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6.1.2 Government and Accountability Lecture

I. The Executive and Public Law Powers

  • The rule of law requires that all be subject to the law, even the government or executive. The authority of the executive comes from Parliamentary legislation and the Crown's Royal Prerogative and common law powers.
  • Royal prerogative powers are residual and thus cannot be extended by the Crown.

II. Mechanisms for Executive Accountability

Three mechanisms for accountability include legal, political and administrative methods. Scrutiny comes from:

  1. Parliament
  2. Judicial
  3. The Electorate

III. The Extent to Which Parliament Holds Government Accountable

Concerns were voiced that the executive had dominated Parliament and that it should be held to account in new ways. The Modernisation Committee carried out a number of reforms (1997-2005).

IV. Pre-legislative and Post-legislative Scrutiny of the Executive

  • Draft Bills are usually scrutinised by a committee in the Commons and in the Lords, or a joint committee
  • All Bills are scrutinised by the JCHR for human rights issues
  • There is occasionally a rebellion by backbench MP's

V. Parliamentary Scrutiny of Government

  1. Parliamentary Questions - asked to extract information or to require the government to defend controversial decisions and policies.
  • Oral Questions
  • Written Questions
  1. Parliamentary Debates - held on particular issues and allow for expression of various points of view and Standing Order No 14 states that 'government business shall have precedence at every sitting.
  1. Select Committees
  1. House of Commons Departmental Select Committees
  1. Assessment

Select committee advantages:

  • The committees provide for more detailed scrutiny than House of Commons debates.
  • They are less politically charged methods.
  • The ability of select committees to scrutinise government have strengthened over time.
  • They have enabled MP's to develop their own expertise, enhancing the quality of their scrutiny.

Select committee disadvantages:

  • The current system of select committees is regarded as operating under various constraints.
  • Their reports are not debated in the House of Commons unless the government allows time for the debate.
  • There is a lack of resources for committees to be able to carry out their duties adequately.
  • The broader the remit of the Committee, the less depth of scrutiny they are able to achieve.
  • The government is not bound to accept the recommendations of the select committees.

VII. Scrutiny through the Courts

Courts have a wider remit - Council for the Civil Service Unions v Minister for the Civil Service [1983] UKHL 6.

English courts do not draw a distinct line between justiciable and non -justiciable cases when it comes to judicial review. Judges are hesitant to question the government's economic policy decisions. Where there are human rights considerations the House of Lords have examined administrative decisions which relate to the right to asylum and freedom of speech - R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514.Exceptions may arise where there are national security or emergency considerations.

How Effective is the Courts' Review of the Executive?

Three significant limitations of the court's ability to subject the executive to judicial scrutiny.

  1. The court's reluctance to deal with certain areas of policy carried out by the government.
  1. The potency of the court’s remedies. Damages are rarely awarded or act as a deterrent.
  1. Whether privileged male judges should desire to hold the elected government to account.

VIII. Reforming Parliamentary Scrutiny

  1. Parliamentary Scrutiny - An Assessment

Parliamentary scrutiny of government may be inadequate, since government is capable of avoiding parliamentary oversight of what it does.

Governments must still listen to and respond to concerns raised by Parliament, however.

  1. If opposition parties are able to prompt adverse public reaction, the government may be forced to abandon certain proposals.
  1. Parliamentary scrutiny can also have a positive effect by contributing to debates.
  1. Parliamentary Scrutiny - Reform
  • reducing the influence of the whips;
  • increasing the powers, role and status of select committees;
  • reducing the ability of the government to set Parliament's agenda.

IX. Freedom of Information and Government Scrutiny

In order to hold the government to account it is necessary to have access to accurate information from government - Freedom of Information Act 2000.

  • Advances transparency
  • Creates a broad right of access to information - Section 3, Schedule 1 & Section 19

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