Accountability in a ‘multi-layered’ constitution
This section considers the general issue of constitutional accountability from the standpoint of sub-national governance. As we survey the manner in which devolution was set up it will become apparent that, despite establishing improved accountability mechanisms at devolved level, certain features of devolution have undermined particular aspects of constitutional accountability.
There is an assumption that, to provide accountability, most codified constitutions adopt a template that also sets out different types of checks and balances including a definition of the respective positions of national and sub-national government, but notions of accountability under the uncodified UK constitution have evolved with the constitution itself. Since the introduction of universal suffrage there has been political accountability in that governments are elected at regular intervals of at least every 5 years. The so-called Westminster model version of the constitution was roughly based on the assumption that all public administration is ultimately handled by ministers who are, in turn, answerable to Parliament under the doctrine of individual ministerial responsibility.[1102] While there has been a debate over the degree of effectiveness of ministerial responsibility[1103], for many commentators the ability of the party machine at Westminster managed by the party whips to dominate Parliament meant that the Whitehall model of executive dominance, or what Lord Hailsham termed ‘elective dictatorship', transcended the Westminster model.[1104] In effect, this approach suggested that the roles of Parliament as a site for debate and for calling government to account have been marginalized because the government is able to use its support to get its way, not only over legislation, but whenever Parliament divides and votes on controversial policy matters.As part of this analysis we can see that the mechanisms for accountability must under current constitutional arrangements (post 1999) be considered as a feature of an increasingly multi-layered constitution where the exercise of power has been redistributed both upwards and downwards.[1105] But the change has not been under a formal written constitution or a more traditional federal system. This multi-layering means that there are not only additional levels of government, but as part of the contracting state an increasing number of inter-related strands responsible for the exercise of power. These additional layers of government have impacted on the way accountability mechanisms operate in the sense that the strands have become more complex and the layers are uneven or frequently overlap in ways that may not have been fully anticipated.[1106] For instance, the ‘West Lothian Question' provides an obvious manifestation of the accountability gap precipitated by the asymmetry of devolution. Scotland, Wales and Northern Ireland each have a distinctive form of devolution based on a new form of elected government, but England lacks an equivalent level of government which might have been provided under a symmetrical federal system. One of the incidental effects of the devolution legislation is that English MPs no longer have the right to vote on the policy areas that have been devolved, but Westminster MPs returned from constituencies in Scotland, Wales and Northern Ireland have retained the right to vote on legislation coming before the Westminster Parliament about England.8 It will be immediately apparent that the role of the Westminster Parliament as a representative body for Scotland, Wales and Northern Ireland has been modified since the introduction of devolution.9
In the absence of a codified constitution, the original devolution statutes established revised terms of reference under which accountability issues might be considered by redefining the formal boundaries of power.10 Indeed, the form of democratic accountability under a devolved system can be justified for obvious practical reasons.
Hopkins maintains that this outcome is because ‘the issues of concern in specific localities, particularly in the peripheral and less populous territories, will be less prominent. This leads to a government that is responsive only to certain issues and specific territorial concerns. Although national issues are important, specific regional concerns and those of the periphery must be addressed if the government is to represent the whole electorate.'11A constitutional framework for each of the home nations apart from England is established to confer powers on a new set of institutions. In each case the core concept of sovereignty is preserved.12 The Scottish Parliament and the Assemblies in Cardiff and Belfast are based on creating variants of a democratic model of accountability with a different electoral cycle from the Westminster Parliament. After an election in Scotland and Wales the new legislature13 votes for a first minister who appoints a cabinet forming the devolved government which is formally answerable to the elected legislature.14 Northern Ireland differs in that there must be a multi-party executive chosen on the basis of the ‘d'Hondt Formula' to ensure power-sharing between the communities, with the first minister and deputy first incorrect and points to other asymmetries that have been accepted including the unequal distribution of parliamentary seats. See F Mount The British Constitution Now (London:Mandarin, 1993),199.
8 V Bogdanor, ‘The West Lothian Question' Parliamentary Affairs, Vol 63, No 1, 2010, 156—72.
9 The Conservative-Liberal Democrat agreement reached after the 2010 general election included a commitment to establish a commission to consider how the West Lothian question might be addressed. See V Bogdanor The Coalition and the Constitution (Oxford: Hart Publishing 2011).
10 See Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998.
11 J Hopkins Devolution in Context: Regional, Federal and Devolved Government in the European Union (London:Cavendish, 2002),32.
