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手把手教你写Constitutional Law Essay

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2024-12-21

导读：There is little logic in making members of devolved bodies subject to the criminal law in respect of

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comparative research on systems of regulating parliamentary standards

Research Scope

The parliaments/assemblies selected for study include the new devolved bodies in Scotland, Wales and Northern Ireland, which are described in Part One. The basis for regulating parliamentary standards in Australia, Canada and Ireland, including at sub-national level, is the focus of Part Two. The main points are summarised separately at the beginning of each part, but this section draws together some overall conclusions and offers some evaluation of the strengths and weaknesses of the various models in the report.

The Framework for regulation

The frameworks for the schemes of standards regulation for Scotland, Wales and Northern Ireland were included in the devolution legislation. These provided for standing orders or legislation to set out a detailed scheme for the registration and declaration of (mainly financial) interests by the new members and a prohibition against paid advocacy by members. The framework was based on the system in operation in the House of Commons, but was introduced by statute, rather than relying on parliamentary resolution. A crucial difference was that the main offences, failure to declare or register, or involvement in paid advocacy became criminal offences, which would not be handled by the parliamentary machinery. The decision to make these criminal offences was taken against the background of perceived difficulties by the Commons in handling serious allegations against its members.

Within the framework, the devolved bodies had varying degrees of autonomy to establish rules for their own members. As a general point of principle, it would seem best for each assembly/parliament to be responsible for the drafting of its own code of conduct and detailed scheme. This enables the institution to fit in with the general ethos and methods of operation. In fact, only the Scottish Parliament could claim to be responsible for its code. In Northern Ireland and Wales the assemblies began life with a ready-made code. Inappropriate drafting has caused particular problems in Wales where the Committee on Standards of Conduct has in theory a role in investigating all types of breaches of standing orders. The lack of primary legislative powers in Wales means that the scope for improving the system of regulation is considerably limited. Although Scotland also faced difficulties with the initial statutory definition of paid advocacy it was given the power under the devolution settlement to create its own ethical rules by legislation within the devolution framework. The Standards Committee is planning to introduce a bill later in 2002. It is already legislating for a statutory Standards Commissioner.

The role of parliamentary privilege

The devolved bodies were established without the parliamentary privilege customary at Westminster and other Commonwealth parliaments. Parliamentary privilege is not a concept which is well understood. It derives from the ancient laws and customs of Parliament, and is considered essential to maintain the constitutional doctrine of separation of powers and the principle of free speech by the representatives of the people. Judicial and executive authority over the internal affairs of a parliament are seen as breaching these principles of parliamentary autonomy. Parliament needs to react quickly and effectively to events so that its role of scrutinising the executive can be upheld. Statutes drafted by the executive do not always offer sufficient protection of those rights.

Westminster-style parliaments/assemblies operating without privilege need some form of statutory protection, for example, to enable them to summon witnesses and reports, and to ensure that parliamentary publications are not the subject of defamation actions. They also require some form of statutory authority to enable proper self-regulation, including the imposition of sanctions against their members.

A useful analogy to keep in mind when considering the value or otherwise of parliamentary privilege is the use of the royal prerogative. This prerogative is used as authority for executive action where there is no specific regulation by statute law. It offers the executive the flexibility of inherent authority. The legislature operates under the authority of parliamentary privilege, but this authority can also be supplemented or replaced by statute law. A new form of exercise of these inherent powers would depend on the passage of legislation. The Commonwealth Parliaments of Australia and Canada have valued the use of privilege, for example to assert rights to call upon a minister to produce documents.

If all the powers of a parliament are dependent on detailed statutory authority, it is very difficult to react quickly to events. The parliament may be dependent on the executive to initiate legislation, when it is against the perceived interests of the executive to take action. An illustrative example is the current controversy in the Australian Parliament over the actions of special advisers, where a Senate committee is demanding information.5 The Senate is not controlled by the governing party but without parliamentary privilege special legislation to clarify the powers to summon special advisers would need to pass both Houses to take effect. It might then await interpretation by the courts.

The decision not to confer privilege on the devolved parliaments/assemblies was not the subject of major debate during the passage of the devolution legislation, and so the reasoning behind this policy change was not explored in any depth. The allegations made against Neil Hamilton and others by Mohammed Al Fayed had been a backdrop to the devolution legislation of 1997-8 and the controversy over the processes of investigation by the Commons became part of the policy environment. The underlying policy assumption seems to have been that privilege would have been at best unnecessary and at worst positively harmful.

