House of correction

Almost uniquely among European legislatures, the House of Commons has real powers for scrutinising government excesses. The problem, says Adam Tomkins, is persuading backbenchers to use those powers
March 2004

As the Hutton report highlighted, the most critical political issue of the day is this: how to find a way of holding the government to account. Finding out what government has done in our name, and holding it effectively to account for those actions, is no straightforward matter. But, counter-intuitive though it may seem, the truth is that in Britain we have as good a solution to the problem of government accountability as democracy has yet discovered. The scandal is that we lack the will to use it.

That solution is not, of course, to turn to the judges. Most judges remain terrifyingly pro-executive, as Hutton amply demonstrated. All government has to do is whisper the mantra "national security" in the judicial ear and judges will, to a man, roll over. Since 11 September 2001, for example, the government has falsely claimed that now is a time of "public emergency threatening the life of the nation"; it has unlawfully decided that it is laudable to indefinitely detain without trial those whom the home secretary believes to have links with international terrorism (a term that is more broadly defined than ever before). When this was challenged in court the judges simply rolled over.

They should not be blamed for this. Hutton did his job: it is the job of the judiciary to support the state; it is not the job of the judges to hold the government to account in respect of politically sensitive actions or decisions taken in the interests of national security. Criticising judges for being pro-establishment is like disapproving of footballers who play to win. It is lofty, but prissy and ultimately pointless.

Holding the government to account is the job of Parliament. If, post-Hutton, we are alarmed at the way Downing Street manipulated intelligence to suit its political agenda, the responsibility for putting this right lies in Parliament's hands. If, post-Hutton, we are disturbed by the government's bullying of broadcasters, the solution lies with Parliament. If, post-Hutton, we are fearful of how badly the intelligence services appear to have misunderstood Iraq's military capabilities, then, again, the solution lies not with any judge but Parliament.

Britain's constitutional arrangements are unusual in this respect. Few other European states endow their parliamentary assemblies with the powers available to Westminster. It is the absence of such powers in the EU that allows the European Commission to get away with its monumental budgetary mismanagement (and, indeed, corruption).

In most European states parliamentary assemblies have only one task: to enact legislation. In Britain, this is not the case. One way - the most televisual way - Parliament holds the government to account is through prime minister's question time. While question time has long since become little more than a Punch and Judy show, it does remain hugely potent as a symbol. It is a weekly reminder of the most elemental rule of the British constitution: that the prime minister and his government may remain in office only for as long as they continue to enjoy majority support in the House of Commons. The minute that the government loses such support is the very minute it must resign from office, as Jim Callaghan's model behaviour exemplified in 1979.

Despite the high profile given to it by the media, Parliament's record should not be judged by reference to the rituals of question time. Parliament is a far more effective scrutineer of government than question time would suggest. Its best work is undertaken well away from the media's glare, away even from the floor of the House of Commons. Unglamorous and largely unreported they might be, but the House of Commons select committees are the best method we have of holding our government to account.

The committee's powers are considerable. The Standing Orders of the House of Commons provide that committees may examine any aspect of government "expenditure, administration or policy". They decide for themselves the issues that they should investigate. The government cannot tell select committees what they can and cannot inquire into. In support of their work they have the power to call for any persons, papers or records; ministers may be compelled to appear before them. These are real powers, enshrined in constitutional law; they are not mere conventions. No one should underestimate the extent to which these powers allow Parliament to scrutinise the government.

Certainly, the Blair government does not underestimate these powers, as was demonstrated by its whips" clumsy (and ultimately unsuccessful) attempt to influence the membership of the committees in the aftermath of Labour's 2001 election victory. To its great credit, the Parliamentary Labour Party did not let the whips get away with this, and the committee chairs whom the government had sought to oust were reinstated.

The widespread expectation that the scale of Labour's majorities since 1997 would weaken the ability of Parliament to subject the government to scrutiny has not been met. Indeed, there are significant ways in which the government is held to account more effectively than has ever been the case before. A new practice has developed, for example, whereby the prime minister must subject himself every six months to interrogation by the House of Commons liaison committee.

For all the plusses, however, two caveats need to be entered. One is an issue of substance; the other of personnel. As to the first, the one major area that Parliament still cannot effectively scrutinise is the intelligence community. National security and secret intelligence remain off limits. There is a committee, called the Intelligence and Security Committee (ISC), that John Major established in 1994. But while parliamentarians serve on it, the ISC is not a committee of Parliament and does not possess the same powers as are enjoyed by the committees of the Commons. Unless and until Parliament's scrutiny is allowed to penetrate the murky world of national security, the intelligence community and the government it ostensibly serves will continue to avoid accountability.

The second caveat is that whatever the issue, whether it is national security, public services or economic policy, Parliament's scrutiny can be only as effective as the Members of Parliament make it. The 6m question is whether we have sufficient numbers of MPs that are up to the job. Clearly, some are. Tony Wright and Gwyneth Dunwoody, to name but two, have proved themselves to be fearless at leading the select committees they currently chair (public administration and transport, respectively). But how many Labour MPs consider that their job is to subject the government to searching scrutiny, rather than blindly supporting it in times of trouble? And how many Labour ministers accept that the job of the party's MPs is to hold the government to account, not merely to follow obediently through whichever lobby the government instructs them to pass?

There is a dark side to this government's relations with Parliament. While the amount of Parliamentary scrutiny may be said to have improved under Blair, the quality of that scrutiny has been threatened as never before. The ability of individual constituencies to select candidates that may dare to express disloyalty to the government is more constrained than ever before. The people who become MPs tend not to do so because they aspire to a career on the select committee corridor, but because they want to become ministers; and we all know that the only way to become a minister is to please the whips, and through them, the prime minister. The party machine is a beast that, if we are not watchful, has the power to destroy our system of Parliamentary accountability. Reconstructing the aims and the organisation of our political parties so that they learn to cherish, rather than to expel, their most critical members, is an essential task if Britain's heritage of Parliamentary accountability is to survive. If we fail, we will have no one to hold the government to account save for the dismal likes of Lords Hutton and Butler. Is that really what the Labour Party wants?Adam Tomkins is professor of public law at the University of Glasgow






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