What does scrutiny mean in 2011?

Mr Speaker's address to the Institute for Government January 18 2011 entitled: What does scrutiny mean in 2011?

Thank you very much indeed for those kind words of introduction. It is an enormous pleasure to be addressing the Institute for Government and in particular to be in the company of Andrew Adonis and Peter Riddell.

Andrew enjoyed a brief but exceptional career in the Cabinet as Secretary of State for Transport where his enthusiasm and expertise for the subject were evident to all those who encountered him. So much so, that one section of the rail industry, which had found itself on the wrong side of a policy disagreement with him, referred to Lord Adonis as 'the thin controller'.

Peter, by contrast, had rather longer stretches at the Financial Times and then The Times during which he rightly won many plaudits, although it should be acknowledged that in those tributes, nothing can be found that is quite akin to 'the thin controller'.

It is very kind of you to invite me and I heartily applaud all that the Institute is undertaking. The advantage of an occasion such as this is that your speaker is allowed to set his own question; the disadvantage is that he then has to answer it. 'Scrutiny' might seem a simple concept but it is perhaps typical of the glories of the English language that it is a word with complex layers of meaning.

Last year All Souls decided to abandon the section of its Fellowship Examination which demanded that candidates write a three-hour essay on a single word. In the three years before what many in this room might deem as that regrettable decision was taken, the words were 'harmony' in 2007, 'novelty' in 2008 and 'reproduction' in 2009.

I do not know if the word 'scrutiny' was ever considered, let alone set, as the one word for that examination but it would have been a very strong contender. I should, by the way, stress that in making such a comparison I am not indicating an intention to speak for three hours. I have tried to cut down on that sort of oratorical activity since assuming the office of Speaker.

A brief etymological history of the word 'scrutiny' also illustrates the challenge that I face. A modern dictionary would define it as:

1. A close, careful examination or study (with a special emphasis on searching for mistakes) and

2. Close observation; surveillance. Yet the word did not always have precisely these interpretations.

In Middle English it was scrutinie which actually meant the formal taking of a vote (a meaning that survives to this day in our sister institution in Paris). In late Latin it was scrutinium, meaning an inquiry. In middle Latin scrutari meant to examine. In much earlier Latin, however, and thus perhaps a more authoritative reading, it came from scruta or 'rubbish'.

The original scrutineers were thus impoverished types who trawled through trash in the hope of being able to salvage something of value from it. In the age of IPSA and with the multiple burdens on their time, I suspect there are many backbench MPs with whom this might strike a chord.

Even in our time, I suggest that the subtle difference between the two definitions of scrutiny which I cited at the outset, between assertive examination and passive observation, is significant. I suspect that the legislatures of modern democracies are either in the first camp or the second. The challenge for the House of Commons, therefore, is to be firmly in the first category, that of assertive examiner.

For when critics refer to a relative decline of the legislature in the United Kingdom over the past few decades, I do not believe that they are claiming that one or more scrutiny functions have ceased to exist. Indeed, quite the opposite has been the case, with the development of the EU scrutiny function – about which I will have something to say later – regulatory reform orders, the formulation of 'core tasks' of Departmental Select Committees, the examination of some (perhaps not enough) Bills in draft, and many other examples.

I think that the concern of those critics might be summed up thus: the House of Commons is pretty good at finding out what is going on (observation) but not so good at doing something about it (active examination). It will be at the heart of what I have to say this evening. My thoughts will come in three sections. The first relates to the principles which lie behind scrutiny in 2011, constitutional, political and practical. Without understanding where we stand here, we will not make much progress.

The second will refer to innovations in the past 18 months which I think will demonstrate that the House of Commons is moving again and in an encouraging fashion on the examination/observation scrutiny scale. The third, and perhaps most significant section of my remarks, and where I would welcome the active research endeavours of the Institute for Government, refers to where I think there are still deficiencies in scrutiny as it is conducted today, along with some specific suggestions as to how we could achieve notable improvements in this Parliament.

So let us start with principles: constitutional; political and practical.

There was a time when even to speak of constitutional principles in this terrain was to delve into the Delphic, even the mystic. We do not, of course, have a written constitution. We do not, one might say, even have an unwritten constitution. What we have are constitutional arrangements.

