Select Committee pre-appointment hearings have helped rebalance the relationship between the government and parliament – but have also created unintended consequences

The Labour government of 1997-2010 introduced pre-appointment hearings for some ministerial appointments, formalising a de facto system which had been developing gradually. Felicity Matthews shares research which shows that these hearings have created a new balance between the executive and parliament to an extent, but that there have been unintended consequences such as ‘scrutiny creep’ and political point-scoring.

Old Acts of Parliament (Credit: -JvL-, CC BY 2.0)

The UK stands in a unique position in relation to its parliament’s relative strength over executive patronage. In June 2007, the Labour Government announced the introduction of pre-appointment hearings for specific ministerial appointments, effectively formalising a process of scrutiny that had developed unofficially within the select committee system of the House of Commons over the previous decade. Our research has examined the impact of these reforms, drawing on analysis of select committee reports and minutes of evidence for all pre-appointment hearings held to May 2015, along with all government responses.

The results of this analysis were interrogated in more detail through a programme of 56 interviews with ministers, senior officials, parliamentarians, appointees and recruitment specialists. Through our research we found that, since being granted these formal powers, select committees have emerged as influential actors in the public appointments process, resulting in a recalibration of the balance of power between government and parliament. At the same time, however, the engagement of select committees has led to a range of unintended consequences including ‘scrutiny creep’ and political point-scoring, which together raise questions regarding the overall added-value offered by pre-appointment scrutiny.

The introduction and extension of pre-appointment scrutiny has been underpinned by four key trends;

Firstly, pre-appointment scrutiny has developed without an overall plan. Reforms have been ad hoc, as successive governments have granted select committees with additional powers that go well beyond the simple capacity to hold ‘non-binding’ pre-appointments hearings set out in the 2007 Governance of Britain White Paper. In particular, since 2011 a range of appointments have become subject to ‘double-locking,’ whereby the appointment and dismissal of senior staff could only proceed with the joint approval of government and parliament (e.g. appointments to the Office of Budgetary Responsibility).

Secondly, many of these reforms are the formalisation of pre-existing practices that had been developed unofficially and unilaterally by select committees. The Treasury Select Committee, for example, held post-appointment hearings for all members of the Bank of England’s Monetary Policy Committee from 1998 until pre-commencement hearings were formalised in June 2007. Similarly, a range of posts were subject to pre-appointment hearings on an ad hoc and informal basis as part of the set of Core Tasks for select committees passed by a resolution in the House of Commons in 2002, until the Cabinet Office published a list of 53 posts subject to pre-appointment hearings in August 2009.

Thirdly, it is possible to detect a ‘ratchet effect’, as the introduction of aspects of pre-appointment scrutiny have fostered demands for additional powers over a widening range of appointments, including consultation between government departments and committees on the job specification prior to advertisement; information about short-listed candidates not selected; private meetings between ministers and committees in cases where a committee is inclined to make a negative report; and, a confirmatory vote in the House in relation to key appointments. Fourthly, and finally, it is possible to detect a change in tenor as select committees have sought to demonstrate their independence and capacity to hold the executive to account in increasingly robust terms.

Pre-appointment scrutiny rests on the principle that select committees should seek to test an appointee’s competence and expertise, rather than challenge a minister’s decision; and that any negative report or veto should be based on such considerations. However, since 2009, pre-appointment scrutiny has deviated from this narrow remit as select committees have become increasingly willing to publicly challenge the appointment of the Government’s preferred candidate (activism). To date, a total of 13 candidates have divided committees or been rejected outright, which represents 22 percent of the 59 hearings held. Although the rate of rejection constitutes a small proportion of all select committee recommendations, it is clear that 2009 onwards constitutes a significantly more assertive phase of select committee activity, who – as successive governments have reiterated – are not expected to challenge a minister’s decision. Moreover, it is also clear that this activity has at various points been both partisan and institutional in nature, with select committee members from all parties attempting to block appointments.

This has resulted in further unintended consequences, as select committees have failed to focus solely on independence and professional competence, and have instead engaged in political point-scoring (aggression). In turn, the highly public and increasingly partisan nature of pre-appointment scrutiny (re-politicisation) has served to discourage involvement in public life, and risks negatively impacting on attempts to improve the diversity of public appointments (deterrence). This has therefore promoted critical questions regarding the desirability of an extra layer of inherently political scrutiny within an otherwise independently regulated process (added-value).

At first glance, the impact of pre-appointment scrutiny may appear unclear, not least because the vast majority of hearings supported the government’s candidate; and only once has the minister publicly withdrawn support following a negative committee report. However, this simplistic interpretation neglects the deeper but less visible impact of these reforms. Our research reveals that select committees had become de facto veto players due to the impact a negative report would have on the credibility of the appointee and the appointing minister. The introduction of pre-appointment hearings has therefore brought with it a strong anticipatory effect or preventative influence that permeates the whole appointments process. Our research also reveals the extent to which the House of Commons is being drawn into the business of governing, rather than just scrutiny, evolving rapidly from a reactive to proactive legislature in relation to executive patronage. Such developments are difficult to reconcile with the British political tradition, and the UK can be characterised as ‘Washminster’ hybrid, existing somewhere between presidentialism and parliamentarianism.

No other parliamentary democracy has evolved so far towards a congressional model of ‘advice and consent’, and recent reforms have blurred the traditional distinction between parliamentarianism and presidentialism, or at the very least, between the US ‘veto style’ and UK ‘scrutiny style’ models of legislative oversight.

Pre-appointment scrutiny in the UK was never intended to replicate the US ‘veto style’ model, yet, the way in which the system has been allowed to drift runs counter to these intentions. The introduction of legislative powers such as double-locking have increased the number of veto points and, in turn, risked the gridlock and inertia more typically associated with presidential systems. Whilst no other parliamentary system has yet introduced such powers (the Procedural Affairs Committee in Ontario, for example, rejected a US-style legislative veto as incompatible with cabinet government), it is crucial that such risks are recognised.

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Note: this post originally appeared on the Policy Space blog and is reposted with the permission of the author. It represents the views of the author and not those of Democratic Audit UK or the LSE. Please read our comments policy before posting.

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Felicity Matthews is a Senior Lecturer in the Department of Politics at the University of Sheffield. Her research interests encompasses a number of areas, including: government, governance and state capacity; constitutional reform; political leadership; policy design, implementation and service delivery; crisis management; and, citizen expectations and engagement.