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Parliamentary scrutiny: what is it, and why does it matter?

Parliamentary scrutiny is at the heart of UK politics. In this post, Meg Russell and Lisa James examine the four key methods of parliamentary scrutiny, and offer proposals on how to strengthen it, calling for better behaviour by government and strong engagement from backbenchers.

Background

Parliament lies at the heart of UK politics. The legislature is a core institution in any democracy, but is particularly important in the UK, due to our tradition of ‘parliamentary sovereignty’. The government is dependent on the confidence of the House of Commons, which can potentially remove it from office. Parliamentary consent is required for primary legislation, and parliament is a particularly central and important body in holding ministers to account day-to-day.

This makes scrutiny – the detailed examination of policy proposals, actions and plans – one of the essential roles of parliament. Other functions include representation, and serving as a space for national debate – which in turn feed into parliament’s scrutiny function.

This briefing summarises why parliamentary scrutiny matters, what different kinds of parliamentary scrutiny exist at Westminster, some recent concerns about the decline of scrutiny, and ways in which it can be protected and strengthened.

Why does parliamentary scrutiny matter?

The government is responsible for much day-to-day decision-making, in terms of national policy formulation and implementation. But the government itself is not directly elected, and depends for its survival on the continued confidence of the House of Commons. This makes parliament one of the central checks and balances in the constitution – arguably the most central one of all. To provide government accountability, one of the core functions of parliament is scrutiny.

Parliament is a very public arena, with debates televised and transcribed on the public record. Hence parliamentary scrutiny means that ministers must justify their policies in front of an audience, which provides transparency and accountability, and helps to ensure that policies are seen as legitimate.

Crucially, parliament contains many and varied political voices. MPs are elected from diverse constituencies all over the UK, and represent different political parties. The House of Lords includes members from a wide range of backgrounds, many of whom are independent of political party, and some of whom are respected experts in their field. Parliamentary debates, and other mechanisms such as committee calls for evidence, also enable specialist groups and individual citizens to hear about policy and feed in their expertise, evidence and concerns. All of this ensures that different perspectives are heard in parliament when considering government policy.

The mere existence of parliamentary scrutiny, given its public nature and diverse contributors, can have an important effect. Even where nothing visibly changes as a result (e.g. if a government bill remains unamended) studies show that ‘anticipated reactions’ are important. Policy is more carefully thought through because ministers and officials know that it will be scrutinised by parliament. Hence scrutiny improves the quality of decision-making; and if it is lacking, policy may be poorer as a result.

What are the key forms of parliamentary scrutiny?

Scrutiny takes place both in the Commons and in the Lords, and both on the floor of the chamber and in various kinds of committees. At Westminster, even processes not focused directly on government policy require a ministerial response. Scrutiny and accountability thereby come through numerous mechanisms. These same forums also to some extent subject opposition parties to scrutiny, in the sense that they too must set out their own views on the public record.

The key forms and venues for scrutiny are set out below. In a number of these areas there have been recent concerns expressed about weakness or decline in scrutiny, which deserve attention.

1. Scrutiny of legislation

Most obviously, parliament conducts scrutiny of government legislation, and also of private members’ bills, with slightly different mechanisms operating in the Commons and the Lords.

Despite occasional backbench rebellions resulting in visible government climbdowns, scrutiny in the Commons is often seen as weak. But this can be overstated, given that ministers think carefully about the acceptability of bills to MPs before they are introduced. Changes in the Lords also often respond to concerns raised (including behind the scenes) in the Commons.

Nonetheless, adequate bill scrutiny depends on government cooperation. Ministers must ensure that bills are in good shape before introduction, and (given government’s extensive control of the Commons agenda) allow sufficient time for debate. They also need to be willing to listen and respond to reasonable points made by parliamentarians. There have been recent concerns about bills being rushed, and about late government amendments.

There are various known weaknesses in the legislative scrutiny process. Commons public bill committees are temporary and nonspecialist, unlike in many other legislatures, and the process of evidence-taking could be improved. Meanwhile, there is no formal evidence-taking stage for bills introduced in the Lords, or that have their committee stage in the Commons on the floor. This limits opportunities for expert input.

Perhaps the biggest concern in recent years has been about the growing use of delegated (or ‘secondary’) legislation, and increasing powers delegated to ministers in bills. This legislation receives very limited parliamentary scrutiny, raising clear accountability gaps if it implements major policy. Particular controversies emerged in this area during the Covid-19 pandemic, but overuse of delegated legislation has long been criticised, including by parliamentary committees, and expert groups such as the Hansard Society.

2. Parliamentary questions and government statements

Written and oral questions in both chambers put ministers on the spot about policy. Aside from scheduled questions, more ad hoc urgent questions allow sustained questioning on a topic, and their use has grown in recent years. Voluntary government statements take a similar form – and when not offered on key topics may trigger an urgent question.

Prime Minister’s Questions (PMQs) are the highest profile forum and have long been subject to criticism for their ‘bearpit’ and adversarial nature. They attract attention, but are unrepresentative of most forms of questioning, which can be more constructive but are lower profile. There are regular calls to reform PMQs but even they may have important ‘anticipated reactions’ functions.

