Accountability and Parliament

In the previous section, it was argued that there can be both normative and analytical/ empirical dimensions to what we define as political and legal accountability, and to how we seek to draw the boundary between the two mechanisms.

This requires us, as a first step, to demarcate the accountability mechanisms to be considered. Harlow has noted that, ‘parliaments everywhere have found increasing difficulty in holding governments accountable as governments have grown steadily more presidential in their ambitions and more global in reach'.^[899] While this may be true, a variety of devices or techniques are open to legislatures when seeking to hold the executive to account. Terence Daintith has categorized some techniques available to government when implementing its policies as examples of imperium, and others as examples of dominium: respectively ‘the government's use of the command of law in aid of its policy objectives, and... the employment of the wealth of government for this purpose'.^[900] Imperium measures, which are typically but not necessarily legally enforceable, set a standard or rule for the behaviour of particular individuals or bodies and provide sanctions for non-compliance. Measures concerned with dominium, by contrast, tend to lay down the substantive criteria to be met before expenditure can be allowed.^[901] As Anne Davies has suggested, a simi­lar distinction can be applied to ‘the accountability mechanisms which apply to the traditional mode of governmental activity, [namely] legislation or “imperium', and those which apply to contract or “dominium" ’.^[902] In reality, some mechanisms— especially when they are encapsulated in legislation—more closely resemble impe­rium, and others dominium.

It should be stressed that while many or most of these mechanisms are associated with political accountability and operate entirely in the political realm, some of them—most obviously, the ability to question or seek information—depend upon legal underpinnings (in the case of the UK, the idea of parliamentary privilege) for their unhindered operation. Of course, their efficacy in practice will be heavily influenced by political factors (for example, the role of party loyalty as a bar or encouragement to robust questioning), but the prior existence of an absence of legal restrictions on questioning is clearly crucial. The Westminster Parliament therefore illustrates the importance of understanding the close connections between the ‘purely’ political and legal dimensions when considering the construction and operation of relevant accountability relationships. In the rest of this section, the two dimensions will be considered in turn.

Turning first to the ‘purely’ political, Adam Tomkins has suggested that ‘Parliament has three main ways of holding the executive to account: debate, parlia­mentary questions, and Select Committees’.^[906] More specifically, Colin Scott argues that Parliament has ‘enhanced its capacity for holding ministers and officials to account through the development of Select Committee structures, in some cases linked to new oversight bodies such as the Parliamentary ombudsman and the National Audit Office’.^[907] However, when considering the abstract question of the roles of political and legal accountability, two more general points deserve empha­sis. The first is that, as clearly political accountability mechanisms, the success of Parliamentary debates, questions and Select Committees must depend both upon the political will of the politicians involved and on how widely the issues under scrutiny are publicized and analysed via the news media and in public debate more broadly.^[908] The second issue, to be highlighted here, is that while debate about the efficacy and desirability of political accountability mechanisms visibly involves the deployment of views about what was earlier described as the effectiveness of those mechanisms measured ‘by their own lights’, it also engages (even if only implicitly) arguments concerning the appropriate boundary between political and legal accountability.

Against this background, an obvious starting point is the constitutional convention of ministerial responsibility, which demarcates the relationship between the executive and the legislature—a relationship of fundamental constitutional importance—and was traditionally seen as a primary vehicle for promoting accountability of members of the executive to Parliament. Adam Tomkins, for example, has argued that it is a ‘political form’ of accountability which despite certain ‘fault lines’ remains central to our system of public law.^[909] However, the growth in size and complexity of gov­ernment departments in the post-Second World War period, coupled with the operation of a strong system of party discipline within the House of Commons, has long been thought to make it difficult for MPs to establish who was responsible for a decision and for Parliament collectively to hold that person to account.^[910] In addition, the widespread contracting out of functions once performed by central government, frequently using legal arrangements with strong confidentiality provisions, has more recently generated intense debate about the limits and effec­tiveness of ministerial responsibility as an accountability mechanism.^[911] In conse­quence, Colin Scott suggests that while ministerial responsibility may have been ‘central’ to the ‘concern’ of holding public actors accountable to the democratic will, ‘[t]he problem arises from an acknowledgement that traditional mechanisms of accountability within the British state are weak instruments for achieving these objectives’.^[912] Meanwhile, Harlow and Rawlings concede that nowadays, ‘[f]ew would wish to set sail in a barque as frail as that of ministerial responsibility’,^[913] and Elizabeth Fisher has suggested that it is old-fashioned to place this convention utterly centre-stage in relation to Parliament.^[914]

