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.  

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