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Government and Executive Accountability Lecture

I. The Executive and Public Law Powers

The rule of law requires that all be subject to the law, even the government or executive. The authority of the executive comes from Parliamentary legislation and the Crown's Royal Prerogative and common law powers. Most legislative proposals come from the government to permit it to act in line with its policy objectives. The government is required to obtain a majority of the House of Commons (and Lords) to support a bill. Parliament is supreme and thus can prevent the government introducing legislation. Royal prerogative powers are residual and thus cannot be extended by the Crown.

The executive is comprised, not just of the political executive (or government), but also includes civil servants; the government can also confer public law powers on other bodies to carry out public functions. Public functions, since the 1980's, have also been contracted out to private contractors. There is now a web of executive agencies that exercise powers on behalf of the government. Next Step agencies are also charged with putting public policy initiatives into practice; this proliferation of public functions within the private sector makes Parliamentary scrutiny of executive functions even more difficult. There have been recent Parliamentary reforms in order to adapt to this change in public functions.

II. Mechanisms for Executive Accountability

Three mechanisms for accountability include legal, political and administrative methods. Scrutiny comes from parliament, the judiciary and the electorate.

1. Parliament and its MP's have the responsibility to hold the executive to account and to determine whether they should support government policy and legislative agenda. MP's seek to raise issues that have come to their attention via their constituents and ministers are normally obliged to answer such questions. Although they are obliged to answer, the answers in practice are often evasive.
2. Judicial scrutiny of the executive is a fundamental principle of the rule of law. The government and public bodies are also accountable through private law. Dicey thought that it was important that the government was judged by the ordinary courts in the same way that citizens are. The Administrative Court of the High Court may scrutinise executive and public policy decisions, actions and omissions. The executive, public bodies and authorities may be subject to Judicial Review. If the court finds that the executive has acted illegally, irrationally, or procedurally improperly, in breach of the rules of natural justice or the Human Rights Act 1998 (HRA), it may quash the decision. There is also the HM Courts and Tribunals Service established in 2011, an executive agency of the Ministry of Justice to which social security and tax disputes could be brought.
3. The Electorate has a legal right to choose parliamentary representatives every five years. London-based media bring the electorates’ attention to issues, however general elections have become distorted into contests between political parties and their leaders, rather than between local candidates and local issues. The media is focused on the party leaders and their senior team on central party-political message. As a result, political parties hire media consultants in order to seek positive media reports to attract the electorate.

III. The Extent to Which Parliament Holds Government Accountable

The Modernisation Committee of the House of Commons, to be chaired by the Leader of the House, was established by the Labour government which took power in 1997. Labour had voiced concerns during its time in opposition that the executive had dominated Parliament and that it should be held to account in new ways. The Modernisation Committee carried out a number of reforms between 1997 and 2005, however, there were also criticisms levelled at its composition, its focus and the outcome of its work.

L. Maher, Modernisation of the House of Commons 1997 - 2005 House of Commons, Research Paper 05/46 (London: HMSO, June 2005)

The Select Committee of the Modernisation of the House of Commons (Select Committee) was established in 1997 to consider how the practices and procedures of the House of Commons could be modernised. It was chaired by the Leader of the House of Commons. Having a Cabinet Minister on the Committee proved to be a 'double-edged sword', making it appear to be too heavily influenced by the Government, when the aim of the Committee was to achieve government accountability.

Recommendations included increased pre-legislative scrutiny of Bills, the introduction of carry-over for some bills, the programming of legislation and the introduction of deferred divisions, which provided more certainty to the schedule of legislative introductions. There was a reform of Parliamentary questions and an agreement of the core tasks of select committees. A parallel debating chamber was also established. Various initiatives were taken to improve communications, to introduce increased use of technology and encourage parliamentary reporting by the media.

The outcome of the work of the Committee was, however, criticised as not achieving its goal of modernisation, due in part because it was chaired by a Cabinet Minister who steered the agenda and was hence not independent of the Government. Certain changes aimed to make Parliamentary procedure less complex in order for it to be more easily reported by the press. There were also suggestions that the changes made it easier for Parliamentary candidates to spend time with their families and thus making the career of an MP attractive to a greater range of people. Ultimately, the Modernisation Committee was influenced by the chair's view of 'modernisation' and did not necessarily make the Government more accountable.

IV. Pre-legislative and Post-legislative Scrutiny of the Executive

Draft Bills are usually scrutinised by a committee in the Commons and in the Lords, or a joint committee of both Houses. At this stage, Parliament can investigate the executive's motives for bringing legislative changes and what additional powers such changes might confer upon the executive. This reform has been welcomed by Parliament and by other commentators.

