Wang Leung Ting writes: A year has passed since the adoption of hybrid proceeding (HP) by Parliament. HP was intended to mitigate the problems that come with the pandemic and lockdown, most important of which is to maintain the representativeness of the House by facilitating participation from vulnerable members, such as aged MPs, who need to be shielded to protect their health, as well as female MPs, who are more likely to be burdened by increase familial and caring responsibilities during the lockdown. It is perhaps time to take stock on HP’s efficacy see if it has the intended effect in facilitating aged and female MPs’ participation in parliamentary proceedings.
But before doing so, we need to address a methodological obstacle: the lack of an observable counterfactual to act as a baseline of comparison. To put it differently, it is impossible to tell how MPs would have behaved should the impact of the pandemic was not mitigated by HP. Without knowing that, we cannot determine whether HP has indeed changed MPs’ behaviour.
However, the scope of HP has gone through a couple of changes in the past year as shown in Table 1. During the height of the first wave of the pandemic (P1), HP applied to both substantive (i.e. debate on legislation) and scrutiny (i.e. Questions to ministers) business. This was narrowed during last summer and autumn (P2), when HP was limited to scrutiny business only. It was not until the end of December(P3), with the onset of the second wave of infection, that the arrangement under P1 was restored.
We can therefore exploit these expansions and contraction of the scope of HP to determine its impact on MPs behaviour: If HP does facilitate the participation of aged and female MPs, we should observe these two groups of MPs being more active during P1 and P3, when the application of HP was more expansive, in comparison to the more restrictive P2.
Let’s begin by looking at MPs participation at the aggregate level. The following graph shows the total number of words spoken by all backbench male (blue) and female (red) MPs each week from the beginning of this parliament until 18th Mar 2021 as recorded in the Hansard. We can see that there is a dramatic drop in the number of words spoken during P1 for male MPs whilst the negative impact for female MPs is much less apparent.
What about older MPs? Graph 2 shows the result of the same analysis as the first but this time between MPs who are over the age of 65 at the beginning of the pandemic (Green) and those who aren’t. We can see that there wasn’t much change for aged MPs participation throughout 2020 except a very modest increase in the number of words spoken by MPs above the age of 65 with the onset of P3.
Graph 3 below shows the number of words spoken by female and aged MPs as the proportion of all words spoken in each week. For female MPs, despite some fluctuation, their participation remains quite steady except for the slight increase in P3 in comparison to the end of P2. As for MPs over 65 years of age, again there is no dramatic shift except for some modest increase toward the end of P2, which continued under P3.
To further explore the effect of HP on MPs participation at the individual level, I have fitted two Time-series Poisson regression models on the number of words spoken by each backbench MP in any weeks throughout the study period. The baseline of comparison in both models is P2, as suggested in the aforementioned hypothesis. The model includes MP fixed effects, which confine the analysis to variation of participation within an MP across weeks. It also contains week fixed effects, which control for time-varying factors that may affect MPs participation, most important of which is varying number of sitting days and the length of proceeding between weeks.
Table 2 shows the result of the two models. Model 1 considers P1 and P3 separately. The results confirmed some of the aforementioned observations. For male MPs, there is a clear drop in participation during P1. In comparison to P2, the weekly number of words spoken by a male MP drop by about 60% whilst the drop among female MPs is only around 50%. Moreover, this distinction between male and female MPs in P1 is statistically significant. A similar effect is also observed in P3 although the gender distinction is no longer statistically significant. Model 2 considers P1 and P3 together as the scope of HP under both phrases are roughly the same. Again, it shows that there is a statistically significant and gendered distinction in the impact of the expanded scope of HP under P1 and P3.
What about aged MPs? Although HP did not bring many benefits for them in P1, but they did catch up eventually during P3. On average, aged MPs spoke 35% more each week during P3 than they did in P2. Moreover, there is an interaction between age and gender as this effect is particularly strong among older female MPs.
These results suggest is that HP does facilitate female and aged MPs’ participation in parliamentary proceedings. As the scope of HP increase in P1 and P3, so did the number of words spoken by female MPs. Although the effect is most apparent during Phrase 1 when it was driven by the fact that the impact of the first wave of the pandemic is less negative for female MPs in comparison to male MPs. As for older MPs, the benefit of HP is not apparent until Phrase 3. This suggests that there is perhaps a steeper learning curve for older MPs to adopt the use of technology. Once they are acquainted with the new arrangement, HP does indeed increase aged MPs’ participation as well.
A limitation of this study is that it focuses entirely on what happened in the (virtual) chamber. What it cannot take into account is the possibility that the benefit of HP could also lie beyond the chamber, such as allowing MPs to do more in their constituency or for their family without the usual trade-off with traveling to Westminster to participate in parliamentary proceedings.
As the country seems to be turning the corner with the pandemic, there has been an ongoing discussion, both in and out of Westminster, on what roles, if any, should HP play in Parliament post-COVID. Results in this post have demonstrated that HP does have a positive impact on the participation of MPs belonging to underrepresented and vulnerable groups, there is therefore a case in favour of maintaining some form of HP in parliamentary proceedings in the long run.
Wang Leung Ting is a Fellow in the Department of Government at LSE.
Last year, extra funding was offered to MPs to help them and their offices cope with the COVID-19 pandemic. The public outcry that ensued showed the confusion and misunderstandings amongst the public about the work of MPs and the staff who support them. But even before COVID-19 hit us, the job of an MPs’ staffer was difficult to decipher from the outside and most people know very little about the 3,000 people who play key roles in the functioning of our democracy.
Rebecca McKee presents the first data from her project on MPs’ staff, summarising her findings in response to the question ‘who works for MPs? Much of the data presented here is from a survey of MPs’ staff and more information about the survey can be found on the project webpage.
We know more than ever about our MPs – who they are, what motivates them, and what they say and do in the course of their work. They work hard, and their workload is growing. But this work is supported by just over 3,000 staff, working in offices across the UK, and we know very little about these ‘unsung heroes’, as former Commons Speaker John Bercow called them. They undertake a wide variety of roles, as gatekeepers, controlling access by constituents and interest groups; they are resources, providing research and policy advice; they are channels, linking the constituency to Westminster; and they are providers of essential administrative support. They sit at what has been termed the ‘representational nexus’, as they represent the constituents to the MP and the MP to their constituents.
These individuals have an unusual employment status; they are not public servants in the way that a civil servant is. MPs are responsible for employing their own staff directly and they are able to set the direction of work and the roles of the staff needed to support them, essentially running 650 small businesses. They do so within a framework covering salaries and job descriptions, overseen by the Independent Parliamentary Standards Authority (IPSA). There is no formal hiring process and staff may lack some of the usual employment protections and support systems. Yet these roles can also provide the incumbents with significant benefits. Staff may be able to trade on the valuable experience they have gained and the networks they have become privy to. Some, but not all jobs, can be a stepping stone to a career as a parliamentarian, a political journalist, in a public affairs agency, or other role where knowledge of ‘the inside’ and a demonstrable ability to engage with it counts for a lot.
