Judges and select committees: A developing accountability culture

Patrick Obrien

The specific scenario in which select committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. But Patrick O’Brien indicates that the research he conducted with Robert Hazell shows the practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement. What is more, it creates opportunities for dialogue and for judicial accountability.

When is a judge not a judge? Lady Justice Hallett carried out a public inquiry into the ‘On the runs’ scheme in 2014. In its report on the same issue in March 2015 the Commons Northern Ireland Affairs Select Committee commented rather sternly that

we chose not to summon Lady Justice Hallett to attend, but we consider it to be a regrettable discourtesy to Parliament that she declined our initial invitation to give evidence to the Committee, especially as she had not acted in a judicial capacity when carrying out her review‘. [at para. 11]

Is a judge who chairs an inquiry acting as a judge, or acting as an inquiry chair? Judges, concerned about the implications of being drawn into disputes that are often highly politically charged, tend to believe that they are acting as judges and that their reports should speak for themselves. Parliamentary committees can find this attitude defensive and frustrating. Several years ago the Commons Cultural, Media and Sport committee ran into a similar conflict with Lord Justice Leveson in relation to evidence he gave as chair of the inquiry into phone hacking.

The specific scenario in which committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. However, research I have done with Robert Hazell suggests that such ‘judge-led inquiry’ sessions, despite the problems that may attend them, make up only 5% of all evidence sessions these committees have with judges. The reality is that the vast majority of judicial evidence sessions are uncontroversial. The practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement by both judges and parliament.

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Parliament and legislation: Perhaps Westminster is more powerful than you think?

Dan GoverMeg-Russell

Government defeats on the floor of the Commons, as seen last week, remain exceptionally rare, perpetuating assumptions that parliament is relatively weak. However, through analysis of 4361 amendments to 12 government bills, and over 120 interviews, Daniel Gover and Meg Russell find empirical evidence that parliament has significantly greater influence on government policy than is often assumed.

The Westminster parliament occupies a highly visible place within British politics and policymaking. Despite this, the conventional wisdom is that parliament’s impact on public policy is relatively weak. In recent years, Westminster has been dismissed by commentators as ‘an elaborate rubber-stamp’, ‘a legislature on its knees’, and even ‘God’s gift to dictatorship’. This pessimistic account has been largely shared by academics, albeit with greater nuance, who have tended to regard Westminster as an extreme example of an executive-dominated legislature. One of the primary reasons for this assessment is that there are few explicit signs of conflict between parliament and the executive. For example, government defeats on the floor of the Commons, as was seen last week over Europe, remain exceptionally rare.

Yet recent research has begun to challenge this consensus. One of the central strands to this new research agenda is our own major investigation into the Westminster legislative process – the first results from which were recently published in Parliamentary Affairs. Our study is based around detailed analysis of the passage through parliament of 12 case study bills: seven from 2005-10 under Labour, and five from 2010-12 under the coalition. The bills were selected to reflect the diversity of legislation considered by parliament. Some were high-profile and contentious, such as Labour’s Corporate Manslaughter and Corporate Homicide Bill, its Identity Cards Bill, and the coalition’s Public Bodies Bill. But others were more routine and less controversial, on which different dynamics might be expected to apply, such as the coalition’s Budget Responsibility and National Audit Bill and Labour’s Energy Bill. Our research involved painstaking analysis of the origins and outcomes of over 4000 legislative amendments proposed to these bills, as well as around 120 interviews with key actors on them including ministers and their shadows, backbenchers, civil servants, and outside pressure groups. Our findings strongly suggest that the Westminster parliament is far more influential on legislation than is often assumed.

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Gerrymandering for democracy: An impossible goal?

In a recent report by Mathew Lawrence and Sarah Birch the Institute for Public Policy Research has made several proposals for improving the quality of British democracy. One of them involves politicising the traditionally fiercely independent and neutral Boundary Commissions, by requiring them to gerrymander constituency boundaries to produce fewer safe and more marginal seats. Ron Johnston, Charles Pattie and David Rossiter consider this proposal, and find it neither feasible nor sensible. Alternative reforms which encourage greater public participation in the electoral process are needed.

In their recent IPPR report The Democracy Commission Mathew Lawrence and Sarah Birch propose four ways to improve the quality of British democracy, ranging from introducing the single transferrable vote in local government elections in England and Wales to establishing a ‘Democracy Commission’ to facilitate participation. Their proposals seek to tackle the unrepresentativeness of the House of Commons, brought about in part by the first-past-the-post system, which produces disproportional electoral outcomes with some parties substantially over-represented there relative to their vote shares and others even more substantially under-represented; one party predominates in the complement of MPs returned from most regions, even though it lacks even a majority of votes there.

One of the reasons they suggest for this disproportionality is that there are too many safe seats and too few marginal ones. Electioneering focuses very much on the latter as there is little incentive for parties to encourage participation in places where the outcome is a foregone conclusion. So one of the IPPR proposals is that the rules implemented by the four Boundary Commissions that recommend the boundaries of Parliamentary constituencies should be changed. In effect, the Commissions would be instructed to undertake a form of gerrymandering by seeking:

‘… to redraw a ‘safe’ seat to make it a ‘marginal’. ‘Gerrymandering’ safe seats out of existence where possible will increase the competitiveness of elections and reduce the oversized electoral power that voters in marginals currently have, and as a result is likely to improve participation rates.’

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The Lords’ declining reputation: The evidence


This week the House of Lords has been in the news for all the wrong reasons – with widespread criticism of David Cameron’s latest round of appointments, which have seen the already oversized chamber grow further still. Such negative stories have become common since Cameron became Prime Minister. Meg Russell reports on updated research about media representations of the Lords, and shows definitively the damaging effects that uncontrolled prime ministerial appointments have had on the chamber’s reputation since 2010.

