Parliament as a Check on Government

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Scrutinising the executive is one of the imperative duties of the UK Parliament. It ‘seeks to limit and control the exercise of power by making those who hold the power- the executive- directly and constitutionally responsible to the legislature’.[1] Thus, it monitors power balance by implementing adequate checks and balances of the activities undertaken by the executive. Such measures subjecting the government to different, critical types of scrutiny are necessary to form a coherent, effective and stable authority in a democratic society. However, this is not always the case since various factors prevent the Parliament from scrutinising the executive effectively. This essay will firstly focus on explaining the role of Parliament in terms of the doctrine of separation of powers and the opportunities it has to hold the government to account. Furthermore, I intend to demonstrate numerous weaknesses of the mechanisms used to control the exercise of power and, finally, suggest possible measures strengthening the process of scrutiny undertaken by the Parliament. In order to explain and fully understand the constitutional role of Parliament, its powers and responsibilities, it is essential to consider the composition of parliamentary system inside which the machine of government operates. In the UK, Commonwealth countries, and many other nations, Parliament is the highest authority[2] whereas the Government, also known as the executive, is the institution in charge of Governing a country. Parliament can be identified as a bi-cameral legislature composed of the lower house, The House of Commons, which holds the decision making autonomy, and the House of Lords, upper chamber of Parliament with a limited legislative power, working inter alia as a check on the powers exercised by the government. In theory, not only does the bi-cameral legislature exist to ensure democratically created policy and legislation but also to safeguard the country from the autocracy or the rise of dictatorships. Separation of powers becomes a fundamental tool for avoiding the emergence of such dangers. Locke stated in his Second Treatise of Civil Government: ‘it may be too great a temptation to human frailty...for the same persons who have the power of making laws, to have also their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage’.[3] The idea behind the doctrine of separation of powers seeks to ensure no arbitrary abuse of powers and therefore stresses the importance of the role Parliament plays in scrutinising the executive as well as the need for implementing appropriate checks and balances. Nevertheless, there is no strict separation of powers in UK since the government and Parliament often work together particularly in developing laws. Complete absence of cooperation between the three limbs of the government could result in a constitutional deadlock and therefore, ‘complete separation of powers is possible neither in theory nor in practice.'[4] The collaboration between the legislature and the executive does not mean that parliament should soften its efforts of scrutinizing the government. Robustly scrutinizing the executive indicates that the nation is strictly adhering to the principles of democracy[5]. The government must be accountable and responsible to the citizens it governs. Therefore, in the UK and other established democracies, Parliament scrutinizes the executive through various tools outlined in the country’s constitution and other set regulatory systems[6]. The most common mechanisms adopted by the Parliament are debates, ministerial questions and select committee. The debates taking place in the House of Commons look at the government policy as well as general issues of national and international importance. Parliament can call Ministers to account by forcing them to explain their actions on behalf of the public whereas backbenchers are given an opportunity to question and suggest alternatives to the proposed government policies[7]. The more controversial issues discussed during the parliamentary debates can arguably attract significant media attention[8]which may be beneficial for the scrutiny of the executive process since it encourages public participation. However, whilst debate is an essential part in pursuing government’s accountability by compelling Ministers to justify their positions[9], it has a limited value and does not constitute a sufficient scrutiny of the Government. Generally, MPs are informed of the topic of discussions beforehand, thus they usually can prepare a generic answer. Furthermore, it should also be noted that the objective of holding debates is often undermined by a large influence of the ‘whips' and members of the leading party resulting in a smaller number of defeats for the governing party. This method of scrutiny, therefore, may serve as an outset or aid a general executive check-ups. Introducing a person or body directly responsible for keeping the right order of the debate and ensuring it does not turn into political argues might enhance the effectiveness of this method. Issues that require deeper attention should be examined using another scrutinizing mechanism, such as Parliamentary questions. It may either be in oral or written form. All ministers are expected to attend question time at least once every four weeks on the rota basis[10]. The purpose of parliamentary questions, according to Erskine May, is to ‘obtain information or to press for action’[11]. Constitutional obligation imposed on ministers to provide truthful information with regards to fulfilling their ministerial duties is an effective way of ensuring