Franklin De Vrieze, Senior Governance Adviser at the Westminster Foundation for Democracy discusses the role played by independent oversight institutions in ensuring democratic accountability.
The federal Parliament of Belgium © Kamer van Volksvertegenwoordigers
As governance processes occur within a country’s political-economic and legal-constitutional context, bringing accountability to national governance cannot be left to those individuals and groups holding power. Independent oversight institutions have a specific role in strengthening accountability which is complementary to the oversight role of parliament. Because the relationship between parliament and independent oversight institutions is sub-optimal in many countries, this article discusses the issues shaping their relationship, outlining how to make it more productive.
When a country’s political system is centred around all powerful executive, can effective independent oversight institutions rebalance the power between the government and parliament and strengthen citizens’ confidence in the democratic system? When newly established independent oversight institutions are bringing more accountability to a state administration struggling to overcome decades of authoritarian rule, how can parliament effectively follow up on the reports of independent oversight institutions? These are the questions analysed in a new publication by the Westminster Foundation for Democracy, Parliament and independent oversight institutions, which informs this article.
Independent institutions: one term, different realities
Most countries have established a wide range of independent institutions. Reflecting on their power and mandate, we have identified, at least, four categories of independent institutions.
Firstly, there are autonomous public service providers, such as universities, academic institutions, statistical offices and national public broadcasters. In the UK, most of them are Arm’s Length Bodies (ALBs). Their independence from the political institutions of the state is essential to enable them to deliver the very services which they are created for.
A second category of independent institutions are the independent regulatory agencies, which are mainly economic regulatory bodies. Examples are financial market regulators, telecommunications regulators, energy regulators, aviation regulatory agencies, etc. Following the privatisation of former state monopolies, the regulatory agencies have grown in numbers worldwide.
Thirdly, Constitutional Courts, Supreme Courts and other judicial authorities can play a critical oversight role in judicial review, ranging from determining the constitutionality of legislative acts and regulations to assessing the legal basis of government actions.
Fourthly, there are the independent oversight institutions (I.O.I.), whose mandate is to exercise oversight over the democratic functioning and integrity of the executive and the state administration. Examples of independent oversight institutions are supreme audit institutions, human rights–related oversight institutions including privacy and information commissions, anti-corruption agencies and electoral management bodies. In most jurisdictions, these institutions play an important governance role and have a high profile.
Parliament and independent oversight institutions (I.O.I.)
Because of their oversight role, I.O.I. have a natural relationship with parliaments. I.O.I. are extensions of the concept of separation of powers in the context of complex modern societies where, alone, legislatures do not have the time nor technical skills to follow all executive actions.
The specific nature of the relationship between I.O.I. and parliaments varies considerably, with a multitude of constitutional arrangements internationally and even within countries. While some I.O.I. do report directly to parliament, others might report to the executive, to another authority or to more than one institution. Even if not part of the judiciary, some I.O.I. may have quasi-judicial powers, such as the right to impose financial penalties or the right to sanction individuals or organisations that breach human rights.
Practices worldwide have revealed challenges when parliament is captured by interest groups, and thus where parliamentary engagement with I.O.I. is not geared towards strengthening oversight. Here a balance must be struck between defending the mandate and autonomy of the I.O.I., while not establishing a supra-state body that itself lacks accountability.
Another challenge can be the instrumentalisation of I.O.I. for specific elite agendas. There are many examples from authoritarian states where supposedly independent anti-corruption institutions are effectively used to gather incriminating material on current or potential opponents, that can be used to threaten and restrict legitimate opposition.
Defining I.O.I. as outside of, and entirely independent from, the other branches of government can seem attractive at first because it puts them above interference. However, in practice, I.O.I. must have a legitimacy derived from somewhere, and parliament is the most appropriate institutional anchor. I.O.I. must have a legislative framework; only parliament can provide this by adopting the relevant legislation. The leadership of I.O.I. must be appointed. Who is to do so? If it is the government, then the body which is to be overseen is choosing its overseers; which constitutes a conflict of interest. The work of I.O.I. must carry weight and be responded to; who is to assure this? Of course, it would be possible to define institutions as accountable to some other body or bodies, such as a group of experts, or representatives of different institutions. But who decides which experts are to be selected, and on what grounds? Which bodies should make up a ‘college’ to govern an I.O.I.?