Yet not everyone can take advantage of these opportunities. The experience of a caseworker in a constituency office will differ from that of a parliamentary researcher in the Westminster office, simply on account of the different work they do, their exposure to Westminster politics and the people they interact with as part of their job.
Given the importance of these staff in supporting MPs and the hugely varied experiences they have, we should ask who are these people who work for MPs?
IPSA routinely publishes some data on MPs’ staff, but as it’s collected for monitoring MPs’ expenditure and payroll purposes it is quite limited. In autumn 2019 I conducted a survey, sent to the offices of all MPs. I asked questions on three key themes: equality and diversity, capacity and skills, and employment practices and opportunities. I am very grateful for the responses I received, and that staff took the time to engage with this project. Where it was possible to compare with existing IPSA data, I could see that I achieved a sample that was largely representative in terms of gender and category of job (job family – see later) but less so in terms of political party, so the data have been weighted to take account of party in the analysis. More information about the survey is available on the project webpage. The figures cited in the following sections come from the survey, except in some cases where the data is taken from IPSA’s website. In these cases I have added a link to the source.
Who works for an MP?
Taking an average of the data, a ‘typical’ staff member is female, 37 years old, white, a state educated university graduate who is working in a junior executive role, for example a Junior Caseworker, in the constituency office. Overall, about 56% of MP’s staff are female, and 93% are White. More than half are over 30 years old, the longest serving staff member according to an IPSA FOI in 2018 had been working for an MP for almost 39 years. Their educational backgrounds vary. Almost 70% received their secondary education at a state comprehensive or secondary modern school, 15% attended an independent (fee-paying) school, and 14% attended a state grammar school. The proportion who attended an independent fee-paying school is almost double the average for the UK population (7%), but half of that of MPs themselves (29% in 2019).
This is a skilled workforce, as judged by formal qualifications. Around three quarters of all staff have a university degree, and around a fifth have a postgraduate degree. Of those with a degree 48% received it from a Russell Group University, including 7% from Oxbridge. The vast majority of degrees are in the Humanities or Social Sciences – of those with degrees, 90% at undergraduate and 82% at postgraduate level have degrees in these subjects. The rest are divided among the Sciences, Business, Education, and Planning.
Of course, university is not the only place where people gain experience and skills. Because there are 650 individual offices, each with a small number of staff, a higher proportion are in the senior roles needed to run them. Just under a third are in the top employment band including, for example, Office Managers and Senior Parliamentary Assistants, which gives them experience in taking responsibility that will be very useful in future roles. Overall, staff have worked in a broad range of sectors, including but not limited to hospitality, consulting, marketing, retail, law, finance, research and health and social care. The most common settings are the charity – or ‘third – sector’ (11%) and public services and administration (18%), such as local government, the Civil Service, government agencies or elsewhere in parliament. Around 15% had previously worked in an administrative role. This makes sense when we consider that many MPs depend on skilled administrators and office managers. While it is clearly valuable to have staff who bring expertise from outside, it’s always possible for staff to learn on the job, making use of the vast experience offered to them once they’re in the door. As Chris Skidmore MP explained, a background in Tudor History doesn’t preclude you from getting a job with an MP, working your way up through the system, getting elected yourself and one day becoming the Universities and Science Minister.
Staff have a wide range of political experience. Just over 20% said that they had held party office at local level, 13% had been elected as a local councillor, and 4% had been a candidate for the UK or European Parliament. However, the goal of becoming an MP is not universal – when asked how likely it was that they would ever run for parliament, almost 50% stated that the chance was zero.
The structure of staffing: Job families
MPs are responsible for staffing their offices, creating roles that are in line with the job descriptions and salary brackets set out by IPSA, whilst not exceeding their overall staffing budget. Ideally MPs will use this budget to staff an office with the appropriate mix of roles to support their work, within the budget they are given. In 2018, each MP had 4.3 people on average supporting them. However, the way that MPs staff their offices varies hugely; some MPs choose to have all staff in the constituency office and have no one in Westminster, instead making use of pooled research services, others choose to have a large number of junior researchers in Westminster, and some – very few – have no staff at all.
Job titles, job descriptions, and pay levels are brought together as ‘job families’ by IPSA. There are three job families; administrative, executive, and research, they sit amongst three levels of seniority which link to the job description and salary bands. IPSA asks that MPs employ their staff within this structure. Despite the wide range of possible job titles, over 50% of staff reported having one of four; Caseworker, Parliamentary Assistant, Office Manager, and Senior Caseworker. Whilst this structure is used by MPs to staff their offices, it’s recognised by many that in practice staff often work across the spectrum. In the survey I asked staff to write in an alternative job title if they felt their job wasn’t fully reflected in the IPSA structure. Just under 10% chose to do so, although many of the additional suggestions were within the same job family or tier.
Table 1 shows how staff are formally split across this framework. Administrative roles are split across three tiers, whilst executive and research roles are split across two.
Source: IPSA FOI June 2020 https://www.whatdotheyknow.com/request/staff_working_for_mps#incoming-1586898
Using this framework to look at who works for an MP, we can see how staff in different roles may have different experiences. Perhaps the greatest difference relates to where they are mainly based, in the MP’s constituency or Westminster offices. Approximately 85% of research staff are based in the Westminster office. This drops to around 30% for administrative staff, and further to only 12% for executive staff. The experiences of staff across all 650 MPs offices will be different, but there is some association between where they work, their role, and the experiences they will have.
Source: Survey of MPs’ staff 2019, The Constitution Unit, UCL.
In the NHS, women have traditionally been more likely to work in administrative and human resources roles – in 2017, 75% of HR staff were women. We can see a similar pattern for MPs’ staff – almost three quarters of administrative staff are women, occupying roles such as secretaries or personal assistants, traditionally held by women. A January 2018 FOI request to IPSA revealed that, within the senior tier of the administrative job family, although 83% of Principal Secretaries were women, this was the case for only 35% of people with the job title Chief of Staff.
There are also more women than men working in the executive job family, but whilst the majority of caseworker and support staff were women, men are in the majority when it comes to communications roles. The story is different amongst research staff, who are more likely to be male but the distribution among different job titles is more balanced.
Other characteristics also vary. The largest differences are between the administrative and research staff, with executive staff falling roughly in the middle. The average age of an administrative staff member (42 years) is almost double that of a researcher (22 years).
Over 90% of research staff have a degree, compared with 62% of administrative staff.
Why does this matter?
These staff make an important contribution to the democratic process, sitting at the heart of this ‘representational nexus’. They present parliament to the world and they present the world back to parliament. When we talk about accessibility and diversity in the House of Commons or the Cabinet, we need to apply that same logic to those who work for MPs and support the valuable work that they do.
