orders in council | The Constitution Unit Blog

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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Overseas Territories flags (CC BY 2.0) by Foreign, Commonwealth & Development Office.

The arrest of the Premier of the British Virgin Islands in April and a Commission of Inquiry’s finding of ‘parlous failings in governance’ have raised questions about the British government’s relations with and stewardship of its Overseas Territories. These issues are raised in moments of crisis, following natural disasters, acute periods in the several sovereignty disputes linked to the Territories, or headline-grabbing scandals. George Fergusson argues that they merit more regular review.

The decision on 8 June of a British official to reject the principal and firm recommendation of a Commission of Inquiry by a former Court of Appeal judge has produced little political or media stir. This is largely explained by the decision being one concerning a British Overseas Territory, in this case, the British Virgin Islands (BVI).

The recommendation was that a period of direct rule was needed to implement a series of urgent and radical reforms identified by Gary Hickinbottom’s damning report on corruption and ‘parlous failings in governance.’ As Hickinbottom wrote: ‘Such a suspension is not only warranted but essential, if the abuses which I have identified are to be tackled and brought to an end.’

The report’s publication was accelerated by several weeks after the dramatic arrest on 28 April of Andrew Fahie, the BVI’s premier, at Miami International Airport, together with the managing director of the BVI Port Authority, with all the classic movie trappings of a sting by the United States Drug Enforcement Agency.

Fahie’s arrest, unlike the decision on direct rule, was sensationally published across the British media. While the decision was formally made by the BVI’s Governor, John Rankin, this will have been in close consultation with Foreign Secretary Liz Truss and Amanda Milling, the minister responsible for Overseas Territories within the Foreign, Commonwealth & Development Office (FCDO).

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