Social distancing meets political distancing: scrutiny in a digital parliament

The physical distancing at Westminster is also leading to increased political distancing of government from parliamentary scrutiny, writes David Judge. He explains that the latter has already been happening and is likely to continue, even after the social distancing measures are lifted. The blog was originally written for the LSE Politics and Policy page but has been kindly shared with the PSA Parliaments Specialist Group.

The technical and procedural complexities of transitioning to a virtual parliament, or a quasi-digital ‘hybrid’, have, understandably, been the main focus of attention at Westminster since the outbreak of the Covid-19 crisis. Yet, underpinning the compelling need for digital dexterity and procedural innovativeness has been an unchallenged belief that ‘there is no substitute for parliamentary scrutiny … at this time of national crisis’.

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Parliamentary Standards – the battle to retain control

Richard Kelly of the House of Commons Library provides an overview of recent developments in the field of parliamentary standards. The blog discusses how institutional arrangements have evolved in response to a series of significant events such as scandals related to ‘cash for questions’ and MP’s expenses.

Mid 1990s

It is 25 years since John Major appointed the Committee on Standards in Public Life to “examine concerns about standards of conduct of holders of public office”.  The creation of the CSPL was prompted, in part, by the ‘Cash for Questions’ scandal, in which two MPs accepted cash for asking questions in the House of Commons.

In its first report, in May 1995, the CSPL made a number of recommendations of general application for those in public life, in Parliament, Government and quangos:

  • It proposed general principles of conduct that should underpin public life;
  • Those principles should be included in Codes of Conduct;
  • There should be independent scrutiny.

These were reflected in specific recommendations addressed to the House of Commons and Members of Parliament.

The House of Commons responded by appointing a select committee on Standards in Public Life to consider how to implement the CSPL’s recommendations.  It recommended the replacement of separate committees on Privileges and on Members’ Interests by the Committee on Standards and Privileges, charged it with drawing up a code of conduct and the appointment of a Parliamentary Commissioner for Standards to maintain registers, advise Members and the Committee, to monitor the Code and to investigate complaints about registration of interests and Members’ conduct.

Its proposals were adopted by the House of Commons in July and November 1995; the first PCS was appointed in November 1995; and the first Code of Conduct was approved by the House on 24 July 1996.

It is important to note that the House did have rules relating to Members’ interests before this.  However, they had not worked effectively – there were problems with transparency and with acceptance of the rules. The developments in the mid-1990s saw the first involvement of someone who was not an MP in the oversight of Members’ financial interests.

That independence was very limited, reflecting the aspect of parliamentary privilege that sees the two Houses of Parliament having exclusive cognisance (sole jurisdiction over all matters subject to parliamentary privilege).

Members’ expenses (2009)

After Gordon Brown became Prime Minister in 2007, various attempts to reform Members’ salaries and allowances were considered by Parliament and Government.  In 2008, the Commons agreed a new approach to setting Members’ pay and made revisions to the rules on allowances.  However, in 2009, the expenses scandal broke, with the Daily Telegraph reporting on claims made by Members.  Even though many of these claims were not actually allowed, the scheme was no longer legitimate in the public’s eye and the Speaker resigned after misinterpreting the public mood.  The Government brought forward legislation to establish IPSA – a new body – to administer and regulate Members’ expenses.

In introducing the legislation, Jack Straw, the Leader of the House of Commons, acknowledged that the expenses scandal had “profoundly affected the public’s trust” in Members and the House.  He said that it had damaged Members’ confidence in themselves; undermined those whose conduct was beyond reproach; and “revealed a collective failure by this place effectively to regulate itself”.

The legislation, introduced in June 2009, received Royal Assent before the Summer Recess.  Initially, IPSA was only given responsibility for Members’ expenses but the legislation was amended in 2010 and IPSA also took on responsibility for MPs’ salaries and pensions.

Independent Parliamentary Standards Authority

IPSA is a body corporate, independent of Parliament and Government.  IPSA’s Board is responsible for its administrative functions – determining pay and expenses and paying them.