Some are contained in statute: for example, the Bill of Rights, the Parliament Act and the European Communities Act. Some are matters for which the Houses of our sovereign Parliament provide themselves, through their Standing Orders and Resolutions, which determine how Parliamentary proceedings are conducted and such things as the way we legislate and the relationship between Parliament and the courts on matters sub judice.

Then we have a huge body of convention and precedent – one might say the common Page law of Parliament – which regulates much else, including many aspects of relations between the two Houses. Here I might digress for a moment to say a word of warning. There are those who wish to see a fully written constitution, and a constitutional court to interpret it. I think they see our current constitutional arrangements as somewhat ramshackle.

I must be careful not to take sides in what is essentially a political argument; but I do not see the current arrangements as in any way inhibiting the continuing revitalisation of the role of the House of Commons in relation to the Executive. Manuals about the constitution are all very well, but they should be seen as guidance for the less initiated rather than something prescriptive. And, on a related point, I do not think that it is at all controversial for the Speaker of the House of Commons to express his fervent hope that the sovereign nature of Parliament and of the House of Commons in particular, will not be eroded or vitiated by judicial incursion into proceedings.

The Law of Unintended Consequences can be a startlingly effective piece of legislation whose results may be bitterly regretted. Let me return now to the principles of scrutiny of the Executive from a constitutional point of view. They can be simply stated. Ministers are responsible to Parliament and Page 6 of 22 must account to Parliament for their responsibilities and actions. It is for Parliament to decide how to give effect to that accountability.

The political principle of scrutiny is also straightforward. It was perhaps best captured by the late Robin Cook when he was the Leader of the House of Commons. It is that 'better scrutiny makes for better government'.

There are two difficulties here. The first is that scrutiny is cast too often in gladiatorial terms, so that any change which the Executive might contemplate in the light of what has occurred in the House of Commons is portrayed as a 'concession' or, worse, a 'defeat'.

It is as if steering away from the shoals at the last moment is to be considered an act of reckless navigation, when carrying on straight into the rocks would be far more commendable.

The second is that scrutiny is usually alleged to be inconvenient and expensive. It is certainly inconvenient, and so it should be, if it is to be any good. It is not that expensive. On our side, the cost of the entire Committee Directorate in the House of Commons, supporting all the Departmental Select Committees as well as half a dozen more, with 190 staff and all inquiry costs, amounts to only £12m a year. Meeting the requirements of scrutiny on the part of Government may be, I freely acknowledge, a greater and possibly unwelcome use of scarce resources (I will return to this scarcity), but it has a benefit out of all proportion to outlay.

Scrutiny demonstrates to the taxpayer and electorate that a Government can make a reasoned and reasonable case for its policies. Scrutiny provides Ministers and, dare I say it, senior officials, with assurance (or warns of its absence). If, in A. J. Balfour’s words, 'democracy is government by explanation' then scrutiny is an essential part of democracy. Finally, let me turn to practicality. What practical principles should a modern House of Commons adopt as it seeks to ensure meaningful scrutiny?

I suggest three.

The first is to recognise that the instruments of scrutiny are many and varied. There will be some MPs who want to specialise in one particular strand of them and others who prefer a more a la carte approach and this range of parliamentary activism is welcome. Scrutiny can be achieved through written questions, oral questions, speeches on the floor of the House of Commons and elsewhere, through constituency casework, in Select Committees and Public Bill Committees and through other parliamentary avenues such as exploiting the opportunity of a Private Member’s Bill to highlight deficiencies in the law. The effectiveness of these techniques will differ according to the issue and the individual. A basic practical principle remains, nonetheless, and it is one that I will come back to later. There is not an automatic, positive, relationship between the quantity of scrutiny and the quality of it.

The second is to acknowledge that scrutiny is finite. It is impossible, indeed almost certainly undesirable, for the House of Commons and for MPs to scrutinise absolutely everything all of the time. The size of the modern state, even at a time when it is shrinking, and the array of alternative demands on Members of Parliament, make such a thing impractical even if it were desirable. The Legislature should seek to scrutinise the Executive, not stalk the Executive. In the famous quotation: 'the business of the House of Commons is not to run the country, but to call to account those who do'.