If some jobs, such as research roles based in Westminster, provide greater opportunities to gain experience and develop networks that are valuable for political career advancement, but exclude those in other roles, then we need to think carefully about how and why the characteristics of those working in these roles is so different. This is especially so given the prevailing informal hiring practices, which can make it difficult to understand who is employed in each role and why. We need to know more about how the process of hiring staff works, what experiences staff gain in their roles, and what their career progression is like. My staff survey goes a long way to shedding light on this. More information from the survey will be available shortly and published in future blog posts, as well as in a Constitution Unit report due in late autumn.
This project is ongoing, so if you work for an MP, or have worked for an MP and would like to discuss the project or are available for interview please do get in touch using the contact information on this webpage. The author would like to say a thank you to former and current staff who have assisted with this project, who have either discussed their experiences in person, completed the survey, offered advice or who have read over drafts. It is very much appreciated. This project is funded by the British Academy as part of a Postdoctoral Fellowship.
Dr Rebecca McKee is a Research Fellow at the Constitution Unit. Rebecca is researching representation and diversity in parliament and is currently running a project on MPs’ staff.
Felix Wiebrecht, PhD Candidate in the Department of Government and Public Administration at The Chinese University of Hong Kong, summarises his recently published study on the notable differences in strength of legislatures in authoritarian regimes.
Barbara Geddes famously stated that “different kinds of authoritarianism differ from each other as much as they differ from democracy” and the same is true for their legislatures. From country-specific case studies we know that some of them neatly fit into the long-dominating narrative of authoritarian legislatures being merely of a ceremonial nature and nothing more than ‘rubberstamps’. Examples of this would include the parliaments of Belarus, Turkmenistan, Sudan, and in one of the most extreme cases that of North Korea.
Other parliaments, however, enjoy a wider range of powers, at least in the constitution if not necessarily in practice such as the Vietnamese National Assembly or the Grand National Assembly in Turkey’s past authoritarian periods. Among the de facto powers, the Parliament of Singapore is an example that fulfils a lot of the important functions of being able to remove the Head of State or investigate the executive independently. Prior research, such as the Parliamentary Powers Index (PPI) developed by Fish and Kroenig, provides evidence that, perhaps not surprisingly, legislatures in democracies tend to be more powerful when compared to those in authoritarian regimes. But how do we make sense of the great variance of legislative strength, i.e., the accumulation (or absence) of different powers of legislatures vis-à-vis the executive, across authoritarian regimes?
I find that across authoritarian regimes the level of democracy is also a highly significant but relatively weak predictor of how strong legislatures are. Three other factors are more pronouncedly linked to legislative strength, namely whether the regime is headed by a personalist dictator, whether it holds elections and whether an opposition is represented in the legislature.
Not all dictators are personalist leaders, i.e., those that control “access to key political posts, as well as most major policy decisions” (Frantz, 2018:76) such as Mao Zedong, Alexander Lukashenko or Muammar Gaddafi that face almost no constrains in their rule from regime insiders or outsiders. However, the closer an authoritarian leader comes to this ‘ideal-type’ of a dictator, the weaker the legislature tends to be.
However, when authoritarian regimes allow an opposition in parliament and when they hold elections, they also have stronger legislatures on average. In the tradition of literature on authoritarian regimes this can be seen as the manifestation of the cooptation mechanism. Most prominently put forward by Jennifer Gandhi, cooptation denotes that once a dictator feels threatened by the opposition that aims to overthrow him, he can establish institutions such as legislatures and invite the opposition to participate in governing the country through the legislature. Indeed, these institutions have to be stronger since otherwise the opposition may not agree to work through them and instead try to overthrow the dictator.
While these factors would suggest that when a dictator has to give up some control the legislatures also become stronger, there is a caveat to that. I find that before 1990 legislatures have often been used as ‘bargaining chips’ by dictators. It appears that it was a popular strategy to weaken legislatures whenever elections were reformed to be more open and competitive. In this way, dictators could afford to have less control over the elections, simply because the stakes, that is, the strength of the legislature, were lower.
After the Cold War, however, the nature of many authoritarian regimes has changed fundamentally. We are currently in the era of ‘competitive authoritarianism’ in which most authoritarian regimes have legislatures and allow some opposition parties to participate in elections. In this background, more competitive or liberalizing elements in the electoral and legislative processes are indeed associated with stronger legislatures after 1990. This is in line with recent research on legislatures in Africa that highlight that less dictatorial meddling in legislative processes is an important condition for legislative development. Legislative strength has not been a widely used concept regarding authoritarian legislatures. However, as we move to understand their roles in authoritarian governance in more depth, it may be useful to pursue more research investigating the effects of legislative strength. It helps us differentiate between ‘pure’ rubberstamps and those that are stronger vis-à-vis the dictator.
Felix Wiebrecht, PhD Candidate in the Department of Government and Public Administration at The Chinese University of Hong Kong, @FelixWiebrecht
Prof. Cristina Leston-Bandeira reflects on the different elements entailed within the concept of public engagement and why it is useful to think about it as a journey rather than as a linear succession of steps.
I started writing this blog post about a year ago. But a little thing called ‘pandemic’ happened and I’ve been on catch-up mode ever since. Plus, I really don’t like writing, so although I’ve spoken about the public engagement journey many times and I even have a pretty graph for it (see below), actually writing it down just takes time for me. But here I am. Our International Parliament Engagement Network annual conference is taking place this Friday, which has finally prompted me into motion to fit this in somehow. If you’re into public engagement, read on; if not, then I’ve probably lost you by now in any case:).
This is a post about what public engagement entails – simply because it’s one of those terms so commonly used now, but with so many understandings. I identify some of its elements below, but also how they relate to each other; and why it seems more meaningful to talk of a journey of public engagement, than about a ladder of engagement. And that engagement is not participation – often these are used interchangeably.
My context of research is parliament, so I’m thinking specifically about public engagement with parliament. But actually the starting point of the reflection for this post is exactly that public engagement is not a political thing; if anything, it’s more of an education thing really – when all is said and done, it’s about empowering people in relation to their surroundings. Public engagement is regularly used as if there is a common understanding of what the thing entails; whilst simultaneously being used to refer to lots of different types of activities. It is also commonly assumed as a well-established concept regardless of culture, when many languages don’t actually have a term for public engagement (love Brazilians, in absence of the term in Portuguese, they’ve adopted the English one and there we have it, the birth of “engajamento”;)).
Despite its obvious connections with politics, public engagement has been a strong concept in other disciplines, namely in the arts and the sciences (e.g., Devonshire and Hathway 2014, Meehan 2012, Shein et al 2015). As politics, the sciences and the arts can be perceived as subjects for the elites, necessitating a pro-active approach to public engagement in order to make these more accessible to the general public. The very concept and practice of public engagement “is often credited as emerging from the sciences where, since the 1970s, there have been concerted attempts to nurture public understanding of science” (Sanders and Moles, p.24). The sciences’ focus on public understanding is such, that it constitutes a sub-discipline in itself, with its own journal and acronyms (Public Understanding of Science – PUS). In both the sciences and the arts, there is a core discussion around the extent to which disseminating information can be termed of public engagement, or if this requires a more active involvement from the public; something that chimes with many discussions I’ve been part of, within political engagement. The discussion is reflected in a move over the last decade from the PUS paradigm (Public Understanding of Science) to the PEST one (Public Engagement with Science and technology) (got to love the acronyms) (Davies 2013). In many ways, this reflects some of the tensions inherent to public engagement with parliament, and its multiplicities of expression.