The formal position in relation to individual ministerial responsibility is now stated in printed form in the Ministerial Code, most recently reissued in 2010.^[915] The Code has its origins in (and incorporates the text of) Resolutions passed by both Houses of Parliament in 1997 following controversy initially triggered by the publication of the Scott Report.^[916] The Code asserts that ‘Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies’,^[917] and that it is ‘of paramount importance that Ministers give accurate and truthful information to Parliament’^[918] and be ‘as open as possible’ with it,⁶² with those who knowingly mislead Parliament being required to offer their resignation.

However, law enters the picture, alongside prevailing political mechanisms, in relation to civil servants and ministerial special advisers. The Constitutional Reform and Governance Act 2010 required the minister for the civil service to publish and lay before Parliament an official code governing civil servants and which was to form part of their (legally enforceable) terms and conditions of employment.^[919] An equivalent but more detailed set of requirements was required to be attached to special ministerial advisers.^[920] The resulting codes embody both political and legal dimensions. On the political side, the Civil Service Code specifies that ‘Civil servants are accountable to Ministers, who in turn are accountable to Parliament'^[921] and that civil servants must not ‘deceive or knowingly mislead Ministers, Parliament or others'.^[922] On the legal side, the Code reiterates the Act's statement that it forms part of the contractual relationship between the civil servant and their employer^[923] and notes that the statutory basis for the management of the civil service is contained within the Act.^[924] The Code of Conduct for Special Advisers in turn makes clear that such advisers are generally subject to the provisions of the Civil Service Code^[925] and that they must not ‘deceive or knowingly mislead Parliament'.^[926] Politically, responsibility for the management, conduct and discipline of advisers rests with the appointing minister and ultimately the Prime Minister,^[927] but the incorporation of relevant aspects of the Civil Service Code would appear to inject a (legally enforceable) contractual dimension.

What is clearly interesting here is the incorporation of a legal dimension, both generally via the 2010 Act and more specifically via the references to terms and conditions of employment, to the arrangements governing civil servants and spe­cial advisers, when the arrangements for ministerial responsibility to Parliament remain enforceable only in the political realm.⁷² The question clearly arises whether it is appropriate in constitutional terms for the accountability mechanism relating to ministers to be solely political, whereas the arrangements governing civil serv­ants and advisers possess a legal dimension. In practice, of course, this question is intimately associated with one's understanding of the separation of powers and the priority one affords to political as opposed to legal accountability mechanisms. In short, the answer one gives will depend on one's underlying constitutional theory. It is very likely that most constitutional theorists would not want the courts to become involved in enforcing ministerial accountability to Parliament (as it is currently explained in the Ministerial Code). Nonetheless, that viewpoint clearly requires the adoption of a position concerning the appropriate boundary between the legal and the political: in other words, about the relationship between them.

A similar point becomes obvious in relation to the role played by the legal concept of parliamentary privilege as a basis for the promotion of effective political accountability to Parliament, as well as the more debatable question of how far parliamentary privilege hampers the political accountability of elected legislators. As the European Court of Human Rights noted in A v United Kingdom, the Council of Europe and the European Union, alongside many individual European nations, extend certain privileges and immunities to members of their legislatures so as to enable the relevant representatives to fulfil their functions.^[928] Within the UK, parliamentary privilege plays an important, if double-edged, role in relation to accountability and the legislature.

The role of parliamentary privilege in promoting free expression within Parliament, and in turn the open questioning and criticism of decision-makers by the legislature, has been emphasized by both parliamentarians and the courts. On the parliamentary side, the Joint Committee on Parliamentary Privilege noted in its 1999 Report that ‘Freedom of speech is central to Parliament's role. Members must be able to speak and criticize without fear of penalty. This is fundamen­tal to the effective working of Parliament, and is achieved by the primary parliamen­tary privilege... guaranteed by [A] rticle 9'. ^[932] The Committee was clear that ‘The public interest in the freedom of speech' in parliamentary proceedings was ‘of a high order',^[933] and—in a clear tilt towards accountability—that it was ‘of utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticized. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament'.^[934]

