Bringing accountability to national governance: parliament interacting with independent oversight institutions

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

 

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.  

Parliament: You in Danger, Girl

PSA Parliaments Group Convenor Dr Marc Geddes considers the potential impact that the recent Conservative victory may have upon effective parliamentary scrutiny. The blog discusses the current government’s agenda for legislative reform and the changes that may be brought about by a shake-up in the staffing of key parliamentary roles.

On Thursday, 12 December, the public elected MPs to represent them in the UK House of Commons. There are returning and experienced MPs, including one that was originally elected in 1974, as well as 140 new MPs, the youngest of which is 23. While the turnover is not significantly out of line with previous elections, 2019 is significant because of the scale of the Conservatives’ victory. And it is the party’s level of victory, matched with its rhetoric on reforming UK democracy, that could see considerable changes to the future role of Parliament, and most certainly a very different role as compared to what it played 2017-19. Of course, the dust hasn’t settled yet, but I think that Parliament’s centrality in decision-making is in danger.

The first and most obvious difference is the government’s majority of 80, not seen for the Conservatives since the 1980s. How does this affect the House of Commons? Throughout the 2017 legislative period, many votes were on a knife-edge precisely because the government did not have a majority; the government needed every single vote to secure the safe passage of legislation. The larger a government’s majority, the more room for manoeuvre for the prime minister. A majority of more than 80 seats means that even if 35-40 Conservative MPs vote against their own party, the executive would still pass its legislation. As a result, the threat of voting against the government or abstaining has declined. In short: MPs’ leverage in the House of Commons has significantly declined. This will have concrete consequences. One example of this is the Withdrawal Agreement Bill, which is set to return to the House of Commons on Friday. As Graeme Cowie (from the House of Commons Library) has pointed out, the Bill was drafted with concessions in mind, and included a role for Parliament in scrutinising and approving the future relationship. Without the same level of concessions required, will the government revisit some of these parts of the Bill (citing its electoral success to say that the public want Brexit done, not scrutinised)?

A second difference to 2017-19 will be the role of the Speaker, Lindsay Hoyle. He has promised to be a different kind of Speaker to John Bercow. Bercow’s relationship with the government was known to be particularly poor. He was unafraid to challenge the prime minister and government in order to champion the rights of backbenchers. At this point, it is difficult to tell precisely how Hoyle will behave as Speaker, though there are some interesting hints from his interview with Nick Robinson from early November 2019 – including his comment, for example, that ‘the country elects the government’ (not exactly true, but maybe I’m being pedantic), which should be expected to get their business through the House. He has suggested that parliamentary rules should be cleared up. With a majority government, it wouldn’t surprise me if the Leader of the House grants this wish and, in keeping with tradition of a power-hoarding executive, the likely result will be that those rules will be clarified in the government’s favour.

So, it seems that we are set for a far more predictable legislative period. Dramas in the chamber, late-night votes, the high viewing figures for BBC Parliament… these are likely to recede into the past as predictability reigns. In many ways, Parliament will return to ‘normal’. However, beyond this, there are at least two other things worth mentioning: the impact of the majority on scrutiny and the possibility of reform.

In the House of Commons, select committees are seen as the main mechanism of scrutiny. Typically, they are made up of 11 MPs to examine and scrutinise the policies of government. In the new parliament, it is likely that committees will be made up of six Conservatives, four Labour members and one MP from a smaller party (for a detailed overview of committees and how they work, see the Hansard Society’s handy explainer). Their task will be to keep a close look at what the government is doing. There are particular things to watch out for in the coming months. First, some high-profile and experienced chairs are not returning to their roles: some lost their seats, e.g. Sarah Wollaston, chair of the Health Committee and Liaison Committee; others stood down, e.g. Stephen Twigg, chair of the International Development Committee. So, we are likely to see a new crop of chairs, which is also due to take place because other chairs will have reached term limits as set out in Standing Orders (e.g. Sir Bernard Jenkin). Second, the Liaison Committee published a big report on improving the effectiveness of committees before the election was called. The question that now arises: will this reform agenda be pushed forward? My hunch is that it won’t: the Conservatives have been rather happy to avoid media scrutiny during the election, so probably won’t want to empower MPs to enhance parliamentary scrutiny; Wollaston, the chair of the Liaison Committee between 2017 and 2019, has lost her seat; and, the government’s chief adviser, Dominic Cummings, has been in a long-running dispute with select committees over a failure to appear before them.

Scrutiny will be vital; it is fundamental to achieving good government. And yet… On 15 December, Rishi Sunak, chief secretary to the Treasury, was asked about fundamental civil service reform, to which he responded that, ‘I think people watching are not interested in the process of government’. While the focus of this exchange was about the civil service, not Parliament, this speaks volumes to me. It suggests that commentators, academics, the media, and parliamentarians, must look very carefully to make that this government is held to account. Because there are strong hints that the government is planning to drive through big changes in how Whitehall is organised, and the reach might very well extend to Westminster, too.

On the morning after the general election, Boris Johnson’s victory speech included a line that ‘Parliament must change’. Meanwhile, tucked away on p.48, the Conservative Party’s manifesto says that ‘we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people’. To achieve this, the Conservatives have pledged to introduce a Constitution, Democracy and Rights Commission within the first year of office to examine how to ‘restore trust in our institutions and in how our democracy operates’. In terms of specific pledges that will affect Parliament, the Conservatives have promised to ‘get rid’ of the Fixed-term Parliaments Act (FTPA) as well as promises that will affect elections (keeping first-past-the-post, introducing voter ID, updating constituency boundaries, etc.).

Putting all this together: we will have an emboldened government that is likely to want to see through an historic policy agenda with wide-ranging repercussions, and it can do so with a comfortable majority in the House of Commons, possibly without high levels of scrutiny. Meanwhile, there are hints that political, administrative and constitutional reforms are also on the table. To adapt an iconic line from Ghost (1990): Parliament, you in danger, girl.

Dr Marc Geddes is Lecturer in British Politics at the School of Social and Political Science, University of Edinburgh. His most recent book, Dramas at Westminster, looks at select committees in the House of Commons and is available now. He is on Twitter: @marcgeddes.