Public engagement has also been approached, however, as a primarily participatory activity. This is clearly expressed in urban studies, where public engagement emerges as a way of involving the public in community matters (e.g. Arnstein 1969; Glass 1979). This literature may in fact not use the term of “public engagement” but more of “public (or citizen) participation”. The key driver here is about promoting communities that are planned and developed with a more inclusive involvement of all those affected. Naturally, here there has been a stronger focus on the mechanisms that may enable listening to people’s views and possibly integrating these into decision-making processes. But also within these studies there is a recognition of different elements of public engagement, from information to citizen control or representational input. In parallel of course the vast literature on democratic theory also has direct relevance to the understanding of public engagement, namely the scholarly contributions on participatory democracy (e.g. Pateman 1975) and the deliberative turn (e.g. Dryzek 2002).
The adoption of the concept of public engagement to political institutions draws from this wide range of contributions and, naturally, it reflects different types of activity. These may be more at the level of informing and educating the public about the institution’s role and activity, which may encapsulate mainly communication and publicising activities. It may however also refer to activities whereby the public has a say on a policy, or may even be co-producers of this policy. So, although they may translate into very different types of activities, they are all about public engagement.
In order to encapsulate this diversity, I’ve identified before five elements to public engagement with parliament:
Information: citizens have access to information about parliament.
Understanding: citizens engage with this information developing an understanding of the parliament (the understanding can be at its simplest form, such as recognising the difference between legislature and executive).
Identification: citizens can see parliament’s relevance and are able to link parliamentary activity to their own lives and experiences.
Participation: citizens feel compelled to participate in a parliamentary output to act on an area that matters to them.
Intervention: citizens lead a participatory process and engage with parliamentarians in the discussion that contributes to a parliamentary decision.
Besides the types of elements, processes or activities that engagement entails, another common discussion is how they relate to each other and, specifically whether citizens need to be first informed and educated, to then be able to participate. It’s what’s often referred to as the ladder of engagement or the hierarchy of engagement. I prefer to speak of the journey of public engagement, as shown in the figure below:
The journey aims to (1) differentiate several elements of public engagement and (2) emphasise an inter-connectedness between these elements, rather than a path, hierarchy or linear relationship. In my original conceptualisation of public engagement, I spoke of steps – again following the idea of a ladder – but the more my research developed, the more I’ve spoken to participants involved in public engagement, the more I’ve become convinced of the non-linearity of these elements. Rather than talking about different steps and a linear relationship between different stages that people need to accomplish, I find it more useful to talk about a cycle (journey) with inter-connected elements of engagement, which do not always need to happen – different types of activity may refer to separate elements of the public engagement journey. Putting this into practice means that some people may decide to create a petition because they are really fed up with an issue; and not necessarily because they know how the political system works or because they woke up in the morning with a burning desire to participate. However, without the information and the understanding of the system, they’re unlikely to achieve a lot. Likewise, educating young people about parliament doesn’t mean they will eagerly start leading campaigns. The different elements of the journey are inter-connected and supplement each other.
So there you have it – not sure it was worth waiting a year to finish this, but here you are, some reflections on the different elements of public engagement; the need to speak of a journey and of inter-connected elements of engagement, rather than separating them out and focusing just on information, or just on participation, for instance; and to value how citizens process the information, how they reflect on it and how they act on it. And ultimately the fact that public engagement is not necessarily about politics; it’s about empowering people in relation to their surroundings.
This blog was kindly shared by the Centre for Democratic Engagement. See the original post here
Cristina Leston-Bandeira is Professor of Politics at the University of Leeds and Co-Director of the Centre for Democratic Engagement (tweets as @estrangeirada).
A highly intelligent, well-informed report with clear recommendations has emerged from a Select Committee. ‘What is going on?’ asks Ray Snoddy
Reaction to the recommendations of the House of Commons Select Committees is usually in direct proportion to how outlandish they are.
Argue that it’s time to replace the BBC or privatise Channel 4 and heavy headlines are guaranteed.
Come up with well-argued, moderate recommendations, that after studying the full implications, the status quo should continue with the BBC licence fee surviving until at least 2038, and all is quiet.
The main reason for such a suggestion is that the Government has failed to come up with a workable alternative and has effectively run out of time.
The response has been muted, not least because newspapers like The Times, Daily Mail and the Sun, have been arguing for decades for the “reform” of the licence fee.
In recent years this has morphed into arguments for the abolition of the licence fee and its replacement by a form of voluntary subscription – just like Netflix.
It is the sort of attack that has come directly from Downing Street in the early days of the Johnson Premiership when Dominic Cummings was a power in the land.
Yet suddenly, the Digital, Culture, Media and Sport Select Committee’s report on the future of public service broadcasting comes-up with something so unexpectedly rooted in the status quo that it becomes positively radical.
The argument of the Select Committee can be summed-up in one weighty paragraph.
“It’s clear that the BBC TV licence has a limited shelf-life in a digital media landscape,” the central theme begins. So far so good. We all know that public service broadcasters are facing enormous competitive pressure from the streaming services and associated difficulty reaching young audiences.
“However, the Government has missed the boat to reform it. Instead of coming up with a workable alternative, it has sealed its own fate through a failure to develop a broadband infrastructure that would allow serious consideration of other means to fund the BBC,” the Committee argues.
The eleven-person panel chaired by Conservative Julian Knight, and with an inbuilt Conservative majority, looked at three main alternatives – household or individual fee, state budget funding, or subscription with supplementary taxation.
“None of these were sufficiently better as a whole to recommend as an alternative,” the Committee tellingly concludes.
It has not been shy to draw clear conclusion from its analysis either.
The Government now needs to come out with a clear alternative to the licence fee that it can put to Parliament – with the implication that none exists at the moment- or strongly support the current model for at least the next 10-year Charter period.
They go further. If there is no workable alternative at present then the Government should actually help the BBC in driving down evasion.
Where on earth could such a radical interpretation of the status quo have sprung from? A highly intelligent, well-informed report with clear recommendations has emerged from a Select Committee. What is going on?
A look at the personnel is revealing. No less than three of the six Conservatives have worked for the BBC at some stage in their careers and another is an actor. Damian Green, former deputy Prime Minister has worked for both the BBC and Channel 4.
Those seeking to undermine the BBC will cry fix. An alternative view is that some of those involved might actually know what they are talking about.