The Cabinet Manual states that ‘the most important announcements of government policy should, in the first instance, be made to Parliament’, but there have been many recent complaints about ministers flouting this rule. This again occurred particularly frequently during the pandemic, but has continued – often to the displeasure of the Commons Speaker. Making major announcements outside parliament denies the opportunity for the kind of sustained questioning and democratic accountability that occurs when making announcements to MPs. Follow-up statements or urgent questions sometimes follow, but may be lower profile.

3. Opposition, backbench and adjournment debates

Parliament holds various kinds of debates in non-government time, including Commons backbench business debates, opposition day debates and adjournment debates. Irrespective of the topic, ministers must always appear and explain the government’s position, creating additional accountability. Often such debates are directly focused on government policy, and/or on topics that ministers would prefer to avoid.

Backbench business debates and opposition day debates may result in a vote on a substantive motion. In recent years there have been criticisms of the government’s relatively new practice of instructing MPs to abstain on opposition motions. Although decisions in these votes are not enforceable, the House of Commons Public Administration and Constitutional Affairs Committee, has suggested that this shows a ‘lack of respect for the House’.

These two forms of debate are guaranteed a minimum number of days per session in standing orders. But recent years have seen a number of long sessions (2010–12, 2017–19, 2019–21), which gives excessive control to the government over their scheduling.

4. Select committees

The select committees are seen as jewels in Westminster’s crown. They are unusual in international terms for conducting extensive and careful non-legislative scrutiny, for their nonpartisan ethos, and for generally producing unanimous reports. Committees in the Commons mostly shadow government departments, while those in the Lords are more crosscutting.

Committees gather expert and other evidence (including some recently using citizens’ assemblies to elicit considered public views). Ministers are often called to give evidence to the committees, as well as the government being required to respond to their reports. There have been occasional concerns about ministers cancelling committee appearances, but this is the exception.

Research shows that, while the select committees have little ‘hard power’ to force changes, they can be influential through putting topics onto the political agenda, feeding valuable evidence into wider debates, and having an ‘anticipated reactions’ effect – through forcing ministers to consider policy carefully, because they know they may have to publicly explain it to committees later.

In the Commons, select committee structures are routinely changed when government departments are reorganised. This can cause concerns – for example most recently when the abolition of the International Trade Committee left little opportunity for scrutiny by MPs of important international agreements (though such scrutiny remains in the Lords).

How can parliamentary scrutiny be strengthened?

There have been some welcome changes to mechanisms for parliamentary scrutiny in relatively recent years, such as the election of House of Commons select committee members and chairs (since 2010), and introduction of evidence-taking by Commons public bill committees (in 2006).

But this briefing has mentioned various weaknesses in parliamentary scrutiny processes, including recent concerns about decline – for example through primary legislation being rushed or subject to late government amendments, and an overreliance on delegated legislation. Recent polling shows that the public wants new laws to be subject to full parliamentary scrutiny. Improved government behaviour could make a good deal of difference in this area, but the Hansard Society has also proposed procedural changes.

Proposals exist for strengthening Commons public bill committees – e.g. by injecting greater permanence and specialism – and for publishing more government bills in draft. The Commons Procedure Committee has proposed improvements to the private members’ bill process.

Government control of the House of Commons agenda creates weaknesses, including over the timetabling of bills, ministers’ ability to withhold backbench and opposition days, and parliament’s inability to recall itself from recess. The Constitution Unit has proposed changes in this area.

Fundamentally, improved scrutiny depends on better behaviour by government, but also on strong engagement by backbenchers and other non-government parliamentarians. Even seemingly ‘toothless’ scrutiny mechanisms can have important effects, by subjecting government policy to public exposure and debate. Both government and non-government parliamentarians therefore have important responsibilities to maintain the system of parliamentary scrutiny – in order to uphold good quality government decision-making, and the legitimacy of politics in the eyes of the public.

This blog is part of the UCL Constitution Unit’s briefing series designed to inform policy-makers and the public about key constitutional issues and democratic debates. Our briefings draw on international evidence and examine both long-term trends and current developments in the UK. This is part of our project on constitutional principles and the health of democracy.

It was originally published on the Constitution Unit’s blog and is re-published here with thanks.

About the authors

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.

Lisa James is a Research Fellow at the Constitution Unit.

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We need reform of the legislative process to empower Parliament

Jess Sargeant

Parliamentary sovereignty is the UK’s central constitutional principle; in theory, parliament holds all the power, but in practice, the government wields much of it. Nowhere is this more apparent than in the legislative process; legislation is one of Parliament’s core functions, but government control of the timetable and scrutiny mechanisms in the House of Commons – means that its ability to influence the content of bills is limited. Recent trends towards passing bills on expedited timetables and increased use of secondary legislation – accelerated by the UK’s exit from the EU and the coronavirus pandemic – have curtailed opportunities for parliamentary input still further. This has prompted urgent warnings from two House of Lords committees of the need to rebalance power between Parliament and the Executive.