On the judicial side, Lord Browne-Wilkinson stressed in Pepper v Hart that Art. 9 ‘ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech)'.^[935] His Lordship elaborated on this in Prebble v Television New Zealand, where it was noted that ‘the basic concept underlying [A]rticle 9' is ‘the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say'.^[936] In Chaytor, Lord Phillips PSC asserted that ‘the principal matter to which [A]rticle 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place',^[937] and entailed ‘freedom for Parliament to conduct its legislative and deliberative business without interfer­ence from the Crown or the Crown's judges'.^[938]. This is seemingly consistent with Lord Denman CJ's historic association of parliamentary privilege, in Stockdale v Hansard, with Parliament's role ‘as the grand inquest of the nation'.^[939]

A not dissimilar view appears to have been taken by the European Court of Human Rights in A v United Kingdom, where it was accepted that parliamentary privilege pursued legitimate aims, including the protection of freedom of expression,^[940] while not constituting a disproportionate restriction on the claimant's right of access to a court (the claimant, a private individual, had been the subject of disparaging remarks made by a Member of Parliament during a House of Commons debate).^[941] Drawing attention to the findings of the 1999 Joint Committee Report,^[942] the Court was clear that freedom of expression was especially important for an elected representative: ‘He or she represents the electorate, draws attention to their preoccupations and defends their interests. In a democracy, Parliament or such comparable bodies are the essential fora for political debate. Very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein'.^{[943] [944] The court also pointed out that MPs' absolute immunity from being sued for defamation for things stated during a House of Commons debate was designed to protect the interests of Parliament as a wholes81}

The importance for the promotion of political accountability of these expression-based accounts of parliamentary privilege becomes clear if we recall English law's somewhat chequered history when it comes to safeguarding free expression about public bodies and political actors.^[945] It was only in 1993 that the House of Lords accepted^[946]—after earlier lower-level decisions to the contrary^{[947] [948]—that elected public authorities did not have the right to sue for defamation, by contrast with private parties (a principle accepted rather earlier, in 1964, by the US Supreme Court in New York Times v Sullivan981). Later, in Reynolds v Times Newspapers, it was established that attempts by political figures to sue could in certain circumstances be defeated by a qualified privilege defence, the rationale again lying in the need to protect freedom of expression[949] : but even then it took courts further time to fully accept that the relevant defence needed to be interpreted in an expression-friendly, rather than unduly claimant-friendly, fashion.[950]}

The argument that free expression about political figures and institutions (and within those institutions) helps promote accountability and, in turn, democracy is well established. John Gardner, for example, points out that freedom of expression ‘is justified in part by the contribution it makes, when it is respected, to maintaining a free flow of information'.^[951] Freedom of expression is not just a right to engage in political analysis and debate: it also includes art, culture, work, recreation, educa­tion, and matters ranging from the avant-garde to the humdrum. Nonetheless, ‘the importance of democracy does lend extra weight to the right to freedom of expres­sion in some contexts', and democracy ‘can function adequately only if a good deal of information is freely available'.^[952] More broadly, Eric Barendt highlights the role played by the promotion of democracy as one of a number of justifications—albeit the ‘most easily understandable'^[953] and ‘most influential'^[954] of them—for protecting expression. As Barendt acknowledges, this justification is not uncontentious,^[955] but it seems clear that—in so far as the full accountability of decision-makers to an elected legislature is thought to play a central role in a properly-functioning democracy—freedom of expression within the legislature, as a crucial mechanism for facilitating the questioning of ministers and officials, plays an extremely important part in facilitating such accountability. The absence of potential legal liability in defamation allows—assuming the political will is present—for questioning and analysis at whatever intensity the unfettered demands of political accountability dictate.^[956] By removing the potential ‘chilling effect' of defamation liability, parlia­mentary privilege acts—as the findings of the European Court of Human Rights in A v United Kingdom imply—as a crucial guarantor of the accountability to Parliament of institutions (and powerful individuals) in a way which is central to facilitating the effective working of a constitutional democracy. As Lord Bingham noted in Buchanan v Jennings, ‘in... liberal democracies, a very high value is attached to freedom of speech and expression as the necessary condition of good government'.^[957] In Carol Harlow's words, ‘Accountability and representative government go together'.^[958]