In the original legislation, a Commissioner for Parliamentary Investigations was to be appointed to investigate complaints about expenses that should not have been allowed and about the registration of interests.  The Justice Committee reported concerns of clerks “on the possible implications of the Bill for parliamentary privilege, freedom of speech in parliament and the boundary between the courts and Parliament”.

Whilst Parliament was passing the first legislation, the CSPL was examining Members’ expenses.  It accepted the concerns about parliamentary privilege and recommended the Code of Conduct should remain a matter for Parliament but that the Committee on Standards and Privileges should have at least two lay members.

Changes through the 2010 legislation created a Compliance Officer – a statutory officer holder who acts independently of IPSA’s executive – to investigate complaints about expenses.  The Compliance Officer will also review decisions made by IPSA, if requested by a Member.

The Compliance Officer generally works two days per week and is supported by an Investigations Officer, who works three days per week.  He only considers matters relating to IPSA’s expenses scheme and there is no overlap with the Parliamentary Commissioner for Standards.  His workload has been relatively light.  In 2017/18, of 54 complaints, only two led to full investigations.

The Code of Conduct remained a matter for the Commons and the Committee on Standards and Privileges was separated into its two constituent parts.  Initially three lay members were appointed to sit with MPs on the Committee on Standards.  That number has increased to seven and the number of MPs on the Committee has reduced to seven.

Bullying and harassment

In November 2017, allegations and accounts in the press of inappropriate behaviour and a culture of bullying and sexual harassment at Westminster led to the establishment of a cross-party Working Group on an Independent Complaints and Grievance Policy.

The Working Group recommended the development of a parliament-wide behaviour code and an independent complaints and grievance scheme.  In February 2018, the House agreed and the Group oversaw its development.

The House then endorsed the new Scheme in July 2018.  It also endorsed changes to the Code of Conduct, including the incorporation of the Behaviour Code – thereby giving the Parliamentary Commissioner for Standards a role in investigating allegations and the Committee on Standards a role in recommending sanctions.

Whilst the Scheme was being developed, further allegations about MPs’ behaviour were aired on Newsnight.  The House of Commons Authorities commissioned an independent report from former High Court judge, Dame Laura Cox.

In relation to overseeing the ICGS, Dame Laura recommended that:

Steps should be taken, in consultation with the Parliamentary Commissioner for Standards and others, to consider the most effective way to ensure that the process for determining complaints of bullying, harassment or sexual harassment brought by House staff against Members of Parliament will be an entirely independent process, in which Members of Parliament will play no part.

The House of Commons Commission has been criticised because Laura Cox’s recommendation on independence has not been implemented over a year after she made it.

The Commission has appointed a working group to explore how decisions on the sanctioning of Members can be made without their involvement, in an entirely independent way.

Strengthening the role of lay members

When first appointed, the lay members of the Committee on Standards did not have voting rights.  When the ICGS was adopted, in 2018, the House agreed that lay members of the Committee on Standards should have an informal vote on Committee recommendations.  Following Dame Laura’s report, the Committee brought forward recommendations to give them formal voting rights.  In its report, the Committee described this as an “interim step”, “without prejudice to actions the House might take in future to implement the Cox report”. Despite concerns about parliamentary privilege, the Commons agreed that lay members should be accorded full voting rights.

The Committee on Standards proposed to establish a sub-committee comprising three lay members and two MPs to consider appeals under the ICGS.

In the wake of concerns about bullying and harassment and sexual misconduct in Parliament, the rights of the independent Members of the Committee on Standards have been strengthened.

Conclusion

Over time the system has come under pressure. Members have expressed frustration and annoyance that their behaviour is overseen by non-Members yet at the same time, there have been occasions when their behaviour been subject to criticism from the wider public.  This has led to a push for more external oversight.  However, there has been resistance to this on the grounds that parliamentary autonomy is infringed.

But scandals, concern that investigations pulled punches and questions about the appropriateness of MPs “marking their own homework” led, initially, to a mixed system with a Commissioner reporting to a parliamentary committee.

The expenses scandal forced the very speedy adoption of an independent system albeit ultimately only covering pay and expenses, not all aspects of MPs’ financial interests.