But redressing this constitutional imbalance requires going beyond asking the government to exercise restraint.  It means empowering parliament and creating new opportunities for parliamentary influence. The recommendations of the Wright Report, published in 2009, led to the election of Commons select committee chairs and the establishment of a backbench business committee. They demonstrated the power of procedural change in giving parliamentarians the tools and opportunities to challenge government policy and influence debate. In this spirit, the Institute for Government and Bennett Institute has undertaken a comprehensive study of the legislative process to identify opportunities for reform. 

One area is pre-legislative scrutiny (PLS). There is wide consensus amongst MPs, ministers and officials that pre-legislative scrutiny can greatly improve the quality of legislation. It gives Parliament the opportunity to influence legislation before it is finalised, allowing for more time and space for the government to make changes to reflect the views of parliamentarians on the quality and content of draft legislation. It can be useful too for the government, allowing ministers to tease out disagreements on knotty policy issues, test arguments and ultimately smooth a bill’s passage through parliament. 

Since 1997 eight parliamentary select committee reports have recommended expanding the use of pre-legislative scrutiny and making it a core part of the legislative process. However, bursts of enthusiasm for the practice amongst governments have been short-lived. Pre-legislative scrutiny remains a rarity; overall just 11.6% of the total government bills receiving royal assent since 2007 were published in draft.

It is clear that the current approach to pre-legislative scrutiny, in which the government has complete discretion as to whether and which bills to publish in draft, is failing to unlock its full potential. So we propose taking inspiration from the Oireachtas (the Irish Parliament) and requiring that the government give parliament an opportunity to conduct pre-legislative scrutiny on all government bills. 

This does not mean that a full PLS inquiry – taking three to four months – should take place on every bill, but that the government should publish all its bills in draft and give parliament the opportunity to select bills for PLS and allow others to progress without delay. They should be able to choose from a menu of options including a full inquiry and report, scrutiny of certain clauses, to a one-off evidence session and letter. This should ensure the level of scrutiny is proportionate and does not introduce undue delay to the bill timetable, or pressure on parliamentary capacity. 

Another area ripe for reform is Commons Committee stage. While public bill committees are intended to allow MPs to scrutinise each clause of the bill in detail, their partisan nature means that they are rarely constructive, and research suggests their impact on the content of bills have diminished over time. Reforms to permit oral evidence-taking has improved the functioning of these forums, but it is still only taken a quarter (27%) of all bills passed in the last five parliamentary sessions. Witnesses are chosen through the usual channels, meaning they are often there to support one political position or the other rather than bring new evidence and perspectives to deliberations. 

One proposal, already adopted by the devolved legislatures, is to abolish public bill committees and give select committees responsibility for scrutiny during this stage of the bill’s progress. This has the potential benefits of bringing more expertise and cross-party working into the process, as well as the ability to utilise the relationships with key experts, interest groups and businesses. But it risks overwhelming these committees’ work, and by making them a forum for key votes it could undermine their independence. 

Nonetheless, we believe there is a middle ground. Building on the informal inquiries they already conduct on bills, we propose that select committees should be able to request a ‘select committee’ stage on all government bills – to allow them to consider the bill, take oral evidence and publish a committee view, including draft amendments. This can inform the debate in public bill committees and beyond, while giving select committees the opportunity to decide which bills to prioritise.

We recognise that many of these recommendations may add time and potential friction to the legislative process. But legislating is a serious business – policy is more likely to succeed where it has been robustly tested and where it has broad support from the people’s representatives. The government’s short-term desire to do things quickly should not overrule the long-term objective of do things well. 

Jess Sargeant is a senior researcher working on devolution. She joined the Institute for Government in May 2019 from the House of Lords Library.

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There’s a time and place for prorogation — and this is it

As I sit and watch the turmoil at Westminster on the morning (afternoon in London) that Liz Truss announced her resignation; the morning that the 1922 Committee of Conservative backbenchers scramble to find a leader in a week’s time; a seemingly firm date of October 31 for a budget statement from a recently appointed Chancellor of the Exchequer; and cries for an election, there seems to be no way forward that does not continue the chaos.  But there just may be a way to calm the waters somewhat.  A proper and timely use of prorogation.

Prorogation, where one session of Parliament ends and a new session is prepared for, has received much negative press and commentary in the last few years, in the UK and in Canada.   It has been seen as a way for a Prime Minister and a government to avoid facing Parliament when there was an imminent need for a decision of Parliament.   But there are times when prorogation is appropriate.  In most cases it is used when a parliamentary session has effectively exhausted the government’s agenda and there is a belief that the government needs to set out the next stages of its “new” agenda for the following session.  In some countries this is effectively set as an annual or biannual process, in others it is discretionary.  In either case, there is also room for the Prime Minister to ask for the King to prorogue Parliament as a necessary re-set button, either when a new King’s Speech is required to address an emergency, or to set out a new way forward for the government in light of changed circumstances.  Sometimes, such pauses are just necessary to stop, rethink, plan and explain a way forward.  The present circumstances would, I suggest, be such a cas, although some consideration would have to be given to ensuring that legislation that meets the revised agenda, or to meet urgent needs is carried forward in the next session.   

