Political accountability -Parliament and the courts

Prime Minister’s question time is the most televised way in which Parliament holds the government to account.  It may not be effective as many different topics are covered in any one particular session.  However, it does remain immensely powerful as a symbol.  It is a reminder of the most essential rule of the British constitution that the prime minister and his government may remain in office only for as long as they continue to enjoy majority support in the House of Commons.  

A minister must retain the respect, confidence and support of his cabinet colleagues and backbenchers.  As soon as this is lost the more likely it is that an individual will resign. An example of this was the resignation of Estelle Morris as Education Secretary ‘following her failure to meet targets set for youngsters' literacy.’  This shows the failure of a minister to discharge their duties properly which could ultimately lead to Parliament investigating the actions taken by a minister.  Rather than undergo the embarrassment of work, policies and departmental faults being disclosed, a minister is more likely to resign.

The parliamentary bodies responsible for scrutiny of each government department are known as departmental select committees.  Their role is to examine the expenditure, administration and policy of the relevant department and its associated public bodies.  The committees determine their own subjects for inquiry; gather written and oral evidence and make reports to the House.  The Government subsequently replies. In their scrutiny of government departments, committees use a variety of working methods.  These methods include full inquiries gathering written and oral evidence leading to a published report, a single evidence session to focus attention on a particular issue, informal seminars with experts and asking for written evidence on a minor piece of legislation.  

Another Parliamentary procedure used to make ministers answerable for their actions are parliamentary debates.  The majority of the debates in the chambers of each House of Parliament are concerned with legislation.  However, much time is also spent seeking to call government to account for actions already taken or to induce the government to take action.  However, the effectiveness of this mechanism as an accountability procedure is questioned due to the problem Parliament faces when allocating limited time that it has for debate.  The government demands time for its motions to be discussed and the opposition wants the opportunity to put political pressure on the government by initiating debates of its own choosing.  Backbenchers of all parties also require opportunities to raise issues affecting their constituencies.  

A good example of where the House of Commons has scrutinised the Government and held them to account was when a ban was placed on union membership at the Government Communication Headquarters (GCHQ).  The decision was made in a ministerial statement to the House of Commons.  However, the statement failed to disclose the fact that the ban was being imposed by the use of prerogative power. This shows that ministers can fail to disclose information in statements as they know that the use of prerogative power in this context would have been politically controversial.  The ban was investigated by the Employment Select Committee who took oral evidence from the Foreign Secretary, the Secretary of State for Employment, the retired director of GCHQ and the national organisations for civil service unions.  The committee wanted to hear from the local trade union and the current director of GCHQ but the government declined to authorise these people to be present.  Again, this shows that the government interferes with procedures that check abuse of power and can ultimately make the procedure ineffective.  The Committee published a unanimous report critical of the government’s union ban decision and an adjournment debate took place.  The contribution of the select committee’s investigation and report had a significant effect on the quality of scrutiny by MPs of the government’s decision.  One of the strengths of the select committee system is that it improves debate as their criticisms and recommendations are addressed.  

Britain’s constitutional arrangements are unusual in respect that the job of holding the government to account is carried out by Parliament.  Few other European states bestow their parliamentary assemblies with the power available to Westminster.  In most European states parliament has only one task, that task being to enact legislation.  In Britain, this is not the case.  While prime minister’s question time is given attention by the media, Parliament is a far more effective scrutiniser of government than question time would imply.  Parliament’s best work is undertaken away from the media and away from the floor of the House of Commons.  The House of Commons select committees could be seen as one of the best methods Parliament has for holding the government to account.

The House of Commons select committees have considerable power.  The Standing Orders of the Commons provide that committees may examine any aspect of government ‘expenditure, administration or policy.’ The committees decide what issues they should investigate and in support of their work they have the power to call for any persons, papers or records and ministers may be compelled to appear before them.  The current Labour government does not underestimate the powers of these committees.  After the aftermath of Labour’s 2001 election victory their whips attempted to influence the membership of the committees.  The attempt was unsuccessful and the committee chairs whom the government had sought to expel were reinstated.    

There has been a widespread expectation that the scale of Labour’s majorities since 1997 would weaken the ability of Parliament to subject the government to scrutiny and weaken political accountability.  This expectation has not been met.  Indeed, there are significant ways in which the government is held to account more effectively than has ever been the case before.  An example of this is the new practice that has been developed whereby the prime minister must subject himself to interrogation by the House of Commons liaison committee every six months.  