There is another aspect to the Committee membership. No less than five of the six Conservatives were for Remain, and that of course is a taint that excludes otherwise qualified people from the Cabinet – doubly so if they failed to support Boris Johnson for the leadership.
Could it be that refugees from this Government have, by default, helped to raise the quality of select committees?
If the licence fee is to continue through the next Charter period until 2038 then other implications click in as night follows day.
Almost by definition, the Communications Act 2003 is hopelessly out of date and needs to be urgently replaced. Despite the pandemic the Select Committee wants to see new legislation enacted before 2022.
In particular, if the current structure of public service broadcasting is to survive in anything like its present form then, as the Committee recommends, PSBs should have on screen prominence that goes beyond the current electronic programme guide.
As Carolyn McCall, chief executive of ITV has argued, if your audience cannot find your programmes the business ultimately cannot survive.
The Committee is also spot-on in arguing that the PSBs should also help themselves and not just rely on the Government by taking steps to maximise their own bargaining power in the digital age.
It suggests that the five PSBs should explore options for collaboration on a single on-demand video platform – rather like Project Kangaroo of blessed memory- and that Ofcom should offer support.
Surely that is another sensible suggestion from the Committee and would give the established broadcasters more of a chance in the never-ending battle with the multiple-billion California streaming services.
Will the Government take any notice of this well-grounded report?
Another truism about Select Committees, the more sensible they are, the more likely they are to be ignored.
But facts and technology are right behind the arguments. Subscription funding for the BBC will not be a practical option for years, and it may never be a good idea if you want to preserve a national broadcaster for all.
It is impossible because millions do not have the broadband connections and many millions more do not have the necessary black boxes.
Even if it were technically possible, the overall cost of broadband subscription, box and BBC subscription would be much higher than the current BBC licence fee.
As the Committee astutely suggests – the Government has already missed the boat in being able to bring in a workable alternative way of funding the BBC in time for the start of a new charter.
Common sense is slowing winning in the face of the initial Johnson/ Cummings attack on the BBC, complete with thoroughly bad ideas such as decriminalising the licence fee, something that has now been quietly dropped.
As Damian Green noted at the time of the Johnson/Cummings attacks, there was nothing in the Conservative manifesto about destroying the BBC.
You can be cynical about the output of Select Committees. Somewhere there must be a mountain of ignored and discarded reports.
This one could mark a turning point in the direction towards sanity.
This blog was originally published on Mediatel News. See the original post on their website.
Philip Cowley of QMUL discusses the trials and tribulations of the political interview, offering sage advice on how to be successful in this area of research.
Few things in life can be more frustrating than trying to interview MPs. It can consume an enormous amount of time, often appearing to produce little of value in return. Each interview needs arranging, and often rearranging multiple times; there’s travel, always accompanied by a lot of waiting around, as the interviewee’s previous meetings run over; then the actual interview – “terribly sorry, very busy day today, afraid I’ve only got 20 minutes, remind me, what’s this about?” – after which there is more travel and the writing up of any notes. A single half hour interview can easily eat up half a day or more.
You will routinely come out of meetings thinking you’ve wasted your time entirely. They’ll ramble, obfuscate, get confused; they will get things wrong or just can’t remember; they’ll recount war stories, which have, like all well-told anecdotes, become so well polished over the years that they bear little resemblance to the original events; or they’ll pass on unsubstantiated gossip as if it was gospel; they often apply enormous amounts of retrospective judgment and try to place themselves at the centre of every key decision.
In much of this, they are normal human beings exhibiting normal behaviour. But, to misquote that famous line from Casablanca, politicians are like normal people, only more so. They pose especial problems for the interviewer. They are not easy to get to meet and once you’ve met them they are not easy to get stuff out of. This is because:
1. Politicians are busy people. Really busy. Busier than most people can imagine. Even the most junior has an almost infinite set of demands on their time. You are asking them to give up 30 minutes or so – sometimes more – of a packed diary. This is a non-trivial request. They will have plenty of better things they could be doing.
2. While some people might be flattered to be asked to take part in an academic study, politicians generally are not. They get bombarded with requests from school kids, university students, lecturers, pressure groups, and various randoms. If they said yes to everyone, they’d spend their entire day doing nothing else but filling in surveys or giving interviews.
3. You are asking them to do you a favour, in return for which they will likely get nothing. They don’t have to do this; you’re not a constituent. You’re not part of their core business, or even their peripheral business. You almost certainly can’t give them anything useful in return.
4. They can suffer from the bad habits of busy people: impatience, always needing to be elsewhere, with something else to do, constantly checking their phone, looking over your shoulder for someone more important. You are probably the least important thing they are doing that day; don’t assume they will give you much focus.
5. Some politicos are downright suspicious of academia and researchers. This can be an especial problem among parts of the right, who think – not entirely without justification, if we’re being honest – that academia is a hotbed of leftism, unlikely to give them a fair shake of the stick. But it can also be true on the left, especially the more traditional Trade Union-based left, wary of smarty pants academics. The Lib Dems, who often have a whiff of the Senior Common Room about them, used to be very accommodating towards academics but that’s not much help these days.
6. Even those who aren’t actively suspicious often think: what good will come of this? Why wash dirty linen in public? There’s no evidence that Bismarck ever uttered that much used quote about law and sausages – that no one should ever see either being made – but it is a view to which many politicians hold. Why risk it?
7. Politicians are used to evading difficult questions. It’s one of their core skills. If they don’t want to answer your question, they won’t. You’re in no position to probe aggressively – they can simply end the meeting if they don’t like the way things are going – and even if you could, it wouldn’t work. It is a never-ending source of amazement how many academics think they can rock up to an interview with a politician they’ve never met before and expect full disclosure. They may well not lie to you (although some will, without missing a beat) but they almost certainly won’t answer everything frankly. To expect anything else is naïve.
8. They are used to debating and challenging. Indeed, they love it. You can turn up with a list of ten carefully constructed questions, central to your research, only to find the MP doesn’t answer a single one of them in the way you expected. Worst case: they challenge the underlying assumptions of question one and go off on a long explanation of how you are essentially an idiot who doesn’t understand the subject. You never get to question two.
Based on my experience of doing around 1000 such interviews, over the last 30 or so years, this paper (available free of charge at SSRN) explains how best to overcome these problems, how best to get access to politicians, and then how to get the best out of the interviews you might do. The paper consists mostly of things I wish I’d been told at the beginning of my career – although whether I’d have listened is another matter entirely.
Philip Cowley is Professor of Politics at Queen Mary University London. To learn more about his research click here
Stephane Revillet considers whether the semi-virtual format for Prime Minister’s Question Time has improved or diminished the possibility for executive accountability.
In the face of the Covid-19 crisis, the Hansard Society asks in April of 2020 “how parliamentarians can conduct their core constitutional duties of holding the government to account, when [they] are all required to adopt rigorous social distancing”. This question is even more relevant in relation to PMQs insofar as it is the most attended and the most watched parliamentary event of the week.
