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Scrutiny of the Executive

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Richard Glancey

on 13 October 2010

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Transcript of Scrutiny of the Executive

Scrutiny of
the Executive by Parliament QUESTIONS DEBATES SELECT COMMITTEES 3 main mechanisms Oral questions Written questions PMQs Individual ministerial responsibility Collective responsibility Hierarchy of Government Department Secretary of State Junior Minister Private secretary Permanent secretary Special advisors Next Step Agencies Ministerial Responsibility examples Crichel Down In 1954 725 acres of land in Dorset compulsorily acquired by the Air Ministry so it could be used as a bombing range Post WWII land transferred to Ministry of Agriculture who decided to lease the land as a farm. The department in charge of the estate was the Agriculture Land Commission. A large part of the land had belonged (prior to the compulsory purchase) to the Crichel Estate which was owned by Mrs Marten Mr Marten wanted to reclaim the land. He wrote to the Commission in 1950, and again in 1952, asking to buy the land back the Commission would not sell the land back to Mr Marten as they thought they were not able to do so Mr Marten approached his MP. His MP approached the Parliamentary Secretary to the Minister of Agriculture. The Minister asked for a report to be prepared by the Commission. The person charged with drafting the report was told that he must not speak to the former owners of the land as his report had to be confidential. The report turned out to be error strewn and the Ministry failed to check it. The final decision was to maintain the status quo and continue leasing the land. Once informed of this decision in 1953 Mr Marten requested to lease the whole of the land. The Ministry had already made alternative arrangements though. Mr. Marten therefore asked for a public inquiry into the matter. This inquiry found out about the way in which the report had been compiled, and found evidence of bad will towards Mr.Marten. The Minister in charge of the Department, Thomas Dugdale, accepted responsibility and resigned. the House of Commons HM's Government Backbenchers HM's Loyal Opposition Minority political parties Mondays to Thursdays Ministers from different departments take it in turns on a rota system to answer questions from MPs Ministers have notice of the first question, but then supplemental questions are asked which the minister has not received notice of Adjournment debates Early day motions Emergency debates Powers and function Different types Membership Committee Reports Legislative debates Opposition days Response to the Queen's speech House of Lords' debates 'Profumo' affair http://www.youtube.com/watch?v=ngMs_4I1__o http://www.youtube.com/watch?v=NpVycRpa2L8 Note the role of the Speaker Note what subject matters are not allowed The 2002-2003 session saw some changes introduced which included:
A limit of 5 written questions may be put to a Minister per day

Oral questions permitted to be put to Junior Ministers in the chamber of Westminster Hall

Cross-cutting questions permitted in Westminster Hall Ability of Minister to evade answering questions by saying they 'Will Write' to the MP who asked the question Party politics - used as an opportunity to attack the government rather than as a useful form of scrutiny 30 mins every Wednesday (used to be 15 mins Tues and Thurs) Always the same question - the PM is asked to list his engagements for the day Pros of question time Cons of question time Lack of notice for supplemental questions. PM and Ministers have to think on their feet and demonstrate they are fully aware of and up to date with the workings of the government or their department Answers to questions can be refused on the ground that it would be too expensive to respond Erskine May said 'The purpose of a question is to obtain information or to press for action'. Questions should 'relate to the public affairs with which they are officially connected , to proceedings pending in Parliament or to matters of administration for which they are responsible'. It is up to each individual Minister if, and how, they respond to questions Answers can be refused on the ground that it would be contrary to the public interest to give an answer Erskine May said 'An answer to a question cannot be insisted upon, if the answer be refused by a Minister'. It has been described as the prime method for enforcing the individual responsibility of Ministers Adversarial in nature About 80,000 questions are asked per session A MP who wants to ask a question must give
notice of it. They must give at least 3 days notice.
They do this by 'tabling' their question at the Table

It is the clerks' duty to ensure that the questions are in 'order'.

A ballot decides which questions are asked.

