Week 15: 2 Houses of UK Parl, Parliamentary Standards and Public Inquiries, Responding to Issues in Governance, MPs MSPs and Ombudsman

Question 1

Explain Parliamentary Questions/ PMs Questions

Answer 1

Procedure by which MPs in the House of Commons (MSPs in Holyrood) can ask Ministers and the Prime Minister questions on various matters

Question 2

Why may MPs wish to ask parliamentary and PM Qs

Answer 2

Saalfield highlights various reasons why MPs may wish to ask questions:

• Opposition MPs may wish to challenge the decisions of the Government or the personal conduct of the Minister
• Government backbenchers may wish to support the Government by asking questions which highlight policy successes
• Enhance the reputation of the MP in their constituency

Question 3

Give criticisms of the effectiveness of Parliamentary questions (4)

Answer 3

• Procedure used to ‘score points’ against other political parties
• Answers are sometimes delayed, incomplete or irrelevant
• Ministers may refuse to answer questions on the grounds of disproportionate cost
• Questions asked may not be within the Minister’s (or PMs) control

Question 4

Explain debates at the HoC and the HoL

Answer 4

Generally, debates in both Houses of Parliament are spent discussing bills

• But debates can also focus on how the Government is conducting its executive functions

How debates are conducted are governed by both Standing Orders and the rules and customs of Parliament (e.g. Erskine May)

• Government normally controls agenda (Standing Order No.14)
• Opposition Days give largest and second largest opposition parties chance to choose topic for debate
• Adjournment debates as way for an ordinary MP to raise a matter and get Ministerial response

Question 5

How is the behaviour of MPs and MSPs regulated

Answer 5

Independent Complaints and Grievance Scheme 2018

• The Behaviour Code
• The Bullying and Harassment Policy
• The Sexual Misconduct Policy

Created after recurring issues of bullying, sexual harassment and misbehaviours in the House of Commons

• Negative impact on employees, other MPs and the broader working environment
• Negative impact on the reputation of Parliament

Question 6

What happens when there is a breach in behaviour by MPs and MSPs and what are the available sanctions

Answer 6

Alleged breaches investigated by the Parliamentary Commissioner for Standards → overseen by the Committee on Standards
In Scotland, alleged breaches are investigated by the Ethical Standards Commissioner

Various sanctions can be recommended:

• Advice given or training suggested
• Rectification
• Apologies to the impacted party and Parliament generally
• Suspension or expulsion (HoC/ Holrood the ultimate decision-maker)

Question 7

Examples of times the Parliamentary Commissioner for Standards and the Ethical Standards Commissioner have exercised their powers to promote good governance standards

Answer 7

Mr Daniel Zeichner MP

• Misuse of Parliamentary stationary for Party-political purposes
• Refunded expenses; measures put in place to prevent a repeat

Mr Ian Blackford MP

• Did not register financial interests in a company; contributed to a debate on a topic concerning the company’s business
• Apologised to the House of Commons

Mrs Sarah Boyack MSP

• Failed to include renumeration from Scottish Federation of Housing Associations in Register of Interests
• No sanction recommended

Question 8

Explain establishement and responsibilities of the Independent Parliamentary Standards Authority

Answer 8

Direct response to the expenses scandal > Parliamentary Standards Act 2009 (PSA 2009)

• Generally only applied to the House of Commons; does not extend to the House of Lords (s.2(1) PSA 2009)

Key responsibilities are to create an MP allowance scheme (s.5(3) PSA 2009) and to process expense claims (s.6 PSA 2009)

• Also obliged to provide guidance of expenses and taxation issues (s.7 PSA 2009)
• Can request investigations by the Compliance Officer into MP’s expense claims (s.9(2)(b) PSA 2009

Question 9

What are public enquiries

Answer 9

Major investigations initiated by a government minister
* Inquiry panel gifted special powers to compel testimony and release other forms of evidence
* Can be convened through various legal means; e.g. Inquiries Act 2005

Question 10

Ministers can only initiate a public enquiry if -

Answer 10

“(a) particular events have caused, or are capable of causing, public concern, or

(b) there is public concern that particular events may have occurred.” – s.1(1) Inquiries Act 2005

