Tag Archives: constitutional watchdogs

Checks and balances: what are they, and why do they matter?

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Checks and balances are fundamental elements of constitutional democracy that prevent the unconstrained exercise of power, improve the quality of decision-making and ensure that mechanisms exist for preventing or penalising unethical behaviour. Lisa James, Alan Renwick and Meg Russell argue that they therefore play a vital role in maintaining public confidence in the political system and the government has a particular responsibility to uphold them.

Background

The importance of checks and balances is often cited in debates about the health of democracy, and their erosion is widely considered a sign of democratic backsliding. But what are they, and why are they important?

Checks and balances are the mechanisms which distribute power throughout a political system – preventing any one institution or individual from exercising total control. The words ‘checks’ and ‘balances’ are typically used together, but can be thought of as referring to subtly different (though overlapping) things. Checks are the mechanisms which allow political institutions to limit one another’s power – for example by blocking, delaying or simply criticising decisions. Balances, meanwhile, ensure that a wide variety of views and interests are represented in the democratic process. This includes structures like federalism, or broader features of democratic functioning such as the existence of multiple political parties.

The term ‘checks and balances’ is given more prominence in some countries than others, and is often particularly associated with the United States. But the principle is core to all modern democracies.

Checks and balances operate between and within most political institutions. However, the risks of unconstrained power are often considered particularly high with respect to the executive. This briefing hence focuses on the key institutions which check and balance executive power at UK level:

  1. parliament
  2. the courts
  3. impartial officials, and
  4. media and civil society.

Why do checks and balances matter?

Checks and balances play two key roles. First, they limit the power of the majority to act without regard to the views or interests of others. They ensure that the perspectives of those who are in the minority on a given issue are represented – for example, by guaranteeing that opposition voices are heard in the process of law-making. Second, at a more practical level, they ensure that policy is tested and behaviour supervised. This helps to improve the quality of decision-making, and prevent behaviour which might threaten the integrity or reputation of the political system.

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Why Rishi Sunak should take the initiative on standards reform

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Rishi Sunak has appointed a new Independent Adviser on Ministers’ Interests, but there is still a need for the role to be strengthened to ensure the new Adviser has genuine independence and freedom to act. Concerns have also been raised about the standard of recent appointments to the House of Lords. Peter Riddell argues that Sunak should follow the example of John Major and take the initiative on standards reform.

Rishi Sunak has so far been stronger on aspirations to improve standards in public life than on his actions, which have largely continued the approach of his predecessors. Ministers have reaffirmed limits to the role of independent regulators and scrutiny by reasserting executive prerogatives.

On the positive side, in his first comments on entering 10 Downing Street, Sunak promised that his government would have ‘integrity, professionalism and accountability at every level’. Trust, he said, is earned. And in his personal foreword to the Ministerial Code issued just before Christmas, he referred to upholding the Principles of Public Life (commonly known as the Nolan principles), which Boris Johnson had omitted from the May 2022 version. At the same time, Sunak appointed Laurie Magnus as the new Independent Adviser on Ministers’ Interests, six months after the resignation of predecessor Lord (Christopher) Geidt.

The role of the Independent Adviser

The remit of the Adviser has not, however, been strengthened since the compromise changes of last May, which attracted criticism at the time. The government adopted some of the package proposed by the Committee on Standards in Public Life (CSPL) in its Upholding Standards in Public Life report of November 2021, which recommended a graduated system of sanctions solely in the hands of the Prime Minister, combined with greater independence for the Adviser in launching inquiries and determining breaches of the Code. As Lord (Jonathan) Evans of Weardale, the committee’s chair, commented in June 2022, the government accepted the former but not the latter in the form proposed.

The Adviser will now be able initiate their own investigations but only after ‘having consulted the Prime Minister and obtained his consent’. The requirement for prime ministerial consent is justified on the grounds that the Prime Minister is constitutionally responsible for appointing and dismissing ministers. As Boris Johnson said in a letter to Lord Evans in April 2021, this meant that, ‘I cannot and would not wish to abrogate the ultimate responsibility for deciding on an investigation into allegations concerning ministerial misconduct’. Moreover, the Prime Minister will also continue to have the right to decide when any report by the Adviser is published – risking lengthy delays, as has happened in the past – and on the significance of any breach of the Code, as well as on the form of any sanctions. Parliament is still left with no role in approving the Code or its implementation.

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Parliament’s watchdogs: independence and accountability of five constitutional regulators

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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.

