普通法Essay范围分享：Five Constitutional Watchdogs- 大数跨境

普通法Essay范围分享：Five Constitutional Watchdogs

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2024-12-28

导读：watchdogs concerned with safeguarding the election, payment and conduct of MPs

The constitutional reforms of the last 25 years have seen a big increase in the number of constitutional watchdogs. The Constitution Unit has anticipated and studied these developments from the start, with an early report on constitutional watchdogs in 1997. This interest was maintained by Oonagh Gay and Barry Winetrobe, senior members of the House of Commons Library, who wrote two major reports for the Unit on the subject: Officers of Parliament: Transforming the Role (2003) and Parliament’s Watchdogs: At the Crossroads (2008). As those titles imply, constitutional watchdogs were changing fast, along with wider changes in the constitutional landscape. They have changed even further since then, with the creation of IPSA in 2009, the introduction of lay members onto parliamentary committees, strengthening of the Parliamentary Commissioner for Standards, followed by introduction of the Independent Complaints and Grievance Scheme, and creation of the Independent Expert Panel. It was therefore very timely when Marcial Boo, a former Chief Executive of IPSA, joined the Constitution Unit in December 2020 as an honorary research fellow and we asked if he could do a study of those watchdogs which are directly sponsored by parliament. 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 executive. 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. That is the conundrum which Marcial set out to explore, with the able assistance of one of the Unit’s Research Volunteers, Zachariah Pullar, who has since become a Judicial Assistant in the Court of Appeal. Zach completed a survey of all the literature, reflected in the impressive footnotes; and Marcial and Zach interviewed 17 watchdogs and parliamentary officials in the spring of 2021. We then wrote the report, which was circulated in draft to all our interviewees, and held a private seminar to get further feedback in October 2021. In late September 2021, Marcial took up a new post as Chief Executive of the Equality and Human Rights Commission and his substantive involvement in this project ceased at that point. In March 2022 I conducted a further round of eight interviews about the role of lay members before completing the report.

ACoBA Advisory Committee on Business Appointments

BCE Boundary Commission for England

C&AG Comptroller and Auditor General

CRAG Constitutional Reform and Governance Act 2010

CSPL Committee on Standards in Public Life

EC Electoral Commission

EHRC Equality and Human Rights Commission

FOIA Freedom of Information Act 2000

FTT First Tier Tribunal

HoLAC House of Lords Appointment Commission

ICGS Independent Complaints and Grievance Scheme

IPSA Independent Parliamentary Standards Authority

JACO Judicial Appointments and Conduct Ombudsman

NAO National Audit Office

NDPB Non-departmental Public Body

OCPA Office of the Commissioner for Public Appointments

PACAC Public Administration and Constitutional Affairs Committee

PASC Public Administration Select Committee

PCA Parliamentary Constituencies Act 1986

PCS Parliamentary Commissioner for Standards

PPEA Political Parties and Elections Act 2009

PPERA Political Parties, Elections and Referendums Act 2000

PSA Parliamentary Standards Act 2009

SCEC Speaker’s Committee on the EC

SCIPSA Speaker’s Committee on the IPSA

Over the last 30 years, new independent bodies and officers, often known as ‘constitutional watchdogs’, have been created in the UK. Their role is to ensure fairness and safeguard integrity in the mechanisms of democracy. Their establishment has been ad hoc, and little noticed by the academic literature. This report makes a small start to fill that gap. Our focus is on four watchdogs concerned with safeguarding the election, payment and conduct of MPs: the Electoral Commission, Boundary Commission for England, Parliamentary Commissioner for Standards, and Independent Parliamentary Standards Authority; plus the Committee on Standards in Public Life. The report examines how the independence of these watchdogs to regulate politicians (individually) intersects with their accountability to politicians (collectively) in parliament. The report situates these watchdogs within the familiar, tripartite separation of powers, dismissing the argument that they constitute a fourth branch of government. Instead, they should be considered as regulators of ethics and democratic processes. In common with other regulators, they referee and apply rules fairly and consistently, with the rules themselves set through democratic processes. Two core institutional design features are watchdogs’ independence from, and accountability to, political actors. Watchdogs must be independent of the politicians they regulate; yet they also need to be accountable, as public bodies performing public functions, and paid out of public funds. For this they need accountability lines into the political system, or their decisions will not seem legitimate to those being regulated. The purpose of this report is to examine how the delicate balance of independence and accountability can best be maintained. The report identifies the main factors which support watchdogs’ independence as being a secure legal status, with protection from arbitrary abolition; merit-based appointment; security of tenure, with dismissal only for incapacity or misconduct; adequate funding; authority to initiate their own inquiries; authority to publish their own reports, and to decide the timing of publication. The accountability of watchdogs is essentially explanatory: they can be called upon to explain and justify their decisions. They cannot and should not be punished merely because their decisions are unwelcome or unpopular. Design features to ensure watchdogs’ accountability are transparency, including freedom of information; giving reasons for decisions; mechanisms to challenge watchdogs’ decisions by appeal or judicial review; scrutiny of the budget, and audit of expenditure; and accountability to parliament through its committees.

