of independent scrutiny on its head: the scrutinised will get to choose their scrutineer. MPs will also be turning their backs on the efforts of their predecessors to reduce excessive executive control of the House of Commons, including through hard-won reforms such as the election of select committee chairs.

A further problem with the government’s Liaison Committee membership motion is that it would provide no way for the Committee to remove the new chair if it were to lose confidence in him.

Under current provisions:

• if a select committee chair chosen by his or her committee were to resign after being no-confidenced by that committee (in accordance with a process set out in Standing Order No. 122C), the committee would simply choose a replacement;

• if a select committee chair elected by the whole House were to be no-confidenced by his or her committee, Standing Order No. 122C provides for a new election so that the House can choose a successor.

With the House naming the Liaison Committee chair, as under the government’s current motion, it is not clear that either procedure would apply.

If the House is to appoint the Liaison Committee chair as set out in the government motion, then the government should also bring forward an amendment to Standing Order No. 122C to make clear that that Order’s provisions for a no-confidence process apply to a Liaison Committee chair so appointed. To appoint a chair without any reference to a process by which he or she can be removed represents poor governance.

If the government’s Liaison Committee membership motion is approved, the political credibility of one of the most influential and important positions in the House of Commons will be hobbled from the outset. Like it or not, the Liaison Committee chair will be perceived as a party placeman, parachuted-in to give the Prime Minister and the government an easy ride.

This is no reflection on the person of Sir Bernard Jenkin MP. Sir Bernard’s case for chairing the Liaison Committee is weakened by the fact that he lost January’s election for the chairmanship of the Defence Select Committee. However, in practice, he would likely prove a highly effective Liaison Committee chair. With a decade’s experience chairing the Public Administration and Constitutional Affairs Committee (PACAC) or its predecessor the Public Administration Committee, he has been a long-serving Liaison Committee member. He is a reformer; and he cares passionately about Parliament. In The Guardian on 12 April, he argued that “The government can show its own confidence in its willingness to accept high-level public scrutiny from Parliament”.

PLACEHOLDER :: IMAGE :: 719b2eP7Sk9PbL8ppHdv52]

Sir Bernard Jenkin MP {: .caption}

Our objection to Sir Bernard’s proposed appointment as Liaison Committee chair is one not of personality but of principle. MPs must think not just of this Parliament but of the precedent this prospective decision would set. Sir Bernard is a serious candidate; but what if a future government proposed a figure not of his experience and independence of mind? As the section below demonstrates, once a decision of this kind is taken it tends to stick for several Parliaments.

The Liaison Committee has existed in its current form since 1980, although an informal Chairman’s Liaison Committee had come into being in 1967. Since 1980, the chair has been chosen in one of three ways:

• {: .list-title} 1980-1992: Liaison Committee chairs chosen by the Liaison Committee from among its members:

• 1979-1983: Edward du Cann, Conservative

• 1983-1987 and 1987-1992: Terence Higgins, Conservative {: .aside-r}

1/ 1980-1992: The Liaison Committee chose its chair from among its members, with those members being MPs already appointed to chair a select committee – in practice, by party managers.

• {: .list-title} 1992-2010: Liaison Committee chairs appointed to the Liaison Committee as additional members in order to take the chair:

• 1992-1997: Sir Terence Higgins, Conservative

• 1997-2001: Robert Sheldon, Labour

• 2001-2005 and 2005-2010: Alan Williams, Labour {: .aside}

2/ 1992-2010: Formally, the Liaison Committee chose its chair from among its members. However, in addition to the select committee chairs, a senior backbencher who was not a select committee chair was appointed as an additional member of the Liaison Committee, for the express purpose of becoming its chair. As a result of consultation by party managers before the Liaison Committee membership motion was laid, the outcome of the Committee’s decision on its chair was a foregone conclusion.

• {: .list-title} 2010-2019: Liaison Committee chairs chosen by the Liaison Committee from among its members:

• 2010-2015: Sir Alan Beith, Liberal Democrat

• 2015-2017: Andrew Tyrie, Conservative

• 2017-2019: Dr Sarah Wollaston, Conservative, then Change UK, then Liberal Democrat {: .aside-r}

3/ 2010-2019: The system reverted to one in which the Liaison Committee chose its chair from among its members, who comprised only select committee chairs. As noted above, chairs newly-elected by the whole House in 2010 did not want a figure parachuted-in as their chair who did not enjoy this legitimacy and instead owed his or her position to the party business managers. They therefore insisted on selecting their chair from among their own ranks.

