WHAT IS PUBLIC LAW ( PART 6 )

By Law Teacher

6.1.1 Government and Accountability – Introduction

Introduction

Welcome to the sixth topic of this module guide – Government and Accountability! The rule of law requires that all be subject to the law, even the government or executive. The executive is comprised, not just of the political executive (or government), but also includes civil servants; the government can also confer public law powers on other bodies to carry out public functions. There are three mechanisms for accountability that include legal, political and administrative methods. Scrutiny comes from parliament, the judiciary and the electorate. Parliament and its MP’s have the responsibility to hold the executive to account and to determine whether they should support government policy and legislative agenda. Judicial scrutiny of the executive is a fundamental principle of the rule of law. The government and public bodies are also accountable through private law. The Electorate has a legal right to choose parliamentary representatives every five years.

At the end of this section, you will be able to identify various accountability mechanisms. This section begins by discussing the accountability of the Executive. It then proceeds to discuss pre-legislative and post-legislative scrutiny of the Executive. The section is finalised by a reform discussion and a freedom of information whereby it advances transparency and openness in public bodies and if there are abuses of power being carried out, freedom of information has the ability to reveal these problems. There is an important public interest in freedom for information, but non-disclosure may at times be in the public interests.

Goals for this section:

• To understand what is accountability of government.
• To appreciate pre-legislative and post-legislative Scrutiny of the Executive.

Objectives for this section:

• To be able to appreciate how government is held accountable.
• To understand the reform’s discussion.
• To be able to evaluate the whole area of government accountability.

6.1.2 Government and Accountability Lecture

I. The Executive and Public Law Powers

The rule of law requires that all be subject to the law, even the government or executive. The authority of the executive comes from Parliamentary legislation and the Crown’s Royal Prerogative and common law powers. Most legislative proposals come from the government to permit it to act in line with its policy objectives. The government is required to obtain a majority of the House of Commons (and Lords) to support a bill. Parliament is supreme and thus can prevent the government introducing legislation. Royal prerogative powers are residual and thus cannot be extended by the Crown. The executive is comprised, not just of the political executive (or government), but also includes civil servants; the government can also confer public law powers on other bodies to carry out public functions.

II. Mechanisms for Executive Accountability

Three mechanisms for accountability include legal, political and administrative methods. Scrutiny comes from parliament, the judiciary and the electorate.

1. Parliament and its MP’s have the responsibility to hold the executive to account and to determine whether they should support government policy and legislative agenda.

2. Judicial scrutiny of the executive is a fundamental principle of the rule of law. The government and public bodies are also accountable through private law.

3. The Electorate has a legal right to choose parliamentary representatives every five years.

III. The Extent to Which Parliament Holds Government Accountable

The Modernisation Committee of the House of Commons, to be chaired by the Leader of the House, was established by the Labour government which took power in 1997. Labour had voiced concerns during its time in opposition that the executive had dominated Parliament and that it should be held to account in new ways.

IV. Pre-legislative and Post-legislative Scrutiny of the Executive

Draft Bills are usually scrutinised by a committee in the Commons and in the Lords, or a joint committee of both Houses. At this stage, Parliament can investigate the executive’s motives for bringing legislative changes and what additional powers such changes might confer upon the executive.

There are around 40-50 Bills introduced each year into parliament. All Bills are scrutinised by the Joint Committee on Human Rights (JCHR) for human rights issues. General committees have a role in scrutinising legislation.

There is occasionally a rebellion by backbench MP’s who do not vote for a piece of government legislation and as such do not follow the whip by voting against a government Bill. An example was the Higher Education Bill 2004 which the government won with a very narrow majority.

V. Parliamentary Scrutiny of Government

1. Parliamentary Questions

Parliamentary questions are asked to extract information or to require the government to defend controversial decisions and policies.

