Constitutional regulators play a vital role in the UK’s democratic system, but recent ethical scandals have led to suggestions that they need to be strengthened. Lisa James, Alan Renwick and Meg Russell argue that all those in public life should uphold the regulatory system, and take such proposals seriously.

Background

Constitutional regulators enforce key standards and rules. These cover matters which are viewed as too important to be left purely to constitutional norms, but most of which are not covered by the criminal justice system (though some regulators do have prosecution powers).

Regulation is common to many sectors and professions, including those beyond the scope of this briefing. For example, the medical and legal professions use regulatory standards systems, and many industries operate statutory or voluntary ombudsman schemes.

The focus of this briefing is the regulators and regulatory systems that relate to politics in the UK. This includes various codes that govern the behaviour of politicians or officials, and the regulators that enforce them. It also includes regulators which oversee the processes of politics and governance – such as elections, public appointments or public spending – and those that aim to uphold certain standards of public discourse, for example by regulating the media.

Various terms exist for such organisations; for example, they are often referred to as constitutional watchdogs or guardians. Here, for simplicity, we use the term constitutional regulators throughout.

Why do regulators matter?

Regulation safeguards the integrity of a profession or sector, and protects the public. It establishes the boundaries of acceptable behaviour, ensuring that both the regulated profession and those who come into contact with it understand what standards should be upheld. In politics, such standards most obviously include financial probity and personal conduct. Regulation also guards against unfair competition, often by preventing those in dominant positions from abusing their power. One example is the legal requirement for a purdah period in the run-up to elections, which bars incumbent governments from using public money or resources to support their campaigns.

Regulation plays a key role in maintaining the reputation of many professions, and the same is true when applied to politics, politicians and officials. The UK’s constitutional regulators aim to promote good governance and the health of the democratic system, not only through investigating or sanctioning wrongdoing, but also through encouraging high standards and good behaviour. By doing this, they seek to ensure that public trust in politics is earned and maintained.

What form does the UK’s constitutional regulation take?

The UK’s constitutional regulators take various forms, and there is no single definitive list.

• The Committee on Standards in Public Life (CSPL) is not itself a regulator, but plays a key role in the ethics regulation system. It monitors and assesses ‘institutions, policies and practices’, and advises the Prime Minister on issues relating to ethical standards.
• The Electoral Commission oversees elections and regulates political finance. It maintains registers of political parties and non-party campaigners, regulates imprints on campaign materials, and publishes political finance data.
• Other regulators administer codes which guide the behaviour of individual ministers and officials. These include the commissioners for standards in the House of Commons and House of Lords, who apply the codes of conduct for MPs and peers. The Civil Service Commission fulfils a similar role, ensuing that the Civil Service Code is upheld, while the Independent Adviser on Ministers’ Interests investigates complaints under the Ministerial Code. In addition, IPSA regulates and operates the MPs’ expenses system.
• A further group of constitutional regulators oversee the relationships between politicians and external bodies. The codes of conduct for MPs and peers set rules on paid lobbying by politicians, while the Registrar of Consultant Lobbyists ensures that paid third-party lobbyists are identifiable. The Advisory Committee on Business Appointments (ACOBA), meanwhile, sets conditions on those moving from political positions or official roles into related sectors, to regulate conflicts of interest.
• Other regulators ensure that appointments are conducted via fair and rigorous processes. These include the Commissioner for Public Appointments, who regulates processes for appointments to the boards of public bodies, and the Judicial Appointments Commission. In addition to holding other functions, the Civil Service Commission oversees recruitment to civil service roles. The House of Lords Appointments Commission (HOLAC) vets proposed life peers for propriety.
• Some bodies, though less overtly constitutional, play important related roles. These include regulators which aim to uphold standards of debate and discourse, primarily by ensuring that the public are not given misleading messages. For example, the Advertising Standards Authority applies rules on fairness and accuracy to advertising by pressure groups (but does not cover advertising by parties and candidates), and Ofcom regulates broadcasting fairness among other matters. A related function is fulfilled by the UK Statistics Authority, which publicly challenges the misuse of statistics.
• Others work on government functioning or ensure that the government does not exceed its powers in specific areas. These include the office of the Investigatory Powers Commissioner, which oversees the use of covert investigation by public authorities; the National Audit Office, which audits and reviews government spending; and the office of the Parliamentary and Health Service Ombudsman, which investigates complaints against UK government departments, public organisations, and the NHS in England.

What principles underpin constitutional regulation?

Certain principles underpin constitutional regulation. These are not always straightforward to implement and may at times be in conflict with one another. Such conflicts are particularly likely in the case of the regulators that oversee elected politicians.