that they are au fait with the activities undertaken in their department. In practice, however, not only are ministers notified of questions allowing them to prepare answers beforehand but are also required to discuss the matters relating only to the area of their responsibility and refuse to disclose anything that would not be of public interest[12]. There is also the Prime Minister Questioning time occurring on Wednesdays, which theoretically is an effective way of scrutinizing the executive since the Prime Minister is the head of the executive. In practice, though, questions from the opposition MP's are put forward to the Prime Minister in advance of the question time, allowing him to consult it with his cabinet colleagues and to prepare the appropriate answer. Hence, it would rather be wrong to imply that this mean of scrutiny is fully effective in bringing the activities of the government to account.According to Tomkins, the effectiveness of oral parliamentary questions in scrutinizing the executive and hence testing and ensuring accountability is doubtful[13]. While answers to written questions may not enjoy high media publicity as that received by oral and other parliamentary debates, the executive has sufficient time to provide all the necessary information. However, in reality ministers tend to often reveal no more than it is necessary. Fortunately, the Scott inquiry report prompted the legislature to adopt various reforms that guided how executive departments should draft answers to parliamentary question to ensure their credibility[14]. Some of the reforms taken were ensuring the House of Common Select Committee on Public Administration performs annual inquiry on Ministers’ answers to various parliamentary questions to ensure they answer as per the set guidelines. The committee then publishes report, highlighting some of the improvements already made in the answering of the question and recommending those areas that still need to be looked at[15]. Generally, the committee has continued to play a significant role in ensuring the executive is open enough to guarantee political accountability. Their efforts guarantee that parliamentary questions act as an effective tool of scrutinizing the executive. It has increased the effectiveness to an extent whereby the parliament may use this mechanism to force the executive to disclose information it would have otherwise preferred not to disclose[16]. Select committee is the third mechanism that parliament has at its disposal to further pursue the accountability of the executive. They are defined in ‘the New British Politics’ as: "Committees of the House of Commons and the House of Lords that consider general political issues which are wider than a particular piece of legislation"[17]. Thus, they are mainly focusing on monitoring and scrutinising the executive duties of policy creation and implementation by government rather than only its legislative functions. The structure of select committees continues to be the same until the time when a new government is elected, in which case the existing members are replaced in order to reflect the change in government. For the fact that select committees focus on specific policy areas, it can be suggested that they are a form of an extremely useful mechanism available in scrutinising particular areas of the policy making process. A unique attribute of these committees is the fact that they are largely comprised of backbenchers, Members of Parliament. The composition of the members of the committee reflects the general composition of the House of Commons. This is arguably one of the fundamental weaknesses of the select committee since it allows the Government majority to dominate the minority. The small size nature of the select committee is, however, a positive attribute. It allows for a small manageable group of MPs to develop specialized and detailed knowledge on important aspects of Government administration[18]. There is sufficient evidence to prove that the select committee system is the most efficient mechanism used by Parliament to scrutinize the executive. In fact, the introduction of the select committee system has been cited as the most notable parliamentary reform of the twentieth century[19]. It, therefore, follows without saying that strengthening Parliamentary committees, especially the select committees, is one of the most effectual ways of enhancing the parliament’s abilities to scrutinize the government. The question that now begs for an answer is how to strengthened parliamentary committees, particularly the select committee. The Liaison Committee in 2000 suggested some of the reforms that could be undertaken to enhance the effectiveness of select commitees in performing their scrutiny role[20]. These suggestions included remunerating the chair of the committee, reducing the power of the whip by removing his/her power to choose committee members, granting committee adequate resources, and ensuring committees follow up on executives to ensure their recommendation and direction for guaranteeing accountability are being implemented[21]. So far, most of Liaison Committee’s recommendations for reforms have been adopted[22]. Going forward, reforms that strengthen parliamentary committee should be adopted regularly. The committees are likely to be strong if the turnover rate of its members and chair is low. Therefore, measure that ensures committee chair and members have incentives to work for a long period in the committee should be adopted. The ability of the committee to conduct research and acquire crucial information should also be enhanced. This can be done by training and providing committee with sufficient resources