Question 11

Give example of recent public enquiries

Answer 11

• Grenfell Tower Inquiry
• COVID-19 Inquiry

Question 12

What are the 3 main functions of a public enquiry

Answer 12

• Establish what happened
• Determine accountability
• Prevent recurrence of event and incorporate findings into public policy– Jason Breer QC

Public inquiries are not intended to determine an individual’s criminal or civil liability (s.2(1) Inquiries Act 2005)
But evidence can be used in subsequent proceedings

Question 13

What are ‘terms of reference’ of public enquiries

Answer 13

Sets out what they can investigate and the aims of their investigation

Question 14

What are two critiques on the terms of reference of public inquiries

Answer 14

• The Saville Inquiry – Over time and over budget
• Citizens directly affected by the event want broad terms of reference; balance between their interests, a focussed inquiry and the public interest in preventing recurrence of the event

Question 15

How are public inquiries carried out

Answer 15

Inquiries are undertaken by the inquiry panel, which can be a single chairman or a chairman and other appointed members (s.3(1) Inquiries Act 2005)
The appointment of chairman is often a rushed affair, reflecting the political pressure that such events can place on Ministers

Minimal legislative or administrative guidance on how a public inquiry should be run (s.17 Inquiries Act 2005)
* Generally up to the chairman to “learn as they go”
* Public inquiries can also take a long time to complete, and may be further delayed by concurrent police investigations and cases

Question 16

Describe the implementation of the recommendations of the public inquiry up to Government

Answer 16

• Inquiry recommendations are not binding, and the Inquiries Act 2005 does not provide for the implementation of the recommendations
• Implementation does occur, but is ad hoc and the only sanction for failing to do so is public criticism

Question 17

Explain the recall of MPs and Peers

Answer 17

MPs will stay on as MPs even if they change political parties or are ejected from their political party
Recall of MPs Act 2015

One of three things must happen for a petition to open:
1) convicted of an offence and received a sentence or ordered to be imprisoned or detained (s.1(3) of RMPA 2015)
2) suspended from service by the House of Commons following a report from the Committee on Standards (s.1(4) RMPA 2015)
3) convicted of providing false or misleading information for allowance claims under the Parliamentary Standards Act 2009 (s.1(9) RMPA 2015)

Question 18

Examples of recalled MPs

Answer 18

Christopher Paul Davies
Convicted for fraud relating to Parliamentary expenses – framed landscape photographs for decoration
Fined £1,500 and ordered to complete 50 hours community service by the Court

Fiona Onasanya
Found guilty of perverting the course of justice – lying about who was driving car going 41mph in a 30mph zone
Jailed for 3 months

Owen Paterson
Failed to declare interest in a company he was lobbying for
Not actually subjected to the recall procedure, but did resign anyway – political accountability

Question 19

Explain petitions for recall of MPs and Peers

Answer 19

Once a petition is open:

• Open for signing for 6 weeks (s.9(2) RMPA 2015)
• If 10% of MP’s constituency signs > MP loses seat and by-election is held (recalled MP can stand in by-election) (s.14(3) and s.15(1) RMPA 2015)

Question 20

How effective and fair is the recalling of an MP as a sanction

Answer 20

• Petition may not reach 10% requirement despite finding of “serious misconduct” (Ian Paisley of the DUP, Sri Lanka, only had to apologise to HoC)
• Differences in how the petition is managed between constituencies (e.g. number of petition stations)
• Whether recalled MP will be re-elected is a matter of politics

Question 21

What did the House of Lords (Expulsion and Suspension) Act 2015 and the Standing Orders of the House of Lords Relating to Public Business do?

Answer 21

• Enabled a suspension to be imposed on a member that would run beyond the end of a Parliament;
• Allowed the House of Lords to expel members for misconduct

Implemented through the Lords Standing Orders, which specifies that “misconduct” equates to a breach of the House of Lords Code of Conduct
* No Lord have been expelled under the Act
* But there have been suspensions and resignations in the House of Lords

Question 22

Purpose, online, Petitions Committee

Explain petitions to UK Parliament

Answer 22

Provides a recognised process in which the public has a direct link to Parliament
Different from submitting a petition to your MP
Direct democracy, not representative
Matters of public interest are given the most attention

Inform Parliamentary debate and executive scrutiny

• Over 10,000 signatures > response from the Government
• Over 100,000 signatures > will be considered for debate in Parliament

Can be made online

• More accessible to the general public
• Increased Transparency
• Increased possibility of fraudulent signatures?