I cannot resist a brief digression here. The quotation is of course from Mr. Gladstone. He said it a number of times but perhaps most famously in his speech on 29 January 1855 against the motion to set up a Select Committee to inquire into the condition of the Army before Sebastopol. He went on to express the proposition in a rather extreme form: namely, that if a Select Committee were to inquire into any great and current national question, that was to be taken as a want of confidence in the Government of the day. I think there is enough material there for another address on another occasion.

So let me now return to the nature of 'calling to account': the purpose of an examination is not to cover everything but to focus on what really matters. So scrutiny must be selective.

The third and final practical principle actually complements the second one. In no modern democracy is the legislature entitled to assume that it enjoys a monopoly of scrutiny. This may involve an element of uncomfortable humility for Members of Parliament but it is true all the same. The media, in particular, but also pressure groups, think tanks, other levels of devolved and local administration, independent institutions such as this one, collections of bloggers and even the humble ordinary citizen are all part of what is a network of scrutiny.

What matters is that the House of Commons can put itself at the heart of this network by convincing others that it is worth their while working through it and by working with others. The most effective Select Committees of the past couple of decades, for example, have been those which appreciated that the power of publicity is a mighty asset which they can wield and so they have in effect co-opted the media as partners in their endeavours. The power of modern technology means that there should be more opportunities for such ad hoc alliances.

Put starkly, scrutiny in 2011 involves a willingness to break out of institutional isolationism. So what, then, has been achieved in the last 18 months? A very respectable amount of reform, I would contend, but clearly not a revolution. The expenses catastrophe did serve as a catalyst for the House to look at itself in a far more critical light across the spectrum.

This has led to a thoroughly welcome period of innovation designed to enhance our capacity to scrutinise the executive in a more forensic and politically meaningful fashion. There are three particular changes to which I would like to refer in this section, one of which I can claim some personal credit for and the other two of which emerged from the recommendations of the Wright Committee which the whole Page 10 of 22 House embraced with unexpected vigour last March. The first initiative is the revival of the Urgent Question.

In the 12 months before I had the honour to be elected Speaker, precisely two of these had been awarded. In the 12 months from June 2009, by contrast, there were 22 occasions when ministers appeared at the despatch box to answer a highly topical question submitted by an MP. Matters have continued at a similar pace in the course of this Parliament. I certainly do not have a quota system and it is not my mission in life to create havoc for those who have to organise ministerial diaries. But as during normal times the House rises at 6pm on a Thursday and does not resume its work until 2.30pm on a Monday, I would consider it very strange indeed if in the course of a year there were not more than a handful of times when Members quite properly considered an event to have taken place, discussion of which was urgent, even if ministers either disagreed, or rather wished that that discussion could wait to a later date.

I believe that the revival of the Urgent Question has made the House a more relevant and unpredictable place and that this can only assist the cause of scrutiny by examination, not merely via observation. The second development is the democratisation of the Select Committee system. Select Committees have had a long and varied history within the House and were certainly not, as is sometimes implied, invented out of nothing at all by Norman St John Stevas on the 26th of June 1979.

Their roots are far deeper than that – we have had select committees for at least four centuries – but their history has not been a universally happy one. As the former Clerk of the House, Professor Sir William McKay, put it in his masterly introduction to the 23rd edition of Erskine May: 'At the beginning of the twentieth century political disaster struck the Commons select committee system. The conduct of senior politicians was the subject of highly charged inquiries into the Jameson Raid and the Marconi telegraphic contract affair. The committees broke down on party lines. Such highly visible failure condemned their successors to a very limited role for almost half a century. Since then, and at an increasing pace since the creation in 1979 of committees relating to government departments, select committees have been recovering their position as the House's most significant means of scrutinising the executive.'

That process, as Bill McKay rightly observed, had made real progress in the 1979-2009 era. What had seemed like a weakness in the select committee system, namely the need to reach a cross-party consensus and to avoid partisan trench warfare at all costs, had become a strength. The best select committees were consensual, and as Governments of every colour discovered, consensual did not mean anodyne.