The way forward would be for the Conservative party to choose a leader, have the King appoint them as Prime Minster, then have that person request that Parliament be prorogued for a couple of weeks to allow them to put a cabinet together, prepare an agenda, and then to have that agenda presented to Parliament through a King’s Speech. There would then follow debate and a vote of the House of Commons in support of the Speech or else defeat and an election.  This process would allow the new Prime Minister to gather their thoughts, form a cabinet with appropriate deliberation, and present a coherent plan to Parliament to be aired and discussed before specific actions are taken.  It would also result in the constitutional legitimacy that the House of Commons can provide by voting on the King’s Speech.  

No doubt there will be those who will argue that this is merely a political tactic and an attempt to govern without facing Parliament. Or else they will claim it is a way to avoid addressing the urgent needs of the country in difficult economic and international times.  Surely, a short pause for a new Prime Minister and their cabinet to work their way through the issues, consult with the cabinet, the caucus, the public service, experts and concerned parties, is better than trying to address the issues piecemeal and in short soundbites amid the clamouring from all directions.

For those who argue that there has been a promise to deliver a much need economic update or mini-budget on or before October 31, otherwise the country and the economy will lose the confidence of the international community and the public, one need only look at the rushed and ill considered economic policies made by Liz Truss without fully thinking them through.  By setting a timeline that would result in a Prime Minister being chosen by next Friday and expecting such a major economic statement the following Monday, the scene is set for history to repeat itself.  While the country and the economic world need an indication of how the UK proposes to address the serious issues of inflation, income security and energy sustainability, the new Prime Minister and Chancellor will undoubtedly be granted the time necessary to put together a considered and responsive budget.  It is also more likely that the public and international markets will accept and understand the position of the budget if it is set within the context of an overall government agenda laid out in a King’s Speech.  Calm and measured is often what is needed, not bold and reckless – just to meet an artificial deadline set by predecessors.

There are, and will continue to be, those who argue that an election is needed and that whoever is chosen as Prime Minister will lack any mandate to govern.  While it may be true that the Prime Minister and their government will not have faced the electorate as such, the Westminster system of government is not one that works in such a straight line.  The question of legitimacy and capacity to govern is one that is based on parliamentary support and confidence, with the public having the ability to judge what has occurred in the previous Parliament, as much as looking forward to the next.  The Prime Minister and cabinet emerge from the various members of the House of Commons.  It is the Commons, as a collection of elected representatives, that determines who is best able to govern.  The Commons, by its votes on major proposals and legislation demonstrates confidence in the government and continually tests the government as it delivers on its proposed agenda and faces events that arise during the life of the Parliament. Although the most visible test of confidence comes in the form of a straight-up motion of non-confidence, votes on major government initiatives can also demonstrate confidence.  The Commons is given the opportunity to discuss the proposed agenda through votes on, among other matters, the King’s Speech and budgetary matters   It is the Commons, as representatives, not the public, that decides these issues during the life of a Parliament.  We elect Parliaments (members of the House of Commons) not governments.  

Immediately following an election, we look to the make-up of Parliament to determine who is likely to be called on as Prime Minister to form a government.  It may be the existing Prime Minister, who had the confidence of the previous House of Commons, or it may be a new Prime Minister.  If a new Prime Minister, they may be given a slightly longer period of time to form a government and prepare a King’s Speech to open the new Parliament.  It is in that Parliament that the new Prime Minister is tested and secures the legitimacy to govern.   It is at this time, and through this mechanism, that the new Prime Minister sets out their agenda and seeks support of the government’s mandate.  Although a bit more traumatic, and possibly chaotic, sometimes it is necessary to choose a new Prime Minister during the course of a sitting Parliament.  In such circumstances, it is arguably only right that they have the same opportunity as a Prime Minister appointed following an election to choose their cabinet from members of the House of Commons, set their own course of action in the circumstances, and to present them to and have them tested in Parliament, in the same manner.

For comparison, when dissolution occurs, Parliament ends for the length of the election and the time to put a government together and prepare a King’s Speech and for the Prime Minister to meet Parliament.  This can take longer when there is a change of Prime Minister and there is a question of who should be called on to take on that role.  There is no parliamentary business, budget or focussed parliamentary debate during this time.   Although Parliament ceases to exist during this time, the previous Prime Minister and government continue to govern, albeit in a reduced capacity.   In the present circumstances, if the Prime Minister has resigned, another person would still need to be called on to be Prime Minister, thus leading to a different type of constitutional “crisis”.   It is also noted that a dissolution is considerably longer than a prorogation, which suspends Parliament for a shorter, defined period, and allows Parliament to be recalled to consider a new Agenda, or at least to address enough of the issues required to provide the degree of stability that might be required to cover the dissolution and election period.  

Elections are not the only safety valve in a Westminster democracy.  Prorogation as a reset can provide a similar respite when necessary.  

Many events occur during the life of a Parliament which the public looks to the Parliament and the government to resolve.  Economic challenges, wars, international crises, natural disasters and political change.  Over the course of five years, the economic, international and political landscapes change.  Political fortunes, membership and leadership of the various parties and caucus also change.   When such changes occur the Parliament that was elected is required to change with them.   In some such cases, the government through the testing of Parliament requires a reset.   In the present circumstances, a new Prime Minister taking a short pause, preparing an agenda and seeking a new mandate through the elected House of Commons, could provide the stability, even if temporary, that the UK needs. Whether Parliament supports the new Prime Minister, the government and the direction proposed in the King’s Speech, or whether Parliament believes it is time for the electorate to decide, is a decision for the House of Commons.   Whether they have made the right decision will ultimately be decided by the electorate.