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IPSA, parliamentary reform and constitutional watchdogs

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In a blog entry in October, I discussed the review by the HC Members Expenses Committee (MEC) of the Parliamentary Standards Act 2009 and the operation of IPSA, concentrating in part on the complex issues of independence and accountability of public bodies such as IPSA, who have some form of a constitutional (especially parliamentary) watchdog role.  This is a subject the Constitution Unit has studied for a number of years, and the creation of IPSA has ignited a fascinating debate between IPSA on the one hand and the Committee on Standards in Public Life (CSPL) and elements of the House of Commons on the other over the legal and constitutional duties  and functions of such a watchdog.  My concern was that the MEC inquiry was too limited and ‘exclusive’ to examine these fundamental issues sufficiently thoroughly.

The MEC has now reported (to a deafening silence, the political classes and media being almost exclusively focused on the PM’s Commons statement on the Eurozone summit/’veto’), and it does address these issues among the more substantive (and probably more newsworthy) issues of the nuts and bolts of MPs expenses.  Not surprisingly, it comes down in favour of the view that, in effect, that IPSA’s statutory duty merely to have regard to ‘supporting MPs efficiently, cost-effectively and transparently in carrying out their parliamentary functions’ should be upgraded from one to which it merely has to “have regard” into becoming its ”prime directive’.  IPSA’s claim that, as a self-proclaimed regulator, its primary duty is to “the public interest” has, rightly, been given short shrift.  This emphasises the importance of efficient delivery of functions – even where its purposes are, as the Committee criticises here, not made explicit in the founding statute because of legislation in haste – over a more lofty claim by a watchdog of being custodians of the public interest to which all else must be subservient.  What will Parliament (and the courts?) make of all this, both in any amendment of the IPSA legislation and in the establishment or reform of constitutional watchdogs generally?

On the specific problem of institutional design of a Members resourcing system that is both effective and maintains public confidence, the Committee has tried to steer a careful, apparently logical if (intentionally?) opaque line, proposing reforms designed to appear sensible and practical, without provoking a media and public backlash that politicians are grabbing back the control they were forced to cede in the 2009 crisis.  Its proposed structure supports retention of independent determination and regulation of the payments system for MPs’ costs, but suggests that “IPSA’s current administrative role should be carried out by a separate body, so that IPSA is not regulating itself, and the Act should be amended to permit this,” and that this separate administrative body “be within the House of Commons Service.”

Though presumably intended to be much narrower in function and responsibility – but what is IPSA’s purely ‘administrative’ role that can be severed safely? – will this new body not risk being regarded publicly as the return of the Fees Office, and, by implication, of the ‘bad old days’ pre-2009?  The Committee appears to have recognised the warnings given to it and CSPL about inappropriate mixing of regulatory and other other related functions, and their impact on independence and accountability, and it believes that its new ‘semi in-House’ system will be better than the pre-IPSA one because “independent regulation by IPSA and transparency would ensure that it did not replicate the deficiencies of the old expenses system.”  Really?

The Committee has recognised what some of us said to CSPL in 2009 about the loss of necessary expertise and understanding of the unique, ‘politicised’ world of parliamentary resourcing implicit in the creation of an ‘independent’ extra-parliamentary body like IPSA, and its proposal is presumably designed to remedy this, and thereby remove the running sore between Members and IPSA.  But structure isn’t everything – in such an environment, culture and ethos are as, if not more, important for the proper operation of parliamentary resourcing that does not become more in the interests of MPs as individuals rather than as the public’s elected representatives.

The fatal flaw of the ‘bad old days’ was not self-regulation per se, but the corrosive, exclusive and self-interested culture nurtured by decades, even centuries, of an irresponsible absence of effective accountability.  The Committee were clearly not keen on my submission that what was required was “”a system of modern parliamentary self-regulation, buttressed by an independent element to ensure that it was being operated transparently and responsibly and was not being abused”, describing it as going further than the views of its other witnesses (para 74).  However, the Committee does not seem to regard self-regulation in the area of parliamentary resourcing as inherently wrong, merely, presumably, undeliverable in the post-2009 climate.  In the same paragraph, it cites with implicit approval CSPL’s view that enhanced self-regulation could be retained at Holyrood and Cardiff Bay because “neither … has suffered a crisis of trust remotely comparable to that which has affected Westminster.”

This is a rather sad, defeatist attitude on whether and how Parliament can fundamentally reform itself, and in ways beyond questions of resourcing.  Without a fundamental culture change, the Committee’s proposed semi self-regulation ‘solution’ will be hard to make work both effectively and in a way that gains and retains public trust.  In fact it risks making things worse by reigniting public fury without ‘solving’ MPs’ discontent with IPSA, or, more fundamentally, without achieving its stated aim of providing an effective Members’ resourcing system (quoting with apparent approval my submission that ““the proper resourcing of the people’s elected representatives is a necessary precondition for a modern representative parliamentary democracy” (para 8)).