Due to social distancing, far fewer MPs have been able to attend PMQs, and that has resulted in less noise being made and fewer raucous attacks levelled on the floor of the House. John Craig of Sky News recommends that “[they] need the Commons to return to its usual boisterous, raucous and spontaneous normality if government ministers are to be held truly accountable”. These remarks beg the question of whether disorder is an effective instrument in holding the government to account. And what “truly accountable” means in the specific context of PMQs.
The interruption as a tool to hold the government to account
This blog will focus on two types of disorderly behaviour: interruptions and unparliamentary language which is here defined as ‘Face threatening acts’ (FTA), for example insults, soundbites or offensive remarks. Besides the adversarial and confrontational style of parliamentary politics, what may account for the extensive use of FTAs lies at the core of the function of PMQs: holding the government to account.
According to Graham P. Thomas’s definition of accountability, “criticising the government’s failure, incompetence or deceit” are FTAs per se, which inevitably causes disturbance especially when the PM counter-attacks to save face. More often than not, such departures from the rules are tolerated by the Speaker, very few FTAs are sanctioned. Sandra Harris mentions a very high level of tolerance of ‘illegal interventions.’ This tolerance towards disorderly language lies at the root of accountability. So, it is no wonder that MPs who want to make their point stronger should strike harder, which inevitably leads to an increase in the number and in the intensity of the attacks. In other words, the level of expected accountability might be reflected in the intensity and frequency of the attacks.
Whether they are challenging or dismissive backchanneling interruptions (if we use Cornilia Ilie’s typology), they serve the purpose of interrupting the scripted speech of the PM urging him/her to answer more spontaneously. Those impromptu answers are valuable in appraising the government’s accountability. The PM will be judged more on the answers they provide off the cuff than on ready-made answers.
The consequence (or the purpose) of such interruptions is to warn people about a message that is being delivered. Whether the interruption points out an inaccuracy or even a downright lie, it doesn’t matter. The government’s accountability doesn’t relate so much to the message or to the speech of the PM but to those signals sent out to the pubic prompting them to call into question specific points or even to a greater extent call into question the person’s credibility.
What does “true accountability” mean in the context of PMQs?
MPs represent their constituents in Parliament, and defend their interests. Unlike other parliamentary sessions, PMQs is a vehicle for individual backbenchers to raise the grievances of constituents. MPs are the voice of their constituents in Parliament. In this theatrical performance backbenchers do not remain a passive audience. They make themselves and the people’s voice heard by causing disturbance, by interrupting the speaking debaters. Backbenchers who are gathered in the House acting on behalf of the citizens take part in the debate through the noise they make in reaction to the speech of the leaders. This way of interacting with the executive in order to hold them accountable is popular in essence. It is the most watched parliamentary event of the week and that also means that PMQs involves a way of discursive interaction and styles of communication pertaining to and deriving from the people.
In ancient Athens, the thorubos (meaning the noise of the participants) was the expression of the sovereignty of the people (dèmos). Making noise and interrupting the debaters represented an active participation in the debate. The disruptions and roar of the backbenchers is the popular expression of the distrust, the discontent or the indignation of the people and in that case those feelings are not mediated by long-winded technical pre-scripted speeches. Even though the House debates have been subject to a new configuration where the paradigms in terms of disorderly behaviour have critically changed, MPs are still prone to disorderly attacks and interruptions. It took MPs only seven sessions with social distancing before going back to their old ways.
It seems that causing some kind of disorder through FTAs and interruptions is a natural and inescapable process of holding the government to account, and that is what ‘true accountability’ implies, that is to say making the voice and the noise of the people heard by using the mode of communication of the ordinary citizens. This suggests that the distance between the government and the people should be reduced to increase government’s accountability.
How is the distance reduced?
In the orderly question-answer sequences those disruptions act as meta-discursive (or rather metadramatic I should say) short-cuts or substitutes for longer, more elaborate answers or counter-arguments. This simplification of the message makes it easier for people to grasp the meaning of the spontaneous intervention of a member. For Cornelia Ilie the emotional force of insults that is correlated to the (over)-simplification of the message is tremendous and outweighs their rational force. I would go as far as contending that insults produce the same effects as symbols. They condense a wide range of meanings and emotions.
For Murray Edelman, people think in terms of stereotypes and oversimplifications due to some incapacity to “tolerate ambiguous and complex situations and respond chiefly to symbols that oversimplify and distort”. My point here is that the use of interruptions and disruptions is a way to circumvent rationality thereby getting closer to the people, connecting with them in a more intimate way. The closer to the people, the better the accountability.
This blog is a summary of a presentation at our group conference.
Since 1992, Westminster Foundation for Democracy has supported democratic systems as they emerge out of conflict and into peace and stability. Currently, we have a number of programmes doing just that, from Lebanon to the Western Balkans, from Sri Lanka to Bangsamoro.
The existing academic literature on parliaments’ role in peacebuilding is scarce. Studies on conflict resolution and peacebuilding focus on peace agreements, multilateral organisations, state executives and the military, or at the other end of spectrum, on grassroots community groups and citizens. Parliaments – the institutions with the capacity to bridge these two – have largely been overlooked.
We commissioned a research paper with the University of York to analyse the experience of some parliaments we’ve worked with, and help build an understanding of the role of legislatures in conflict-affected states. Using case studies, this research focused not on what parliaments could or should do, but what they have done.
The research is clear: parliaments matter. How they implement peace agreements, how they formally operate, and how they govern in relation to peacebuilding has an impact on the peacebuilding process. For WFD and other democracy assistance practitioners there are a few key takeaways for our work.
Facilitate parliaments’ support of peacebuilding
In some cases, parliaments have had a positive impact on peacebuilding. Parliaments have the ultimate legal responsibility for the implementation of peace agreements, including institutional reform and devolution. They have also led the implementation of transitional justice. For example, in South Africa, a parliamentary standing committee oversaw preparations for the Truth and Reconciliation Commission and handled amnesty applications that came through that process.
In their formal structure, parliaments in a post-conflict state often guarantee the representation of all conflict identities or ethnicities, through a power-sharing design or when former armed groups participate in the democratic process as newly formed political parties. Formal rules have also reserved seats for women, such as in Rwanda.
In the long-term, parliaments have great potential to act as platforms for constructive debate and collaboration between groups, govern in support of peace and stability, and help to set the state or region on a path to a more peaceful future.
Parliaments that can support peacebuilding tend to be strong and high-capacity. The challenges they face are more likely to be the result of political conditions, and so support from democracy assistance practitioners should be focused on broad notions of conflict resolution. WFD has a unique convening power which is an important tool to build connections both within parliament and between parliament and outside actors. This should be an important aspect of any peacebuilding initiatives.
Build up sidelined parliaments
Some parliaments have had a negative impact on peacebuilding processes because they are not strong enough to prevent executive dominance, or they are side-lined. For example, in Colombia, obstruction by the President who initially refused to sign Congress-approved legislation to implement the peace agreement, demonstrated the vulnerability of parliament to executive overreach. In such cases, especially where the parliament is new, capacity training and institutional support from WFD and others could be central to the long-term peacebuilding.
