Parliament’s Watchdogs: At The Crossroads edited by Oonagh Gay & Barry K Winetrobe UK Study of Parliament Group ISBN: 978-1-903903-49-0 Published by The Constitution Unit Department of Political Science UCL (University College London) 29-30 Tavistock Square London WC1H 9QU Tel: 020 7679 4977 Fax: 020 7679 4978 Email: [email protected] Web: www.ucl.ac.uk/constitution-unit/ © The Constitution Unit, UCL 2008 This report is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, hired out or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. First published December 2008 2 Table of Contents Foreword……………………………………………………………………… 5 Dr Tony Wright MP Note on Contributors……………………………………………………….. 7 Preface………………………………………………………………………… 9 Oonagh Gay & Barry K Winetrobe Chapter 1: Introduction - Watchdogs in Need of Support…………… 11 Oonagh Gay & Barry K Winetrobe Chapter 2: The UK Perspective: Ad Hocery at the Centre……........... 17 Oonagh Gay Chapter 3: Scotland’s Parliamentary Commissioners: An Unplanned Experiment……………………………………………………….. 33 Barry K Winetrobe Chapter 4: ‘Parliamentary Officers’ in Wales: Evolving Roles........... 47 Alys Thomas Chapter 5: An Overview of Northern Ireland's Constitutional Watchdogs……………………………………………………………………. 59 Ruth Barry & Zoe Robinson Chapter 6: Commonwealth Experience I – Federal Accountability and Beyond in Canada……………………………………………………… 71 Elise Hurtubise-Loranger Chapter 7: Commonwealth Experience II – Officers of Parliament in Australia and New Zealand: Building a Working Model……………... 81 Robert Buchanan Chapter 8: The Parliamentary Ombudsman: a Classical Watchdog……………………………………………………………………... 93 Philip Giddings Chapter 9: New Watchdogs: Public Appointments Commissioners………………………………………………………………. 105 Robert Pyper Chapter 10: Conclusion - Parliamentary Watchdogs: Time for Decision……………………………………………………………………….. 115 Barry K Winetrobe 3 4 Foreword Dr Tony Wright MP I welcome the publication of this important and timely report. Important, in that it deals with the organisation and conduct of key institutions for Government and Parliament, for example, the Comptroller and Auditor General and the Electoral Commission. Timely, in that we at Westminster, and elsewhere in the UK, are currently grappling with just these issues. The decisions we take about them will have profound consequences for their governance and accountability. The House of Commons Public Administration Select Committee, which I chair, has been examining these issues over recent years, both in the context of specific constitutional reforms – to public appointments, ombudsmen, ministerial conduct and so on – and directly in a recent inquiry and report, Ethics and Standards: the Regulation of Conduct in Public Life. That inquiry, which had the two editors of this Report and Professor Robert Hazell of the Constitution Unit as its special advisers, looked at many of the questions that this Report examines, and, like it, did so in a comparative and principled way. While we made a number of concrete proposals, we also set out basic principles and issues for further research which are essential to the construction of an effective and accountable system of ethical regulation of democratic government, in place of the ad hocery we have at present. I am pleased that this new Report takes our Committee’s work forward, and I hope that academics, parliaments and governments will maintain this momentum. This report is especially useful as it is the synthesis of the work of both senior parliamentary officials and of expert academics. Both the Study of Parliament Group and the Constitution Unit have long and enviable track records in bringing forward sensible and practical constitutional and parliamentary reforms. This Report is a fine example of that tradition. Contrary to what is sometimes suggested, these are not just dry, technical ‘process’ issues for political anoraks and insiders. How we regulate effectively and ethically the way we are governed is not a second-order matter. And the extent to which this regulation is anchored firmly in the representative institution of a parliament will be a measure of its democratic accountability. 