Written evidence from Professor Robert Hazell, The Constitution Unit, UCL (LAN0001)
1 This submission is based upon two recent studies by the Constitution Unit:
2 The first is a study of those watchdogs which regulate MPs and parliamentary candidates: the Electoral Commission, parliamentary Boundary Commissions, Parliamentary Commissioner for Standards, and the Independent Parliamentary Standards Authority (IPSA); plus the Committee on Standards in Public Life (CSPL), whose remit extends to parliamentarians.
3 The second is a study of those watchdogs which regulate the conduct of the executive. They are: the Advisory Committee on Business Appointments (ACOBA); the Civil Service Commission (CSC); the Commissioner for Public Appointments (OCPA); the Committee on Standards in Public Life (CSPL); the House of Lords Appointments Commission (HOLAC); the Independent Adviser on Ministers’ Interests; and the Office of the Registrar for Consultant Lobbyists.
What does the current landscape of bodies and processes regulating MPs (including MPs who are also Ministers) look like to the public?
4 There are four constitutional watchdogs regulating MPs and parliamentary candidates, and seven bodies regulating ministers and the executive. So the landscape is certainly fragmented. But the public are unaware of most of these bodies until a scandal hits the headlines, and so unaware of the fragmentation. If the current landscape is confusing or renders any of the watchdogs inaccessible, the solution is better signposting through a single portal (see para 15 below); and better web pages for those watchdogs whose websites are currently very poor.
5 What the public care about is not structures or processes but outcomes: maintaining high standards of conduct in public life through effective systems of regulation. So the more important issue to focus on is, do the different regulators have the right powers and resources to do their job effectively? The answer in many cases is no.
Whilst the history of the standards system in Parliament and Government is piecemeal, does the system have coherence? Are there obvious anomalies?
6 There are many anomalies. Most of the parliamentary watchdogs are statutory (Electoral Commission, IPSA, Boundary Commissions); most of the watchdogs regulating the executive are not. Some of the watchdogs have effective enforcement powers; many of them do not. Some parliamentary committees have lay members; others performing similar functions do not. Most of the watchdogs are appointed on merit by open competition, for a single, non-renewable term; but a few of them are not.
7 Again, the most important issue is whether the watchdogs have sufficient powers to be effective regulators. CSPL and PACAC have recommended that several of the executive watchdogs (ACOBA, OCPA, the Independent Adviser, HOLAC), should be put on a statutory basis. That would provide greater security, and guard against the possibility of the watchdogs pulling their punches for fear of abolition. But statute alone is no guarantee of effective regulation: the evidence to PACAC from the Registrar of Consultant Lobbyists is testament to the ineffectiveness of the regulatory regime under the Lobbying Act 2014. Effective regulation depends on how the statute defines the role, functions and powers of the regulator, and their independence, funding and staffing.
8 Nor is Parliament necessarily a better guardian of a watchdog’s independence. The Speaker’s Committee on the Electoral Commission (SCEC) decided in 2021 not to re-appoint Sir John Holmes as chair, because of enforcement action taken by the Electoral Commission in the Brexit referendum. And contrary to the practice of his predecessors, the Speaker through his appointments has allowed the government to have a majority on that committee.
Is there any scope for simplification or consolidation? What would be the benefits and what would be the risks?
9 The Labour Party has proposed consolidation through a new, statutory independent Ethics and Integrity Commission, which would subsume ACOBA and the Independent Adviser on Ministers’ Interests. The Commission would be able to determine breaches, and recommend sanctions, including financial penalties. Labour would also consider bringing the Public Appointments Commissioner and Civil Service Commission under the new Commission’s umbrella; but other watchdogs would be left in place.
10 A single commission was proposed in evidence to CSPL during their Standards Matter 2 inquiry. This would simplify the standards landscape. It should also make compliance easier, ensuring ministers and officials need deal with only one regulatory authority. But in their final report CSPL came down against the idea; as did PACAC a year later. A single commission would not necessarily resolve the issue of complexity: there would still need to be separate codes for ministers and officials, and for public appointments, business appointments, lobbying etc. The concentration of power in a single unelected body would be high risk, making it more vulnerable to political attack: there was less risk in a pluralist approach to ethics regulation.
11 We would add a further critique. There is no obvious synergy between ACOBA and the Independent Adviser: the one thing they share is that they are both toothless watchdogs. The remedy is not necessarily institutional re-organisation; it is to give them some teeth. That need not await legislation. Because they are both creatures of the prerogative, their powers could be transformed by issuing them with stronger terms of reference. Ideally legislation should follow, to give them a firm statutory foundation; but legislation is not required to make them stronger and more effective watchdogs.
12 This is not to dismiss consolidation through merger of some of the watchdogs. But the core problem, as stated above, is that many of the existing watchdogs are too weak. The remedy for that weakness is to strengthen them: by putting them on a statutory basis, bolstering their independence, and giving them more effective powers. That could be done without any mergers. So the case for merger must be separate, that it adds value beyond strengthening the existing watchdogs. The added value might come from:
13 None of these added values should be taken for granted. The best judges of whether mergers are going to add value will be the watchdogs themselves: ideally any mergers should be negotiated bottom up, and by consent, rather than being imposed top down.
14 The same goes for proposals to simplify by consolidating some of the different codes. The main candidates for simplification or merger are the overlapping registration of interest requirements for ministers who are also MPs. The committee explored the different underlying principles, thresholds and timing requirements in its evidence session with Sir Laurie Magnus on 18 July 2023. There is clearly scope for further alignment, and cross-referencing between the list of ministers’ interests and the register of MPs’ financial interests to enable greater transparency; but given the complexities involved, that work is best led by the Independent Adviser on Ministers’ Interests working together with the Parliamentary Commissioner for Standards, and with the encouragement of the committee.
Are there ways in which different processes, or the relationship between different bodies, could be streamlined for MPs?
Could the role and remit of different bodies be better explained or promoted? Could there be an easier way for members of the public to make complaints or raise concerns about conduct, where they are not sure which body has oversight?
15 One of the findings emerging from our study of the watchdogs regulating the executive is that several of them (ACOBA, the Independent Adviser, CSPL) badly need their own independent websites, separate from the Cabinet Office. That will make them more visible, and their role and functions easier to understand. But in addition to that, there needs to be a single portal which explains the role and functions of all the different watchdogs, with links through to their separate websites. That single portal could be provided by the Cabinet Office; or it could be provided by CSPL, as the body charged with overview of the whole regulatory system for maintaining standards. If responsibility is given to CSPL, it will need additional resources: not just one-off to create new web pages, but on a continuing basis, to monitor, maintain and update them.
September 2023