The present situation is like the driver who tries to fix the engine of a moving car while keeping the car on the road at the same time.  It’s just better to pull the car to the side of the road, fix the car, read the map, and then get back on the road.

Steven Chaplin, Adjunct Professor Common Law and Fellow uOttawa Public Law Centre

This blog post was originally published on the UK Constitutional Law Blog. The original post is available here:

S. Chaplin, ‘There’s a Time and Place for Prorogation—and this is it’, U.K. Const. L. Blog (25th October 2022) https://ukconstitutionallaw.org/2022/10/25/steven-chaplin-theres-a-time-and-place-for-prorogation-and-this-is-it/

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A case of innovative parliamentary oversight? Faroese and Greenlandic MPs in the Danish Parliament 

By Mette Marie Staehr Harder and Hallbera West

Controlling the government is a key task of any democratic country’s parliament. One widely used legislative control tool is parliamentary questions which are typically used by members of the opposition. In the Faroe Islands and Greenland, as in most parliamentary settings, members of the national parliaments; the Løgting and Inatsisartut, may pose questions to their national government, thus controlling their government. However, more atypically, the two Faroese MPs as well as the two Greenlandic MPs who are elected to the Danish parliament, the Folketing have an alternative arena for control of their government at home. Hence, in theory, these four North Atlantic members of the Danish Folketing may also pose parliamentary questions to the Danish government concerning the actions or inactions of their home-rule government. If applied this way, the Folketing could act as an alternative arena for control of the national periphery government, and we would be witnessing an example of what we term cross-parliamentary control. 

Questions and Data

Thus far, this type of control in which representatives use the control tool of another country’s parliament to control their home government has not yet been an issue of much attention in the legislative literature. Yet, as the influence of national parliaments vs. governments is challenged due to processes of globalization, international collaboration, and specialization of the executive branch among others, the need to understand parliamentary control and thus the quality of democracy through unorthodox perspectives of multilevel governance grows increasingly important. Therefore, we set out to study the following research question: 

In addition, if such cross-parliamentary control exists we ask: 

To answer these questions, we study a newly collected dataset consisting of parliamentary questions posed by North Atlantic members of the Danish parliament to Danish ministers in a period of 15-years (2005-2020). As the literature quite concordantly states that mostly parliamentarians in opposition make use of tools for control, we exclusively study the questions posed by North Atlantic MPs who represent political parties that are in opposition at home(N=869). As such, our data is selected from the premise that it is within this data, we are most likely to find examples of cross-parliamentary control.  

Importance of cross-parliamentary control

In providing a theoretical possibility for conducting cross-parliamentary control, the case of the Danish Realm is a seldom case – yet it is not unique. Hence, other parliaments – e.g. the French parliament as well as Westminster—may provide similar opportunities for members elected in districts with different levels of national self-government. 

The perspectives on cross-parliamentary control offered by the Danish case have importance beyond the similar cases: Empirically, it is not a new observation that the power of parliaments vs. the executive power is challenged due to processes of globalization, international collaboration, and specialization of the executive branch. Also, research shows that parliaments are finding ways to take back power (Raunio 2014; Martin & Vanberg 2011; Bergman & Strøm 2011: 14-16; Saalfeld 2000; Judge 1995, 8; Norton 1990, 3–4). Yet, the appliance of cross-parliamentary institutions for control as a means which strengthens parliamentary control of the government has not been an object of much scholarly consideration. Rather, instead of cross-parliamentary foci, scholars have studied ways in which international collaboration among parliaments remedy national parliaments’ loss of power. For example, the occurrence of this within international inter-parliamentary institutions (IPIs) has spurred much recent scholarly interest (Cofelice, 2018; Costa, 2016; Costa et al., 2013; Flockhart, 2004). In turn, scholars have stressed the importance of not overlooking the role played by national parliaments in international politics, diplomacy and sub-state units para diplomacy though this is normally thought of as an area of the executives (e.g. Ackrén 2014, Malamud and Stavridis 2011; Pintz 2019; Sabic 2008). Our study contributes to the field of legislative oversight by studying this phenomena from a perspective of multi-level governance rather than the conventional national –or the more recent—inter-parliamentary contexts. 

Results

Corresponding to our expectations, our analyses show that most of the questions posed by the North Atlantic members of the Danish parliament, who are in opposition at home, concern the actions or inactions of the Danish government. Nevertheless, 7.8 pct. of these questions concern the actions or inactions of the members’ home government. Hence, they enact cross-parliamentary control: either as direct control in the short run or as a more indirect, long-run control which create a sense of being potentially controlled from abroad (for this “long-run” sense of being potentially controlled we find inspiration in Bentham’s Panopticon as described by Foucault).  