Parliament cannot be ignored
What we cannot do is ignore parliaments altogether. Parliaments can be significant spoilers in peace processes. All the characteristics of a pro-peacebuilding parliament could also be used to spoil a peace process.
Their power to implement a peace agreement means that they can, of course, also choose not to. This includes national parliaments obstructing devolution to new regional ones. And a power-sharing parliament is far from a guaranteed success. Power-sharing arrangements usually include a minority veto, and this allows parties who wish to obstruct the peace process to do so. In Northern Ireland, deadlock saw direct rule imposed from Westminster four times in the first decade of Stormont’s existence, although our report finds that “collaboration is much more dominant than we might expect”.
Of course, parliament is a heterogeneous institution. It is made up of many separate component parts: MPs, staff, political parties, committees, as well as the processes and powers associated with the different roles it performs. Each of these can function differently, and so it is very hard to be clear cut about what impact a parliament is having on peacebuilding.
But we ignore parliaments at our peril. Parliaments may not hold all the power, but they are integral for the successful implementation of peace agreements and for progress towards long-term peace and stability. There is a valid and important role for democracy support in peacebuilding processes, and a lot at stake from our absence.
Rosie Frost is the Evidence and Learning Officer at the Westminster Foundation for Democracy, where she works on building the evidence base for democracy assistance.
In the first blog post from our annual conference series, Professor Meg Russell offers insight into the challenges, opportunities and lessons drawn from the parliamentary management of the pandemic.
In the UK and around the world parliaments have had to adjust their practices to the unexpected new environment of COVID-19. This has brought major challenges but, some suggest, also opportunities in terms of suggesting future means for parliaments to adapt. This post starts from the core principles of parliamentary functioning, briefly reviews practice under COVID-19, and considers the primary opportunities and challenges presented. It concludes that the future lessons from this unique period reinforce some familiar themes; but they also raise significant conundrums and trade-offs between the different essential principles of what parliaments are there to do.
Principles
Stripping back to the basics, what are parliaments for? Legislative studies scholars have suggested various overlapping lists of functions. For example in the Oxford Handbook of Legislative Studies, Amie Kreppel provides a list of four, which I will boil down to three:
Representation takes many forms, often including – as is central to the UK House of Commons – geographic representation. Numerous, diverse, individuals participate in the legislature, underpinned by a crucial democratic principle of equality, where each ultimately has an equal vote.
Linkage is closely connected to this – as parliamentarians provide a voice in parliament to their voters, and remain accountable to them.
Policy-making – for example through approving bills – is perhaps what parliaments are best known for. Connectedly, they have a control function in holding executives to account. For simplicity, I treat these two functions together.
Other terms often mentioned in such classifications include deliberation –much of which takes place publicly – and legitimation, meaning all of parliaments’ functions help them generate broad public support for policy.
Practice
It is easy to see how the circumstances of COVID-19 have challenged some of these principles.
The threats to representation were pretty immediate and obvious. With limits on travel, requirements for social distancing, and heightened risks for people with certain health conditions, parliamentarians gathering from all over the country immediately became a problem. Some legislatures responded by limiting the number who could participate – with those decisions often taken by leaders and whips. Others moved their proceedings online. The UK House of Commons initially did the latter, but then rolled this back in a quite problematic way which breached principles of equal participation.
Effects on linkage were perhaps less dramatic, but the pandemic has clearly made it more difficult for MPs to meet their constituents, and others, face-to-face.
With respect to policy-making there has been concern in the UK and many other countries about the extent of emergency powers granted to executives to deal with the crisis, and the limits on parliamentary oversight. That’s the most obvious effect. But there have also been others. In some legislatures (including initially the House of Commons) limits were applied to ‘non-urgent’ business, such as private members’ bills. This raises questions about who decides what’s urgent. In addition, there are clear interactions between these different effects – if the mode of representation is impacted, that will affect policy-making as well, as discussed below.
Opportunities
It may be counterintuitive to see opportunities in such a difficult situation, but the hasty move to virtual proceedings in many parliaments has demonstrated that there may be positive lessons to learn.
These primarily affect representation. Remote working, where available, has facilitated continued participation for parliamentarians with caring responsibilities, or health conditions, or who may not be able to travel. This has raised questions about whether such modes of working could help, longer term, in supporting more diverse legislators. For example the Centenary Action Group, which promotes enhanced women’s representation, has a campaign ‘to promote the benefits of virtual parliament measures for women and minority groups and encourage the continued use of technological advances’.
Although they remain largely untested during the pandemic, changes to greater virtual working could also have important impacts on linkage. If MPs work more frequently from home, this could facilitate greater local presence and local work. If available, such options would surely be taken up – particularly by MPs with more distant constituencies. But this would raise familiar conundrums about the extent to which constituency work compromises the effectiveness of MPs’ policy work in parliament.
In terms of that policy-making function, most of the impacts have been negative (see below). But clearly there would be benefits in more diverse participation – not just by parliamentarians, but for example by witnesses to parliamentary committees being able to give evidence remotely.
Challenges
Unsurprisingly, the list of challenges is longer. If MPs are shut out (as remains the case in the Commons, despite repeated complaints), that obviously damages representation. At one level this might just be considered a UK quirk, but it highlights the first of many problems with COVID-19 and policy-making.
The Commons is famously an executive-dominated institution, particularly with respect to setting the agenda – Standing Order No. 14 guarantees default government control. In May ministers chose not to renew the temporary order facilitating virtual participation, causing this to lapse – despite opposition by the chamber’s Procedure Committee. This illustrates how, if parliaments do not control their own agendas, this creates opportunities for government (and sometimes opposition) leaders to centralise power.
Similar centralisation is seen in the emergency powers taken by governments to tackle the pandemic. In the UK, MPs often felt shut out – with numerous statutory instruments published at short notice and brought into effect without parliamentary oversight. It was six months before backbenchers forced concessions out of government via a threatened rebellion on renewal of the Coronavirus Act, gaining promises of future votes.
But the challenges for policy-making go far further, and some are far more subtle. While formal proceedings – for example questions, committees and scrutiny of legislation – have been maintained as far as possible during the crisis, much of legislatures’ most crucial influence normally goes on informally and behind-the-scenes. Meetings between parliamentarians (both within and across parties), between them and party leaders or ministers, and between all of these groups and journalists, facilitate crucial informal communication. Some of this is planned, but much depends on chance ‘corridor conversations’. In addition to lacking these communications, ministers, whips and others find it difficult to ‘read the mood’ when the chamber and corridors are largely empty, and some members are logging in over Zoom.
Summing up the lessons
Some of the lessons from the crisis are obvious, and reinforce things that legislative studies scholars already knew. For example, the government’s control of the House of Commons agenda is problematic; extensive policy-making via delegated legislation is undesirable, and scrutiny mechanisms badly need improvement; much of parliament’s power is exerted informally and behind the scenes.