There are limits upon how many questions are asked depending upon how long the Minister is 'in the box'. Questions can be deemed out of order if they (amongst others):

- do not relate to the Minister's powers

- refer to the reputation or role of the Monarch

- involve matters that are currently being considered
by a select committee, or are currently being
debated on the floor of the house

- have already been asked in the last 3 months Answers can be refused if there is a claim they involve confidentiality in some way, for example of Cabinet discussions. Answers can be refused if answering them could jeopardise national security Answers can be refused if they merely ask about the personal life of the Minister

There is very little time availble for questions (50-60 mins 4 times per week). This limits opportunities and the ability for in depth scrutiny in one sitting.

The existence of 'planted' questions

Article 9 Bill of Rights It is an opportunity for the government to be held responsible for its actions and decisions by being under an obligation to answer to Parliament

It provides an opportunity for MPs not belonging to the Government to raise issues of their concern http://www.parliament.uk/parliamentary_publications_and_archives/factsheets/p01.cfm http://www.parliament.uk/parliamentary_publications_and_archives/factsheets/p02.cfm http://www.parliament.uk/parliamentary_publications_and_archives/factsheets/p03.cfm http://www.parliament.uk/parliamentary_publications_and_archives/factsheets.cfm Questions to Ministers tabled in Parliament can be requested to be answered either orally or in writing

Those asked for an oral answer which do not get answered orally will receive a written reply which is published in Hansard (Official Report)

Large volume of questions asked. 2005/06 session = 95,041, 2006/07 session = 57, 825 It provides an opportunity for non-governmental members to publicise the failings of the government Topics for debate chosen by opposition.

20 days per session (17 for leading opposition, 3 for next largest opposition) Topics for debate chosen by opposition. May last for 5-6 days. Take place at the end of each day, once the business of the day has been concluded.

Topics chosen by backbench MPs and balloted for. They can be upon any subject matter.

The MP who is chosen is allowed to speak for 15 minutes and the relevant Minister has 15 minutes to respond. Pros of Debates Cons of Debates Ministers are obliged to justify and explain the policy of their departments/government policy

They allow the opposition to attack the decisions/policies of the government

They provide a mechanism for a variety of views to be displayed and publicised, helping to give a balance to the way the government operates

Disgruntled members can make their views known

They provide a mechanism for local/constituent based concerns/views to be displayed The Government sets the timetable for Parliament, so they decide what gets heard when

There is limited time for any meaningful debates to take place

Frontbench MPs tend to dominate proceedings and backbenchers wishing to be heard struggle

Do they actually have any impact upon the operation of government?

Whips ensure that the party line is towed

Government with a large majority is dominant

Many debates are poorly attended

Party politics play a large role as in Question time

Adversarial as in Question time John Profumo was the Minister of Defence in 1963. He had a sexual relationship with Christine Keeler, who was a prostitute. She had connections with the Russian intelligence services.

When this affair became known Mr Profumo was questioned about it in the Commons, and he lied.

When it was later known that he lied to the Commons he resigned.

The matter led to a judicial inquiry by Lord Denning. Cecil Parkinson Cecil was the Secretary of State for Trade and Industry in 1983.

He was alleged to have had a sexual relationship with his secretary, Sarah Keays.

As he was popular with the PM, she defended him as did others around him.

Sarah Keays revealed all to the newspapers which led to his resignation. If you are caught doing something disreputable then you should resign, as it brings criticism towards
the party. If you are a member of the government then it would potentially result in the public being
so disgraced that they would lose confidence in the government. The Nolan Committee Produced the Nolan Report in 1995 which looked into the public confidence in MPs. They looked at the standards that should be met with regards to exercising a public function.

The report stated that there was a difference between the issue of financial probity of MPs and sexual conduct. (2 of the main areas of concern/potential problems). The Scott Report A report by Sir Richard Scott in 1996 which came about as a result of the arms to Iraq concerns.

The Matrix Churchill company exported tools to Iraq in the period 1987-89.

Customs and Excise believed that the exports were illegal. The company said not and that the government had backed the deals.

