The Operation of the Parliamentary Standards Act 2009 - Committee on Members' Expenses Contents


Written evidence from Barry K Winetrobe, Parliamentary & Constitutional Consultant

1.  I am grateful for this opportunity to make a submission to the Committee on this vital issue, one that is core not just to the House and its Members, but also to the public whom they represent. The proper resourcing of the people's elected representatives is a necessary precondition for a modern representative parliamentary democracy. My submission will focus, as invited, on the independence and accountability of IPSA and its impact on the ability of Members to fulfil their duties.

THE CURRENT SYSTEM AND ITS CONSEQUENCES

2.  It should be beyond argument that it is the House, its Members and its most senior staff who are responsible for the current situation, because of the corrosive culture over many years which created the insularity and self-interest that enabled the old pay and allowances system to be developed and abused, practically immune from effective internal or external accountability.

3.  The present system under review is the result of a knee-jerk "something must be done" legislative reaction by the previous Government, supported by opposition parties. As is common with such "legislate first; think later" spasms, the resulting legislation is incoherent, some of which had to be amended almost immediately by further legislation. The issue of resourcing parliamentarians has become skewed into one of "independent standards regulation", with a plethora of interlocking bodies (some of them parliamentary), and an apparent confusion of the core purpose of the main body involved.

4.  To develop this last point further, there currently seems to be a bizarre dispute, which would be comical if it were not so important, about what is the primary duty and function of IPSA. It arises because of amendments made to the 2009 Act in 2010, which introduced explicit statutory duties on IPSA, including: "In carrying out its functions the IPSA must have regard to the principle that members of the House of Commons should be supported in efficiently, cost-effectively and transparently carrying out their Parliamentary functions."[15] This was apparently inserted following a recommendation from the Committee on Standards in Public Life (CSPL), in its 2009 Review, that "The independent regulator should have a statutory duty to support MPs efficiently, cost effectively and transparently in carrying out their parliamentary functions."[16]

5.  Though, from the public record, it appeared that CSPL was happy that the statutory provision gave effect to its recommendation,[17] the view of IPSA's Chair is that the statutory duty is different, in that it only has to "have regard" to the need for MPs to be properly supported: "We also note the CSPL's view that IPSA's fundamental purpose is to support MPs. Actually, IPSA's fundamental purpose, as an independent regulator, is to serve the public interest."[18] IPSA appears to believe that MPs and the Speaker's Committee on IPSA (SCIPSA) also adhere to CSPL's mistaken belief of IPSA's true role.

6.  Ignoring the argument whether the "fundamental purpose" of an "independent regulator" is indeed simply the "public interest"—one which IPSA seems to be deploying as a shield against criticism from its "clients" and fellow regulators, and as an appeal for public support—this apparent dispute demonstrates the flaws inherent in the present 2009 Act system, arising from the transforming of a need for a proper scheme of resourcing for parliamentarians into a Byzantine network of standards regulation, based on the premise that Parliament and its Members cannot be trusted.

7.  This dispute also hints at the maze of interlocking bodies involved, to some degree or other, in Members' pay and expenses—IPSA, CSPL, MEC, SCIPSA, NAO, PAC etc etc—a situation which has arisen because of the almost total absence of pre-legislative policy analysis of the complexities of the creation and operation of "constitutional watchdogs", especially those connected to a parliament.[19] This situation not only confuses all involved as regulators or regulated, and unnecessarily complicates administrative and oversight arrangements. It also provides a perfect breeding ground for ill-informed public and media criticism, which further corrodes public confidence in Parliament and its Members.

PRINCIPLES FOR A ROBUST AND EFFECTIVE SYSTEM

8.  The present system seems to satisfy no-one but IPSA and Parliament's media and public critics. While not all criticisms from Members necessarily are fully merited, anecdotal evidence certainly suggests that the IPSA system has not created the certainty and convenience in resourcing that Members and their staff require to provide an effective service to those whom they represent.