Where it gets difficult, however, is that the potential benefits of virtual participation for parliaments’ representative functions, and possibly linkage functions, become threats when considering impacts on their policy-making functions. The crucial role of informal and behind-the-scenes communications mean that parliamentary effectiveness will greatly suffer if many members are not physically present. In the UK, in the middle of a continuing pandemic, arguments for maximal virtual participation remain principled ones, to restore parliamentarians’ equal rights. But longer term, this isn’t just an argument about tradition versus modernity – it raises complex questions about how to balance the different functions of parliaments and their needs to operate effectively.
Franklin De Vrieze, Senior Governance Adviser at Westminster Foundation for Democracy (WFD), and Sean Molloy, Lecturer in Law at Northumbria University consider the efficacy of sunset clauses as a means to ensure democratic accountability.
COVID-19 emergency legislation is often fast-tracked, approved without much parliamentary scrutiny, expanding executive powers while limiting individual rights. Can sunset clauses provide a counterbalance by guaranteeing the temporary nature of the COVID-19 emergency legislation? Experience from anti-terrorism legislation suggests that sunset clauses may reinject democratic accountability, but only if there is a high quality and evidence-based review practice.
Legislative responses to emergencies
The effects of the September 11 (2001) attacks were felt well beyond the United States. The ‘global war on terror’ led many countries to usher in emergency laws to combat the threat posed by terrorism. The Canadian Anti-terrorism Act, for instance, introduced a range of new offences and authorized new intrusive powers, such as preventive arrest. For its part, the UK government introduced the Anti-Terrorism Crime and Security Act (2001). Under the act, significant powers were transferred to the government with the effect that individual rights and liberties could be circumvented as a matter of course. For instance, the police can forcefully obtain fingerprints and other identifying features from an individual to ascertain their identity, and the government may regulate telephone companies and internet providers to retain data for the purpose of national security.
In both the UK and Canada, as with many other contexts, the response to terrorism involved limiting individual rights and liberties while at the same time expanding executive power.
The logic of sunset clauses
It is at the juncture between short-term responses and longer-term consequences that sunset clauses find pride of place in emergency legislation. Sunset clauses are provisions that determine the expiry of a law or regulation within a predetermined period. They provide that at a certain point in time, specific and often the most intrusive provisions on civil liberties cease to have effect. In this way sunset clauses seek to ensure the temporal nature measures that extend the reach of government powers or limit human rights,
Because sunset clauses provide for evaluation of the legislation passed, they can help to claw back a degree of democratic oversight and legislative scrutiny. For some, the requirement to respond in haste to an emergency provides the justification for fast-tracking law and sidelining normal processes of parliamentary scrutiny. The review processes attached to sunset clauses are thus a way of reinjecting a degree of scrutiny and oversight in ways not possible when emergency laws are expedited through fast-tracked processes. In the UK, for example, the 2001 Act required annual renewal of the provisions allowing indefinite detention. It required the Home Secretary to appoint someone to review the operation of that part of the act and report annually.
Sunset clauses, at least in theory, are thus a way of enabling countries to respond to immediate threats while at the same time ensuring that expanded powers and limitations on rights do not become the new normal.
Sunset clauses and COVID-19
The use of sunset clauses in terrorism legislation is instructive when thinking about the inclusion of similar provisions in emergency legislation adopted in response to COVID-19.
The speed of response has been paramount to limiting the effects of COVID-19, justifying, in turn, the passing of fast-tracked legislation in ways that ‘differ’ from normal processes of parliamentary scrutiny. Invoking fear and uncertainty, it is the unknown and the unpredictability of the virus, as with the threat of terrorism, which has legitimized the widening of executive powers while at the same time limiting individual rights.
Yet, the risks associated with the fast-tracked nature of legislation, the broadening of state power and curtailment of civil rights and liberties in the context of terrorism, are equally present in the COVID-19 era. Like the threat to terrorism, COVID-19 shows little signs of desisting and retreating into distant memory. At what point, therefore, should the emergency response to COVID-19 desist to prevent the ‘new norm’ becoming one of government overreach and restricted rights?
As with the terrorism legislation, sunset clauses are seen as part of the answer. Indeed, in Scotland, Ireland, Germany, Singapore, the Democratic Republic of Congo, Uzbekistan, Serbia, Albania and North Macedonia sunset clauses have featured in emergency legislation, as documented in the WFD Pandemic Democracy Tracker. This, in turn, reflects an inherent confidence in what sunset clauses can achieve and a faith in the theoretical potential of sunset clauses being realized in practice. But is this confidence justified?
Future response
The Canadian experience with anti-terrorism legislation helps us answer this question. The Canadian House of Commons voted against renewing the provisions prior to their expiry under the terms of the sunset clause. Central to this decision was a detailed hearing before parliamentary committees examining the operation of the legislation and practice. By contrast, in the UK, notwithstanding the sunset clause in the 2001 Act, the emergency legislation remained in place until replaced by the Prevention of Terrorism Act 2005. This is not in any way unique. The 2001 Patriot Act in the US remains in force even today.
A comparison between the UK and Canada shows that the practical impact of sunset clauses is often determined by the quality of debate that precedes the discussion about whether to repeal emergency legislation. Indeed, a Law Commission report pointed out that the UK civil society group JUSTICE was “sceptical about the quality of debate triggered by the sunset clauses in the UK Anti-Terrorism Crime and Security Act 2001, noting that the annual debates have been rushed affairs and seem to offer little of the substantive scrutiny that is required in respect of such sweeping measures (indefinite detention of foreign nationals and control orders respectively).”
We cannot simply commend those countries that have included sunset provisions in their COVID-19 legislation. We must think about how to ensure that they live up to their promise. This ought to involve drawing lessons from positive examples of Post-Legislative Scrutiny so as to help inform how the reviews of emergency legislation will play out. A few questions would be particularly relevant.:
Who is reviewing the legislation?
Who is being invited to participate in the review? Are human rights groups, civil society and academics permitted to contribute?
What is being examined? Is it, for example, technical aspects, or the impact of emergency measures?
If the latter, the impact on whom? For example, what role does age, class, or gender play in the analysis?
Is it merely primary legislation being examined, or also secondary legislation adopted under, for instance, enabling Acts?
To what extent are lessons from other contexts part of this analysis? Will there be a gender-sensitive approach to scrutiny?
Sunset clauses in practice
Notwithstanding the theoretical merits of sunset clauses, their effect in practice is often determined by the review processes. While they can reinject democratic accountability and evidence-based review, they can also serve merely to rubber-stamp existing powers. They can exist on paper but have little impact in practice. They can be renewed on an ongoing basis, often with little or insufficient scrutiny. Thus, adherence to sunset clauses must itself be scrutinized and lessons must be drawn from other contexts to inform the review processes that accompany them.