The First Report of the Select Committee welcomed this change, suggesting that it was one of the most successful parliamentary innovations of the previous decade. The aim was to engage interest groups as well as the Commons and the Lords at the pre legislative state in order to created more effective and comprehensive legislation once passed through Parliament. 

Modernisation Committee, The Legislative Process [First Report, Session 1997-1998, HC 1097, London: HMSO, July 2006], paras 5-6, "Consultations between Government and those outside parliament with a legitimate concern in the legislation has also been criticised as patchy and spasmodic".

There are around 40-50 Bills introduced each year into parliament. All Bills are scrutinised by the Joint Committee on Human Rights (JCHR) for human rights issues. General committees have a role in scrutinising legislation. Public Bill committees play an important role in suggesting amendments to the text and each public Bill committee is named after the Bill that it considers. This committee system allows Bills to be processed faster and as the committees reflect the political make up of the House, so the government is likely to be the majority of the Commons. 

There is occasionally a rebellion by backbench MP's who do not vote for a piece of government legislation and as such do not follow the whip by voting against a government Bill. An example was the Higher Education Bill 2004 which the government won with a very narrow majority. The guillotine is a technical device which forces a vote to be taken on a Bill at a given date. It is used when those opposed to the Bill carry on the debate so that the time that is allowed in Parliament for the Bill to be debated runs out and a vote never takes place. This method has been used rarely; Labour in 1945-51 used it on 3 occasions, the Conservatives did so in 1979-1990 on 34 occasions and Labour again in 1990- 2000 used it on 20 occasions. A programming motion includes a timetable for the passage of the Bill through the process and is similar to the guillotine in effect. It was used 71 times in the 2002-03 session, whilst the guillotine was used 3 times.

Further examples of controversial practice by ministers to restrict amendments to draft legislation include:

• Blocking abortion amendments to the Fertilisation Bill by permitting only 4.5 hours debate for each amendment;
• The Legislative and Regulatory Reform Act 2006 which allows ministers to amend primary legislation with secondary legislation;
• The widespread use of programming motions during the Coalition government of 2010-2015, since this restricts the opportunity for amendments to be tabled and voted upon.

The House of Lords has sat through the night to increase debate time on important legislative changes such as the Fixed-Term Parliaments Act 2011.

Reform of the House of Commons Select Committee, Rebuilding the House [First Report, London: HMSO, November 2009] [The Wright Report], para 109

The single greatest cause of dissatisfaction which we have detected with current scheduling of legislative business in the House arises from the handling of the report stage of government bills - technically the "consideration" stage when a  Bill has been reported back to the House from a public bill committee.

The major problem is that there is insufficient time at the report stage. This makes it very difficult for Parliament to fully debate the issues within the Bills and since the government prioritises Parliaments work, non-government bills frequently have insufficient time for debate at this stage.

V. Parliamentary Scrutiny of Government

The following mechanisms are used to extract information and explanations from government, to debate public policy and to undertake detailed inquires into government operations.

1. Parliamentary Questions

Parliamentary questions are asked to extract information or to require the government to defend controversial decisions and policies.

2. Oral Questions

Oral questions to Ministers are often Parliament's most recognisable activities. Prime Ministers Questions (PMQs) is televised, takes place for half an hour each week, and was introduced in 1961. PMQs often shows direct opposition between the PM and leader of the opposition. PMQs aims to highlight the deficits of government policy and the fact that the opposition party would form a better government. PMQs serve the public function of highlighting the ideological differences between the government and the opposition.

Question time for other minister's acts on a rota basis, each Minister appears once in a five-week cycle to answer questions that fall within their area of responsibility. A question about terrorism policy would be put to the Home Secretary. The asking of oral questions serves little purpose other than at a symbolic level to achieve real scrutiny.

3. Written Questions

MPs can all put their questions in writing in order to extract detailed information from government.  Hansard contains records of the debates and statements in the Chamber, as well as long answers to questions. The advantage of the use of written questions is transparency and that the answer is clearly on record.

The cost limit of £750 is the level at which a government department can refuse to answer a question. Some answers by ministerial departments are unsatisfactory or non-answers and may lead to the need to issue a Freedom of Information Request, under the Freedom of Information Act 2000. Such answers appear to be in breach of the Ministerial Code, which requires that "Ministers give accurate and truthful information to Parliament...[and]...should be as open as possible with Parliament and the public" ([1.2c]-[1.2d]).