1. Oral Questions

Oral questions to Ministers are often Parliament’s most recognisable activities. Prime Ministers Questions (PMQs) is televised, takes place for half an hour each week, and was introduced in 1961. PMQs often shows direct opposition between the PM and leader of the opposition. PMQs aims to highlight the deficits of government policy and the fact that the opposition party would form a better government.

2. Written Questions

MPs can all put their questions in writing in order to extract detailed information from government. Hansard contains records of the debates and statements in the Chamber, as well as long answers to questions.

2. Parliamentary Debates

Debates are held in the House of Commons and in Westminster Hall; they are held on particular issues and allow for expression of various points of view. It is a long-standing concern that the government has too much control over the debates within the House of Commons. Standing Order No 14 states that ‘government business shall have precedence at every sitting.

3. Select Committees

1. House of Commons Departmental Select Committees

A dedicated House of Commons select committee oversees the policy and administration of each governmental department; for example, the House of Commons Health Committee overseas the work of the Department of Health. The formal remit of the select committee is to examine the administration, expenditure and policy of the government department to which it is attached.

4. Assessment

Select committees have the following advantages at holding governments to account

The committees provide for more detailed scrutiny that House of Commons debates, since they undertake detailed inquiries and amass evidence from a number of avenues. They are less politically charged methods of scrutiny that the personal point scoring style, which House of Commons questions and debates can take on in the House of Commons.

• The ability of select committees to scrutinise government have strengthened over time. Their work has become more focused and effective and is now better resourced and engaged; they have become more systematic in their approach and increase both the breadth and depth of their coverage.

• The committees have also enabled individual MP’s to develop their own expertise in particular areas, which enhances the quality of their scrutiny.

Select committees have the following disadvantages at holding governments to account

• The current system of select committees is regarded as operating under various constraints, which has an impact upon their effectiveness at holding the executive to account.

• Their reports are not debated in the House of Commons unless the government allows time for the debate, and the government controls the scheduling of the debate in the Commons.

• There is a lack of resources for committees to be able to carry out their duties adequately. One problem is the availability of MPs time, which leads to an impact on the scrutiny that they are able to provide.

• The broader the remit of the Committee, the less depth of scrutiny they are able to achieve.

• The government is not bound to accept the recommendations of the select committees. It often depends upon whether the relevant department is inclined to accept them.

VII. Scrutiny through the Courts

Political accountability has a different function to legal accountability through the court process. Courts have a wider remit to ensure that in cases brought before it the public body concerned is acting within the powers it is ascribed by law.

Key Case: In Council for the Civil Service Unions v Minister for the Civil Service [1983] UKHL 6

English courts do not draw a distinct line between justiciable and non -justiciable cases when it comes to judicial review. Judges are hesitant to question the government’s economic policy decisions; it would be difficult to conclude that such decisions were irrational; only if decisions of this kind were patently absurd, or clearly taken in bad faith. Where there are human rights considerations the House of Lords have examined administrative decisions which relate to the right to asylum and freedom of speech [e.g. R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514; R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696].Exceptions may arise where there are national security or emergency considerations, which may override human rights concerns.

How Effective is the Courts’ Review of the Executive?

A. Tomkins, Public Law(OUP, 2003) pp.209-10

Tomkins identifies three significant limitations of the court’s ability to subject the executive to judicial scrutiny.

1. First the court’s reluctance to deal with certain areas of policy carried out by the government. There is also a refusal to deal with private law matters, but since subsequent governments have used NPM and market principles to deliver public services, the public-private law divide is becoming less relevant.

2. The potency of the court’s remedies is also a limitation. Damages are rarely awarded and an award of damages against the state is unlikely to act as a deterrent to future wrongdoing, since there is no financial loss accruable to individual actors. If a government’s decision is quashed or prohibited from acting in a certain manner, the government is then able to change the law to give themself the legal power to do as they wish in future.

3. Thirdly Tomkins questions whether white, upper-middle class, male judges should desire to hold the democratically elected government to account.

