MAKING TIME TO REFORM PARLIAMENTARY TIME

14th May 2013

All this talk of draft bills and Loyal Address amendments about an EU referendum raises several vital democratic issues of parliamentary process, not least that of the ways in which MPs, individually or collectively, can initiate debate or legislation on important topics of the moment.  At its heart, as always, lurks the core problem of Government control of House of Commons business and time.

Supporters of the ‘conventional wisdom’ parliamentary reform agenda over the last half century have justified the pace and route of reform as being incremental, evolutionary and practical, being the only way to achieve change in the face of the Government’s dominant position in the House of Commons.  Those more sceptical may choose to describe it more negatively, as being ad hoc, piecemeal, reactive, incoherent and devoid of any consistent guiding principle.

Some changes come not directly from demands from MPs or even the public, but from the initiative of the Government itself, and these, though dressed up as parliamentary reform to strengthen Parliament, often result in making life easier for Ministers.  Richard Crossman in the 1960s said there was a difference between parliamentary reform and modernisation, when he was distinguishing practical updating in infrastructure and facilities from procedural changes.  In the modern context, too often ‘modernisation’ has been the catchword for changes which assist the Government, or which can be absorbed by Ministers without serious inconvenience, whereas genuine ‘reform’, to make Parliament itself more powerful and effective, especially in relation to the Executive, has to take a back seat, awaiting Government permission and, worse, facilitation.

So it is with ‘parliamentary time’ and the control and order of business.  There have been some changes, especially to the scope for debate not initiated by Ministers, such as Westminster Hall.  There has been the innovation of the Backbench Business Committee, but that has been hobbled by the albatross of the Government’s e-petition wheeze around its shoulders.  Some ever-optimistic souls are still waiting in hope for the emergence of Government proposals for a ‘House Business Committee’ of some sort, originally promised for this year.

But we also wait in vain for fundamental change to issues like the current antiquated arrangements for backbench legislative initiative.  How different would the current ‘discussions’ of EU referendum legislation opportunities be if we didn’t have to rely on the various existing ‘private members bill’ processes, with its random ballot and limited scope for genuine progress of controversial bills, but if there were clear and efficient arrangements for the allocation of time for all types of parliamentary business, including scope for debates and legislative initiative by non-Governmental sources, such as backbenchers – getting rid of the unhelpful term ‘private member’ would be a small but symbolic reform – and committees.

The current confused mess – which may, in many ways, be helpful to Ministers – further undermines the Commons’ reputation with the public as an effective, responsive and accountable representative assembly, able to address coherently important issues of public interest.  Time for real, principled and all-embracing reform!

Northern Ireland chief justice to confront critics on bail decisions

15th March 2013

The Lord Chief Justice of Northern Ireland Sir Declan Morgan has given a rare TV interview designed to take the heat out of allegations of partiality between unionists and nationalists in granting bail. He is offering to explain the basis of recent decisions to the Justice Committee of the Northern Ireland Assembly and is making himself available to his most prominent critic, the Democratic Unionist First Minister of the powersharing Executive Peter Robinson. The meeting was in fact pre-arranged but will now take on a more urgent character. His private secretary had earlier sent a letter to the Assembly   explaining that in bail decisions  judges carefully weigh the risks – such as a risk of flight, likelihood of committing further offences, interfering with witnesses and preservation of public order – against the rights of the untried accused.

“It is essential that they are free to do this independently and without being subject to external influence.”

Now the chief justice has widened his response to add the offer of an appearance before Assembly members and a meeting with the First Minister if he still wants one. As a direct response to a running controversy this move is unprecedented and as I’ll argue shortly, carries risks which Morgan himself will be aware of.

Even post- Troubles Northern Ireland politics is still largely a zero sum game. In this case unionists are up in arms at bail being denied to two ring leaders of sporadic protests at the decision of Belfast City Council to reduce the number of days for flying the Union Jack above the City Hall. One of them Willie Frazer attracts both sympathy and hostility. Four family members including his father, all of them members of the security forces, were killed by the IRA over 10 years. He is head of a movement called FAIR,  Families Acting for Innocent (unionist) families  which campaigns for justice for victims of the Troubles  but specialises in provocative demonstrations and comments.   He was refused bail on March 1. At another hearing when bail was refused to another alleged loyalist agitator Jamie Bryson, the judge hit out against “ill informed debate” about bail decisions. This attracted the comment of “ judicial arrogance “ from a DUP minister.

Meanwhile, switching sides,  two prominent republicans in south Armagh  were  granted bail in connection with demonstrations eight years ago in favour of the ( not quite disbanded ) IRA which had been held responsible  for the notorious  murder of a Belfast man Robert McCartney in 2005. Despite a McCartney family campaign which reached Downing St and the Oval Office, IRA omerta  has held. The arrests of the two men Padraic Wilson and Sean Hughes were attacked by Sinn Fein politicians as “ political policing”  to  counter balance the actions against loyalists. Unionists immediately claimed partiality in deciding bail between republican and loyalists.

I accept that there are grounds for interesting speculation about how and why bail has been granted or refused but this has little to do with the judiciary.

Why charge Hughes and Wilson with IRA membership and encouraging a proscribed organisation in a demo that happened eight years ago? Is this a real new lead in the MCartney case? It doesn’t feel like it but who can tell at this stage? If there is no fire behind the smoke this might be seen as an unnecessarily provocative move just as the very moment a dissident republican attack had been foiled.

