The Unit today published a new report, Parliament’s Watchdogs: Independence and Accountability of Five Constitutional Regulators. Robert Hazell explains that public awareness of these regulators is low and the position of some of them in public life is precarious. He calls for several measures, including putting the CSPL on a statutory footing, protecting watchdogs from dismissal, and repealing the legislation allowing the government to produce a strategy statement for the Electoral Commission.
Origins of this study
The constitutional reforms of the last 25 years have seen an upsurge in the number of constitutional watchdogs. The Constitution Unit anticipated these developments from the start, with an early report on constitutional watchdogs in 1997 (Unit report no. 10). This interest was continued by Oonagh Gay and Barry Winetrobe, who wrote two major reports on watchdogs: Officers of Parliament: Transforming the Role (Unit report no. 100, 2003) and Parliament’s Watchdogs: At the Crossroads(Unit report no. 144, 2008).
Today sees the launch of a new report, Parliament’s Watchdogs: Independence and Accountability of Five Constitutional Regulators, (Unit report 195), by Marcial Boo, Zach Pullar and myself. Marcial Boo, former Chief Executive of IPSA, joined the Constitution Unit in late 2020 as an honorary research fellow. We asked him to do a study of those watchdogs which are directly sponsored by parliament, working with Zach Pullar, a young law graduate who has since become a Judicial Assistant in the Court of Appeal. There is an obvious tension with watchdogs whose role is to scrutinise the executive (like the Independent Adviser on Ministers’ Interests), being themselves appointed and sponsored by the government. Less obvious, but just as fundamental, is the tension for watchdogs whose role is to regulate the behaviour of parliamentarians, being themselves appointed and sponsored by parliament.
That is why we chose to study three watchdogs directly sponsored by parliament. These are the Electoral Commission, which regulates elections and party finance; the Parliamentary Commissioner for Standards, who investigates complaints about MPs’ misconduct; and the Independent Parliamentary Standards Authority (IPSA), which regulates MPs’ pay and business costs. To these three we added the parliamentary Boundary Commission for England, as another body ensuring fairness in elections, and the Committee on Standards in Public Life (CSPL), because of its wider role to safeguard integrity in public life.
Independence and Accountability
We began our study by considering where watchdogs are situated within the traditional separation of powers between executive, legislature and judiciary, and their relationship with the other branches of government. The rationale for the creation of independent watchdogs is that the traditional branches are conflicted when addressing problems of protecting democracy: it requires independence and expertise, qualities not found in the generalist skillset of partisan politicians. But it is a stretch too far to suggest (as some academics argue) that watchdogs can be a distinct, fourth branch of government; they are not separable from the political institutions by which they are sponsored.
We would categorise constitutional watchdogs as regulators, regulating democratic processes and ethics in the public domain. They referee and apply rules fairly and consistently, where the rules are set through existing democratic processes in the executive and legislature. In the application of the rules, watchdogs should be independent of the politicians they regulate; but they also have to be accountable, as public bodies performing public functions, and paid for out of public funds. The central conundrum is that in regulating the ethical conduct of parliamentarians, the watchdogs are themselves accountable to, and dependent on, these very parliamentarians.
The arguments for the independence of watchdogs are similar to the arguments for judicial independence. Just like judges, they must be allowed to issue rulings impartially, according to the rules and the law, and free from improper pressure, whether from MPs, the government or outside interests.
In terms of their accountability, constitutional watchdogs are politically accountable to parliament, and legally accountable to the courts: but in both cases the accountability is explanatory – they can be called upon to explain and justify their decisions. They cannot be punished merely because their decisions are unwelcome or unpopular. With their accountability being essentially explanatory, design features to ensure watchdogs’ accountability are therefore transparency, including freedom of information; giving reasons for decisions; mechanisms to challenge watchdogs’ decisions by appeal or judicial review; scrutiny of the budget, and audit of expenditure; and accountability to parliament through its committees.
Measures to strengthen independence
A central part of our study was interviews with 25 senior figures in the House of Commons and the watchdogs themselves. We asked them how independent they were in practice, and whether their independence could be better secured; about their lines of accountability, and whether these could be strengthened. Below are their main suggestions for strengthening their independence and their accountability, and the balance between the two.
Three of the watchdogs we studied are sponsored by parliamentary committees: the Speaker’s Committees on the Electoral Commission (SCEC), and on IPSA (SCIPSA), and the Standards Committee for the Parliamentary Commissioner for Standards. To strengthen the watchdogs’ independence, we recommend that sponsoring committees should not have a single-party majority. They should also contain lay members, to guard against MPs becoming too inward looking or self-interested; but lay members need to be more than a token number. SCEC has no lay members; SCIPSA has three, alongside eight MPs; the Standards Committee now has seven lay members and seven MPs. With the chair having only a casting vote, this gives the lay members an effective 7:6 majority.
The Speaker’s Committees on IPSA and the Electoral Commission should continue to be chaired by the Speaker, as this confers authority and status and encourages attendance. But the Speaker is very busy; more could be delegated to sub-committees, with lay members playing a stronger role, especially in scrutiny of the Estimates (see below).