Moreover, in line with our initial expectations, which are based on the former findings of Harder and West (Harder 2021; West 2019), we find that Greenlandic MPs make use of this possibility to a much larger extent than the Faroese members do. However, contrary to our expectations, it is the members from the parties that are most critical towards the Danish Realm, which makes the most use of the opportunity to gain information on the actions of their home-governments from the Danish Authorities. Especially, this tendency is particularly strong for Faroese members. We believe this to be a sign that partisan motives at home are more important to North Atlantic politicians in the Danish parliament than we initially expected them to be. 

Finally, and in line with our expectations, most of the questions posed are questions that ask for information regarding the actions or inactions of the government at home. Though we assume that these questions primarily have the effect of creating an awareness of potential control at home as well as providing MPs with concrete information, if picked up by the media at home, some of these questions will quite surely also have partisan effects at home. 

In conclusion, the theoretical possibility of cross-national control turns out to be used by the MPs elected in the North Atlantic peripheries. This type of control has not yet been described in the legislative literature. Moreover, it is not described as a possibility within the few formal institutions that guide the North Atlantic behavior within the Danish parliament (The Danish Constitution most notably). Nor does it seem to have been anticipated among the institutional designers when the North Atlantic representation in the Danish parliament was last adjusted (in the early 1950s). Nevertheless, through their practical representative behavior, North Atlantic MPs have innovated this tool to control their home government – a tool which may even be extra powerful because a foreign government is involved. 

Authors

Mette Marie Staehr Harder, senior lecturer in Political Science, Karlstad University, Sweden and visiting fellow at the Department of Law, University of Copenhagen, Denmark. mm.harder@jur.ku.dk 

Hallbera West, assistant professor in Political Science, University of the Faroes Islands and  program leader of West Nordic Studies. hallberaw@setur.fo

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Exposing the hidden wiring of the Parliament

By Ben Yong (Durham University)

‘Who runs the House?’ While most people were watching the Johnson government stumble from one crisis to another in early December 2021, peers in the House of Lords repeatedly asked this question in a rare debate on House governance. How the House of Lords (and Parliament as a whole) is run and the arrangements underpinning that may seem mundane, but ‘mundane’ issues can tell us something about the UK’s constitutional arrangements which are lost in theoretical frameworks such as political and legal constitutionalism, or separation of powers theories which focus on relationships between the branches of government.  

The Lords debate was in part prompted by a House of Lords External Management Review (‘EMR’), published in early 2021, which looked at how the House of Lords is governed and services and support administered. The EMR concluded, amongst other matters, that the accountability arrangements for the administration of the Lords were far from clear. Ultimately, the EMR recommended that the House of Lords Commission needed to be put on a statutory basis; there needed to be a clear statement of the governance arrangements; and a Chief Operating Officer should be appointed.

The debate highlighted that peers’ knowledge of the EMR and the general principles of House governance in the Lords was spotty. Indeed, some peers expressed surprise that the Leader of the House did not, in fact, lead the House (a misconception also common among MPs). Lord Davies’ comment summed up the view of many who attended the debate: ‘The governance of the House is … a mystery to me.’ Other contributions were evidence of Yong’s Law: the longer a debate on House governance continues, the greater the possibility that someone will mention catering, and its cost. Significantly, several Peers expressed fears about the imposition of bureaucratic structures upon a House which had traditionally seen itself as self-regulating.

Anyone with a knowledge of previous reviews of Lords governance would be unsurprised by this, or the EMR’s conclusions and recommendations (for a more in-depth discussion of House governance, see Ben Yong, ‘The Governance of Parliament’ in Alex Horne and Gavin Drewry (eds), Parliament and the Law (2nd edn Hart 2018) 75). Indeed, weak House governance and the confusion of parliamentarians has been a persistent issue in both the Commons and the Lords. 

So what are the governance arrangements of the Houses and why does it matter? Each House has an administrative organisation responsible for providing infrastructure and support for parliamentarians so that they can carry out their constitutional functions. This administration sustains and strengthens the House as an institution. The governance arrangements set out who is in control of the administration; and provide a line of accountability for the provision of that administration. 

One part of the governance arrangements is led by members; the other by officials. In the House of Lords, for instance, on the member side, there is the House of Lords Commission, responsible for political and strategic direction for House administration. The Commission is chaired by the Lord Speaker, and consists of (amongst others) the Leaders of the three parties, the Crossbenchers Convenor and the chairs of certain domestic Committees. Below the Commission are a number of domestic committees which scrutinise the internal working of the House (as opposed to select committees, which scrutinise the work of the executive), and support the Commission. On the official side, there is the Management Board, led by the Clerk of the Parliaments, which is responsible for implementation of Commission policies and day-to-day administration.  

Together these groups work to support peers in their work and maintain the institution. But there are problems. A key one is that the Lords House Commission is structured to be insulated against executive interference: it is cross-party in nature, and there is no government majority. Moreover, the Commission usually meets monthly and membership turnover is uneven (in the Commons, it is less than two years for most members). The result of all these factors is that political will is often lacking, or slow to crystalise. The Commission decides by consensus, if it decides at all. And even where the Commission does agree upon a course of action, it may still require agreement from the House itself. In such a political vacuum, the official-led Administration often cleaves to the status quo. 