9.  The question arises whether this current system can be sufficiently improved by continued ad hoc review and tweaking, or whether there is a need for fundamental and empirical reform, conducted on a fully inclusive, transparent and evidence-based analysis. Comparative examination of how other parliaments and assemblies, both close to home[20] and beyond, would be essential for this process.

10.  The problem with the latter option is how to achieve it in the current climate, where public/media distrust of Parliament is so strong, and where any government, which dominates how the House of Commons operates, would regard any such move as politically suicidal.

11.  This suggests that the development of a proper system of adequately resourcing Members in a modern accountable democracy must be part of a wider reform of Parliament, where it can demonstrate that it can operate in an autonomous and accountable way for the good of the public which it represents.

12.  Parliament is supposedly undergoing such a period of reform, although, being largely Executive-driven and Executive-controlled,[21] it is painfully slow and not based on any coherent analysis of the true principles upon which a modern parliamentary democracy should operate.

13.  I have argued for a system of modern parliamentary self-regulation, most recently in written and oral evidence to CSPL's 2009 review and the National Assembly for Wales' committee scrutiny of a proposed Measure creating a Members Remuneration Board:[22]

5.  The solution to Westminster's ills is not less self-regulation, but more. But it must be self-regulation that is truly responsible, transparent and accountable, free from Executive dominance and control, and where fundamental legal protections and privileges are not abused as a barrier to transparency and accountability. The Committee's original analysis and vision of parliamentary self-regulation buttressed by an independent element still applies.

6.  Not everything need be done entirely "in-House". Arm's length operation by bodies acting on Parliament's behalf may be more effective and accountable. It does require a fundamental culture shift in Westminster from insularity and privacy to openness and accountability, based on core principles. Public trust can only be restored by injecting the necessary element of true responsibility that should make self-regulation operate, not narrowly for Members or staff, but for the public interest….

9.  ….Based on coherent and open underlying principles, applicable to all aspects of parliamentary operation, independent watchdogs can buttress robust internal House mechanisms. This can produce an effective, autonomous parliament, efficiently resourced and regulated, appropriate to modern representative and accountable democracy, and trusted by the public.

And

3.  … my view is that parliaments should be largely self-regulating, so as to preserve that necessary degree of constitutional autonomy, but that modern conditions require a new form and culture of self-regulation, where it can, where appropriate, be carried out "at arm's length" for, and on behalf of, the parliament by, or with the cooperation of, external bodies and persons. This exceptional form of organisational regulation must include robust and comprehensive accountability provisions to ensure that it is being operated transparently and, in all senses, responsibly, and is not being abused. I accept that this view runs counter to the current, and, in my view, misguided, view that parliamentary self-regulation is an outmoded, much-abused "privilege" …

10.  As studies of constitutional watchdogs (especially those related to a parliament) have shown, the most complex and sensitive issue is achieving the proper balance between "independence" and "accountability" in a body's structure, governance and operation, especially in its relationships with:

(a)  its "sponsoring body" which provides its administrative support, appoints its members etc, and

(b)  the bodies or people it regulates, supervises or oversees.

Many overlapping issues arise, which should be considered in advance by or under this Measure, and not when potential or actual difficulties or disputes arise.

14.  The pity of the current position is that, instead of a self-regulating, but fully accountable, parliamentary model, buttressed by an independent, arm's length body, we have the reverse: an independent, remote regulator with some parliamentary elements tacked on.

CONCLUSION

15.  The House has to be brave enough to review fundamentally, in an open and inclusive way, the current sorry state of play, and be prepared to devise afresh whatever arrangements are deemed necessary for a functioning system of resourcing the people's representatives, which is both fully accountable and meets the criterion of the three Es of efficiency, effectiveness and economy.

16.  It has to demonstrate that, in so doing,

—  it is not simply reverting to the bad old days of unaccountable self-regulation, which caused the present problems;

—  a properly reformed system would be designed essentially to serve not the House or its Members or staff, but the public on whose behalf it operates, much better than either the old system or the present 2009 Act "system"; and

—  the public can again justifiably trust its elected representatives and its democratic and accountable parliament.