Governments make formal announcements to Parliament by means of the written ministerial statement. The conception that it is the governments view to inform Parliament of changes in government policy, reflect the view, dominant within government, that Parliament's role is a passive one to be informed, rather than to inform legislative policy.

4. Parliamentary Debates

Debates are held in the House of Commons and in Westminster Hall; they are held on particular issues and allow for expression of various points of view. It is a long-standing concern that the government has too much control over the debates within the House of Commons. Standing Order No 14 states that 'government business shall have precedence at every sitting. Twenty days are set aside for debates initiated by opposition parties, 13 Fridays are used for the discussion of private members' Bills.  Back bench MP's can control at least 27 days worth of business in the commons.

Are debates an effective means to bring about government accountability? Tony Wright in British Politics: A Very Short Introduction (Oxford, 2003) p.85, argues that 'debate' is an odd world to describe events that often involve politicians reading pre-prepared speeches to often-empty chambers. Debates in the House of Commons, often possess a ritualistic nature, party considerations have such a strong influence that the debates tend to serve little purpose in swaying the considerations of the MP's who will vote.

5. Select Committees

House of Commons Departmental Select Committees

A dedicated House of Commons select committee oversees the policy and administration of each governmental department; for example the House of Commons Health Committee overseas the work of the Department of Health. There are 18 departmental committees, but this can change. Each committee is formed of between 11 and 16 MPs, all of whom are backbench MPs. Until recently, party whips decided who chaired each of the select committees, however, following the MPs expense scandal in 2009 select committee chairs are now chosen by MP's through secret ballot.

The formal remit of the select committee is to examine the administration, expenditure and policy of the government department to which it is attached. The committees operate inquiries into areas of policy and administration and seek written and oral evidence from relevant individuals, including Ministers and civil servants. At the end of the inquiry, they produce a report and make recommendations to government.

6. Other Committees

There are a number of other House of Commons committees which transcend departmental boundaries, including the Public Accounts Committee, the Environmental Audit Committee, the European Scrutiny Committee, the Public Administration Select Committee and the Liaison Committee. The House of Lords also has a number of select committees including the Constitution Committee, the Delegated Powers and Regulatory Reform Committee, the EU Select Committee, The House of Lords Merits of Statutory Instruments Committee, the Science and Technology Committee and the Economic Affairs Committee. There are also Joint Committees of both houses including the JCHR.

Assessment

Select committees have the following advantages at holding governments to account

The committees provide for more detailed scrutiny that House of Commons debates, since they undertake detailed inquiries and amass evidence from a number of avenues. They are less politically charged methods of scrutiny that the personal point scoring style, which House of Commons questions and debates can take on in the House of Commons.

• The ability of select committees to scrutinise government have strengthened over time. Their work has become more focused and effective and is now better resourced and engaged; they have become more systematic in their approach and increase both the breadth and depth of their coverage.
• The committees have also enabled individual MP's to develop their own expertise in particular areas, which enhances the quality of their scrutiny.

Select committees have the following disadvantages at holding governments to account

• The current system of select committees is regarded as operating under various constraints, which has an impact upon their effectiveness at holding the executive to account. Their powers are weak in comparison to other countries, since they are unable to propose legislative change.
• Their reports are not debated in the House of Commons unless the government allows time for the debate, and the government controls the scheduling of the debate in the Commons.
• There is a lack of resources for committees to be able to carry out their duties adequately. One problem is the availability of MPs time, which leads to an impact on the scrutiny that they are able to provide. Concerns have been expressed that MP's do not attend committee hearings due to increased demands on their time.
• The broader the remit of the Committee, the less depth of scrutiny they are able to achieve.
• The government is not bound to accept the recommendations of the select committees. It often depends upon whether the relevant department is inclined to accept them. Certain select committees have also noted the poor quality of government replies and long delays by departments in providing responses to their reports.

In conclusion, although select committees are important in holding government departments to account, their impact is limited as the government has no obligation to accept their recommendations and the resources allocated to the committees often makes their work difficult. Government departments can and frequently do disregard their recommendations without too much difficulty. Any attempt so increase the powers of the select committees has appeared merely cosmetic.

Select committees have a role in relation to pre-appointment hearings. Government Ministers have the responsibility to make appointments to around 21,000 posts in public bodies. In 2007 the government decided that select committees should have a role in ensuring the candidates suitability for the appointment and the process used for selection. Ministers merely undertook to take account of the findings of these determinations by select committees.