12 Scotland Act 1998, ss 29, 31 and 32.
13 Wales was at first granted a form of only executive devolution under the Government of Wales Act 1998. However, following a referendum held in March 2011 under the Government Wales Act 2006, the Assembly gained law-making powers roughly equivalent to those enjoyed by the Scottish Parliament and the Northern Ireland Assembly. See P Leyland The Constitution of the United Kingdom: A Contextual Analysis (2nd edn, Oxford:Hart Publishing, 2012), 254ff.
14 N Burrows Devolution (London:Sweet and Maxwell, 2000),82ff. minister and the other ministerial portfolios allocated accordingly.[1107] The basic UK constitutional convention making the government accountable to Parliament is not exactly replicated under devolution.[1108] This change is because all three elected bodies serve for a fixed term of office, but in each case there are statutory limits to these law-making powers.[1109] If the executive lose a no-confidence motion, although the First Minister and other ministerial office-holders might be expected to resign, an executive of some kind is still expected to emerge and gain the confidence of the elected body.[1110] At Westminster, the spectre of a no-confidence motion puts the party whips in a powerful position in securing electoral support for government measures. The fact that the executive will not necessarily fall potentially allows more scope for individual members who are dissatisfied with any proposal to vote against the ruling devolved government with relative impunity. Notwithstanding this emphasis on establishing democratically-accountable institutions, devolution was distinctive for not fundamentally modifying the formal position on the funding allocated to devolved government from central government.
The block-grant provision under the Barnett Formula was retained, but the Scottish Parliament was granted additional revenue-raising powers as essentially a top-up provision.[1111]In shaping the Parliaments and Assemblies, access and participation have been encouraged and they have been assisted by active citizen engagement in policy-making[1112] through more systematic consultation and involvement with the routine publication of draft bills and in the current information age by websites which also help facilitate more effective consultation. While the Westminster system has been criticized because individuals and organizations found it difficult to inform and influence the policy-making process before the introduction of legislation,[1113] in Scotland, more attention has been placed on the pre-parliamentary stage of introducing a bill to encourage increased accessibility and participation in the law-making process: ‘The emphasis on public engagement has resulted in much more detailed scrutiny of proposals at the pre-legislative stage and stage one of the legislative process... This has allowed much greater public involvement than exists at Westminster.'[1114] Before the introduction of a measure a minister may be required to advise the relevant committee of his/her proposals and the committee monitors the consultation exercise. It may also take its own evidence at this preliminary stage. At the same time as the devolution legislation was being introduced, the Westminster government reacted by moving towards a two-year legislative programme in Parliament with the publication of several draft bills.[1115]
Devolution provides a new approach to executive oversight at the devolved level. A good illustration is the transformation of the role of the committees undertaking the routine work of the Scottish Parliament and the Assemblies in Wales and Northern Ireland. The so-called ‘subject committees’ corresponding to the main policy areas perform the function of executive oversight, as well as having responsibility for scrutinizing legislation.[1116] Some commentators maintain that these relatively expert committees, exercising this dual function, represent an improvement on the approach adopted at Westminster where the task is divided between ad hoc public-bill committees and more specialized Departmental Select Committees.[1117] In Wales ‘Subject committees should have a significant role in reviewing the effectiveness of policies and in developing new policies.
They should scrutinise the performance of non-departmental public bodies and other bodies funded by the Assembly, reporting to the full Assembly on that performance from time to time.’[1118] Rawlings notes that through ‘... inclusiveness and partnership working, these committees offered an alternative and more transparent conduit for external inputs— evidence-taking, public consultation etc’.[1119] Oversight of the executive is further assisted by an enhanced culture of openness through freedom of information laws with a lower threshold for insisting on disclosure in Scotland than is included for England and Wales under the Freedom of Information Act of 2000 (FOI).[1120]Devolution operates at a formal level but also relies on less formal soft law to coordinate the process of inter-governmental relations post-devolution which are dealt with by series of mainly bilateral, but also multilateral, concordats.[1121] These are agreements between Westminster and the governments in Edinburgh, Cardiff and Belfast. The respective statutes merely provide an outline which has been sketched out in varying degrees of detail to describe each of the respective systems of devolved government, featuring the main institutions and the disparate powers conferred on each administration[1122]. The concordats amount to a form of codification of the processes of government which have been drawn up as the principal mechanism for policy coordination between central and devolved government and as such they arguably go beyond other similar systems.[1123] In particular, these agreements seek to determine how issues of policy overlap between the tiers of government are to be approached and how any disputes which arise are to be resolved without resort to litigation. There is provision for a Joint Ministerial Committee (JMC) to act as the final arbiter for disputes. In regard to this discussion it is important to mention that disputed issues of financial allocation between central and devolved tiers of government can be resolved through these mechanisms. The task of coordination under the concordats is acted out by officials from central government, from the devolved administrations and occasionally politicians (in the case of the JMC on an irregular basis with representatives from the Westminster government and devolved governments) behind closed doors, often in Whitehall. This feature is viewed as a design flaw which undermines accountability. Professor Rawlings stresses that ‘Characterized by a lack of transparency, machinery like the JMC constitutes a “black hole” at the heart of the emergent artchitecture of the Union state'. Moreover, these inter-governmental concordats are not subject to regular scrutiny by the Departmental Select Committees of the Westminster Parliament or by the subject committees at devolved level.[1124]