• One key principle is regulatory independence: constitutional regulators should be able to fulfil their functions without undue pressure. CSPL has suggested a number of institutional features that support independence, including a clear statutory basis, sufficient resources, and a robust appointment process with a significant independent presence on the panel.
• Regulators should also have the powers necessary to be effective. CSPL suggests that the ability to initiate investigations, determine breaches, publish findings, and issue sanctions or remedial actions are all relevant here. However, it is also widely recognised that certain sanctions against elected politicians – particularly those which might lead to the loss of their position – present a dilemma. Elected politicians are ultimately responsible to the public, so it may be seen as inappropriate for unelected regulators to apply sanctions which would remove them from office. For this reason, some regulatory processes – in particular those relating to alleged breaches of the Code of Conduct for MPs or Ministerial Code – combine investigation by officials with decision-making by politicians.
• Another key principle is accountability. Like other public bodies which exercise important functions, constitutional regulators must themselves be held to account, including by the media and by elected politicians. However, there can be a tension between this principle and that of regulatory independence: the regulators are accountable, in part, to those they regulate. This tension can be eased by setting clear expectations about the appropriate scope and nature of the accountability relationship. Regulators should be accountable for their performance, use of resources and governance; decision-making on particular cases should instead be exempt, but open to appeal. Accountability is often to cross-party bodies, which may also include lay members (as, for example, in the case of the Commons Committee on Standards).
• To be effective, regulators also need to command public legitimacy. This requires transparency about the rules that they oversee, their approach, and their reasoning in particular cases. It also requires that politicians respect the role played by regulation, and do not respond to unwelcome rulings by attacking regulators or the regulatory system.

How can the regulatory system be strengthened?

There is growing agreement that the current regulatory system would benefit from reform. As CSPL has noted, the powers and status of the UK’s constitutional regulators vary widely, and this variation is generally the result of historical accident rather than design. Recent public opinion research by the Constitution Unit found that 79% of respondents – including large majorities of Conservative, Labour, Leave and Remain voters – wanted the regulatory system changed to ensure that politicians who fail to act with integrity are punished.

A number of cross-party or independent bodies have put forward specific reform proposals. These include CSPL and the Commons Public Administration and Constitutional Affairs Committee, as well as external observers such as the Institute for Government and Constitution Unit. Their findings include the following.

• ACOBA, the Commissioner for Public Appointments, the Independent Adviser on Ministers’ Interests and HOLAC currently have no statutory footing, leaving them vulnerable to abolition or significant weakening at a Prime Minister’s discretion. CSPL and PACAC have both recommended changes in this area. In line with their recommendations, Lord Anderson’s current Public Service (Integrity and Ethics) Bill seeks to put the first three of these bodies on a statutory basis. Lord Norton’s House of Lords (Peerage Nominations) Bill would do the same for HOLAC, alongside introducing other changes to the Lords appointments system.
• The processes for appointing people to regulatory positions have varying levels of robustness. In particular, there is no requirement for open competition, or a parliamentary pre-appointment hearing, for the Independent Adviser on Ministers’ Interests. CSPL has recommended strengthening appointment processes to guarantee regulatory independence.
• Not all regulators can initiate investigations, determine breaches, publish findings and issue sanctions. CSPL and PACAC, as well as the Boardman Review commissioned as a result of the Greensill Capital controversy, have all recommended that stronger sanctions are needed for ACOBA to be effective. The requirement for the Independent Adviser to consult the Prime Minister before beginning any investigation has also been widely criticised.
• The Elections Act 2022 introduced a ‘strategy and policy statement’ for the Electoral Commission, written by the government and approved by parliament. The principle of the statement was widely criticised during the legislation’s passage, and the Commons Levelling Up, Housing and Communities Committee, the Speaker’s Committee on the Electoral Commission, and the Electoral Commission have all criticised the government’s draft statement.
• Upholding and strengthening the regulatory system also requires politicians to respect the role that regulators play, and to refrain from attacking them or questioning their integrity. A healthy regulatory system requires public legitimacy: attacks on regulators over unwelcome rulings may offer short-term political gain, but threaten the long-term health of the system.

Both main UK-wide political parties have emphasised the importance of a sound regulatory system and high ethical standards. Prime Minister Rishi Sunak has pledged to govern with ‘integrity, accountability and professionalism’, and the Labour Party has proposed reforms to make the regulatory system more robust.

Constitutional regulators are essential to maintaining the health of the democratic system and public confidence in it. Politicians, officials and all those in public life have a responsibility to uphold the system, and to take seriously the proposals that have been made to strengthen it.

This blog is part of a briefing series designed to inform policy-makers and the public about key constitutional issues and democratic debates. Our briefings draw on international evidence and examine both long-term trends and current developments in the UK. This is part of our project on constitutional principles and the health of democracy.

About the authors

Lisa James is a Research Fellow in the Constitution Unit.

Alan Renwick is Professor of Democratic Politics at UCL and Deputy Director of the Constitution Unit.

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.