The second and seemingly broader basis for determining the ambit of parliamentary privilege is the idea of Parliament's ‘exclusive cognizance'. This was an area in which, according to Lord Phillips in Chaytor, the courts have accepted that ‘any issues should be left to be resolved by Parliament rather than determined judicially'.^[959] Perhaps more broadly, Lord Rodger suggested that it concerned matters within Parliament which are ‘core activities of members of the House which the privilege of exclusive cognizance exists to protect—their right, for example, to speak, to vote, to give notice of a motion, to present a petition, to serve on a committee, and to present a report to the House', something he summarized as ‘legislative or deliberative processes'.^[960] The Supreme Court was clear that, historically, inroads had been made into areas that had previously fallen within Parliament's exclusive competence, that the courts had jurisdiction to try crimes committed within Parliament, and that the prosecution of parliamentarians for allegedly dishonest expenses claims related to an area of administrative activity and did not touch on the essential business of Parliament.^[961]

In earlier cases, factors associated with this second basis have been evident, some­times associated with Parliament’s specific status as an institution or with more general separation of powers concerns. For example, in Bradlaugh v Gossett, Lord Coleridge CJ invoked the ‘great dignity’ of the House of Commons^[962]—seemingly, concern for its collective status as opposed to concerns for the promotion of account­ability—to stipulate that ‘What is said or done within the walls of Parliament cannot be inquired into in a court of law’,^[963] and in justifying this conclusion, Stephen J drew attention to the ‘disrespectful’ nature of any potential judicial declaration that a resolution of the House of Commons was beyond the powers of the House.^[964] Meanwhile, both judges referred to the seemingly status-associated problem that, were the courts to become involved in determining the legality of the internal proceedings of the House of Commons, the Judicial Committee of the House of Lords—then the highest court in the land—might ultimately be drawn into the matter, leading to one Chamber determining the privileges of the other.^[965] Respect for the separation of powers was in turn emphasized in British Railways Board v Pickin, with Lord Simon stating that ‘Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other’^[966] and Lord Wilberforce stressing the constitutional undesirability of the courts inquiring into the procedures followed within Parliament when it was legislating.^[967] In Buchanan vJennings, Lord Bingham asserted that ‘It is... an important principle that the legislature and the courts should not intrude into the spheres reserved to another’,^[968] and in A v United Kingdom, the European Court of Human Rights identified as a legitimate aim of parliamentary privilege the maintenance of the separation of powers between Parliament and the judiciary.¹¹⁴

Nonetheless—and admittedly less visibly than is the case with freedom of expres- sion—the second basis for parliamentary privilege can clearly be associated with a concern to promote accountability. At first sight, the 1999 Joint Committee on Parliamentary Privilege Report was concerned only with the status of the legislature when stating that: ‘The legislature and the judiciary are, in their respective spheres, estates of the realm of equal status... Parliamentary privilege is founded on the principle that the proper conduct of parliamentary business without fear or favour, let or hindrance, requires that Parliament shall be answerable for the conduct of its affairs to the public as a whole... It must be free from, and protected from, outside intervention'.^[969] However, the Report's reference to answerability to the public clearly suggests a direct association between legislators' political freedom and accountability. This also seems evident in the Report's concern that the sole justi­fication for parliamentary privilege lay in enabling ‘the two Houses of Parliament and their members and officers... to carry out their parliamentary functions effec­tively',^[970] and in its assertion that without parliamentary privilege ‘members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished'.^[971]

The implications of the second basis for parliamentary privilege for the promotion of effective political accountability can be categorized in two more specific ways. The first concerns accountability to the legislature. While the reasoning in Bradlaugh seems to have been entirely associated with status-related factors,^[972] the decision nonetheless had important implications for the ability of the legislature to hold ministers and other decision-makers to account, given the Lord Chief Justice's ruling that nothing said within Parliament could be questioned in a court— thereby spelling out in absolute terms Members' immunity in relation to defamation liability for questions asked or points raised within the chamber. It is also interest­ing that the European Court of Human Rights stressed in A v United Kingdom that most, if not all, Convention signatory states had some form of immunity for members of their national legislatures.^[973] It can surely be no coincidence that legislative privilege is widely safeguarded—even in jurisdictions like the US with far stronger traditions of constitutionally-protected speech than that found in the UK. As Tomkins notes, ‘Parliamentary privileges enable the Houses of Parliament to undertake their constitutional functions without interference from the Crown or from the courts'.^[974] In the UK, such privileges include (apart from freedom of expression) freedom from civil arrest, the right of Parliament to regulate its own composition and procedures, and Parliament's right to enforce its privileges: but the implications of Tomkins' assertion—that the privilege for legislatures and/or their members enables such institutions effectively to carry out their business—are surely clear in relation to accountability, at least provided that we have faith in legislators to use their legally unique position to hold government to account.