When legal proceedings started againt the company 4 government ministers signed Public Interest Immunity (PII) certificates to prevent them from having to disclose various documents. They claimed this on the grounds of national security. This lack of disclosure prevented the court from having all requisite evidence to decide what happened. The company claimed that the documents would prove that the government knew about the deal.

Alan Clark, who was a former Minister, revealed to the court that the government did know about the deal and the trial collapsed.

The PM instructed a judicial inquiry into the matter. Sir Richard Scott headed the inquiry and his report looked at a number of important areas, one of which was Ministerial Responsibility.

Sir Richard Scott stated there was a difference between Ministerial 'Accountability' and 'Responsibility'.

The most important aspect for Scott was for Ministers to give full and frank information.

'A failure by Ministers to meet the obligations of ministerial accountability by providing information about the activities of their departments engenders cynicism about government and undermines, in my opinion, the democratic process.' Information Data Protection Access to Public Records Freedom of Information Act 2000 The purpose of the Act is to increase the openness of government.

White paper of 1997 'Your right to know: White paper on Freedom of

Act came into force in 2005. Number of restrictions though that some say
defeat the object of the act.

Creates a general legal right of access to information held by Public Authorities. Some
Private organisations are also subject to the Act.

Number of exemptions and restrictions though - 'harm tests', 'absolute exemptions',
PI tests, costs, 'executive override' in ss50 and 52

Governed by 'Information Commissioner' who is subject to scrutiny by the Courts. Public Records acts of 1957 and 1967 Data Protection Act 1998 Relates to 'Personal data' and a right to have such data
'communicated' to the subject Any MP can ask the speaker for permission to ask an urgent question for debate. The speaker has absolute discretion whether to grant the question or not. If it is granted, it is introduced that day, and is debated for 3 hours the following day.

Due to their disruption, they are very few and far between. Any MP can complete a form and hand it into the Tabling Office requesting a debate 'at an early day'. These can be upon any subject.

Very limited chance that it will materialise into a debate.

Those that do can be important.

They provide an opportunity for views to be expressed as well as to guage the mood of the House on a particular topic.

An MP who struggles to get a debate by any other method can try their luck with an EDM. The current system of Select Committees was developed in 1979, although the use of SCs themselves dates back much, much further.

They concern themselves with a multitide of functions, including keeping an eye on how the House itself is run, to SCs that observe the main government departments. The Select Committe on Procedure said in 1979 that an overhaul was:

'a necessary preliminary to the more effective scrutiny of government...and an opportunity for closer examination of departmental policy...an important contribution to greater openness in government, of a kind that is in accordwith our parliamentary arrangements and our constitutional tradition.' Department Select Committees are charged with scrutinising the work of government departments and reporting their findings to the House of Commons.

In order to fulfil their role they are given the following powers:

The ability to send for persons or papers

To sit at any time of the year, whether or not the House is adjourned

To adjourn from place to place

To appoint specialist advisors. These can be to find out and give the SC information not readily available, or to explain information they do have which is particularly complex.

The SC decides for itself (as long as it is in the remit of the department it is attached to) what it is going to do and when. They therefore have significant power. Most SCs have 11 members.

The personnel of the SC usually remains the same for the lifetime of Parliament, giving stability and expertise to the SC.

By convention it is usually backbench MPs who sit on SCs.

Party Whips have major control over membership of SCs. They make nominations which the House has to approve.

The political make-up of SCs usually reflects the ratio of MPs in the House.

The Chair of the SC can be from any party. Pros of SCs It is up to the SC what it is going to look at and how. This means they are not
told what to do or influenced by the government.

Their powers mean they can undertake a broad range of tasks and provide a depth
of scrutiny.

Chairs of SCs are shared between the parties reducing the party conflict element present in questions and debates.