But as part of a wider Commonwealth development, the establishment of Westminster type parliaments without parliamentary privilege was atypical. Wales perhaps was a special case, as a body incorporating both assembly and executive, but the Stormont parliament had been established in the 1920s with parliamentary privilege7 and so the Scottish and Northern Irish legislatures might have expected the same level of self-governing powers.

The devolution legislation gave the new bodies some statutory protection for the issuing of reports, the summoning of witnesses and the regulation of their members in varying degrees. But these statutory powers do not equal the breadth of parliamentary privilege enjoyed by the Commons. They are also reviewable by the courts.8 Moreover, changes to this broad framework are dependent on legislation at Westminster, not in Scotland or Northern Ireland, since the devolution legislation is amendable by the UK Parliament only. The devolved bodies are not in a position to clarify their own powers. In retrospect, it might have been more appropriate for the devolution legislation to confer on devolved bodies a general power to regulate themselves, on the Irish model, where the Oireachtas (parliament) is given powers of self-regulation under the Constitution.

Parliamentary privilege under review

Parliamentary privilege has been under growing pressure as offering insufficient defence for individual human rights and as bestowing on parliaments an unnecessary ‘firewall’ against judicial intervention.

The use of parliamentary privilege has been subject to review recently. There are particular problems with the application of its disciplinary procedures to non-members. The recommendation of a Joint Committee of the Lords and Commons was for its statutory codification in 1998, so that archaic aspects could be dispensed with and its modern operation defined. This recommendation awaits implementation. In an era of judicial review, the operation of parliamentary self-regulation without the possibility of judicial intervention seems out of place. There is a new emphasis on individual human rights, for example, the rights of witnesses before parliamentary committees, or of those named by members on the floor of the House.

At least one case relating to the privilege of freedom of speech under Article 9 of the Bill of Rights 1689 is due to be heard by the European Court of Human Rights. The decision of Speaker Boothroyd to deny Sinn Féin members access to the facilities of the Commons was recently the subject of an ECHR decision as to admissibility. A sub-national Canadian parliament has already had its use of parliamentary privilege challenged by reference to the Canadian Charter of Rights and Freedoms of 1982. In New Zealand, the House of Representatives thoroughly revised its Standing Orders (SOs) and practices to take account of its Bill of Rights from 1990. It continues to use its powers of parliamentary privilege, illustrating that the concept of privilege can be adapted to the existence of human rights legislation. ECHR judgments indicate that a large degree of discretion is acceptable when parliaments regulate their members.

Parliamentary privilege gives the Commons its authority for creating and regulating its own standards machinery. The Commissioner for Standards carries out investigations, as an Officer of the House, but the power to summon witnesses and recommend sanctions belongs to the Standards and Privileges Committee. The operation of this machinery has been criticised as failing to meet the standards of natural justice and as too subject to political pressures. However, the first report of the Committee on Standards in Public Life (the Nolan Committee) was conscious of the practical as well as symbolic value of self-regulation, proposing its preservation with the addition of an independent element.

It is possible to make aspects of privilege subject to statute law and to the courts, while leaving the principle of autonomy untouched. This happened to the inherent power of the Commons to adjudicate on disputes on the election of members, which became the province of the courts in the nineteenth century, following statutory regulation. There are arguments for following this precedent in the area of standards, by creating a statutory commissioner and investigation process. The most obvious model is being developed in Scotland, but there are a number of Commonwealth examples.

Models of investigation

The devolved bodies have all preferred the model of an investigative official, employed by the parliament/assembly to carry out investigations of allegations. Control of resources remains with the managing authorities of the devolved body, apart from Northern Ireland, where the Commissioner is currently serviced by the Assembly Ombudsman’s office. The clerks, following concerns about possible conflicts of interests, have retained the role of advising members as to their responsibilities. This division is not commonly found in parliamentary practices in Australia, Canada and Ireland.

The UK investigator model uses inquisitorial-style methods for handling allegations. Each devolved body has established a multiple-stage investigative procedure, but the involvement of lawyers is very limited. This appears to be the general pattern in Australia and Canada, but in Ireland the processes are more adversarial. However its statutory commission has recently obtained powers to use inquisitorial-type officers for the initial investigative stages of allegations against office-holders.