There is also a lack of clarity about who is in charge, and therefore, who is accountable. In the debate, peers were quite confused about this. But they are right to be. There are multiple actors with claims to represent institutional interests. Even the titles of key actors suggest conflicting jurisdictional claims: there is a Lord Speaker and a Leader of the House—who is leading or speaking for the House? There is the House of Lords Commission, but as already noted, it is not the most strategic of actors. Nor is it the most visible: meetings are held in private with limited minutes often taking several weeks, if not months, to be published. It has no statutory basis. By contrast, the Clerk of Parliaments does have a statutory basis as Corporate Officer of the House (the Parliamentary Corporate Bodies Act 1992); and in practice is responsible for the day-to-day administration. But as the EMR noted, it is not clear how the Clerk is accountable to the Commission, or indeed, anyone. It is unsurprising there is confusion about who does what in the Lords.

The House of Commons has similar problems. One disgruntled former Clerk of the House gave his book on the House of Commons a harsh subtitle: ‘The Story of an Institution unable to put its own House in order’ (Barnett Cocks Mid-Victorian Masterpiece (1977)). In 2014, an ad hoc committee led by Jack Straw published a review (‘the Straw Review’) on House governance in the Commons. It was the first MP-led review of House governance in over 40 years. The Straw Review found a haphazard set of governance arrangements which lacked clarity; and a Commission which failed to provide adequate direction. 

In a way, the dilemma of governance is the problem of legislatures in condensed form: how can a group of nominally equal members collectively act together when they do not owe each other formal allegiance? With legislation, this problem is usually resolved through party majorities. But where the issue concerns not party, but rather what the institution needs, it is not easy to secure agreement. That is because firstly, it is difficult to turn parliamentarians’ minds to the institution; and secondly, there can be reasonable disagreement about what the institution does need. Without party and a clear set of governance arrangements, inertia and inaction become the obvious default. 

And so the Houses of Parliament are often slow to act on matters outside legislation, because of limited political will and a lack of clarity about who is responsible for what. The 2009 Expenses Scandal was caused in part by a failure of Commons governance to get a grip on the issue. Bullying and harassment of staff by parliamentarians in both the Commons and Lords were also failures of governance. And then there is the ongoing saga of the multibillion Restoration and Renewal (‘R&R’) project of the Palace of Westminster. The Palace is crumbling, and has been for well over a decade. This is in spite of a Joint Committee recommending a full decant from the Palace and sponsor and delivery bodies set up by statute. The Houses continue to dither and delay on timing (on R&R, see the untiring and ongoing work of Dr Alexandra Meakin).

So what? Why should we care? For one thing, the Commissions are primarily responsible for their respective House budgets—which together amounted to just under a billion pounds in 2020-1. This is not small money (although dwarfed by the budgets of the large Whitehall departments: the Home Office budget, for instance, was £16 billion in 2020-1). The governance arrangements can determine what resources are given to parliamentarians and committees. The Houses’ budgets matter, therefore, because they shape the capacity of Parliament to carry out its functions (Colin Lee and I discuss this in a chapter in the forthcoming third edition of Parliament and the Law). 

But more importantly, one reason for executive dominance over the legislature is that Parliament finds it difficult to act coherently: it is hobbled by a lack of clear leadership. Mainstream public lawyers have focused so much on the courts and issues like the location of sovereignty or legislative intent that they neglect the concrete institutional particularities of Parliament. This is not about political versus legal constitutionalism, and prioritising the ‘political’ over the ‘legal’. Rather, this is about recognising that there is more to each branch than its relationship with the others; that each branch has its own internal issues which may impede its effective functioning. Failures of governance can impact on the institution’s performance and ultimately, its legitimacy. ‘Mundane’ issues such as House governance and administration may be ‘constitutional’ matters as much as parliamentary sovereignty or legislative intent. 

My thanks to Arabella Lang, Alexandra Meakin and Patrick O’Brien for their comments on an earlier draft.

Dr Ben Yong, Associate Professor of Public Law and Human Rights, Durham Law School

This post was originally published on the UK Constitutional Law Association’s Blog. Thank you to the editors and Dr Ben Yong for allowing us to cross-post.

You can view the original post here: https://ukconstitutionallaw.org/2022/01/10/ben-young-exposing-the-hidden-wiring-of-the-parliament/

The suggested citation: B. Young, ‘Exposing the hidden wiring of the Parliament’, U.K. Const. L. Blog (10th January 2022) (available at https://ukconstitutionallaw.org/))

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Parliaments are watching to make sure climate legislation has an impact

How have parliaments responded to the Paris Agreement during the past five years? In which way are parliaments making sure that climate legislation does have an impact? These were some of the questions guiding the new report “Parliaments and the Paris Agreement”, published by Westminster Foundation for Democracy, ParlAmericas, INTER PARES, and GLOBE International. Based on this report, we put forward five golden rules for conducting climate-proof Post-Legislative Scrutiny.

By Rafael Jimenez Aybar and Franklin De Vrieze.

With only a few of weeks until the start of COP-26 in Glasgow, the role of parliaments in advancing international climate commitments deserves a spotlight. Parliament’s critical role in the development, implementation, and monitoring of their country’s climate objectives is often underestimated. 