They can question and scrutinise members of government in depth and publish their findings. Cons of SCs SCs cannot force Ministers to attend as witnesses. This means that the government could potentially frustrate the work of a SC, despite comments in 1979 by the Leader of the House that:

'every Minister, from the most senior Cabinet Minister to the most junior Under Secretary, wil do all in his or her power to co-operate with the new system of committees and to make it a success.'

SCs have no powers of sanction. If they find anything of concern, their only power is to make their concerns public.

Very few SC reports are actually debated on the floor of the House.

There is criticism that Whips play too much of a role in the appointmen of members and chairs Examples Westland affair In 1986, Michael Heseltine, the Sec of State for Defence, and Leon Brittan, the Sec of State for Trade and Industry, resigned after the Westland Helicopter affair. Various SCs inquired into various aspects.

The government stopped the SC on Defence from questioning witnesses from the Defence department. They said that allowing such questioning would have serious ramifications for the operation of government and the operation of departments.

The SC was therefore not able to carry out a full inquiry as various civil servants were not questioned. Maxwell In 1992 the Social Services SC wanted to question Robert Maxwell's two sons in relation to the mis-managment
of pension funds. They had taken over their father's position with the Mirror Newspaper Group. They refused to appear before the SC. The SC wanted them charged with contempt of Parliament but they weren't. Arms to Iraq affair The alleged refusal by the AG and others to release information known the Department for Trade and Industry led to the Mtric Churchill company directors being charged.

It wsa later found out that the information did exist which cleared the directors. DEPARTMENTAL Select Committees


Ad hoc Once a SC has completed a task it prepares a report detailing its findings. These reports are published and the findings made public.

Government departments should respond to SC reports within 60 days, commenting upon the findings and setting out whether any recommendations are going to be implemented. These take up a lot of time of the House (their main business). They are not really an opportunity to scrutinise the work of the government so we will not be looking at these debates. The House of Lords has its own system of debates.

It has been said that such debates are of better quality as party politics do not play as significant a role and the peers have different skills. Cabinet Collective Responsibility is a convention that sets out the government must be seen to be together on policy and issues, and the government is responsible to Parliament. This is to maintain public confidence in the government.

The convention means that decisions taken in the Cabinet must be supported by all members and a united front presented. It also means that all proceedings in Cabinet must remain confidential in order to allow full, free and frank discussions in Cabinet. The classic account was given by Lord Salisbury in1878:

'For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no rights afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues...It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the essential principles of parliamentary responsibility established'. 30 minutes every Wednesday.

PM is always asked to list his engagements for the day. Open question which allows broad
range of supplementary questions to be asked.

Televised and can be quite a spectacle.

Concerns that members play to the crowd rather than concerning themselves with effective
scrutiny here See Para 2.1 of the Ministerial Code Exceptions Do these mean that the convention no longer exists or does it illustrate the flexibility of conventions? Co-alition government of 1931-32 was divided over economic policy. Four Cabinet members resigned over the rift. The PM, Ramsey MacDonald, waived the convention to allow the 4 members to keep their posts and disagree with the other Cabinet members publicly. In 1975 Harold Wilson's Cabinet was divided over the issue of membership of the EC. The issue was to be put to the people via a referendum. He allowed Cabinet ministers to be publicly opposed in contravention of the convention in the referendum. Attorney General v Jonathan Cape Ltd [1976] 1 QB 752

The Coutr commented that the Convention of Collective Responsibility could be taken into account by the Court in deciding whether an injunction should be granted preventing disclosure of Cabinet meeting minutes. At the heart of the term 'Responsible Government' is the notion that the Government must maintain the confidence of the elected body - the Commons, (the main body within Parliament). If Parliament loses confidence in the government the government can be forced to resign (1924 (twice) and 1979). Governments with a large majority in the Commons are more secure though. Keep an eye on the Constitutional Reform and Governance Bill 2008-09, which intends to eventually put the Civil Service on a statutory footing. Nothe this is not a legal document - merely guidelines The classic account was given by Lord Salisbury in1878:

'For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no rights afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues...It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the essential principles of parliamentary responsibility established'.
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