Apart from two Scottish investigations in 1999, the devolved bodies have had relatively minor cases to deal with and have not had a major case of conflicting evidence to contend with. The main issue of conduct worthy of full investigation by the Commissioner is probably the leaking of committee reports. In this respect, the robustness of the new models has not been tested. The Standards of Conduct Committee in the National Assembly for Wales has already instituted a thorough review of standards regulation and Scotland and Northern Ireland envisage statutory regulation of the investigation process.

Sub-national parliaments in Australia and Canada have tended to take the lead in promoting new forms of regulation and enforcement, presumably due to a greater ability to take action, legislative or otherwise. Queensland and New South Wales have established well resourced statutory bodies to deal with allegations of corruption and misbehaviour, but these bodies cover office holders as well as members of parliament. This is the model favoured in Ireland, which has faced a series of major scandals. The tribunal of inquiry model, initiated by parliament, has been seen as cumbersome and ineffective against serious allegations of wrong-doing. But independent tribunals have been criticised for over-enthusiastic investigations to justify the scale of their budgets and for being remote from the parliamentary institutions.

The scale of allegations of political corruption in New South Wales, Queensland and Ireland has perhaps made the adoption of the investigative tribunal model essential, but it is not commonly used elsewhere. The Canadian provincial legislatures have preferred a statutory parliamentary ethics commissioner with an advisory and investigative role. He/she is appointed by the legislature, normally on a fixed term contract and is categorised as an Officer of Parliament. The remit generally covers the executive as well as the legislature.

Statutory framework

The Standards Committee in the Scottish Parliament has introduced legislation to create a statutory Commissioner with specific powers and responsibilities and this model will offer an interesting comparison when in operation. The Northern Ireland Assembly has recommended that the Assembly Ombudsman be given statutory power to become its Standards Commissioner (the Ombudsman is already discharging this responsibility on an interim basis).

Such legislative powers are seen as essential to supplement the general statutory rights conferred on the devolved bodies in place of privilege. However, the detailed drafting necessary to ensure that the process of investigation is capable of bearing judicial scrutiny is without precedent in the UK, Australia, and Canada. The nearest comparison is with Ireland. The Canadian sub-national legislatures commonly have ethics commissioners established by statute. But they also have the benefit of parliamentary privilege, which limits the scope of judicial scrutiny. Ireland has created statutory machinery for the investigation of allegations against ministers and members. The Members’ Interests Committees of the Oireachtas (parliament) take responsibility for investigating members, with an adversarial process, which is regulated by statute. The concept of parliamentary privilege was not fully adopted by the post-1922 state. But the Irish constitution protects the right of parliamentary selfregulation and there are limits to the extent of judicial intervention.

The Irish legislation lacks the detail of the Scottish bill, for example with regard to the precise time limits set out for the investigative stages. The legislative model lacks the flexibility of the inherent powers to take action given by parliamentary privilege. It also means that all possibilities must be catered for at the outset. For example, the initial drafting of the Scottish bill does not appear to allow for full legal protection for complainants against defamation actions. Some qualified privilege might well apply. Yet a more extensive right might be worth conferring, to protect against intimidation.

The use of statute to regulate parliamentary behaviour in UK parliaments/assemblies has not yet been tested in another respect. There have not yet been any prosecutions in respect of the new criminal offences of failure to register or to declare interests or the practice of paid advocacy. There is no defence to the charges, which leaves the question of the treatment of inadvertent breaches unresolved. In Wales and Northern Ireland, the relevant law officers must be consulted before a prosecution is attempted. The Scottish Standards Committee has noted the issue in its recent consultation on new legislation to replace the devolution legislation on standards of ethical behaviour. In addition, issues of overlap between parliamentary and legal investigations have not yet been faced. Potential problems include sub judice rules and double jeopardy.

If serious breaches of the codes of conduct are to be handled by the courts, it is perhaps questionable if the detailed regulation planned in Scotland is necessary for minor breaches. The Canadian Commissioners appear to be handling more serious cases, such as the use of insider information. They also investigate government ministers for actions in their ministerial capacity.

Adaptations for the Commons

However, these criticisms would have less force, should the Scottish procedures be adapted for the serious investigations undertaken by the Parliamentary Commissioner for Standards. A statutory system could overlay the traditional privilege powers for disciplining members, and be used only for serious allegations concerning financial interests. The model might also clarify the current confusion in the title of Officer of Parliament, in use both for member of the senior Commons staff and for those constitutional watchdogs designated as such in statute.

