Proper accountability for public bodies with constitutional significance

Proper accountability for public bodies with constitutional significance

Constitutional bodies with a role in holding the government to account, protecting the rights of the citizen or regulating public bodies with state powers should be sponsored, supported and accountable to Parliament and not to government departments or ministers.  Already the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman, report directly to Parliament. Other regulators such as the Office of Fair Trading also report directly to parliament, with a status as non-ministerial departments.

These arrangements could be extended to:

  • The Independent Police Complaints Commission
  • The Equality and Human Rights Commission
  • The Care Quality Commission
  • Information Commissioner
  • Her Majesty’s Inspector of Prisons[1]

In relation to the EHRC such a model has been endorsed by the chair of the United Nations ICC (that regulates the criteria for the independence of such bodies, the Paris Principles).  The Joint Committee for Human Rights took a similar view[2], stating:

‘… the standard model of NDPB accountability is [not] a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission).’

The Public Administration Committee has also emphasised the importance of parliamentary accountability and scrutiny of non-departmental public bodies[3]

In relation to the IPCC the European Court of Human Rights, when assessing the independence of its predecessor (with the same process for appointing its Board) said:

“46.  The Court also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the Police Complaints Authority. In particular, the Court observes that under section 105(4) of the Act the Police Complaints Authority is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

47.  Accordingly, the Court finds that the system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. There has therefore been a violation of Article 13 of the Convention.”[4]

It is important that bodies that have a constitutional and democratic role in ensuring that other public bodies, including the government, comply with the law including human rights obligations are completely independent from any government influence. Parliamentary accountability would provide them with the appropriate independence to fulfil this role impartially.

The Government department that sponsors such bodies often has a policy role that overlaps with the body itself and ministers and officials can be particularly interested in the substance of the work carried out not merely the issues of governance and financial accountability.  This has led to attempts at different levels to interfere or influence the independent body’s actions.  In many cases this influence is designed to promote the government’s wider agenda but can also lead to short term gains being given precedence over long term and necessary changes with the bodies being regulated or inspected.

Chairs, commissioners and chief executives that are appointed (and subject to re-appointment) by government can be presented with real difficulties and conflicts of interest which, in high profile or controversial cases, can cause considerable soul searching and do not always create the rights circumstances for independent decision making.

 

It is also likely that a more politically plural board would result from the proposed changes, as appointments would no longer be made by the majority administration long term consistency of accountability arrangements would be established. For instance, the EHRC had four different sponsor departments in its short life and only because it had to follow its lead Minister – the minister for equality and they had a series of other, bigger responsibilities attached to different departments.

It is important to note that in the United Kingdom the practice of reporting to Parliament is being effectively used elsewhere. For instance, The Scottish Human Rights Commission reports directly to (but remains independent from) the Scottish Parliament and has its budget set by the Scottish Parliament.

Many similar constitutional bodies with a role in holding the government to account report directly to Parliament, such as the National Audit Office, Electoral Commission and Parliamentary and Health Service Ombudsman. As do other NHRIs, such as the Scottish Human Rights Commission, which is accountable to the Scottish Parliament.   Other regulators such as the Office of Fair Trading also report directly to Parliament, with a status as non-ministerial departments.  In England, the government has recently published plans to amend the Office of the Children’s Commissioner (OCC) and make it more accountable to Parliament[5].

John Wadham

 

[1]These are examples of organisations that the author has some experience of, the list of keys constitutionally significant organisations is longer.

[2] Joint Committee On Human Rights – Sixth report session 2002-03, Eleventh report of session 2003-04, and Sixteenth report of session 2003-04: http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/156/15602.htm

[3] Public Administration Committee, Fifth report 7 January 2011, http://www.publications.parliament.uk/pa/cm201011/cmselect/cmpubadm/537/53702.htm.  See also the recommendations for the appointments of the chairs of such bodies to be subject to Parliamentary committees scrutiny: Liaison Committee – First report ‘Select committees and public appointments’ http://www.publications.parliament.uk/pa/cm201012/cmselect/cmliaisn/1230/1230.pdf

[4]Khan v UK, 12th May 200.

[5] ‘Reform of the Office of Children’s Commissioner: draft legislation’, Department for Education 2012 http://www.official-documents.gov.uk/document/cm83/8390/8390.pdf

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