Yet despite all that had been achieved, which I repeat was serious and commendable, there is no doubt that the ultimate credibility and underlying legitimacy of the select committees was constrained by the control which the Executive enjoyed over appointments to them. Much as my own office required the benefit of election to allow it to evolve in character, there is no doubt that the select committees needed the blessing of the ballot to blossom.

 This Parliament has witnessed that moment. These are early days but there is every indication that election has emboldened these invaluable instruments of scrutiny. One example among many is the Treasury Select Committee which has been conceded the right of veto over the membership of the Office of Budget Responsibility, a move which we are assured is 'not a precedent' but which may, nevertheless, turn out to be a 'pre-precedent'. Andrew Tyrie, the Chairman of that Committee, has also proved to be no shrinking violet in his attempts to obtain information from the FSA about RBS, to convince Michel Barnier, the European Commissioner for the Internal Market, to appear before them, or indeed last week to turn a cold eye on bankers’ views of their own worth.

Select committees have not yet become a full-blown alternative to a ministerial or shadow ministerial career; indeed, appointments to the Opposition Front Bench caused a large number of changes in the membership of the new committees within weeks of their appointment. But I am in no doubt that the election of their Chairs and members has opened a new chapter in the development of select committees. My final set of thoughts in this section relate to the House Backbench Business Committee.

One of the outcomes of the Wright Committee recommendations was to ensure separate debating time for backbenchers allocated by a Backbench Business Committee. This new body would be followed within three years by a full House Business Committee to oversee the totality of parliamentary time, a massive change which I know that Sir George Young, the Leader of the House of Commons, is determined to ensure is implemented effectively. The House Backbench Business Committee was appointed for just one parliamentary session, which now means until the Spring of 2012. This arrangement is, therefore, something of an experiment, but already a cause for optimism.

First, the House is once more debating and voting on substantive motions put forward by backbenchers. It was in retrospect extraordinary that the conversion of Private Members’ motions to adjournment debates in the Jopling reforms of 1995 left us almost unique among Parliaments in having no such opportunity.

The path of change has not been entirely uncontroversial, with motions on contaminated blood and banking reform defeated. In other cases, though, such as park homes and public accounts, the House has agreed to motions which it is reasonable to speculate were not expressed entirely as the Government would have liked. Secondly, the Committee is trying out new options within the scope of its Standing Orders. For instance, a select committee chair presented a report in the House on the day of publication and responded to comments from other members for 15 minutes.

On the last day before the recess, instead of the normal single miscellaneous debate replied to by either the Leader or Deputy Leader of the House - an important member of the Government to be sure, but with no departmental responsibility for the issues – we had subjects grouped so that five departments produced Ministers to respond right away to points raised. This is a small but significant improvement in accountability and scrutiny.

Finally, the new arrangement does increase the time for backbenchers to address the House. In the past, a full day's general debate on, for example, defence would start and finish with a pair of frontbench speeches. Now there is normally one front bench speech from each side of the House on a full backbench business day. What remains to be seen, but will be seen in the course of this Parliament, is whether subjects traditionally debated on the floor of the House – the Armed Forces, EU Councils, fisheries – are supplemented or supplanted by subjects put forward by backbenchers – such as contaminated blood, independent financial advisers or military and political strategy in Afghanistan – which might be of more interest outside of the House and be more challenging for Ministers.

What I can say with alacrity is that the Backbench Business Committee is already adding value. I do not, however, especially in front of this audience, wish to claim we have reached some sort of parliamentary nirvana. The scrutiny of the executive has improved of late but there is plenty more which the House of Commons could aspire to achieve. There is at least a case that can be made that scrutiny could be enhanced, albeit in rather different ways, in almost every aspect of our work – written questions, oral questions, debates, the examination of primary legislation both on the floor of the House and in committee and through the renewed Select Committee system – and it is this territory to which I would like to devote my last thoughts.

These come in four categories.