VII. Scrutiny through the Courts

Political accountability has a different function to legal accountability through the court process. Courts have a wider remit to ensure that in cases brought before it the public body concerned is acting within the powers it is ascribed by law. Most actions that involve statutory powers or the royal prerogative will be subject to judicial review, if the case has merit and the claimant has standing to bring the case. Certain areas are considered non-justiciable placing limitations on the ability of the courts to bring the government to account.

E Barendt, An Introduction to Constitutional Law (OUP, 1998) pp. 143-5

Barendt asks if there are some questions which are too inherently political that the courts should not involve themself with them. The courts in the US have abstained from determining political questions. The courts have been unwilling to entertain actions by non-British subjects in respect of executive conduct which can be justified as an 'act of state', or an act considered to be related to British foreign policy. The courts also do not allow anyone to challenge the power of the Crown to make a treaty with a foreign country or international organisation.

English courts do not draw a distinct line between justiciable and non -justiciable cases when it comes to judicial review. Judges are hesitant to question the government's economic policy decisions; it would be difficult to conclude that such decisions were irrational; only if decisions of this kind were patently absurd, or clearly taken in bad faith. Where there are human rights considerations the House of Lords have examined administrative decisions which relate to the right to asylum and freedom of speech [e.g. R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514; R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696]. Exceptions may arise where there are national security or emergency considerations, which may override human rights concerns.

Some cases have been considered non-judiciable due to the fact that they are political rather than legal decisions and hence should be decided by politicians and not judges. However, decisions that are clearly in bad faith or blatantly wrong will be open to judicial review. The distinction between justiciable and non-justiciable cases is not always clear. Over time the courts have broadened their review powers, in particular to review cases which effect fundamental human rights.

How Effective is the Courts' Review of the Executive?

A. Tomkins, Public Law (OUP, 2003) pp.209-10

Tomkins identifies three significant limitations of the court's ability to subject the executive to judicial scrutiny.

1. First the court's reluctance to deal with certain areas of policy carried out by the government.  There is also a refusal to deal with private law matters, but since subsequent governments have used NPM and market principles to deliver public services, the public-private law divide is becoming less relevant.
2. The potency of the courts remedies is also a limitation. Damages are rarely awarded and an award of damages against the state is unlikely to act as a deterrent to future wrongdoing, since there is no financial loss accruable to individual actors. If a government's decision is quashed or prohibited from acting in a certain manner, the government is then able to change the law to give themself the legal power to do as they wish in future.
3. Thirdly Tomkins questions whether white, upper-middle class, male judges should desire to hold the democratically elected government to account. It should be for the people of Leicester and not for the judges to decide whether Leicester City Council should have taken action to prevent its rugby players from playing a tour in South African during the apartheid regime. Perhaps Parliament and not judges should decide whether homosexuals should serve in the military?. However, there does need to be an avenue of protection for the minority against the majority.

VIII. Reforming Parliamentary Scrutiny

Parliamentary Scrutiny - An Assessment

Parliamentary scrutiny of government may be inadequate, since government is capable of avoiding parliamentary oversight of what it does. It is often sporadic and fleeting, influenced by party-political considerations, limited by time constraints and lack of knowledge amongst MP's. Ministers frequently deflect questions; notorious is the tactics that PMs use at PMQs to deflect questions about controversial policies by carrying out personal attacks against opposition MP's who ask questions. Frequently departments ignore recommendations made by select committees about changes in governmental policy or administration. The outcome of this is that Parliament comes across as having a passive role in government scrutiny rather than an active one.

Parliament's capacity to review governmental actions is not irrelevant however. Governments must still listen to and respond to concerns raised by Parliament. Ministers may give evasive answers to parliamentary questions, but they obliged to give answers. In general, announcements about changes in government policy should be given in front of Parliament; although this principle is not always followed. Parliament is unable to prevent the government from undertaking a specific action; it can influence the government in two ways.

1. Parliament can have the impact of deterrence on government, if opposition parties are able to raise awareness with the public and prompt adverse public reaction, the government may be forced to abandon certain proposals.
2. Parliamentary scrutiny can also have a positive effect by contributing to debates, MP's can bring certain issues to be introduced into the government agenda. MPs can bring specific issues to government, which are raised by their constituents and induce a response from a Minister. Since the executive are largely dominant in Parliament, this has a significant influence on its effective

Parliamentary scrutiny does not have to effect the ability of government to rule. Bernard Crick in The Reform of Parliament (London, 1969) states "Parliamentary control of the executive - rightly conceived - is not the enemy of effective and strong government, but its primary consideration" (p.259).