This has been a disastrous news week for the Lords. David Cameron’s appointment of an additional 45 new peers has met with universal media condemnation. We have been told that the Lords is an ‘obese, obsolescent body’ (Telegraph) or an ‘upper house of sleaze and cronyism’ (Sunday Express), that ‘the bloated Upper House has become a laughing stock’ (Mail) or ‘a national embarrassment’ (Sunday Times), and that there is a need to ‘cut the bloated House of Lords down to size’ (FT). The Mirror greeted the appointments with the headline ‘Just when you thought the House of Lords couldn’t get worse’, while one columnist in the Guardian suggested that ‘the latest list of dissolution honours is so self-parodically venal that it resembles a dare’. An analysis of the week’s coverage by media-watcher Roy Greenslade concluded that ‘National newspapers of the left, right and centre were united in their disgust’. As an Observer commentator put it, ‘where is there left to go when Polly Toynbee of the Guardian and Quentin Letts in the Mail find themselves in perfect agreement?’

This is a deeply depressing situation. Such stories can only serve to drive down trust in the House of Lords, and thus more generally in parliament, and indeed probably in politics as a whole. The growing size of the chamber is already threatening its effectiveness. If the Lords is derided, and becomes ever less well respected, this too risks making it increasingly less capable of carrying out its important tasks of scrutinising legislation and holding the government to account.

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Is David Cameron actually seeking to destroy the Lords?


Yesterday’s new peerage appointments attracted almost universal criticism for further adding to the inexorable growth in size of the House of Lords under David Cameron. But could the gradual erosion of the Lords’ reputation actually benefit the government by weakening parliament? Might it even be a deliberate plan? And – given that the Prime Minister holds all the cards – what can be done about it? Meg Russell comments.

Click here to access a printer-friendly PDF of this post.

This post has an eye-catching title, but it isn’t a joke – my question is deadly serious. David Cameron’s list of 45 new appointments to the Lords, announced this week, has attracted predictable wails of outrage – from the media, from opposition parties , and indeed from myself. His Lords appointments in the last five years have been completely disproportionate. As I demonstrated in a report earlier this year, he has created new peers at a faster rate than any other Prime Minister since life peerages began in 1958. Although growth in the size of the chamber has always been a problem, since 2010 it has escalated to new proportions. As is clear from my well-rehearsed graph, updated for this week’s appointments, the upward trajectory increased sharply from 2010. In the 11 years of Labour government from 1999-2010 the chamber grew by 40-70 members (depending how you measure it); in the five short years since Cameron took office, it has grown by two to three times as much.

HoL Aug 15 1

Note: ‘Actual eligible membership’ includes those on leave of absence and otherwise temporarily excluded from the chamber, all of whom could potentially return. Source: House of Lords Information Office figures from January each year, updated with 2015 appointments.

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The Constitutional Standards of the House of Lords’ Constitution Committee: A valuable tool for enhancing scrutiny


To mark the launch of the second edition of The Constitutional Standards of the House of Lords Constitution Committee, Jack Simson Caird considers the role that a set of constitutional standards could play in the current government. Drawing on the example of English votes for English laws, he argues that such a code would increase the quality of scrutiny of proposed changes to parliamentary procedure.

The Constitutional Standards of the House of Lords Constitution Committee: Second Edition is available to read and download here.

Today the Constitution Unit, with the support of the Constitution Society, is publishing the second edition of The Constitutional Standards of the House of Lords Constitution Committee. The report, by Robert Hazell, Dawn Oliver and myself, contains a code of 140 constitutional standards, covering five areas: the rule of law, delegated powers, the separation of powers, individual rights and parliamentary procedure. The second edition extracts and codifies standards from all 168 reports of the House of Lords’ Constitution Committee published from its inception in 2001 to the end of the 2010-2015 Parliament.

When the first edition of the code was published in January 2014, I made the basic case for the use of a code of constitutional standards within Parliament. In this post, I focus on the role that a code of constitutional standards could play in the specific circumstances facing Parliament today: that of the first parliamentary session of a newly elected government intent on making major constitutional changes. In particular, I will examine the introduction of English votes for English laws (EVEL) as an example of constitutional change, and explore how the use of this code in both Houses of Parliament and in government could enhance the scrutiny of those proposed changes to parliamentary procedure.

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The truth about House of Lords appointments


Yesterday Prime Minister David Cameron, seemingly undeterred by the already negative media coverage about the Lord Sewel affair, gave strong indications that he intends to make yet more appointments to the Lords. In doing so, he appeared to invoke a convention that does not exist: that of bringing Lords membership into line with Commons seats. In this post Meg Russell sets out some of the basic facts about Lords appointments, and some options for what might be done.

In recent days the media has been dominated by stories about the conduct of Lord Sewel. On the back of this, there have been numerous calls for Lords reform, or even abolition. Various outlets have linked this to rumours that Prime Minister David Cameron plans imminently to appoint more peers – which have been circulating for weeks. But despite media coverage of the Lords having reached a nadir, and the fact that his previous appointments have attracted howls of media outrage, Cameron seemed to signal yesterday that he intends to press ahead with new appointments. In doing so he implied a convention that prime ministers always behave in this way, saying:

‘It is important the House of Lords in some way reflects the situation in the House of Commons. At the moment it is well away from that. I’m not proposing to get there in one go. [But] it is important to make sure the House of Lords more accurately reflects the situation in the House of Commons. That’s been the position with prime ministers for a very, very long time and for very good and fair reason.’

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