Many of them are not especially original. Peter Riddell, in particular, will be familiar with many of them, not least wearing one of his other hats, that of the Chairman of the Hansard Society. That organisation produced a splendid tome last month – Making Better Law – which I thoroughly recommend to you. It represents a comprehensive agenda for change which should be of immense interest to Government and to Parliament. In some instances what I am about to outline is very similar to what can be read there but in other areas I hope that I am proposing to offer something which is a little more personal. Let me start with the written parliamentary question where I am about to say something which Sir Humphrey might describe forebodingly as 'extremely courageous'.

The written parliamentary question is potentially a hugely valuable device. It has a reputation – now, alas, tarnished - as one of the key tools of scrutiny available to our legislature. There are few democracies in the world where the executive is subject to a device quite like it. But we have now surrendered quality for quantity. In saying this I am well aware that my own record as a backbench MP, especially in my first few years, can be taken down and used against me. But in my defence I should say that I wrote out every question in my own hand; I took it into the Table Office myself; and I was thus also able to harness the experience and ingenuity of the Table Office in helping to make my efforts more effective.

I did not leave the drafting of questions to unelected researchers, and I certainly took no notice of any league table purporting to judge the effectiveness of MPs by mere activity rather than achievement. We have reached a situation today in which there are more than 60,000 written questions tabled every year. I think we risk a downward spiral in which more and more questions will get later and poorer answers (especially, perhaps, with spending constraints in Whitehall). This is an incredibly sensitive matter within the House of Commons.

All MPs, myself formerly included, believe that their own questions are of a quality which the highest-paid members of the Bar would find it a challenge to emulate, while those of other Members are at best uninspired. Greg Knight and his colleagues on the Procedure Committee are aware of this dilemma and I hope will bring forward proposals which will restore the effectiveness and the reputation of the written PQs. Here I think organisations such as the Institute for Government have a real role to play in assessing the effectiveness of the present use of written questions, and to suggest how we could return to 'fewer and better' in this key area of scrutiny.

We must create a virtuous circle which will benefit both Government and Parliament. By contrast, secondly, if we have too many written questions then I think we might well have too few oral questions answered by ministers in the Chamber of the House of Commons. I made this argument in a lecture six months ago and it remains my view that timetabling arrangements which can mean that oral questions to ministers in departments responsible for vast sums of public money are answered only once every four or five weeks do not provide an ideal outcome.

There is a theatre, almost a terror, to oral questions which is fundamental to the nature of our democratic scrutiny. I would be more than content with a grand bargain in which the balance between written and oral questions were to shift to allow fewer written questions to make their way around the corridors of Whitehall in return for more oral questions heard in the House.

My third point relates to debates which I have articulated before and where I am aware that Sir George Young has expressed similar sentiments. Put simply, it is my conclusion that the more general the nature of a debate, the more general the nature of the scrutiny it offers. Lengthy discussions on extremely broad subjects - 'foreign affairs' - conducted whether the matter concerned is timely or topical or not are unlikely to trouble the executive as much as desirable.

We would be better served by short, snappy debates that extract real information – often with the mind-concentrator of a substantive motion before the House. My fourth observation concerns the scrutiny of primary legislation. This is absolutely at the heart of what we do or should do.

Yet the blunt reality is that we can see plenty of failings. The introduction of evidence-taking Public Bill Committees has been a valuable improvement, but in the scheme of things perhaps in the nature of a sticking-plaster rather than a cure. The hackneyed phrase 'line by line' scrutiny sounds impressive, but without notice, time and resources it can be entirely hollow. And there is particular concern among backbenchers of all stripes that the present arrangements for Report Stages allow substantial numbers of amendments to be tabled late in the day and so without the time available to scrutinise what are more than cosmetic changes. I should in fairness acknowledge that this has not been a particular problem so far in this Parliament (in which I detect the benign influence of Sir George Young), but there is no safeguard against a recurrence.

None of this is easily rectified; but there are a good many interesting suggested reforms. In the first session of a new Parliament, especially the first session of an incoming new party Government and a new Parliament, it is probably too optimistic to ask for most legislation to be published in draft form first. But after the first year or so the situation will change.