VIII. Reforming Parliamentary Scrutiny

1. Parliamentary Scrutiny – An Assessment

Parliamentary scrutiny of government may be inadequate, since government is capable of avoiding parliamentary oversight of what it does. It is often sporadic and fleeting, influenced by party-political considerations, limited by time constraints and lack of knowledge amongst MP’s. Ministers frequently deflect questions; notorious is the tactics that PMs use at PMQs to deflect questions about controversial policies by carrying out personal attacks against opposition MP’s who ask questions.

Parliament’s capacity to review governmental actions is not irrelevant however. Governments must still listen to and respond to concerns raised by Parliament. Ministers may give evasive answers to parliamentary questions, but they obliged to give answers. In general, announcements about changes in government policy should be given in front of Parliament; although this principle is not always followed. Parliament is unable to prevent the government from undertaking a specific action; it can influence the government in two ways.

1. Parliament can have the impact of deterrence on government, if opposition parties are able to raise awareness with the public and prompt adverse public reaction, the government may be forced to abandon certain proposals.

2. Parliamentary scrutiny can also have a positive effect by contributing to debates, MP’s can bring certain issues to be introduced into the government agenda. MPs can bring specific issues to government, which are raised by their constituents and induce a response from a Minister. Since the executive are largely dominant in Parliament, this has a significant influence on its effective

Parliamentary scrutiny does not have to effect the ability of government to rule. Bernard Crick in The Reform of Parliament(London, 1969) states “Parliamentary control of the executive – rightly conceived – is not the enemy of effective and strong government, but its primary consideration” (p.259).

2. Parliamentary Scrutiny – Reform

There have been a number of recommendations or reform in this area. These include:

• reducing the influence of the whips;
• increasing the powers, role and status of select committees;
• reducing the ability of the government to set Parliament’s agenda.

IX. Freedom of Information and Government Scrutiny

In order to hold the government to account it is necessary to have access to accurate information from government. The Freedom of Information Act 2000 came into force in 2005 and introduced into UK law the principle that citizens have the right to access government information, within certain parameters. The British government has long been characterised by a culture of secrecy in which access to information has been tightly controlled by Ministers and civil servants.

Calls for freedom of information have long been resisted, a development came in 1993 when the Conservative government adopted a Code of Practice under which individuals could request information from central government departments. The Freedom of Information Act 2000 was enacted by the Labour government, which had been elected in 1997.

1. Freedom of Information – It’s Rationale

Freedom of Information (FOI) is regarded as a tool which advances transparency and openness in public bodies. If there are abuses of power being carried out, FOI has the ability to reveal these problems. FOI also allows citizens to participate in government decision-making on a fully informed basis. There is an important public interest in FOI, but non-disclosure may at times be in the public interests.

2. The Freedom of Information Act 2000 (FOIA)

The FOIA creates a broad right of access to information, not only held by government departments but also by public bodies including local authorities, schools, colleges, universities, the health service, the police and other public bodies (FOIA, Section 3, Schedule 1). All public authorities must also hold a publication scheme, which is subject to approval by the Information Commissioner (FOIA, Section 19).

Key Cases: In Corporate Officer of the House of Commons v Information Commissioner [2008] EWHC 1084 (Admin) [2009] 3 All ER 403; Cabinet Office v Information Commissioner and Dr Lamb (EA/2008/0024 and 29)

6.1.3 Government and Accountability Lecture – Hands on Examples

The following scenario aims to test your knowledge of the Government and Accountability. The answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary you can go back and review the relevant chapter of the revision guide.

Do not be concerned if the answer is not immediately obvious, problem questions require you to understand and to apply the law as opposed to just learning and repeating what you have learned. Refer back to the notes if necessary, this should help you understand how the Government is held to account through the Parliamentary process, through Ministers’ questions, standing committees and through the courts.