Our analysis was aided by interviews with 25 senior post-holders from the watchdogs and the House of Commons, and feedback from a private seminar. Interviewees agreed that these watchdogs should be formally independent, to do what they think is right, without fear or favour. The strength of watchdogs’ independence depends as much on their culture and the character of their senior leaders as on their formal legal status. There is an inevitable tension between watchdogs’ democratic accountability and their independence in performing their regulatory functions: by exercising independence, watchdogs can irritate those to whom they are accountable. As one interviewee remarked: the stronger the independence, the stronger the accountability needed to be. To strengthen the watchdogs’ independence, the report recommends that sponsoring committees should not have a single-party majority, and should contain lay members; they should be required to follow the Governance Code on Public Appointments; all board members should be appointed for a single, non-renewable term; and no board member should be removed unless clearly unfit to hold office. Remuneration should be more consistent, as some board members receive a per diem and others an annual salary, with periodic review. A secure legal foundation is important to underpin watchdogs’ independence, but the Parliamentary Commissioner for Standards (PCS) should remain a creature of Standing Orders to retain parliamentary privilege. As the Committee on Standards in Public Life (CSPL) could be swept away by prime ministerial fiat, it should be placed in statute, or at least an Order in Council. In addition to power to initiate their own investigations and publish their own reports, watchdogs need protection from external direction. The provision in the Elections Act 2022 to give power to the government to prepare a strategy and policy statement for the Electoral Commission threatens seriously to undermine the Commission’s independence. The introduction of lay members onto parliamentary committees has been a success, guarding against MPs becoming too inward looking or self-interested. They need to be more than a token number: the Standards Committee now has seven lay members with full voting rights. With the chair having only a casting vote, this gives the lay members an effective 7:6 majority. The Speaker’s Committees on IPSA and the Electoral Commission should continue to be chaired by the Speaker, as this confers authority and status and encourages attendance. But the Speaker is very busy; more could be delegated to sub-committees, with lay members playing a stronger role, especially in scrutiny of the Estimates. There should be more lay members, and no party should have a majority on these committees. The Electoral Commission, IPSA and the PCS have transformed the transparency of elections policy and administration, of MPs’ expenses and allowances, and of MPs’ discipline. To further strengthen the watchdogs’ accountability, there should be greater awareness of the right to complain to the Parliamentary Ombudsman (with IPSA and the PCS coming within the Ombudsman’s jurisdiction); more effective and expert scrutiny of their budgets; and regular appearances before parliamentary select committees, or possibly a single select committee dedicated to the scrutiny of constitutional watchdogs.

Finally, the CSPL could play an additional role as the primus inter pares of these watchdogs, monitoring and safeguarding their independence and accountability, and periodically reviewing their governance arrangements.