As a matter of broad principle I believe it would be commendable if a clear majority of bills started life as drafts. I cannot avoid the conclusion that this would make for much better law. I realise that this makes a particular demand on specialist drafting resources. I understand – although I hope I am wrong – that the number of Parliamentary Counsel is actually being reduced. I trust this will not be a change to be regretted. There are other innovations too which we could contemplate.

One would be to make it easier and so more commonplace to use split committals so that the major issues relating to legislation can be thrashed out on the floor of the House with detail done in committee. We could encourage more bills to be referred to a select committee before second reading. Indeed, as a really daring aim we could set ourselves the objective that a clear majority of bills, perhaps even all bills, should be taken to a select committee at an early stage in their passage.

It would still be worth exploring whether some version of a trigger for recommittal can be invented for when the Government tables a large number of Report amendments, and whether reasons for all Report amendments should be provided so it becomes clearer whether legislation is being altered at that stage in response to constructive criticism or because of changing Ministerial minds.

The expertise and interest of the Institute for Government have a role to play in making progress in almost all the areas I have mentioned in the course of my remarks. But I am going to finish with three particular questions, or indeed challenges, for the Institute and for many others here this evening. Page 20 of 22 First, scrutiny of the EU.

The ignorant decry the quality of the Commons EU scrutiny. Either they say that we do nothing, or that the Lords do much better. This misses the point entirely. As in many other areas the work of the two Houses is complementary (and I hope this survives any changes in the Upper House!). The Lords conduct traditional select committee inquiries on very few EU documents; the Commons Committee scrutinises a large number of documents quickly but rigorously, often with a lengthy dialogue with Ministers before a document is cleared.

Anyone who wants a really good incisive commentary on what is emerging from EU institutions should simply go to www.parliament.uk and look at the weekly reports of the European Scrutiny Committee.

But valuable as this scrutiny is in itself, it risks being self-contained. A former Clerk of that Committee put it like this: the Committee’s scrutiny is like a burglar alarm. It will tell you when someone is getting through the kitchen window. But it won’t go down and apprehend the intruder. And this crystallizes the problem.

Last October an excellent House of Commons Library paper assessed how much of our legislation stemmed from EU obligations; but we still don’t really mainstream EU issues in Parliamentary proceedings. So that’s the first challenge – how do we follow up on the product of EU scrutiny? I think we would all agree that the practical knowledge of Parliament amongst civil servants has been declining for some time. There are many reasons for this; more frequent postings and competing priorities among them.

But I suspect that the real reason is that at the most senior ranks of the Civil Service a real knowledge of how Parliament works is simply not seen as sufficiently important. This is short-sighted. An official who understands what happens on the other side of the road can do her or his job better, be more effective and – and this will strike a particular chord, I have no doubt – avoid Parliamentary cock-ups and unnecessary exposure of Ministers. I pay tribute to the Cabinet Office Minister Mark Harper, who at the Study of Parliament Group in Oxford a fortnight ago acknowledged that Government could do much better.

So here's the second challenge: how can we give the Executive a better practical (and I emphasise practical) understanding of the Legislature?

The third of my challenges is perhaps not surprising, but I have not yet seen it widely articulated. In the new economic environment, Departments of State will have to manage with significantly less money, but possibly not significantly fewer responsibilities. What will that mean for their response to Parliamentary scrutiny? So there is the third challenge: as cold winds blow, how do we ensure that providing Parliament with what it needs for scrutiny on behalf of the citizen and the taxpayer is a high enough priority for Government?

This audience has been very patient with this speech this evening. I trust that in the spirit of the subject which I have been discussing it is because you have been scrutinising every word I said! I have framed my argument tonight around the notion that the answer to the question 'What does scrutiny mean in 2011?' is in essence 'an examination, not an observation'. An audience in a theatre has, after all, the right of observation but this does not render them as essential to the drama itself.

Only the professional critic, who has the capacity for meaningful examination, makes himself count with those on stage. The House of Commons needs to be an instrument of scrutiny by examination. It must be the informed critic and not the man or woman in the crowd. We have made progress in that regard, particularly in the past 18 months, but there is more that can still be done. You have had to observe me for long enough. Thank you very much indeed for this platform and let your scrutiny by examination of me now begin.