The Scottish model would need adaptation for use in the Commons. The advantages of statutory powers for a Commissioner would include:

— Clarity of function, status and appointment

— Powers independent from the Standards and Privileges Committee

A statute is unlikely to resolve potential problems with the resourcing of the Commissioner’s office, unless this was determined externally.

A major difficulty is that the Scottish legislation would not assist with the difficult issue of the acceptance or rejection of the findings of the Commissioner. The Bill makes clear that the Scottish Parliament is entitled to reject the facts and conclusions reached by the Commissioner. The Parliament will remain open to accusations of political partisanship in its judgments. A statute for the Commons would probably involve more statutory regulation of the appeals process, which is left for the Scottish Parliament’s standing orders to establish.

A Commons statute would also need to examine the interface with inherent powers of the House under privilege to summon witnesses and publish reports. Sub-national parliaments in Australia and Canada offer useful precedents as a number have statutory commissioners. In Canada, this model has been influenced by developments in the United States, where state legislatures have appointed ethics commissioners. These legislatures have their own form of self-regulation, based on the concept of parliamentary privilege.

An important obstacle to statutory regulation on the Scottish model is the detail of the investigatory process, which is designed to cover every eventuality. Statutory modification of the investigatory process would be difficult to achieve, due to the pressure on parliamentary time at Westminster. It is hard enough to envisage sufficient time being granted to enact a statutory framework for a Commissioner at all. In contrast, Commons standing orders can be adjusted with ease. Framework legislation which did not offer sufficient guarantees of natural justice might well be subject to challenge in the courts.

There would be difficulties with an external review of the Commissioner’s findings. The question of using parliamentary proceedings as evidence in judicial actions would need to be addressed. The operation of another aspect of privilege, Article 9 of the Bill of Rights 1689, prevents their use in most cases.16 The decisions of the Commissioner would need to be clarified as outside the scope of parliamentary privilege for the findings to become judicially reviewable. Should the findings become the subject of court action, there might be problems of double jeopardy and questions about the value of any separate internal Commons procedures. An alternative might be to insert a specific statutory prohibition against review and to institute an extra-parliamentary tribunal system for appeals.

Ombudsman model

Given these drawbacks, the model being developed in Northern Ireland is of considerable interest. The parliamentary ombudsman there is acting as Standards Commissioner on a temporary basis, pending legislation to give the office a statutory role as Commissioner. The Ombudsman was available and willing to act on a temporary basis, using the resources of his own office. Legislation can be passed by the Assembly, which has devolved power for the Ombudsman. The Ombudsman model is of potential relevance for the Commons because:

— The office is already established by statute and the ombudsman an Officer of Parliament

— The investigatory model used is inquisitorial and so has similarities to the procedures adopted by the Commissioner. The ombudsman has statutory rights to summon witnesses and publish reports, which attract absolute privilege, rather than parliamentary privilege

— A Commons select committee has a general oversight role, but cannot intervene in individual cases

— Although official bodies are not legally required to accept the findings of the ombudsman, in practice failure to implement recommendations is rare, due to the prestige of the office

— The recommendations of the Commissioner are subject to judicial review

— Decisions on the resourcing of the office are not subject to the parliamentary authorities

There are disadvantages as well. Under current legislation, the Ombudsman only investigates maladministration where an MP endorses a complaint from the public. The Standards Commissioner has inevitably had the more difficult function of regulating the people responsible for his/her appointment. The Ombudsman might encounter similar difficulties, although more protected by institutional independence. The investigatory procedures do not incorporate an appeals system and are designed to cover failures by an official body rather than an individual. The role of the Standards and Privileges Committee would need to be considered. It might need more powers of intervention and guidance than those possessed by the Public Administration Committee for the Ombudsman, for example over types of sanctions. There might be scope for an advisory panel to undertake this role in place of a select committee.

More generally, the office of the parliamentary Ombudsman has been developing in a different direction. The Colcott review has recommended a college of ombudsmen, incorporating local government, health and others, as a less confusing model for the public.17 The Scottish Public Sector (Ombudsman) Bill is creating a one-stop shop for all complaints currently dealt with by the Health Services Ombudsman, the Local Government Ombudsman and the Housing Association Ombudsman. Any changes following implementation of the review would be likely to diminish the parliamentary nature of the office.