5 6 Contributors Ruth Barry is a research officer within the Research and Library Service for the Northern Ireland Assembly specialising in legislation and criminal justice. She completed her LL.B with Politics (Hons) at Queen’s University, Belfast in 2005 and in 2007 her Bar Vocational Course at the University of the West of England. She was called to the Bar of England and Wales at Lincoln’s Inn, London in March 2008, and is currently completing a MSc in Criminal Justice at Queen’s University, Belfast. Robert Buchanan is a public law specialist based in Wellington, New Zealand. He worked for the Office of the Ombudsman in the 1980s, was Director of the New Zealand Law Commission in the 1990s, and served for 8 years as an Assistant Auditor-General until 2006. He now has his own legal practice, working in the public law field both within New Zealand and internationally. Oonagh Gay is Head of the Parliament and Constitution Centre in the House of Commons Library and has written widely on constitutional matters, including Conduct Unbecoming: The Regulation of Parliamentary Behaviour, the product of research by the Study of Parliament Group in 2004. Philip Giddings is Head of the School of Politics and International Relations at the University of Reading. His publications include The Ombudsman, the Citizen and Parliament (edited with Roy Gregory, Politico's, 2002) and Righting Wrongs: the Ombudsman in Six Continents (edited with Roy Gregory, IOS Press, 2000). With Michael Rush he is editor of Palgrave's Annual Review of British Politics. Elise Hurtubise-Loranger is an analyst with the Parliamentary Information and Research Service of the Library of Parliament in Ottawa, Canada. She pursued bilingual studies in Civil Law and Common Law at the University of Ottawa and articled with the Legal Services of the Office of the Commissioner of Official Languages before joining the Library after her call to the Bar in 2005. She practices mainly in the fields of Constitutional Law and Public Law. Robert Pyper is Professor of Government and Public Management, and Head of the Division of Public Policy, at Glasgow Caledonian University. Zoe Robinson is a research officer in the Northern Ireland Assembly, specialising in the areas of equality, human rights and justice. She holds an LLB (Hons) Degree in Law from the University of Dundee and a Masters (LL.M) in Human Rights and Criminal Justice from Queen’s University, Belfast. Prior to working in the Assembly’s Research Service, she was an assistant editor in the Office of the Official Report (Hansard). Alys Thomas is a Senior Research Officer in the Members' Research Service of the National Assembly for Wales. Previously she lectured in government and 7 politics at the University of Glamorgan and has published on the subjects of government and politics in Wales and devolution. Barry Winetrobe was, until 2007, Reader in Law at Napier University, Edinburgh, and is now a parliamentary and constitutional consultant. He has published on constitutional reform and devolution, including the Scottish Parliament. Tony Wright has been a Labour MP since 1992, and, since 1999, has chaired the House of Commons Public Administration Select Committee. Dr Wright was Parliamentary Private Secretary to the Lord Chancellor 1997-98. He lectured in politics at Birmingham University, where he is now an Honorary Professor; writes widely on political and constitutional issues in academic books and journals, and is co-editor of The Political Quarterly. 8 Preface Oonagh Gay & Barry K Winetrobe This Report has its origins in the research we published with the Constitution Unit in 2003, Officers of Parliament: Transforming the Role. This was the first detailed attempt to map out which offices could be described as constitutional watchdogs, in particular those which are, or could be regarded as, ‘Officers of Parliament’. The report considered the accountability and independence arrangements for each such office, explained how the term ‘Officer of Parliament’ had developed from the designation given to senior parliamentary officers, such as the Speaker and the Clerk, and examined the interaction of each watchdog with Parliament, and the value or otherwise of the Officer of Parliament designation. As this topic gradually became ever more salient in British constitutional and political governance, our interest in this subject was maintained through the establishment and operation of a study group of the UK Study of Parliament Group (SPG). The SPG comprises academics with a particular interest in Parliament, and serving parliamentary officials. The aim is to improve understanding of the problems faced in operating an effective parliamentary democracy. This particular study group, on which we acted as co-conveners, contained a broad range of senior officials from the UK’s various parliaments and assemblies, and academics with expertise in political science, public law and public administration. Over the past few years, the study group operated mainly by regular monitoring of developments both within the various territories and at the Centre, and by reference to particular types of watchdog (ombudsmen, auditors