The recent report “Parliaments and the Paris Agreement” shows that, to date, action on climate by parliaments has gone beyond adopting climate policies and legislation. The report also notes how parliaments focus on implementation and impact, thus contributing to promoting environmental democracy by upholding the environmental rule of law. 

While legislation is of critical importance to achieve national climate commitments, it is equally vital to ensure that the legislation is implemented and has the intended outcomes. This process is often referred to as Post-legislative Scrutiny (PLS) or ex-post impact assessment of legislation. 

PLS can help identify implementation shortcomings, areas of improvement and good practices. While PLS can provide oversight of the implementation gap, the gap between ambitions legislated for and those delivered, PLS can also provide a window for increasing legislative ambitions in line with what the science demands. 

PLS can be applied to climate-specific legislation as well as to general legislation which is not specifically environment- or climate-focused. In case of the latter, one speaks of a climate and environmental “lens” over PLS. 

Based on the new report, we outline five golden rules for conducting climate-proof PLS. The five golden rules capture the do’s and don’ts for parliaments willing to engage on PLS of environment and climate legislation and PLS of general legislation with an environment and climate lens.

1. Make the work of parliament climate-proof. Climate-proof PLS is not the job of the Environmental Committee only. All committees need to be engaged. This means that parliaments need to organise their internal processes to ensure that environmental oversight spans the entirety of its work, including through inter-committee communication and environmental and climate mainstreaming in committees’ work. This requires that all MPs and staff have been informed of the national targets related to mitigation of greenhouse gas emissions and the strategy on adaptation.

For instance, the Scottish Parliament applies its sustainable development Impact Assessment Tool to all its legislation. It helps parliamentarians moving beyond simply asking ‘what is the economic cost or benefit of this law’ to asking, ‘what is the carbon cost?’. The UK Parliament Environmental Audit Committee has a cross-government mandate to consider the extent to which government departments and public bodies contribute to environmental protection and sustainable development.

2. Make all PLS inquiries climate-inclusive. For PLS of general legislation, it is important that environmental impact is explicitly included in the PLS guidance, calls for evidence, and questions used in data collection. The PLS report needs to include a section on findings and recommendations relevant to the environment and climate; going beyond findings and recommendations related to the thematic remit of that law. This is similar to the approach that says that any legislative impact report must have a section relevant to gender equality.

An example is the Indonesian Parliament which has started PLS of the ‘Law on Job Creation’ with specific attention to the risks of driving environmental degradation.

3. Employ environmental treaties as entry-point for environmental PLS. Parliaments have a key role in ratifying international environmental and climate treaties. PLS can provide a window of analysis to check on the government’s commitments and adherence to such treaties as reflected in the national law. Furthermore, delivery against international treaties takes place at national, regional, and sub-regional level. Parliaments are critical to ensure that this happens.

4. Look at the role of implementing agencies of legislation. Each law designates an institution, department or ministry for its implementation. In many countries, the piecemeal development of environmental legislation risks regulatory overlap. Through PLS, MPs can review the role of implementing agencies of environmental laws, in order to consider whether compliance and enforcement regimes exist, and what is their effectiveness, legality, and coherence.

For example, the National Assembly of Nigeria is currently assessing the Environmental Impact Assessment Act and the Act on the National Agency for the Great Green Wall.

5. Review the legislative targets. It is important that legislative targets for climate and environment are adequate, timely and achievable. Setting targets alone does not in itself improve environmental outcomes. PLS of climate and environment legislation should therefore focus its assessment not only on targets, but also performance against those targets – asking if the targets and actions to meet them are doing enough.

For example, the Canadian Parliament enacted a review clause in the Net-Zero Emissions Accountability Act to ensure a parliamentary review after 5 years of it coming into force with the aim to sharpen the targets.

Rafael Jimenez Aybar is Environmental Democracy Adviser and Franklin De Vrieze is Senior Governance Adviser at Westminster Foundation for Democracy (WFD).

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From anti-terrorism legislation to COVID emergency laws: Can sunset clauses live up to their promise?

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.

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Will the Ukrainian parliament and anti-corruption agency step up to the task of combating corruption?

In this blog, Franklin De Vrieze and Luka Glusac discuss the role of the parliament of Ukraine and the country’s ACA in combating high-profile corruption. Corruption is detrimental to the successful functioning of democratic political systems, economic development, and the provision of public services. To overcome corruption, countries in transition towards a more accountable system of governance increasingly count on the role of an Anti-Corruption Commission or Agency (ACA).

Continue reading “Will the Ukrainian parliament and anti-corruption agency step up to the task of combating corruption?”
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What does ‘evidence’ mean to MPs and officials in the UK House of Commons?

Marc Geddes provides us with an overview of some important findings from his research into select committees. In this blog he discusses how committees collate and examine evidence to support their deliberations and to effect scrutiny.

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Arrested Development? The Limits of Parliamentary Development in Chaotic Political Systems

Victoria Hasson and Graeme Ramshaw of the Westminster Foundation for Democracy discuss party-parliament nexus points using the South African Democratic Alliance Party as an empirical case-study.

© Parliament of South Africa website
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