Codes of conduct

The devolved bodies do not have separate procedures for privilege-type investigations, in contrast to the Commons which maintains separate investigative systems for offences such as the leaking of select committee reports. These offences are not the responsibility of the Parliamentary Commissioner for Standards.18 The broad-ranging nature of the requirements in the codes of conduct for members has caused difficulties for the devolved bodies. There is a time-consuming initial filtering stage where a number of trivial complaints have to be assessed, which relate to aspects of parliamentary behaviour conceivably within the scope of the codes.

The main types of complaints against members resulting in investigations have involved allegations of abuse of stationery, publication of inappropriate comments on public officials and leaks of parliamentary reports. There have also been complaints that members are not performing in line with their ‘job description’. This has enabled the Standards Committee in Scotland to undertake investigations against MSPs who communicate complaints against other MSPs to the press, before contacting the Commissioner. It has also covered complaints about ‘poaching’ the constituents of another MSP.

Commonwealth Parliaments initially used the language of privilege to operate a disciplinary system. Offences by members were categorised as contempts of Parliament. Questions about the behavioural standards of individual members were dealt with by the Speaker/Presiding Officer, and gross failures by the committees on privileges. Following the adoption by Westminster of registration and declaration of interests in the 1970s, Commonwealth parliaments began to follow suit.

Separate procedures were developed alongside the traditional privilege machinery specifically for offences relating to the failure to make public financial interests. The division is not altogether satisfactory, as there are areas of overlap. The Code of Conduct developed at Westminster, which incorporated the Seven Principles of Public Life, potentially covered behavioural aspects, such as failure to discharge the duties of a Member and also breaches of privilege, such as the leaking of reports or improper influencing of committees. In practice, the Standards Commissioners rarely examined behavioural aspects and were precluded under standing orders from investigating allegations of breach of privilege, which were examined solely by the Committee. But the practice of devolved bodies in handling all behavioural aspects has its own difficulties.

Some Canadian and Australian sub-national parliaments have adopted wide-ranging codes with detailed statutory rules. The Canadian Parliament has yet to adopt any system for the effective regulation of the declaration and registration of interests. The federal parliament in Australia has a non-statutory scheme, but the enforcement and investigative mechanisms have not developed to an equivalent extent as in the UK.

Statutory regulation of donations

An area which needs to be addressed is the interaction with the Political Parties, Elections and Referendums Act 2000 (PPERA). Those holding elected office, including MPs and members of devolved bodies, are required to register donations over £1,000, used in connection with any ‘political activity’. This may well be interpreted more widely than the term ‘parliamentary duties’, used in connection with registration and declaration of interests. The definition of donations in PPERA includes sponsorship arrangements.

In addition, candidates are required to register donations over £50, to be filed with their election returns to the Electoral Commission. Donations may only be received from permissible persons, that is, individuals appearing on the electoral register or UK companies, registered parties, trades unions and certain other categories.

There is an inevitable overlap with the registration requirements in the Commons and in the devolved bodies. In particular, the categories of sponsorship, gifts, benefits and hospitality and overseas visits are potentially affected by the new legislation. Differences in interpretation between the Standards Commissioner and clerks and officials in the Electoral Commission have already been noted.23 This problem has also been encountered in Ireland, where there have been legislative attempts to integrate the registers. It is likely to become more acute in the UK shortly, as the PPERA is fully implemented in the next round of elections.

It is possible to offer certain defences to prosecution for failure to register under PPERA,24 but no such defences currently exist for members in Scotland, Wales and Northern Ireland who fail to register their interests under the requirements of the devolution legislation. This area needs to be reviewed for consistency of treatment, so those members are not subject to overlapping requirements and different levels of defence against prosecution.

The full implication of the potential for prosecution under PPERA for failure to register donations has yet to be appreciated by the Commons, but in theory the new offences cut across the self-regulatory standards system underpinned by privilege. There would appear to be some difficulties in bringing prosecutions against Members at Westminster under PPERA because of the operation of Article 9 of the Bill of Rights. The evidence necessary would need to be additional to parliamentary proceedings, which include within its scope the register of interests or reports by the Commissioner.

Role of the criminal law

There is little logic in making members of devolved bodies subject to the criminal law in respect of registration, declaration and advocacy offences, but not members of the Commons (or Lords). The difference is due to historic circumstances. It might be sensible to redraw the boundary across all UK parliamentary bodies, so that only breaches with the potential of corrupt action or of financial advantage would become criminal offences. Other minor or inadvertent infringements would be dealt with by the parliament/assembly. This would not necessarily preclude a statutory investigative framework or some outside involvement in the imposition of sanctions, such as an advisory panel.

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