The government motion due to be considered on 20 May thus represents a partial reversion to the 1992-2010 model for determining the Liaison Committee chair. However, it does not allow the Committee even the formality of naming its own chair at its first meeting. Moreover, in this Parliament, in contrast to the post-1992 period, there has been little – if any – consultation with select committee chairs about whether they find the proposed chair acceptable. And today, unlike in 1992, the majority of select committee chairs on the Liaison Committee are elected by the whole House of Commons, rather than appointed in practice by party managers. The government’s proposal is thus at odds with the increased independence and cross-House stature of select committee chairs since 2010.

However, the Harman amendment – in effect preserving the post-2010 model of a select committee chair also chairing the Liaison Committee – is not necessarily the best solution. The idea behind the 1992-2010 model, that the Liaison Committee chair should not simultaneously be the chair of his or her own select committee, as reflected in the Bone amendment, has much to recommend it.

The model in which the Liaison Committee chair does not simultaneously chair another select committee was chosen after 1992 in order to avoid the occasional conflicts of interest that arose from the chair having dual responsibilities. As the Liaison Committee reported in the final session of the 1992 Parliament:

Part of the Liaison Committee’s role continues to lie in allocating select committee resources and Chamber time between committees. The Liaison Committee continues to decide on committees’ funding bids for overseas travel, for example. And the Liaison Committee may also still have to form a view on a select committee’s business where contempt proceedings may arise (for example, if a select committee’s evidence or private papers are subject to unauthorised disclosure). In these circumstances, the Liaison Committee will be asked to take a view to inform any inquiry by the Committee on Privileges. The argument on conflict-of-interest grounds for a Liaison Committee chair who does not chair a committee of his or her own thus continues to hold.

If anything, the potential for such conflicts of interest to arise is growing, owing to trends in the Liaison Committee’s role and the wider select committee environment. For example, under a pilot arrangement in the 2017-19 Parliament, the Liaison Committee began to choose select committee reports for dedicated debate in the Chamber, not just Westminster Hall. In its major 2019 report on the select committee system, as part of a broader push to give select committees improved access to the Chamber the outgoing Liaison Committee recommended that this practice be made permanent.

Another element of the Liaison Committee’s adjudicating role can arise where committees risk duplicating each others’ work or straying onto others’ territory. Both Brexit and the Coronavirus crisis are giving rise to multiple inquiries by different committees on closely-related subjects, potentially increasing the scope for Liaison Committee action. Increased joint working and sharing of staff are already being encouraged, including by the outgoing Liaison Committee, as a way of improving scrutiny while husbanding resources. Again, this could involve the Liaison Committee in decisions affecting multiple committees. Meanwhile, the Committee on the Future Relationship with the EU is due to cease to exist on 16 January 2021, while the European Scrutiny Committee will also presumably lapse when the UK exits the post-Brexit transition. This could release significant staff resources at a time when decisions about select committees’ responsibilities for scrutinising EU and treaty-related matters will need to be made.

In this Parliament the Liaison Committee chair could thus have a particularly weighty role in decisions affecting the select committee system.

Given the Liaison Committee's many responsibilities for select committees and in arranging House business, as set out in Standing Order No. 145, workload was always a second reason for backing the model of the Liaison Committee chairmanship in which the chair does not also chair his or her own select committee. Since that model was put aside in 2010, the workload of most select committee chairs – especially the chairs elected by the whole House – has increased significantly. This is owing especially to increased demands in terms of media and social media work, and public engagement. Again, this trend seems likely only to continue. This further strengthens the arguments for a Liaison Committee chair who does not also have responsibilities for another select committee. Given the importance of the Liaison Committee chair, he or she must have the time to devote to the role.

The importance of the Liaison Committee chair role also underpins why, if he or she is not simultaneously to be a chair of another select committee, he or she should be elected by the whole House.

It would be bizarre to have the chairs of many select committees elected by the whole House, but the chair of the committee with the most high-profile and constitutionally significant responsibilities not.

As noted above, the Liaison Committee is the only select committee before which the Prime Minister appears.