The internal systems were buttressed by the addition of lay members to the Committee on Standards.

The response to bullying and harassment has been much less rapid than the response ten years ago – perhaps because of less media interest or other events – but might it lead to an independent system of oversight of at least some aspects of MPs’ parliamentary behaviour?

Richard Kelly carries out research on behalf of the House of Commons Library. For an overview of some recent publications click the link below.

House of Commons Library

Keeping Track of the EEC – Commons Committees and Europe in the 1970s and 1980s

Dr Philip Aylett builds on his previous contributions to this blog-site to provide historical insight into the role played by Commons Committees as the UK participated in the European Economic Community during the 1970s and 1980s.

The role of select committees in Parliament’s response to the UK’s accession to the European Economic Community (EEC) in 1973 has received little attention. Yet inquiries by such committees played a substantial part in the House of Commons’ scrutiny of European issues during the 1970s. This blog looks at the work of these committees, and suggests some wider implications.

Existing Commons select committees showed interest in the EEC right from the start of UK membership. One example was a sub-committee of the Expenditure Committee, chaired by William Rodgers (Labour), which visited Brussels within two months of accession to take formal evidence on regional development issues.  Two Commissioners, one the former Labour Cabinet Minister George Thomson, gave evidence. The Guardian described the evidence session as “an unprecedented extension of British Parliamentary practice to the new circumstances of Britain in Europe”’.

Around the time of accession, Lords and Commons both set up select committees to examine how Parliament could keep track of the flow of European Community documents, and influence UK ministers in their work in the Council of Ministers. The Commons committee was chaired by Sir John Foster (Conservative), and it recommended the establishment of the Select Committee on European Secondary Legislation, duly appointed from the Spring of 1974 (the word ‘Secondary’ – slightly misleading as almost all EEC legislation was covered – was later dropped from the title). Its main function was as a ‘sifting’ body, to consider draft proposals for secondary legislation and other documents, and to report its opinion as to whether such proposals or other documents raised ‘questions of legal or political importance’, and therefore merited further consideration by the House.

From the start, the European Legislation Committee dealt with hundreds of instruments annually, rapidly and efficiently reducing an initially serious backlog of documents to manageable proportions. However, the Committee was not just the House’s canary in the mine of European legislation.

In a previous blog (April 2018) I described the growth from the late 1960s of investigatory select committee activity in the Commons, a development that has been unjustly neglected by most commentators. The case for extending select committee inquiry techniques, especially the taking of oral and written evidence, to scrutiny of important but often highly technical EEC documents, was seen by some at the time as a particularly strong one.  So it is hardly surprising that the European Legislation Committee went well beyond its limited sifting remit. Working in fairly traditional select committee mode during the middle and later 1970s, the Committee gathered a considerable body of evidence, both oral and written, on the policy implications of European legislation.

These inquiries at the first stage of scrutiny were in addition to the second stage of formal debates on legally or politically important documents which took place on the floor of the House and (later in addition) standing committee in response to the recommendations of the legislation committee.   During the 1970s, a variety of criticisms were levelled at these second stage formal debates – they were often late in the day, cursory and rushed, meaning that important technical and legal matters were not seen as having been considered properly.

The first year or so of the European legislation committee’s work coincided with the run-up to the June 1975 referendum on EEC membership, and this no doubt lent some of its evidence even greater significance.  Doubts over the transparency and accountability of the EEC budget were explored in a session in February 1975 with the Chief Secretary to the Treasury, Joel Barnett. The Committee Chairman John Davies expressed concern that there was little clarity on ‘the actual outturn of expenditure against budgeted amounts’. This, he said, ‘seems to us to imply a degree of laxity which we are not accustomed to in our own national budgetary affairs.’