Constitutional watchdogs take centre stage 1.1 This report is about five generally rather little known constitutional watchdogs. Yet while we have been writing this report, all five of them have been thrust centre stage. First was the Parliamentary Commissioner for Standards (PCS), Kathryn Stone, dragged into the limelight when in November 2021 the House of Commons sought to reject her findings that Owen Paterson MP had breached the lobbying rules.1 So great was the public outrage, not least from Lord (Jonathan) Evans, chair of the Committee on Standards in Public Life, that within 24 hours the government did a complete U-turn and Paterson resigned.2 1.2 In March 2022 the Parliamentary Commissioner for Standards was thrust centre stage again, for her investigation into complaints of bullying by the former Commons Speaker John Bercow, which he described as a travesty of justice.3 Bercow appealed against her findings to an independent expert panel, chaired by former Court of Appeal judge Sir Stephen Irwin. The panel upheld 21 allegations of bullying, and said that if he was still an MP they would have recommended expelling him from the House.4 1.3 The second watchdog in the firing line has been the Electoral Commission (EC), whose Chair Sir John Holmes was not re-appointed in 2021, after a long-running briefing campaign against the Commission by some Brexiteers and parts of the Conservative Party. The government’s Elections Bill was then introduced with proposals to reduce the Electoral Commission’s powers and functions in two important respects: by removing the Commission’s power of prosecution; and by requiring the Commission to comply with a strategy and policy statement prepared by the government. 1.4 The third watchdog in the firing line is the Independent Parliamentary Standards Authority (IPSA), which in March 2022 triggered headlines such as ‘MPs set for £2,200 pay rise just when costs soar for millions around UK’.5 In 2021, IPSA had stopped what would have been a £3,300 increase after coming under pressure from MPs because of the economic impact of the Covid pandemic. In 2022 Richard Lloyd, IPSA’s chair, defended the increase saying, ‘This is the first increase in pay for MPs in two years and follows the average of increases across the public sector last year. MPs play a vital role in our democracy and this is reflected in their pay’. 1.5 The fourth watchdog in the news has been the Boundary Commission for England (BCE), which in 2021 commenced the Seventh Periodical Review of parliamentary constituency boundaries, which have been unchanged since 2007. In the summer of that year it embarked on its first consultation about the proposed new boundaries, and in spring 2022 on a second round with public hearings. These will inform its final report, in 2023, which will provide the constituencies for the next general election; in a legislative change made in 2020, MPs no longer have power to overturn the Commission’s findings. There are separate Boundary Commissions for Scotland, Wales and Northern Ireland, which (like the Boundary Commission for England) are chaired by the Speaker, with the Deputy Chair being a High Court judge. Similar considerations apply to them, but for the sake of brevity they are not considered further in this report. 1.6 The fifth watchdog making headlines has been the Committee on Standards in Public Life (CSPL), which in November 2021 published the final report of its Standards Matter 2 review. CSPL recommended that more of the ethical watchdogs regulating government should be placed on a statutory footing, ‘giving them clearer accountability and greater independence from the executive they regulate’. 7 The need for clearer accountability and greater independence for watchdogs is a theme running all the way through this report.