One consequence of Brexit is that, all other things being equal, opportunities for scrutiny of the Prime Minister in the Chamber have decreased, because he no longer routinely makes oral statements after formal meetings of the European Council. Under these circumstances, there is a good case that Prime Ministerial appearances before the Liaison Committee should, if anything, increase from their current notional three times a year. In any case, the Liaison Committee should play a pivotal role in discussions about future mechanisms for holding the Prime Minister to account.

The agenda ahead could also expand the Liaison Committee’s scrutiny role: in 2019 the outgoing Committee wanted its successor to undertake greater scrutiny of cross-cutting issues. The Liaison Committee could be a vehicle for any overarching House of Commons scrutiny of Coronavirus preparedness and response across government.

There will also be a need for an authoritative voice on the implications for select committees of the Restoration and Renewal project for the Palace of Westminster.

A Liaison Committee chair who had not been elected by the whole House, presiding over – and speaking on behalf of – a body of other chairs who largely had been so elected, would lack political standing. While not chairing another committee, the Liaison Committee chair should thus be subject to the same appointment process as most other select committee chairs, and be elected by the whole House.

One consequence in part of the government’s determination to appoint its own candidate as Liaison Committee chair has been further delay in the Committee’s appointment.

There is no standing provision listing the select committee chairs who are ex officio members of the Liaison Committee. This means that each new House must endorse a new list of the select committee chair positions that are entitled to a Liaison Committee place. This is the form taken by the Liaison Committee appointment motion each time.

To eliminate this potential source of delay, the previous Liaison Committee recommended that the relevant Standing Order (SO No. 145) be amended to include a list of the select committee chairs who make up the Liaison Committee, so that the Committee can come into existence and elect an interim chair as soon as a quorum of select committee chairs is in place. This is a further valuable reform that should be implemented.

In the current Parliament, when the government first moved its Liaison Committee appointment motion on 17 March it was already the House’s 42nd sitting day, and so later in sitting-day terms than in 2010 or 2015. All but one of the chairs who are due to be named to the Committee on 20 May were already in place, and the chairs elected by the whole House had been in post since late January.

However, after its appointment motion provoked opposition on 17 March, the government did not attempt to move it again before the Easter recess, and the motion then fell into the Coronavirus-induced hiatus until 12 May during which the government could not move controversial business owing to the unavailability of remote voting.

As a consequence, if the House appoints the members of the Liaison Committee on 20 May it will do so on its 61st sitting day. In sitting-day terms, this is later than in any year since 2010 when the whole-House elections for most select committee chairs were introduced. Moreover, it is so much later that it outweighs the effect of the summer recess in delaying the Liaison Committee’s appointment in 2015 and 2017, and makes this year’s appointment the latest since 2010 even in calendar terms. 20 May will be five months and three days since the Parliament first met (compared with four months and 24 days in 2017).

• {: .list-title} Time from appointment as Prime Minister to first appearance before the Liaison Committee:

• Gordon Brown: 5 months and 16 days

• David Cameron: 6 months and 7 days

• Theresa May: 5 months and 7 days

• Boris Johnson: no appearance after 9 months and 26 days (as of 20 May 2020) {: .aside}

This delay has been unnecessary and damaging: it has meant that the Prime Minister has not been subject to Liaison Committee scrutiny since the 2019 general election (on top of his failure to appear in advance of it); and debates on the Estimates earlier in the session went unallocated because the Liaison Committee (and the Backbench Business Committee) had not been constituted and so could not perform the function in the estimates process set out for them in Standing Orders.

However, the government’s previous delay would undercut any objection on grounds of timing that it might raise now to the prospect of a whole-House election of the Liaison Committee chair. The government could and should have facilitated the Liaison Committee’s appointment much earlier, before the Easter recess. And given that the appointment of the Liaison Committee is now so delayed in any case, the short further period of time required to hold a whole-House chair election is manageable (especially since the House goes into recess on 20 May for nearly a fortnight). The whole-House elections of new chairs for the Standards Committee and Business, Enterprise and Industrial Strategy Committee were recently accomplished within days, following the previous chairs’ appointments to the Opposition front bench, which demonstrates the kind of timeframe that is possible. After such a lengthy delay already, the prize of a Liaison Committee chair elected by the whole House would be worth the short further wait.