Secondly, though, factors associated with the second basis may have implications for the accountability of the legislature. The expenses scandal which lay behind the litigation in Chaytor was but one of a series of episodes which have raised questions in the public mind about the dedication and good faith of legislators. ^[975] Ian Loveland has thus drawn attention to what he categorizes as Parliament’s unwillingness to accept full public scrutiny of the finances and ethical standards of its members, its inad­equate political mechanisms for self-regulation, and some of its members’ attacks on those who have shown ‘contempt’ by asking unduly serious questions in the public realm.^[976] From this standpoint, it might be suggested that ethically improper behaviour by parliamentarians results from an environment in which status-related factors are assumed to entitle them to special consideration. Furthermore, Loveland appears to imply that if, as a conceptual matter, accountability demands an ele­ment which is independent of the subject under scrutiny, a mechanism genuinely independent of Parliament—perhaps involving the courts—might be the best way to secure the accountability of individual legislators, at least where accusations of malfeasance are levelled.^[977] The expenses scandal might thus be thought to high­light the need for more robust political scrutiny of individual legislators, and/or the dilution of Parliamentary privilege so as to allow for legal regulation. It should be noted, however, that such developments might also involve a cost in account­ability terms if the ability of parliamentarians to question decision-makers was in any way undermined by granting courts a greater role in assessing the legality of Parliamentary proceedings.

It is against this background that the emergence of independent regulators of legislators’ conduct is relevant. As Patricia Leopold notes, until 2009 ‘enforcement procedures were internal to the House’, implemented by the Parliamentary Commissioner for Standards, the House of Commons Committee on Standards and Privileges, and potentially the full House of Commons.^[978] The relevant procedures, contained in a Code of Conduct, applied generally to the public conduct of MPs, but with particular reference to financial matters.¹²⁵ This form of accountability was thus political. However, the Parliamentary Standards Act 2009, as amended by the Constitutional Reform and Governance Act 2010, created the Independent Parliamentary Standards Authority to determine and pay MPs’ allowances and salaries. While the 2009 Act contemplated the possibility of legal intervention in some cases given that it created the criminal offence of providing false or misleading information as part of a claim for allowances, ¹²⁶ in practice the determination of official payments to MPs remains with the Authority and the statutory Compliance Officer. As a practical matter, though, accountability for the financial matters concerned may be thought to have shifted (or begun to shift)

from the political to the independent regulatory arena. Nonetheless, it is perhaps also significant that section 1 of the 2009 Act stipulates that none of its contents (as amended in 2010) ‘shall be construed by any court... as affecting' Art.9 of the Bill of Rights. As such, the legal interpretation given to the ambit of privilege in Chaytor would now appear to serve as the key guide to the width of application of the regulatory accountability regime administered by the Authority.

It might be asked what this analysis of parliamentary privilege can tell us about our more general understanding of and approach to political and legal accountability. Two points are of particular importance. First, the material seemingly underscores the argument that the context in which we deem it appropriate to use one form of accountability rather than another—most obviously, here, legal rather than politi­cal—rests in part on our normative stance (red-light, green-light, etc.) but also partly on some of the more neutral criteria discussed in section A: for example, on our definition of accountability as a device. Secondly, while legal issues underpin the efficacy of political accountability—hence the need to examine parliamentary privilege at length—political factors also directly affect the practical willingness of actors to make such accountability effective, as Loveland's critical scrutiny (whether or not one accepts his conclusions) perhaps suggests. The direct connections between the legal and political components of the accountability regime which operates in relation to the Westminster Parliament thus become visible. In narrow legal terms, legislators are free to question, debate and scrutinize as they choose only because of the immunity from being sued provided by parliamentary privilege. However, the practical importance of that freedom very much depends upon their good faith and the strength of their political will.

An obvious consequence flows from the material considered in this section: however strong one's normative convictions about the priority of legal over political accountability mechanisms (or vice versa), in practice it seems difficult to contemplate— at least in relation to the Westminster Parliament—the complete detachment of the political mechanisms for promoting government accountability from relevant legal underpinnings. It becomes easier, this being so, to analyse situations in which legal and political accountability mechanisms are more visibly connected in terms of the ‘dialogue' approach highlighted earlier. This issue will be considered, in relation to national security measures, in the next section.

C.