In what is yet another example of multi-layering, the responsibility for auditing the spending of the Scottish Government and the executives in Wales and Northern Ireland has been placed in the hands of devolved auditing bodies. The Scotland Act 1998 requires the Scottish Parliament to establish effective scrutiny and audit arrangements with an Auditor General for Scotland and the requirement that Scottish Ministers prepare proper accounts with the standing orders providing for the consideration by the Parliament of accounts and reports.33 There is explicit provision for audit, but at the same time reference to cross-border authorities with the intention of avoiding dual accounting. Assistant Auditor General, Russell Frith, said: ‘The NFI (National Fraud Initiative) is a prime example of how the audit process can make a measurable difference for public bodies and the citizens they serve. While there are significant financial results from this exercise, it can also have a major impact in reducing fraud and error, and providing assurance to the public.... [These results suggest] previous NFIs have identified the most significant frauds and errors; the NFI is acting as a deterrent; and public bodies are improving their systems.'[1125] The NFI in Scotland is similar to exercises undertaken elsewhere in the UK. Accounting and auditing standards are not required where already imposed by other legislation. There are equivalent provisions for Wales[1126] and Northern Ireland.[1127] In Wales ‘[t]he work of the Audit Committee is especially noteworthy since it illustrates the official purpose in Welsh devolution of securing greater accountability. The model effectively involves patrialization of Westminster-type arrangements, which in turn allows for a sharper and more regular form of financial scrutiny in the conditions of small-country governance.'[1128] It seeks to ensure the highest standards of management in financial affairs through checks on probity and value-for-money audits. Rawlings argues that ‘the Audit Committee is another fine example of the interplay of the twin elements of continuity and change in the devolutionary development'.[1129]
Finally, the courts have been granted a role in policing the boundaries of devolution, but to date the judicial contribution dealing with ‘devolution issues' has been of limited significance for intergovernmental disputes.[1130] Nevertheless, in the recent Axa Case40 the UK Supreme Court considered the status of legislation at the devolved level. The case amounted to a challenge to the legislative competence of the Scottish Parliament. Some insurance companies sought to test the validity of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 which allowed victims of asbestos-related conditions to pursue actions for personal injury in the Scottish courts. The lawfulness and legitimate aim of this statute was challenged. On final appeal the Supreme Court acknowledged that insurance companies were victims and that the possessions of the insurance companies were interfered with by the Act, but the attempt to challenge the lawfulness and legitimate aim of the statute was rejected. In Lord Hope's view, the function of a modern legislature in eliminating what it perceived as an injustice had a reasonable foundation. It had been argued that it was simply disproportionate to expect the insurance industry to bear what it believed to be an excessive and unfair burden of compensation, but it was recognized by the court that there were limiting factors implicit in the legislation which mitigated the effect: namely, that exposure to compensation arose only if the employer's negligence were established and defences were available.
The challenge on common law grounds also failed. The Supreme Court had to consider whether in principle irrationality was available as a ground for reviewing legislation at the devolved level. The assumption was that an Act of the Scottish Parliament was so unreasonable that no reasonable Parliament would enact it. It was held that legislative decisions that were made on political grounds could not be challenged on grounds of rationality, but at the same time it was recognized that some sort of final judicial safeguard should be available. While judges should not be able to substitute their views on such issues, the Scottish Parliament should not be regarded as totally immune from challenge. The courts should be able to intervene in exceptional circumstances. If a Scottish government were to use its legislative power to abolish the right to judicial review or to diminish the role of the courts in protecting the interests of the individual, in principle the courts would be capable of intervening.
In this section we have seen that devolution creates an institutional framework of democratically elected government at sub-national level with its own accountability mechanisms, while also establishing a modified interface between central government and the devolved administrations. Although the respective devolution statutes place legal limits on devolved powers with ultimate resort to the courts, in practice, there has been a strong preference for the use of soft law methods such as concordats to achieve policy coordination and to resolve disputes between central and devolved government.
C.