1.7 Over the last 30–40 years, these five independent bodies and officers, often known as ‘watchdogs’, have been created in the UK to oversee different aspects of the work of parliament and parliamentarians. The Boundary Commissions, in their current form, were created in 1986 to revise periodically the boundaries of parliamentary constituencies. The Parliamentary Commissioner for Standards was created in 1995 to investigate the cash-for-questions scandal. The Electoral Commission was formed in 2000 to supervise the conduct and financing of elections and referendums. The Independent Parliamentary Standards Authority was established in 2009 to determine the level of pay, and to administer the expenses regime of members of parliament. The Committee on Standards in Public Life (CSPL) was set up in 1995 as the Prime Minister’s ethics adviser: its first report led to the creation of the Parliamentary Commissioner for Standards. 1.8 These are not the only watchdogs created in recent years. Alongside long-established bodies like the Civil Service Commission, Comptroller and Auditor General, and Parliamentary Ombudsman the more recent creations include the Information Commissioner, House of Lords Appointments Commission, Commissioner for Public Appointments, Advisory Committee on Business Appointments, Judicial Appointments Commission, Independent Adviser on Ministers’ Interests, and the Equality and Human Rights Commission. 1.9 Collectively, these watchdogs try to ensure that rules directed at fairness and integrity are applied consistently and impartially, whether in relation to appointments, behaviour, or public spending. They also try to ensure fairness in the mechanisms of democracy, on behalf of the electorate, free from any political pressure emanating from the legislature and executive. The bodies might, accordingly, be regarded as comprising a family of ‘ethical regulators’, whose aim is to safeguard the integrity of political governance.8 In particular, these watchdog bodies variously give institutional expression and weight to the Seven Principles of Public Life, first promulgated by CSPL in its inaugural report, Standards in Public Life. 9 Indeed, several of the bodies in existence today are ‘Nolan watchdogs’, conceived by CSPL to uphold standards, and maintain public confidence in all the different areas of public life. 1.10 The establishment of these bodies has largely been ad hoc, often in response to high-profile events or perceived gaps or deficiencies in public standards: CSPL itself, IPSA and the Parliamentary Commissioner for Standards were all created as a direct consequence of short-term political scandals. There were no works of political theory that guided their creation. As the numbers of these watchdogs have proliferated, the paucity of the literature on these bodies has become increasingly obvious. Indeed, commentary on the role of these watchdogs has, in the main, been led by politicians and the media: MPs have criticised IPSA, the Electoral Commission and the EHRC,10 while the media lament the weaknesses of the Advisory Committee on Business Appointments (ACoBA), the House of Lords Appointments Commission (HoLAC), and the regulation of public appointments. 11 1.11 A full analysis of these UK ‘integrity regulators’ is overdue. This report aims to contribute to the debate by examining how the independence of these watchdogs to regulate politicians (individually) intersects with their accountability to politicians (collectively) in parliament. In light of that analysis, it aims to examine how these twin demands of independence and accountability might most effectively be met in respect of the constitutional watchdogs selected for study. 1.12 The report focuses just on five watchdogs, those charged with safeguarding the election, payment and conduct of MPs, listed in para 1.7. We have included the CSPL, because of its broad advisory remit touching on the same areas, though it does not itself regulate specific individuals or organisations. This subset of watchdogs has been selected because of their close relationship with parliament, which (unusually) is the sponsoring body for three of them, appointing their boards and providing their funding. Parliament has developed novel mechanisms for managing the sponsoring relationship, with committees chaired by the Speaker, and lay members on some of the committees. 1.13 The five watchdogs display differences in their governance arrangements that enable comparison and analysis. Three – the EC, BCE and IPSA – are statutory bodies. The PCS, like them, reports directly to parliament, although she is a non-statutory officer of the House. Four of the watchdogs are directly accountable to parliament; the Electoral Commission is also accountable to the Scottish Parliament and to the Welsh Senedd. Accountability at Westminster lies through the Speaker for the BCE, the Speaker’s Committee for the EC (SCEC) and for IPSA (SCIPSA), and the House of Commons Committee on Standards for the PCS. This allows us to explore the extent of parliamentarians’ actual or potential influence over the bodies that regulate their election, remuneration and behaviour, given that parliament has power to appoint and re-appoint the leaders of the watchdogs, to approve their budgets and work programmes; and to influence their strategies. 1.14 The CSPL, by contrast, reports directly to the Prime Minister and the Cabinet Office; which, qua sponsor, has responsibility for exercising the powers of appointment, dismissal and funding. In each case, politicians’ powers of oversight create obvious tensions with the independent operation of these bodies.

1.15 The report situates these watchdogs within the well-understood framework of the separation of powers between the executive, legislative and judicial branches of government, discussed further in Chapter 2. The main research questions addressed in the report are as follows: Independence • What is the rationale for the independence of these watchdogs? From whom do they need to be independent; why; and how? • How independent are they in practice? • Could their independence be better secured? Accountability • What are the main lines of accountability of these watchdogs, legally and politically? • Could their accountability be better secured? Balance between independence and accountability • What is the right balance between institutional independence on the one hand, and public and parliamentary accountability on the other? Lay members Since this is the first study of lay members on parliamentary committees, our final research question is more specific: • What is the contribution of lay members to parliamentary supervisory committees; what difficulties have they encountered; what difference do they make? 1.16 To answer these questions we adopted three main research methods. First, to understand the governance structures of constitutional watchdogs, and their underlying rationale, we undertook a literature survey: our references are listed at the end of the report. The bibliography contains many more references to official reports than to the academic literature, which is limited, and on the role of lay members is non-existent: we would welcome corrections if there is anything we have missed. Second, to understand the watchdogs’ legal lines of accountability, we read all the relevant case law, which is listed in the second part of the bibliography, along with all the relevant statute law: the results are analysed in Chapter 5. 1.17 To understand how independent watchdogs are in practice, and to explore the tensions between their independence and accountability, our third research method was to conduct interviews with senior figures in all the watchdogs concerned, and from the House of Commons. Interviewees included a former Speaker; a former Clerk of the House; three former PCSs; two former chairs of CSPL; two former chairs of the Electoral Commission; a former chair of IPSA; a former deputy chair of the BCE, now a Justice of the UK Supreme Court; parliamentary officials; and lay members of parliamentary committees. Each interviewee had high-level oversight of the watchdogs concerned, and each was personally accountable for aspects of their work. This ensured that each interviewee could provide personal insight into the pressures on watchdogs’ independence and how their governance might be improved. 1.18 In most cases, interviewees were former, rather than current post-holders. We feared that current post-holders would be more constrained in expressing their views. Those no longer in post are also able to reflect more holistically, and with the benefit of hindsight, on their overall experience in office, including on their watchdogs’ independence and accountability in practice.