So, two cheers to the Committee for seeing the problems and sensing what the direction of reform should be.  But the third cheer must be withheld because of its failure to propose more fundamental cultural reform that would enable its proposals to succeed.  But this is typical of how parliamentary reform is done (or not) in Westminster – and Whitehall.

MPs’ Expenses, IPSA and Constitutional Watchdogs: A Parliamentary Committee Inquiry-Lite?

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Did you know that a House of Commons Committee is currently holding an inquiry into the Parliamentary Standards Act 2009? No? Thought not.

The Act is the centrepiece of the Government-inspired response to the Members’ expenses scandal, and which created IPSA (Independent Parliamentary Standards Authority).  Given the media and public firestorm over expenses in 2009, and the continuing bad press – especially the patent lack of sympathy with Members’ criticisms of the new system – it is a pity, if not really surprising, that the current Inquiry, by the aptly-named Members Expenses Committee, is proceeding almost unnoticed.

The Inquiry was ordered by the House in mid-May, but was not actually announced until mid-July, after a protracted delay in establishing the Committee’s membership, when it was given until the end of this year to report.  Its remit was relatively broad, perhaps to reflect the range of Members’ concerns about the operation of the IPSA-run system:

“to review the operation of the Parliamentary Standards Act 2009 and make recommendations, giving due consideration to ensuring:
(a) value for money for taxpayers;

(b) accountability;

(c) public confidence in Parliament;

(d) the ability of Members to fulfil their duties effectively;

(e) fairness for less well-off Members and those with families; and

(f) that Members are not deterred from submitting legitimate claims.”

A Committee press release of 20 July sought written evidence by 3 October.  This evidence has now been placed on the Committee’s website, including a submission by me. To date, there have been 4 oral evidence sessions since mid-September.

It is a pity that there has not been more interest in this Inquiry. Apart from the detailed issues of the structure and operation of the new expenses system (as an aside, the Committee is chaired by Adam Afriyie, who publicly supported in 2009 the replacement of the current salary and expenses with a single ‘consideration’ based on the initial 1911 figure of £400pa, as up-rated by reference to average earnings), it is proving to be a forum for more fundamental questions of constitutional interest, including the nature and purpose of ‘constitutional watchdogs’, especially those which have a close connection with Parliament.  This is an issue which has long interested the Constitution Unit, being the subject of two Reports and one book chapter published by it (I declare an interest as a co-author of these).

A fascinating debate, within and outwith the Inquiry, has been raging on what sort of body IPSA actually is, and what its primary function should be.  While MPs and the Committee on Standards in Public Life see IPSA mainly as a body to administer schemes of financial support for MPs in carrying out their parliamentary duties, IPSA sees itself primarily as an independent regulator, and as such, its fundamental purpose is “to serve the public interest”.

At heart, as with any such ‘watchdog’, is the interrelationship between the two principles of independence and accountability, one which is especially difficult and complex when what is being ‘regulated’ is Parliament itself, the ultimate constitutional watchdog.  With the principle of independence entrenched in the scheme establishing IPSA – as rushed through Parliament by ministers in the 2009 Act, and revised by legislation last year – MPs are focussed on IPSA’s accountability, by which they mainly mean, answerability to the Commons (through mechanisms such as the Speaker’s Committee for IPSA).  On the other side, IPSA’s maximalist view of its regulatory rather than mere payroll/administration role, emphasises its independence, especially from the very people and bodies which it is ‘regulating’.

Unfortunately, the Inquiry doesn’t seem so far to be addressing these complex questions in any evidence-based way, such as by research into, or much direct interest in, how other parliaments, including the 3 UK devolved institutions, address these problems. This absence of comparative perspective is regrettable.  For example, the Scottish and Welsh systems are of direct relevance, and the present Chair of the Welsh Assembly’s Remuneration Board, George Reid, would be a useful witness, being a former MP and Holyrood Presiding Officer.

With such a short timescale and methodology, this Inquiry cannot hope to do all its terms of reference justice.  All it can do is address, and maybe assuage, some of the main grievances voiced by Members since 2009, which was probably the main reason for this Inquiry in the first place.

What would be of value – apart from any tinkering with the detail of the IPSA-run system – would be for the Committee to recommend strongly in its report to the House that a dedicated committee of inquiry of some sort should be established to address the fundamental questions of IPSA’s relationship with Parliament and how the twin pillars of its independence and accountability can be reconciled positively for the benefit of the public, both as taxpayers and as constituents of adequately-resourced MPs.  The Public Administration Committee began the process in the last Parliament of examining these tricky issues where there are constitutional watchdogs.  That would provide a useful starting point for any future inquiry.