In the same month, the Committee took evidence from the Treasury Minister, Robert Sheldon on the embryonic European Monetary Cooperation Fund, whose aim was to ensure the proper functioning of the progressive narrowing of the fluctuation margins between Community currencies (the so called “Currency Snake”). John Davies noted that: ‘the EMFC was instituted as a very limited operation with very limited resources  … [but this] might indicate a trend towards the reinforcement of the Fund which would be of great significance to the future of the Community institutions.’ Thus gently and quietly did the Committee begin to probe the area of monetary policy which would eventually produce the Euro. Other major European issues on which the Committee took evidence in the mid-1970s included tax rate harmonisation and decision-making in Brussels on the key area of agriculture.

The work of the European legislation committee of the mid-1970s was quantitively impressive as well as broad in its policy scope. In little over a year, beginning in February 1975, the Committee heard oral evidence on 25 occasions from Ministers. According to the Committee ‘In addition, a great deal of written information has been obtained—much of it from outside bodies, with whom the Committee have made good progress in establishing regular contact’. The growing volume of backbench scrutiny activity may or may not have had a direct influence on the actions of Ministers in Brussels and Strasbourg; but it did provide a number of opportunities for MPs to analyse the effects of EEC policies and legislation and test Ministers’ grasp of the issues. In one respect, though, the European Committee did not match other select committees; it did not attempt to produce lengthy agreed reports about the merits of policy matters, because the limited time available did not allow it to come to consensus on some of the most contentious subjects.

Scrutiny of European documents had some wider political repercussions, causing cabinets of both parties some anxiety. For instance,  Edward Heath’s cabinet voiced concern in January 1974 at proposals by the Select Committee for six days to be provided in each session for debates on Community matters. The cabinet conclusions record worries that ‘anti-Marketeers’ could be provided in this way with ‘unnecessary opportunities for making difficulties’ (page 1).  In January 1975 the conclusions of a meeting of Harold Wilson’s Labour cabinet record that ‘difficulties were still arising on debates on [EEC] documents’ recommended by the committee. It was argued in cabinet that ‘the problem arose partly because some members were using the new situation to extend Parliamentary involvement into an area previously the preserve of the Executive’, in this case agricultural prices (page 1).

The European Legislation Committee continued to take substantial amounts of oral and written evidence as the 1970s wore on. In a January 1977 oral evidence session, the ‘anti-Market’ Neil Marten MP (Conservative) pressed Dr David Owen, then Minister of State at the Foreign Office, on the question of the Passport Union between EEC countries. Marten demanded that the Government agree to a debate in the House on this issue, stating that the ‘question of a passport and having EEC stamped on it is a strongly emotional matter with a great number of people? I just quote the eight and a half million who voted “No” in the Referendum.’ In the same session there were questions about the additional burden which would allegedly be placed on Community budgets by the accession of countries such as Greece which were not as well developed economically, or as stable politically, as the current members.  To support this industrious programme of work, the 1970s European Legislation Committee was, by the standards of the time, very well resourced, being assisted by the late years of the decade by four seconded civil servants and by Mr Speaker’s Second Counsel, as well as the clerk and other staff.

The far-reaching Commons Procedure Committee of 1978 was satisfied with the initial scrutiny of EEC documents by the Select Committee, which had ‘worked well in practice’.  However, it was confirmed the general impression that when the House or the standing committees examined those recommended by the Select Committee for further consideration at the second stage the situation was ‘less satisfactory’. To remedy this lack of detailed accountability, the European Legislation Committee Chairman, Sir John Eden (Conservative) had proposed that the Committee should be enlarged into a Committee on European Affairs with power to consider the merits of European legislation. In effect this would have formalised and amplified the Committee’s existing evidence-taking practice. But the Commons Procedure Committee, which in the same report recommended the establishment of the new departmental committees, concluded that because ‘European legislation is closely bound up with United Kingdom legislation and the work of UK government departments … we would therefore prefer any consideration of the merits of such legislation by select committees to be entrusted to the new departmentally related committees’.

But this aspiration remained unfulfilled. Most of the post-1979 Commons departmental committees appear, in their first decade at least, to have largely ignored the invitation to tackle European Community issues. The second (1989) edition of Gavin Drewry’s comprehensive survey of the operation of the departmental committees contains little about European matters; his index mentions the European Economic Community just 15 times.