1.20 All interviewees were assured that their responses would be kept confidential and anonymised, unless they also gave their consent to be quoted. In the first round interviewees were asked the same questions relating to the governance and accountability arrangements of the five watchdogs under scrutiny: 1. What is the rationale for the independence of the watchdog body? 2. How secure is the independence of these bodies to external pressure, and how does that pressure manifest? 3. What are the main lines of accountability of these watchdogs, to parliament and to the public? 4. Is there any tension between the watchdogs’ independence and their accountabilities?

5. How might the watchdogs’ governance change to strengthen their independence and accountability, if at all? 1.21 In the second round of interviews, about the role of lay members on parliamentary committees, interviewees were asked: 1. What is the role of lay members? 2. How are they recruited? 3. What difference do they make? 4. What difficulties have been encountered? How could they be overcome? 1.22 In October 2021 we held a private seminar to discuss our draft report, to which all the interviewees were invited, as well as current post-holders from the watchdogs concerned, and academic experts. We are grateful for their comments and suggestions, which have greatly strengthened this final report.

1.23 Chapter 2 introduces the terms of the discussion developed in the subsequent chapters, which centres on the watchdogs’ independence and accountability; and defines what is at stake. It engages with the academic debate on the roles of the three branches of government in relation to independent supervisory bodies; and in particular the argument that these constitutional watchdogs might constitute, or represent, a fourth branch of government. This argument is ultimately dismissed: the chapter concludes, instead, that these watchdogs should be considered to be, or akin to, independent regulators. This then helps to frame the inevitable tension between independence and accountability that comes with the territory of regulation. Chapter 2 concludes with an analysis of the principles underlying the concepts of independence and accountability, and the trade-offs between them. 1.24 Chapter 3 examines the governance arrangements of the five watchdogs under review, by drawing on their constituent and other official documentation, such as annual reports, reports of select committees, and parliamentary debates. The chapter proceeds to analyse those governance arrangements in closer detail, drawing out and expanding on a series of factors contributing to watchdogs’ independence and accountability, including their legal (or other) status; capacity to set their own agenda; their board membership; the appointments process to senior positions, and mechanisms for removal; the frequency and transparency of their meetings; the procedures and membership of the parliamentary committees overseeing their work; the process for approving their budget, strategic plan and annual work programmes; and the role of the Speaker of the House of Commons and of the ministers on parliamentary oversight committees. 1.25 This analysis supplies a framework for assessing in Chapters 4 and 5 the design and operation of the watchdogs themselves, with separate lists of factors maximising their independence, and their accountability. This, along with the interview findings set out in Chapter 6, provides the groundwork for developing the report’s substantive proposals in Chapter 7. Chapter 6 reports interviewees’ views on the watchdogs’ independence and accountability, and the role of lay members. Chapter 7 draws on their wider reflections on how to strengthen watchdogs’ institutional design, and the analysis developed in earlier chapters to set out our overall conclusions, with a series of specific recommendations for strengthening the watchdogs’ governance arrangements.

1.26 This report focuses on watchdogs answerable to the House of Commons. The House of Lords has its own Commissioners for Standards (currently Martin Jelley QPM, and Karimullah Hyat Akbar Khan, both appointed in 2021). We did ask consultees on our draft report whether the Lords could play a role in upholding the independence, or strengthening the accountability, of bodies which are primarily accountable to the House of Commons. Unsurprisingly, given the traditional separation between the two Houses, the answer was no. The House of Lords will not interfere in the governance of the House of Commons. The Lords Constitution Committee has shown little interest in these watchdogs (unlike the Public Administration and Constitutional Affairs Committee (PACAC) in the House of Commons, and its predecessor the Public Administration Select Committee); it was felt that sponsorship and scrutiny was best left to the lower, democratically elected House.

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