When appointing new watchdogs, these sponsoring committees should be required to follow the Governance Code on Public Appointments. All board members should be appointed for a single, non-renewable term; and no board member should be removed unless clearly unfit to hold office.
A secure legal foundation is important to underpin watchdogs’ independence. As the CSPL could be swept away by prime ministerial fiat, it should be placed in statute, or at least an Order in Council. But we concluded that the Parliamentary Commissioner for Standards (PCS) should remain a creature of Standing Orders to retain parliamentary privilege; if they were a creature of statute, their rulings would be subject to judicial review. The PCS has not been subject to a right of appeal to an independent body in terms of their findings under the Code of Conduct, as opposed to cases under the new Independent Complaints and Grievance Scheme. But that will change if the Ryder report is implemented, with both conduct and ICGS cases in future being subject to appeal to the Independent Expert Panel, to be chaired by a retired Court of Appeal judge.
In addition to power to initiate their own investigations and publish their own reports, watchdogs need protection from external direction. The provision in the Elections Act 2022 to give power to the government to prepare a strategy and policy statement for the Electoral Commission threatens seriously to undermine the Commission’s independence.
Measures to strengthen accountability
Unsurprisingly, since just over half of our interviewees were watchdogs, there were fewer suggestions for increasing their accountability. But to be fair, since their accountability is essentially explanatory (see above) and they already give a very full account of their policies, their operations, and the reasons behind their decisions. The Electoral Commission has transformed the transparency of elections policy and administration; IPSA publishes reams of information about MPs’ expenses and allowances; and the Parliamentary Commissioner for Standards publishes details of every investigation into the conduct of MPs.
All four of the bodies with investigatory and enforcement powers operate within a tight legal framework. The Electoral Commission and the Boundary Commission have both faced challenges by judicial review, in all of which they have been successful. In the one legal challenge to the Parliamentary Commissioner for Standards, it was held that the office’s functions are not amenable to judicial review. IPSA has not yet experienced judicial review, but there is a right of appeal for MPs to go to the Compliance Officer, with a further appeal to the First Tier Tribunal.
We saw no need to tighten the legal framework, but we did point to gaps in complaints handling. The judiciary are subject to an Ombudsman. For complaints about maladministration or delays or abuse of power, we felt that IPSA and the Parliamentary Commissioner for Standards should come under the jurisdiction of the Parliamentary Ombudsman, as the Electoral Commission, CSPL and the Boundary Commission already are.
Scrutiny of the Estimates for IPSA and the Electoral Commission by the Speaker’s Committee is formulaic and perfunctory. Our interviews suggested the MPs do not appear to have the interest or possibly the expertise. One solution would be for the Speaker to invite the lay members with financial expertise to lead the questioning. Another would be to delegate scrutiny of the budget to a sub-committee led by lay members.
The final gap in accountability is the limited interest by select committees (apart from the Public Administration and Constitutional Affairs Committee, also known as PACAC) in scrutinising watchdogs, and their increasingly fragmented nature; especially now that elections have become the responsibility of the Levelling Up, Housing and Communities Committee. In the long run the best solution might be to have a single, specialist committee dedicated to scrutinising constitutional watchdogs. Through that specialisation it would be sensitive to the need for watchdogs to have a high degree of independence because of the nature of their constitutional role. It need not be confined to the watchdogs considered in this report, but its remit could extend to other watchdogs like the Parliamentary Ombudsman.
Finally, the CSPL could play an additional role as the primus inter pares of these watchdogs, monitoring and safeguarding their independence and accountability, and periodically reviewing their governance arrangements.
Public awareness of the watchdogs in this study is low. But in the aftermath of Boris Johnson’s resignation, public concern about the need for better standards in public life is very high. It seems likely that the next Prime Minister will want to respond by legislating to implement the recommendations of CSPL’s latest report, concluding its Standards Matter 2 inquiry. The Constitution Unit has also published a five-point plan for the next Conservative leader to rebuild constitutional standards.
As part of any legislative package, CSPL should itself be put on a statutory footing. Our report also contains the following recommendations which would require legislation:
- no single party should be allowed a majority on the Speaker’s Committees;
- lay members should be introduced onto SCEC, and there should be more lay members on SCIPSA;
- all constitutional watchdogs should be appointed for a single, non-renewable term’
- watchdogs should be protected against dismissal save when clearly unfit to hold office through incapacity or misconduct;
- the provision in the Elections Act 2022 allowing the government to produce a strategy and policy statement for the Electoral Commission should be repealed;
- IPSA and the Parliamentary Commissioner for Standards should come within the jurisdiction of the Parliamentary Ombudsman.
Parliament’s Watchdogs: Independence and Accountability of Five Constitutional Regulators is available now as the Unit’s latest report, no. 195.
About the author
Robert Hazell is Professor of Government and the Constitution and founder and former Director of the Constitution Unit.