Parliamentary Scrutiny - Reform

There have been a number of recommendations or reform in this area. These include:

• reducing the influence of the whips;
• increasing the powers, role and status of select committees;
• reducing the ability of the government to set Parliament's agenda.

Since no government in powers is interested in reducing their own power, these proposals have made little progress under subsequent government administrations. In the fallout from the MP's expenses scandal in 2009 led to a number or responses to the expenses system. Gordon Brown who was PM at the time acknowledged that "the battered reputation of this institution cannot be repaired without fundamental change" (HC Deb, vol. 493, col. 795, 10 June 2009).

Reform of the House of Commons Select Committee, Rebuilding the House [First Report, London: HMSO, November 2009] [The Wright Report].

The Wright Committee was established to consider reforms to parliamentary procedure and published its report in 2009. The report found that public confidence in the House of Commons was low and required fundamental structural and cultural change. 

The Committee found that "We believe that the House of Commons has to become a more vital institution, less sterile in how it operates, better able to reflect public concerns, more transparent, and more vigorous in its task of scrutiny and accountability" (Rebuilding the House, p.3).

The Committee also noted that although MPs may work hard, they do not make the House of Commons the central focus of their activities.  It suggested giving MP's the ability to set the agenda in Parliament to enable the business of the House to be responsive to public concerns. Two of the Committees proposals were implemented.

One was the recommendation that backbench MP's be given more influence over Common's debates by way of the Backbench Business Committee, and the election by secret ballot over select committee chairs. The Committee also recommended a greater role for the public in the process of drafting legislation and giving individuals the opportunity to have influence in this area.

IX. Freedom of Information and Government Scrutiny

In order to hold the government to account it is necessary to have access to accurate information from government.  The Freedom of Information Act 2000 came into force in 2005 and introduced into UK law the principle that citizens have the right to access government information, within certain parameters. The British government has long been characterised by a culture of secrecy in which access to information has been tightly controlled by Ministers and civil servants.

Calls for freedom of information have long been resisted, a development came in 1993 when the Conservative government adopted a Code of Practice under which individuals could request information from central government departments. The Freedom of Information Act 2000 was enacted by the Labour government, which had been elected in 1997.

Freedom of Information - It's Rationale

Freedom of Information (FOI) is regarded as a tool which advances transparency and openness in public bodies. If there abuses of power being carried out, FOI has the ability to reveal these problems. FOI also allows citizens to participate in government decision-making on a fully informed basis. There is an important public interest in FOI, but non-disclosure may at times be in the public interests.

The surveillance information about an individual who is known to be a danger to the public might be required to be kept secret so as to enable the security services to carry out their job without the individual under surveillance finding out about the operation. Thus, there is a balancing act to be achieved between keeping key security information secret from the public and fulfilling the legitimate right of the public to know about government plans and operations, which theoretically are being carried out in the countries interests.

The Freedom of Information Act 2000 (FOIA)

The FOIA creates a broad right of access to information, not only held by government departments but also by public bodies including local authorities, schools, colleges, universities, the health service, the police and other public bodies (FOIA, Section 3, Schedule 1). All public authorities must also hold a publication scheme, which is subject to approval by the Information Commissioner (FOIA, Section 19).

The general right of access to information is subject to significant limitations. There are a number of classes of absolute exemptions to the Act, this includes information that is available via other means as well as various other areas which are considered confidential. Among these are information relating to intelligence services, court records, information that would infringe Parliamentary privilege, information that is provided in confidence, of information that would be disclosed in breach of statutory authority, court order or EU law. There also exists non-absolute public-interest based exemptions. The two-stage test asks whether:

1. The information falls into one of the relevant categories (FOIA s. 24,26, 27, 29 and 35)
2. Whether public interest in exemption outweighs the public interest in disclosure (FOIA s. 2(2)(b))

The public authority need not release information if the cost of supplying the information exceeds a certain financial limit (FOIA, s.12 and 13, currently £600).

The operation of the FOIA has led to many thousands of requests each year being submitted to public bodies. Two particularly high profile cases in which FOI requests were carried out and led to government scrutiny include: MP's expenses and the Iraq Cabinet Minutes.

The government exercised its Ministerial veto to prevent it having to disclose the Cabinet Minutes and face political embaressment. The use of the veto shows that all legislation designed by government allows them to make the final decision in areas that might be particularly troublesome to the Cabinet ministers involved and hence revealing that government scrutiny remains limited in significant ways.

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