17.  The Committee, and the House itself, have a unique opportunity—largely missed, thus far, in terms of procedural and institutional reform—to turn the crisis of the expenses scandal into a springboard for not just a better resourcing scheme, but also for a new and more effective and accountable Parliament.

28 September 2011



15   S3A(2), inserted by s28(2), Constitutional Reform and Governance Act 2010. Back

16   12th Report, Cm 7724, Nov 2009, recommendation 41. Back

17   Given the very limited level of legislative scrutiny given to this provision (as with much of what became the 2010 Act), it is not clear whether Ministers or others believed that the amendment to the 2009 Act was designed to give full effect to the CSPL recommendation, or to do so in a diluted form. When announcing its legislative proposals in December 2009, Ministers simply (and perhaps, ambiguously) said that "The Government will also bring forward legislation to ensure that there is specific reference to supporting MPs to carry out their parliamentary duties in an efficient, cost-effective and transparent way." (HC Deb 10.12.09, cc 34-5WS). Back

18   IPSA response to CSPL Report, 15 Sept 2011:
http://www.parliamentarystandards.org.uk/NewsAndMedia/Pages/LatestNews2.aspx?ListNews=739f9c00-b7d4-4282-bffd-951fd8d92d&NewsId=18 See also, Sir Ian Kennedy's article of the same date: "Ultimately, as an independent regulator, IPSA must then make its own determination on the basis of what, in the light of all the various factors and evidence, best serves the public interest. The public interest, as judged by IPSA, is the sole criterion":
http://www.parliamentarystandards.org.uk/NewsAMedia/Speeches/Sir%20Ian%20Kennedy%20article%20-%20Septber%202011.pdf. See also Sir Ian's evidence to your Committee, 13 Sept:
http://www.publications.parliament.uk/pa/cm2012/cmselect/cmmemex/uc1484-i/uc148401.htm, eg Q10. 
Back

19   O Gay & B Winetrobe, Parliament's watchdogs: at the crossroads, Study of Parliament Group/Constitution Unit UCL, 2008; O Gay & B Winetrobe, "Watchdogs of the constitution-the biters bit?", in R Hazell (ed) Constitutional futures revisited, 2008; Ethics and standards: the regulation of conduct in public life, HC Public Administration Committee, 4th Report 2006-07, HC 121, 2007; Review of SPCB Supported Bodies Committee, 1st Report, 2009, SP Paper 266., May 2009. Back

20   The different arrangements at Holyrood and Cardiff Bay merit proper comparative examination. For example, the Chair of the NAW's Remuneration Board, George Reid, as not just a former MP but also a former Scottish Parliament Presiding Officer (and Chair of its Corporate Body), would seem to be ideally placed to provide your Committee with valuable information and perspectives in that regard:
http://www.assemblywales.org/memhome/mem-allow-pay-pensions/remuneration_board.htm 
Back

21   The creation and operation of the Government's e-petitions scheme, and its impact on the House and its business, is a good example of skewed "reform", more to the benefit of the Executive than to Parliament or its public. Back

22   http://www.public-standards.org.uk/Library/Public_Hearing_No_9_Transcript_13.07.09.pdf: pp32-45 (paras 237-433), and pp118-120; NAW Legislation Committee No.1, 21 January 2010, pp 14-27 (paras 149-254): http://www.assemblywales.org/bus-home/bus-third-assembly/bus-committees/bus-committees-perm-leg/bus-committees-third-lc1-agendas/lc120100121qv-lc1_3_-02-10.pdf?langoption=3&ttl=LC1%283%29-02-10%20%3A%20Transcript%20%28PDF%2C%20175KB%29;
Written evidence: http://www.assemblywales.org/bus-home/bus-third-assembly/bus-legislation-third-assembly/bus-leg-measures/bus-legislation-measures-proposed_remuneration/lc1_3_-remuneration-writtenresponses/lc1_3_-remuneration-writtenresponses-nawrm2.htm 
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Prepared 12 December 2011