Walking the Dark Side: Evading Parliamentary Scrutiny

Parliamentary scrutiny – a good thing?

The UK parliament identifies one of its main roles as ‘the close examination and investigation of government policies, actions and spending’. Simply stated, the processes and outputs of government are deemed to be better, in terms of effectiveness, if subject to sustained parliamentary examination, evaluation and public counsel. Parliamentary scrutiny is deemed, therefore, to be ‘a good thing’. This is the bright side of scrutiny. This virtuous view of scrutiny assumes a willingness of government to be scrutinised and a willingness of parliament to scrutinise; alongside the ability of parliament to scrutinise.

Parliamentary scrutiny – the dark side

There is, however, also a dark side: where the principles and practicalities of scrutiny are not aligned, and where willingness and capacity are constrained or non-existent. An excessive fear of public criticism, blame and scapegoating, in the adversarial setting of parliamentary proceedings and discourse, contributes significantly to a negative executive mentality and an aversion to scrutiny. While all contemporary UK governments have shared this aversion, the first eighteen months of Boris Johnson’s premiership – in the turbulent context of Brexit and Covid-19 – revealed a distinct propensity of his government to walk on the dark side of parliamentary scrutiny. This enhanced predisposition can be illustrated in relation to two of the main modes of parliamentary scrutiny – committee investigative work and legislative scrutiny.

Select Committee Scrutiny

Select committees have become the ‘poster organisations’ of parliamentary scrutiny. From the outset of the Covid-19 crisis and throughout 2020 they acted as the primary means of effecting policy scrutiny. Empowered to operate virtually, multiple committees held inquiries into the health, social, cultural, and economic impacts of the crisis and produced piercingly critical reports of government actions and policies.

The success of select committees is attributed to seeking cross-party consensus, insulation from the partisan grip of party managers, and minimisation of the intrusions of governmental defensive dispositions or ethos into their workings. Significantly, from the beginning of his premiership, Johnson sought to restrict the permissive operational bandwidth of select committees. Restriction took several forms.

First restriction

There was delay and interference in establishing committees. Stark examples were provided by the Liaison Committee and the Intelligence and Security Committee (ISC). Both committees witnessed delays in convening their first meetings, and, relatedly, both encountered direct majority party, and hence executive, intervention in the choice of their respective chairs.

Second restriction

Ministers revealed an increased reluctance to appear before committees. In this regard, Johnson led the way. He declined four invitations to appear before the Liaison Committee in the latter part of 2019. This example was followed by other colleagues, with Priti Patel declining five invitations from the Home Affairs Committee between March and April 2020; and with a further three cabinet ministers declining to appear before select committees later in the year.

Third restriction

Prevarication and ambiguity in the provision of evidence constituted a further restriction. Although the dark arts of equivocation are often performed by ministers when appearing before select committees, civil servants are expected to be ‘as helpful as possible’ when providing evidence. Yet, in the Whitehall world of 2020, the incentives for civil servants to shroud departmental activities in the shade of equivocation appeared to have increased markedly. The disincentives for not doing so were seemingly exemplified by Sir Simon McDonald, Permanent Under-Secretary at the Foreign Office. The rapid retraction of his statement to the Foreign Affairs Select Committee, that ‘it was a political decision’ for the UK not to be involved in the EU’s ventilator procurement scheme, led to the suspicion in Westminster that he had been ‘leant on’ by ministers.

Line-by-line scrutiny of legislation is largely fanciful

‘Getting Brexit done’ was the self-proclaimed legislative priority of the Johnson government immediately after the 2019 general election. To this end the new government introduced a 100-page EU (Withdrawal Agreement) Bill (WAB). This bill was passed unamended after only 11 sitting days of scrutiny. Remarkably, not a single amendment made it into the final text of this significant act of parliament. But the speed with which the WAB was processed was positively glacial when compared to the passage of the European Union (Future Relationship) Bill on 30 December 2020. This bill completed all of it parliamentary stages unamended in just over 12 hours. Not surprisingly, MPs from all parties lamented the government’s cavalier attitude to scrutiny of this historically important legislation.

If the time-pressures of processing EU withdrawal legislation were self-inflicted, the time-pressures confronting the Johnson government for swift legislative action to deal with the spread of Covid-19 in March 2020 were entirely extraneous. The Coronavirus Act 2020 (CA) was 342 pages in length and completed its Commons scrutiny in a single day on 23 March, and all of its legislative stages within four days. The government made only one concession to the CA to allow an amendment to enable a six-month parliamentary review to keep the Act’s temporary vote in force.

‘Extraordinary’ use of secondary legislation

The renewal of the CA, upon its first six-monthly review, provided MPs with the opportunity both to express their exasperation with the provisions of the CA itself, but also to register their concerns with the inadequacies of the scrutiny processes for Covid-related statutory instruments and ‘urgent measures’ more generally. The government’s legislative approach to dealing with the Covid-19 crisis highlighted the extent to which secondary legislation was deployed to provide ministers with extensive legislative powers with minimal parliamentary scrutiny and control. All regulations covering 'lockdown' – described as ‘some of the most 'draconian' powers ever seen in peacetime’ – were made under an ‘urgent procedure’ specified in the Public Health (Control of Diseases) Act 1984. Under this Act, regulations were introduced without parliamentary approval or scrutiny and were implemented in the absence of parliamentary scrutiny.

Operating in the shadows

There is nothing new in the propensity of governments to walk on the dark side of parliamentary scrutiny. What is perhaps new, however, is the enthusiasm displayed by Johnson’s governments for such dark perambulations since July 2019. What has changed is how Johnson as PM combined an existing executive mentality with a populist mindset. A mindset that privileges neutralising criticism, demonises parliament and parliamentarians as likely impediments to the fulfilment of the pledges of the ‘people’s government’, and prefers to communicate with the public directly rather than indirectly through parliament. A mindset at odds with the remaining remnants of notions of ‘club government’ at Westminster. What was distinctive about the period after July 2019, therefore, was that the PM and his then chief adviser, Dominic Cummings, appeared to be playing by new club rules, with a keen eye towards circumventing parliamentary restraints upon their capacity to effect change.