The relationship between Parliament and the government is somewhat controversial.  Under the current government the quality of scrutiny and holding the government to account has been threatened.  The ability of individual constituencies to select candidates that may express disloyalty to the government is more constrained than it has ever been.  Those who make it as MPs tend to stay loyal to the government as they aspire to a career on the select committees.  They still wish to stay as MPs so they tend to please the whips and the prime minister.  The aims and organisation of our political parties could destroy the system of Parliamentary accountability.  

The Hansard Society set up the Commission on the Scrutiny Role of Parliament to assess how effectively Parliament holds Government to account.  Its final report was The Challenge for Parliament – Making Government Accountable and it set out an agenda for the future reform of Westminster.  The Commission examined the strengths and weaknesses of the various ways in which the Commons and the Lords pursue accountability.  The Commission also examined the many non-parliamentary ways by which Government is scrutinised which will be discussed later.  A survey of MPs conducted by the Commission found that Members themselves are sceptical about Parliament’s ability to hold the Government to account.  The report’s central theme is that Parliament should be at the apex of a system of accountability.  The report set out seven principles designed to improve the quality of government the main principles being that Parliament must develop a culture of scrutiny, Committees should play a more influential role, the House of Lords should complement the Commons and that Parliament should communicate more effectively with the public.  The report is a step in the right direction for improving accountability; it means that recommendations have been made based upon evidence of a weakening system of scrutiny.  It may mean that we can look forward to stronger practices of holding the government to account and making ministers answerable for their actions.

‘Ministers retain substantial legal powers under the prerogative, through which (within the boundaries set by judicial review) important policy decisions may be taken.’  An important mechanism of accountability in the UK is judicial review.  It is the process by which administrative action is held up to scrutiny by the courts. Judicial review tends to concentrate on the way decision makers have exercised their delegated power, rather than on the content of the decisions they have made, which is addressed by political accountability.  ‘The role of the judiciary has been said to be essentially that of a football referee, the judge’s task being to intervene when a breach of the rules has occurred.’  The applicant of judicial review can ask the court to grant a number of orders.  A mandamus or ‘mandatory order’ compels the reviewed body to do something; a prohibitory order compels it to refrain from doing something, a declaration sets out the court’s view on the legality of a particular course of action, and a certiorari or ‘quashing  order’ nullifies a decision and remits it for reconsideration.  

Judicial review has been limited to cases where there is no private law action, but it has now been recognised that judicial review should be the exclusive procedure where it would be appropriate at all.  For example, if a claim is based on the contention that a public body has acted ultra vires, this must normally be pursued through judicial review (O’Reilly v Mackman).  However, there are a number of exceptions.  Firstly it was decided in Roy v Kensington, Chelsea & Westminster Family Practitioner Committee that a private law action could be used if there was a mixture of private law and public law issues at stake.  Secondly, Wandsworth London Borough Council v Winder established that a counter-claim to a private law claim can be based on the fact that the claimants’ original actions were ultra vires.  

Judicial review will only lie against bodies exercising public duties.  However, ‘public duties’ is not always easy to define, and the scope of judicial review has expanded over the years.  The first major decision was in R v Criminal Injuries Compensation Board ex parte Lain which held that a body set up under prerogative powers was reviewable.  The next development was R v Panel on Takeovers and Mergers ex parte Datafin.  The panel was not a body whose powers had any obvious source; it had no statutory or prerogative basis.  Nevertheless, it was held to be exercising public duties for the purposes of judicial review as the panel had extensive powers that did not entirely arise from the consent of the organisations it regulated.  

In judicial review, a court should be able to decide disputes within the government, including disputes within or between different branches or levels of government, and also whether individual rights protected by the constitution have been violated.  Judicial review gives the court a residual role and power to review, and possibly nullify, laws and governmental acts that violate the constitution and higher norms.  It is a way to assure that governmental bodies respect the constitution and do not use powers granted to them by the constitution to seize illegitimate power.  Judicial review is generally the final word by a governmental institution on a law’s validity.  

The Government may have attempted to weaken political accountability but in reality it has had the effect of strengthening Parliament’s position.  There has been an increase in the mechanisms that are used in the UK to scrutinise the actions of government and ministers.  The government must realise that freedom is not an alternative to accountability.  Even the most effective ministers need to be challenged to improve their performance and held to account effectively.  If outcomes and targets are not achieved, then there must be mechanisms for intervention.

 

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