The European Legislation Committee and its successor the European Scrutiny Committee continued to take oral evidence well into the 21st century. But after 1980 the investigatory work of the European Committee does not seem to have been on the same scale as in the early years. Meanwhile the shortcomings of the formal debates on the floor of the House and in standing committee seem to have persisted. By 1989, Lynda Chalker, the Minister for Europe,  was acknowledging in the Commons that there was ‘genuine concern in the House about the need to make the process of parliamentary scrutiny [of EEC legislation] more timely and effective’, a worry at least partly deepened by changes to decision-making in Europe,  and in particular restrictions to the role of Ministers after the introduction of the Single Market (Col. 1161).  The European Scrutiny Committee of the 1980s was said by one Member to be ‘admirable but circumscribed’; the impression is that it did not push the boundaries of its order of reference like its 1970s predecessors.

The evidence discussed here shows that, although their approach was sometimes incomplete and incoherent and their impact on ministerial decision-making uncertain, select committees of the 1970s were often enthusiastic and active in addressing the most important European Community matters,  but it also suggests that the initial level of committee scrutiny of ‘Europe’ was not sustained in the following decade. In particular, the departmental committees did not in general appear to show much interest in European topics in the 1980s, leaving the ‘circumscribed’ European Scrutiny Committee and limited standing committee and floor of the House debates to carry on that work.

Further research into the 1970s and 1980s and later epochs in the life of the European Scrutiny Committee could assess its effectiveness and explore the reasons for the House’s apparent failure to build on the initial momentum of European scrutiny.  It would also be interesting to ask what effect the shortcomings of Commons committee scrutiny had in the long term on parliamentary, and perhaps public, attitudes to the European institutions.

Dr Philip Aylett has been Clerk of a number of House of Commons committees, including the European Scrutiny Committee. His research interests include the history of Commons select committees, especially between 1960 and 1990, and he recently published articles on the subject in Parliamentary History and Parliamentary Affairs.  

Running parliamentary institutions: dilemmas of leadership, governance and identity

Mark Bennister, Ben Yong and Diana Stirbu discuss the lack of a shared parliamentary identity in Westminster, considering the implications for institutional governance and reform.

 “I’ve been very clear that I don’t think parliament is a building, I think it’s a collection of elected representatives… (former Conservative leader candidate Rory Stewart MP, August 2019).

“There is no ‘voice of Parliament’ that can be collectively orchestrated. Parliament is a place where the parties do permanent battle, and this fundamental reality trumps attempts to build up Parliament itself … those accounts which say that Parliament should do this or that to make itself more effective fail to understand that there is no ‘Parliament’, in a collective sense, at all. (Tony Wright 2004)

MPs and Peers are unclear in explaining what Parliament is, and by extension whether or not it has any collective institutional identity. The Westminster Parliament may indeed have no singular voice or an individual who speaks for the institution. However, beneath the political battles and the expression of Parliament as a site of contest, there is an organisation to be governed and managed. To run what amounts to a small village at Westminster requires administrative structures with lines of communication and accountability.

The challenge of organisational governance, whereby the political and administrative aspects must work together, has been highlighted in Westminster by various crises: the expenses scandal, appointment of a new clerk of the House, the restoration and renewal programme, and the bullying and harassment of staff. Such perceived crises for the Westminster Parliament have brought governance arrangements in the Commons to the fore.

Yet internal reform in Westminster occurs at a glacial pace. Often it requires the consent of the political masters who act as veto players meaning that workplace improvement, commonplace elsewhere, remain slow to adapt. The leadership and governance arrangements of Houses of Parliament are historically a complex set of overlapping and contradictory arrangements with little coherent structure. The devolved legislatures, by contrast, were able to build governance arrangements, largely from scratch, on establishment 20 years ago, slightly less encumbered by historical restrictions of physical space and political convention. And the management lines and role of the Presiding Officer are much clearer in the Scottish Parliament and National Assembly for Wales.

It is difficult to separate leadership from governance, but in the case of parliaments, leadership involves individuals or groups speaking on behalf of others in the parliament (backbenchers, parties, committees and so on), while governance relates to the administrative and bureaucratic arrangements that exist to ensure that resources are allocated and the institution functions on a daily basis. Yet leadership and governance often interact within structured arrangements.