Scenario

Part A:  The current leader of the opposition receives reports from her constituents that a nuclear power plant is being built on the East Coast of England; the local residents are concerned about the safety of the plant and ask her to raise the issue with the government. What options does the opposition leader have and do the government have to take action to stop building the plant?

Part B: The House of Commons Departmental Select Committee on Member’s Expenses have raised concern’s the MP’s are claiming regularly for mortgages on second homes that they are renting out as private landlords. What action can the Member’s Expenses Committee take to address this issues?

Part C: The Independent Newspaper has made a Freedom of Information request under the Freedom of Information Act 2000 to discover the details of the Cabinet decision to bomb Syria in December 2015. What is the likely outcome of such a request?

Part D: The Conservative government has introduced a new piece of anti-terrorism legislation, which enables them to introduce electronic tagging for terror suspects. It is being used by the police to tag anyone who has been involved in delivering material and financial aid to asylum seekers in Calais, France as the government consider them to be terrorist subjects. Refugee organisations claim that this is a violation of their human rights under the Human Rights Act 1998 and that the police are action outside of their powers. What scrutiny of the executive decision is their available through the courts?

Suggested Answers

A) Parliamentary scrutiny of the executive is accomplished in a number of ways, however, one of these is the opportunity for the MP’s to put questions to government Ministers. The leader of the opposition is able to put oral questions to the Prime Minister in a half hour televised debate each week known as Prime Minister’s Questions. The leader of the opposition would be able to bring the question about the power plant to the Prime Minister at this time, and the Prime Minister is obliged to answer the question. However, this does not always lead to action and would not impose any obligation on the government to take action for the building of the power plant to stop. MP’s can also put their questions in writing to extract more detailed information from the government, such as the safety measures that are involved in the building of the plant. A debate might also be initiated in Parliament by the opposition party on issues of concern, during 20 days a month,

B) A dedicated House of Commons Select Committee overseas the policy and administration of each governmental department. The remit of the Select Committee is to examine the administration, expenditure and policy of the department to which it is attached. The Select Committee on Member’s Expenses can operate an inquiry into the use of mortgage payments for second homes that are being rented out in the private housing market. It can seek written and oral evidence from those MP’s who are accused of impropriety, at the end of the inquiry the Committee would make a report with recommendations to government. There is no obligation for the government to implement the findings of the report. There is also however, the Independent Parliamentary Standards Body that overseas MPs expenses which is likely to take action in such a situation.

C) The relevant case in this situation is Cabinet Office v Information Commissioner and Dr Lamb (EA/2008/0024 and 29), in which the Information Tribunal found that there was very powerful reasons why the disclosure of the Cabinet Minister’s discussion on the decision to go to war in Iraq would be in the public interest.  In this case the court’s must balance the public interest in disclosure of the information, with the public interest in the exemption from disclosure of the information. Information about defence decisions can be exempt from disclosure under Section 26 FOIA, however this needs to be balanced with the public interest in disclosure under section 2(2)(b) FOIA. The principle of Collective Cabinet responsibility might also be raised by the government, which requires that Cabinet Minister’s discussions be confidential, as was argued in Cabinet Office v Information Commissioner and Dr Lamb(EA/2008/0024 and 29). If the court did order disclosure the government have the option to use their power of ministerial veto under the FOIA in order to avoid disclosing the information.

D) Electronic tagging is a breach of the right to liberty under Article 5 of the European Convention on Human Rights, but also the right to a fair trial under Article 6 as there is no proof that by delivering humanitarian assistance to Calais, that the volunteers have any links with terrorist organisations. The volunteers would be able to bring a case of judicial review and argue that there is no links between the Refugee camps in Calais and international terrorism and that the delivery of aid to asylum seekers is not a threat to national security. National security concerns might override human rights concerns in certain circumstances, but in this case unless the police can prove specific national security concerns it seems likely that the court would find that they police are acting outside of their powers. The court is thus able to quash the decision of the police in this instance.