Why wait so long to lift the loyalists Frazer and Bryson? That one is easier to speculate about – because it’s better to exploit a lull (if that’s what is it is ) in the flags protest. But we’re unlikely to get straight answers to such questions and certainly not from the judiciary. Answers in some form may emerge from the PSNI and the DPP if charges are proceeded with.

Although the judges – and of course the police and the DPP – are now being attacked by both sides, this is not a full blown crisis between the politicians and the criminal justice system.  It even represents a sort of progress.  Republicans now argue for fair treatment from the criminal justice system rather than rejecting it altogether. What is happening is a symptom of the tensions created by an underlying shift in power between unionism and nationalism as a result of growing nationalist numbers and the  implementation of the equality provisions of the Good Friday Agreement.  From time to time there is controversy over where fairness lies and the criminal justice system is caught in the middle.

In an arid zero sum debate –  unionist loss is republican gain or vice versa – the judiciary has boldly moved to assert its good faith and educate the politicians in an impartial justice system which like any other body can make mistakes. The risk the chief justice is taking is that is that he may unwittingly feed an appetite for routine explanations of verdicts and sentences and produce disillusion and even louder complaints when he refuses. This could turn  the judiciary into what he and his colleagues greatly fear, a political football.   Much hangs on Northern Ireland’s politicians behaving responsibly to prevent the judiciary being sucked into their zero sum game.

Justice Committee FOI Evidence: A Quick Guide

The Justice Committee has received 112 submissions providing evidence on which to base their post-legislative scrutiny of the FOI Act. Twenty-five per cent of these are from universities, or bodies representing them, making HE by far the most vocal sector.

A number of common themes have emerged. One point, made by the Information Commissioner, among others, was that public authorities should be allowed to reject requests on the grounds that they are “frivolous” as well as that they are “vexatious”. This would allow them to bin queries which, while not calculated to harass or annoy the Council, are simply very silly. Bad news for the “Concerned Citizen” who caught Leicester City Council napping when he asked what planned to do to fight the zombie menace.

Many public authorities complained about the cost of dealing with FOI requests, and more generally, the costs that currently ‘don’t count’. Requests are cost-barred if the price of answering them would be more than £600 for central government and £450 for everyone else . Staff time is valued at £25 per hour. Time spent considering exemptions or redacting certain information does not count towards the total.  Leeds Council said  that this results in underestimating of the real cost of FOI, not least because an hour of staff time costs them more than £25.

The Ministry of Justice, and the NHS Foundation Trust Network, are two among a number of public authorities who worry about who benefits from FOI. In some cases, they say, commercial organisations use the Act to gain a competitive advantage. This means that the FOI Act is effectively subsidising certain businesses- which they claim was not Parliament’s intention when passing the Act 12 years ago.

Oral evidence by journalists the following week- Martin Rosenbaum, Doug Wills, David Higgerson and David Henke – raised a number of points relating to their experience as requesters. Although the Act had caused a “sea change” in access to information, it has not created a culture of openness among public authorities. Despite apparent commitment to FOI, every so often, Martin Rosenbaum said, “the mask slips” and the true face of government emerges. The Home Office have even accidentally sent him an email discussing the department’s desire to keep certain documents secret, because they show that there is a lack of evidence to support Home Office drugs policy.

The four said Act has altered journalistic practice. It has encouraged whistle blowers, because they now do not need to hand over documents to journalists. Instead, they can simply recommend a FOI request. Additionally, some stories now begin with a request made by a member of the public. This means that more voices are heard in the public debate. But it doesn’t always improve the quality of that debate. On the contrary, sometimes it “improves the quality of people’s prejudices”, by allowing them to feed their hunger for information only on their personal favourite titbits.  They also noted the hypocrisy of organisations that complain about request volume, and also complain about requests from journalists.  Journalistic use of FOI, they said, is efficient:  the information extracted is published and the media’s entire audience, instead of just one person, can be informed.

We submitted oral, as well as written, evidence to the Justice Committee based on our different research projects over the years. We reiterated our conclusions that the Freedom of Information Act has succeeded in its core objectives of promoting the transparency and accountability of public bodies. However, the Act was also sold as a mechanism that would increase public trust and participation, improve the quality of decision making and improve public understanding of the political process. It is almost impossible to measure whether or not it has delivered on these promises and moreover, these policy goals are somewhat out of FOI’s reach (see our previous post on the problem of measuring, let alone increasing public trust, for instance).  We also stressed the problems of measuring ‘concentrated costs’ of FOI against ‘dispersed ‘benefits’, which inherently skews the discussion. You can see this reflected in the submissions themselves, few of which attempt to quantify FOI’s benefits in monetary terms, but are quick to try calculate its costs.

Jim Amos, drawing on his experience in researching and also training FOI, also asked FOI officers to help themselves, adding a pragmatic note to the review’s proceedings. The way to make sure the Act works well is not necessarily amendments and fees, but “robust professionalism”. Public authorities should make use of the exemptions and the cost limits available to them. What they should not do is work very hard to fulfil unreasonable requests, and then complain about the burden involved in doing so. Whatever the results of this post-legislative scrutiny, this advice ought to be heeded.