needed to acquire the necessary expertise even from external sources. Also very important is ensuring the committees receive quality and accurate information about executive governance in an easily accessible manner, otherwise an effective committee may not achieve its full potential. The transparency and accessibility of this information can be guaranteed by applying laws that compel the Government to provide such information without any hesitation. All loopholes the executive might use to conceal essential information from the parliament must be eliminated[23]. Parliament should also work with other stakeholders in scrutinizing the executive[24]. Such stakeholders include civil society, the media, electorate, and the public since they might be an important source of crucial information concerning the performance of the executive. They might also have expertise that might not be at the disposal of parliament. Therefore, they could uncover executive issue more easily than parliament. Such collaboration could provide useful information that might act as basis for conducting further scrutiny on certain functions of the Government. In conclusion, scrutinizing the executive is arguably the main role of the parliament. Performing this role effectively is an indication of a democratic nation. There are many ways available for the parliament to exercise its role and since they supplement each other, we should stress the importance of all of them. However, evidence presented in the essay shows numerous deficiencies in this process preventing Parliament from effectively controlling the exercise of the Government’s power. The tendency of ministers to give, previously prepared, generic answers to questions during debates and question times undermines the value of this scrutinising medium which calls for implementation of an element of surprise forcing ministers to answer questions spontaneously. It seems to be clear also that the ability of the legislature to hold the executive to account and closely examine the policy making process depends largely on the size of the government's majority in the Parliament[25]. Similarly, same problem arises with select committee members who are chosen by the Prime Minister and whose power tends to be enjoyed by the backbenchers making the outcome of the decisions favourable for the leading party. The Select Committee, however, arguably is the most effective method used by Parliament because it allows for a deeper scrutiny of political accountability issues. It seems apparent that there is a need for enhancing Parliament’s capacity to hold the government to account, therefore, to make them even more effective, appropriate measures strengthening the process of scrutiny should be adopted. Perhaps, introducing independent person or body to make sure debates and question times are carried out more effectively and as a result enhancing the input of this methods in controlling the exercise of the government’s power, could be a good starting point. Bibliography A W Bradley, K D Ewing,Constitutional and Administrative Law(14th, Pearson Education Limited, Harlow 2007) p.87 Erskine May’s Treatise on the Law, Privilege, Proceedings and usage of Parliament (24th edn)( London: LexisNexis, 2011), p. 358. I, Budge, I Crewe, D McKay, K Newton,The New British Politics(14th, Pearson Education Limited, Harlow 2007) 425 J. Levy. Strengthening Parliament’s Power of Scrutiny? An assessment of the introduction of Public Bill Committees, (London, University College London, 2009),15 Michael Rush,Parliament Today(1st edn, Manchester University Press, Manchester 2005) p.3 Roger Masterman, Colin Murray,Exploring Constitutional and Administrative Law(1st, Pearson, Harlow 2013) 606 Philip Norton, Baron Norton of Louth,The Commons in Perspective(1st, Longman, 1981) 119 Parliament, 'Parliament and Government' (parliament.uk 2014) <http://www.parliament.uk/about/how/role/parliament-government> accessed 22 December 2014 Second Treatise of Civil Government John Locke (1690), Cases and Materials on Constitutional and Administrative Law By Brian Thompson, Michael Gordon p.27
[1] Michael Rush,Parliament Today(1st edn, Manchester University Press, Manchester 2005) p.3 [2] Parliament, 'Parliament and Government' (parliament.uk 2014) <http://www.parliament.uk/about/how/role/parliament-government> accessed 22 December 2014 [3] Second Treatise of Civil Government John Locke (1690), Cases and Materials on Constitutional and Administrative Law By Brian Thompson, Michael Gordon p.27 [4] A W Bradley, K D Ewing,Constitutional and Administrative Law(14th, Pearson Education Limited, Harlow 2007) p.87 [5] Parliament, op.cit. [6] Adam Tomkins, Public Law (1st edn, Oxford, Oxford University Press, 2003), p. 160 [7] Ibid. [8] Ibid. [9] Philip Norton, Baron Norton of Louth,The Commons in Perspective(1st, Longman, 1981) 119 [10] Tomkins, op. cit. [11] Erskine May’s Treatise on the Law, Privilege, Proceedings and usage of Parliament (24th edn)( London: LexisNexis, 2011), p. 358. [12] Roger Masterman, Colin Murray,Exploring Constitutional and Administrative Law(1st, Pearson, Harlow 2013) 606 [13] Tomkins, op.cit., 161 [14] ibid [15] Ibid 161 [16] Ibid 161 [17] I, Budge, I Crewe, D McKay, K Newton,The New British Politics(14th, Pearson Education Limited, Harlow 2007) 425 [18] Tomkins, op. cit. 162 [19] J. Levy. Strengthening Parliament’s Power of Scrutiny? An assessment of the introduction of Public Bill Committees, (London, University College London, 2009),15 [20] Tomkins, op.cit. 166 [21] Tomkins, op. cit., 167 [22] Tomkins op. cit., 168 [23] Levy, op. cit., 17 [24] Levy, op. cit., 17 [25] Masterman, op. cit. 606
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