This is not to claim that parliament should be empowered to act arbitrarily. The great majority of countries have constitutions that limit the powers of all state institutions, including parliament, and governance in those few democratic states that do not have written constitutions is based on common codified principles that are effectively unwritten constitutions.
Neither do parliaments always make good decisions; often, decisions are shown in retrospect to have been based on misreading a situation, on a rush to judgment, or to respond to vocal pressure, such as campaigns organised by newspapers or interest groups. In cases of imperfect democracies and state capture, parliament may well misuse its relationship over I.O.I.. However, in these circumstances, it is quite possible – if not probable – than any alternative mechanism will also be susceptible to abuse, except perhaps where international trustees are brought in either as part of the selection process or as officers of I.O.I., but this raises questions of national ownership and long-term sustainability. Nevertheless, ultimately, parliaments and parliamentarians are accountable to citizens through elections.
The four “contact points”
Therefore, and based upon international best practices, WFD has identified that parliaments interact with I.O.I. in at least four distinct ways. They are the four “contact points” between parliaments and I.O.I.:
- Determining the mandate, responsibilities and scope of work of the I.O.I. through legislation
- Ensuring the institutions’ annual and other reports and their follow-up by parliament
- Selecting / appointing / overseeing the Boards or the leadership of the I.O.I.
- Reviewing or approving the I.O.I.’s budget and financial responsibilities.
For each of these four “contact points”, we can value the role of parliament as the institutional anchor towards I.O.I. and the substantial drawbacks for any other political actor taking that role.
On the first point, parliament in almost all countries is the main, often the only, institution entitled to wield legislative power. Therefore, a solid mandate for independent oversight institutions, if it is not grounded directly within the constitution, is established through legislation adopted in parliament.
Secondly, in most cases, parliament is the main body charged with receiving and following up on I.O.I. reports. Clearly, findings of oversight institution reports need to be addressed by the executive. But for this reason, it cannot be the executive that is the arbiter as to whether the remedial measures it has taken in response to an independent oversight institution report are adequate. Without parliamentary follow-up, I.O.I. are powerless to take action such as changing laws and regulations to remediate problems.
Third, there are many models for the selection of I.O.I. members, but parliamentary nomination is the most common, whether directly or through confirmation of candidates nominated either by the executive or certain estates. In addition, clear criteria should be established for membership of the governing body of the institution, and the selection of members should be based on a transparent process, and membership should be for a multiyear period.
Fourth, determining the budget of I.O.I. normally occurs through the national budget process, where parliament both scrutinises the government’s budget proposal, including for I.O.I., and reviews and follow up on the supreme audit institution’s report on how that budget was spent. However, it is fair to state that, in practice, I.O.I. frequently lack the financial (and sometimes human) resources they need to function, even when financial autonomy is guaranteed in the constitution.
The following diagram represents parliament’s interacting with I.O.I. in the mentioned four contact points.
In most democratic systems, I.O.I. are fully or partially responsible to parliaments; leadership is chosen by parliament, and reports are submitted for follow-up to parliament. Parliaments, through their constitutional responsibilities for oversight, have the authority to ensure that I.O.I. recommendations are carefully reviewed by government and either implemented, or explanations provided as to why they should not be implemented. For I.O.I. to be fully effective, they need to be anchored within the overall governance process, so that their findings can be followed up to ensure that they are considered in reformed and improved programmes and policies. Whatever constitutional framework applies, a productive relationship between parliaments and I.O.I. improves the quality and transparency of governance and makes the democratic system more accountable.
Franklin De Vrieze is Senior Governance Adviser at the Westminster Foundation for Democracy (WFD). His areas of expertise include Post-Legislative Scrutiny, financial accountability and independent oversight institutions. For more information follow Franklin on Twitter @FranklinDVrieze