#3582 - Good Governance And Political Accountability - Constitutional Law

GOOD GOVERNANCE

• Good governance is necessary in order that people accept the legitimacy and power of the government.

• The term is disputed – set of core principles but specifics are argued over.

• Good governance principles are hidden in more complex constitutional principles e.g. in separation of powers is the idea that politicians should not influence the judiciary. We subscribe to the principles.

• Are the mechanisms we have in place adequate for upholding good governance principles?

What is good governance?

• Five requirements identified: good people, good process, good accountability, good performance and good standards. These are off categories but will be widely discussed below.

Governing in the public interest:

• The government should make decisions that advance the public good. Remember that the government have no private interests and may not have any such interests.

• There is, of course, debate over what is the public good and different governments will have different conceptions of it. Some basic things can be widely agreed on: government services should be obtained in a manner that represents value for money.

Governing transparently:

• The government must govern transparently. This is done through a variety of mechanisms, including the Freedom of Information Act 2000.

• Includes other basic ideas like decision makers giving reasons for their decisions.

Respecting the dignity, rights and interests of others:

• Idea anchored in the rule of law. It includes transparency but is much more.

• Procedural fairness when making decisions that affect individuals. Enforceable through judicial review where there is a breach.

• Human rights under HRA ’98.

Governing competently:

• Ministers must direct officials working in their department, who the public are far more likely to come into contact with, uphold the general principles of good governance.

• People who work for the departments should know the policies and be able to convey them to members of the public who require guidance.

• This principle also requires ombudsman and tribunal systems to be built into the general system, recognising that at times there will be manifestations of incompetence that need to be dealt with.

• Various scandals recently have raised the profile of good governance: MPs expenses, cash for questions, cash for peerages etc.

• If citizens want to achieve collective goals e.g. freedom of speech etc., then in a modern world we need to confer more power on the government to facilitate this. It may seem counterintuitive but is necessary.

Accountability

• Those in public office often fall short of expected standards and need to be held to account.

• Mulgan describes accountability as “a method of keeping the public informed and the powerful in check.”

• Bovens discusses the “problem of many eyes: they are accountable to a plethora of different forums, all of which apply a different set of criteria”

• Many people exercise accountability: the public, Parliament, the courts, an ombudsman etc. There is no single mechanism of accountability.

• Political accountability and legal accountability are two key strands. Thirdly there is administrative accountability, which is concerned with achieving policy goals in an effective manner.

Political accountability:

• Political accountability is to both Parliament and the public. This reflects the fact that power is taken to reside in the people in a democracy. The public hold decision makers directly to account through elections, and their representative take the form of MPs at other times.

• Because elections are only ever 5 years or so, the influence of voters is intermittent rather than continuous, so we rely on Parliament to scrutinise at other times.

• The doctrine of ministerial responsibility allows Parliament to hold government ministers accountable. Ministers must provide an account of their action in various ways. The departmental select committees are designed to scrutinise work of the government. They consist of a selection of cross-party MPs. They produce reports which are sometimes highly critical.

• There may be public inquiries where there is a matter of grave public concern.

• Are they effective? Parliament’s criticism is not binding on government. Furthermore, Parliament is made up of a majority of the party in government, so is unlikely to succeed in voting down a government provision. There is a need for Parliament to better scrutinise the government but it is unclear how this can be accommodated in the constitution.

Legal accountability:

• Central to the rule of law – the government is not above the law.

• Individuals can generally do anything that is not unlawful, but the government can only do what it is legally authorised to do.

• Unlawful acts can be struck down in judicial review processes.

• In order to balance the power the government has in people’s lives, those people have the right to hold decision makers to account in court.

• Nowadays many claims are made under the provisions of the HRA ’98.

• Note that a court can only do this if they have the matter referred to them – they cannot make it their own business. They also can only rule on legality, not whether a decision is right or wrong – given the nature of our constitution, this limits power because it is difficult to know what is ‘constitutional’, as opposed, for example, to the United States.

• Tribunals handle more cases than courts but produce the same result. The main difference is that they can substitute their own decisions, whereas courts can merely overrule government decisions but offer no direct redress.

Administrative accountability and audit

• Ensuring that government gets the job done.

• In a way it operates internally within government.

• A good example of these is public service agreements, which set targets for departments that need to be met.

• There are also independent bodies that carry out scrutiny in this manner, including the National Audit Office and Audit Commission, overseeing public spending etc. These are good because they are non-political, non-partisan.

• Ombudsmen investigate complaints made my individuals about maladministration.

• The opinions of these experts speak volume and when there is condemnation there can be great political debate. But they do not have the necessary legally power to enforce their decisions and opinions. Usually, however, the government acts upon their decision. There will often be an investigation by a select committee where there is refusal to obey an ombudsman or agency’s decision.

• Perhaps this highlights the way in which the judiciary is seen as the enemy of the government, while they are willing to work with these organisations.

PARLIAMENTARY SCRUTINY OF GOVERNMENT

• It is one of the functions of Parliament to scrutinise the work and decisions of the government. That is the concern of this section.

Parliamentary control and government

Political Accountability:

• There is tension between governing and scrutinising – while there is a need to have people govern, there is also a need to scrutinise their actions. Scrutiny makes governing more difficult, but it is also a prerequisite for legitimate government.

• This is necessary to ensure democratic control. It also allows decision makers to explain and justify their actions and policies. This results in better thought out policy overall.

• It can be difficult for either government or scrutiny to each be effective, because they require a balancing act to be done.

Political accountability in the UK

• Done primarily by Parliament

• Already it has been established that the actual scrutiny of bills is limited, because the government has a majority in Parliament etc.

• Note that there is much concern that the legislature does not sufficiently scrutinise the executive in the UK, again largely due to the domination of the political scene by the government.

• There has been a growing sense of separation between the Commons and the public and less faith in politicians, especially after things like the MPs expenses scandal. The public are becoming disengaged with politics.

• Scrutiny occurs in the form of oral and written questions to ministers, parliamentary debates and inquiries by select committees.

Parliament and government

Roles and responsibilities:

• Many argue that the UK political dynamic is an ‘elective dictatorship’, where government can force anything they want through, but really this is a fundamental part of the UK constitution because the government needs to govern.

• Parliament is neither intended nor equipped to govern. Government is done through Parliament.

• The constitutional setup of the UK recognises that the government is in control, but uses Parliament as a forum to hold political debates.

The nature of parliamentary control of government:

• Crick: Parliamentary control consists of: “means influence, not direct power; advice, not command; criticism, not obstruction; scrutiny, not initiation; and publicity, not secrecy”.

• Parliament, in its scrutiny, might be able to win some concessions but ultimately the government will do what it wants. The relationship is partially one of reaching compromise.

• The ability of Parliament to influence government will depend on the strength of the majority in Parliament, because a lesser majority allowed greater threat to success of government objectives.

• NOTE: a confidence motion is the only way that Parliament can directly hold members of government to account. They can throw out a government. The new fixed term parliament agreement means that there would be 14 days to form a new government on losing a vote of confidence, whereas...