Geddes and Meakin’s interpretive approach opens up avenues of study, whereby we seek to understand the meaning and actions of individuals within the institution to explain change. Our research will take a similar approach in seeking to look beneath the formal structural arrangements to understand the challenges of running parliaments. Here we present 3 dilemmas for actors in Westminster.

  1. The dilemma of governance

Parliament contains both political and administrative leadership, with both communities involved in running Parliament but, without a shared institutional purpose. For instance, the Commons and Lords Commissions contain multiple actors with often conflicting agendas; each act as the strategic governance body, but delegate downwards. Partisan, personal, bureaucratic interests are represented on the Commissions. The Commons and Lords Speakers chair the Commissions, but others are accountable for decisions (Tom Brake MP answers Commission questions on the floor of the House). Moreover, the House Commissions have a weak history of governance and strategy, because decisions of the cross-party Commissions require consensus—which is not easy to achieve.

  1. The dilemma of leadership

There are multiple contestable sites and claim-making individuals in Parliament. Many individuals present themselves as leaders in the Commons on the basis of position (Speaker), seniority (Father of the House), election (select committee chairs), political (Chief Whips), Executive (Leader of the House). The Director-General and Clerk of the House share the most senior administrative position. In the Lords, four actors are key in a much flatter, self-regulating forum. The Clerk of Parliaments is the senior administrator, while the procedural and political dimensions are divided between the Lords Speaker, the Leader of the House, and the Senior Deputy Speaker (Chairman of Committees).

The Commons Speaker has a strong claim to speak for the House as he has a threefold role as procedural lead, administrative chair of the Commission and an external face exercised via his office. The impact of Speaker Bercow on the Commons demonstrates perhaps that a less institutional approach to analysing parliaments is necessary. Bercow challenged convention and altered perceptions and shows how critical actors can drive or block change. It remains to be seen whether Sir Lindsay Hoyle will adopt a substantively different approach.

  1. The dilemma of identity

Parliament (Commons and Lords), presents a dilemma of institutional leadership: are legislatures simply products of the elected representatives or collective entities? The collective and corporate nature of the UK Parliament has been neglected by the elected representatives as Judge and Leston-Bandeira say ‘claim-makers do not primarily stand for, or make positive claims on behalf of, the institution itself.’ Parliament, therefore struggles with its identity as a holistic institution. Meanwhile, the administrative governance of the House Service has been strengthened (following the 2014 House of Commons Governance Committee report, set up in response to the 2014 clerk appointment crisis, the Director General Review of Governance was published. which is now being implemented). And yet, it has struggled to make the case for restoring the Palace of Westminster and renewing engagement with the public, largely because the political masters have been reluctant to adhere to any collective need and identity.

Can (or should) dilemmas be solved?

Of course Westminster is hamstrung by haphazard historical development. The Westminster Parliament is a building (more accurately an estate), but also (as per Rory Stewart’s quote above) an ‘aggregation of members’. It is a set of formal and informal proceedings, in which overtly political and necessarily non-political activities are conducted by (temporary) politicians and (permanent) officials in often overlapping communities. In short, the Westminster Parliament is no ordinary public institution.

So, we aim to understand how the leadership and governance arrangements have emerged in Westminster and the devolved legislatures. We seek to map these arrangements to identify hierarchical and management lines between political and administrative arms. However, we are also interested in what the actors think of their roles and positions themselves. Parliaments are naturally messy and contradictory institutions. They are the products of particular structural, historical and contextual factors. Dilemmas or tensions in who speaks for, manages, leads and governs may be apparent at present. We seek not to present an idealised view on how parliaments could or should be better or more effectively run, but rather seek an improved understanding of why leadership and governance is so complex, contradictory and often challenges the development of a shared institutional identity.

Mark Bennister is Reader in politics at the University of Lincoln

Ben Yong is Associate Professor in Public Law and Human Rights at the University of Durham

Diana Stirbu is Professor of governance and public policy at London Metropolitan University