All petitions sent to the Petitions Committee, who can

• Take evidence from expert witnesses
• Can look into or ask another parliamentary committee to look into the topic raised by the petition
• Produce reports

Question 23

How effective are petitions?

Answer 23

• Petitions which reach 100,000 signatures are considered for debate
• Draw attention to issues
• Do they influence public policy?
• Expectations of citizens
• Does it replace grassroots campaigning? - grassroot campaigning may provide stronger spotlight for policy issues/concerns even if it isnt part of petition process

Question 24

and example of successful petition

Petitions to Scottish Parliament - Key Differences

Answer 24

All admissible petitions discussed by the Scottish Parliament’s Public Petitions Committee

• Petitioner must have taken action prior to submitting petition
• Some petitioners invited to the Committee to give evidence
• Ministers often engage with the petition process
• Two-way communication as to admissibility; impact on petitioner’s expectations

Greater opportunity to engage with governance and influence policy - Seat Belts on School Transport (Scotland) Act 2017

Question 25

Explain the confidence of the HoC and motions of no confidence

Answer 25

The Government must be able to command the confidence of the House of Commons

Commanding the confidence of the House of Commons is a significant constitutional principle

• “The ability of a government to command the confidence of the elected House of Commons is central to its authority to govern. It is tested by votes on motions of confidence, or no confidence” – The Cabinet Manual

A motion of no confidence is a parliamentary motion that challenges the government’s authority by expressing the lack of confidence in its ability to govern.
Motions of no confidence can be
1. Explicit
2. Implicit (e.g. the Budget; the Queen’s Speech)
3. Matters of confidence designated by the Government

Question 26

Calling an election - A Timeline of Legal Developments

Answer 26

• Pre-2011: The ‘traditional’ postion
• 2011: Fixed-term Parliaments Act 2011
• 2022: Dissolution and Calling of Parliament Act 2022

Question 27

Explain the calling of an election prior to 2011

Answer 27

Prime Minister can advise the monarch to dissolve Parliament and call for a general election

• Monarch cannot decline this request – would look like they are becoming involved in political matters

Must have an election every 5 years (s.7 Parliament Act 1911)

Question 28

Why might a PM call for an early election

Answer 28

• They have lost the confidence of the House of Commons
• They think they are going to win, and want to reinforce their political position

Question 29

Analyse the prerogative power to call an election

Answer 29

The Executive holds the power

• Minimal role of MPs and the House of Commons generally
  Potential for opportunistic elections?
  Was such a restriction of the Government’s power required?
• Threat of the Government calling a confidence motion or threatening dissolution not often used
• When power was used, was used to great effect (e.g. John Major and the Maastricht Treaty, 1992)

Question 30

Explain the Fixed-term Parliaments Act 2011

Answer 30

Fixed-term Parliaments Act 2011 removed prerogative powers of dissolution and the ability of PM to call an early election

Two triggers for general election given to Common:

• 1st: Motion for early general election agreed by 2/3 of House (s.2(1) FTPA 2011)
• 2nd: No confidence motion passed and no Government is formed in 14 days (s.2(3) and (4) FTPA 2011)

If a motion of no confidence did not comply the provisions of the FTPA 2011 it could not lead to the dissolution of Parliament and a general election

Changed the relationship betwee Government and Parliament

• Bigger role for MPs in the House of Commons

Question 31

What are the positives and negatives oft the Fixed-term Parliament Act

Answer 31

Positives

• No more opportunistic elections?

Negatives

• Less likely to lead to single-party majorities
• Potential for stalemates
• MPs lost confidence in the Government, but are not willing to call for a general election
• This was the case in 2019

Question 32

Describe the Dissolution and Calling of Parliament Act 2022

Answer 32

The Dissolution and Calling of Parliament Act 2022 was passed as a result of opposition to the Fixed-term Parliament Act 2011

Reverted the position back to pre-2011

• Prime Minister’s prerogative to dissolve Parliament and call a general election restored (ss.1 and 2 of the Dissolution and Calling of Parliament Act 2022)
• Parliament has a 5 year maximum duration (s.4 Dissolution and Calling of Parliament Act 2022)

Extra element – Courts cannot adjudicate on the exercise of powers under the Act (s.3 Dissolution and Calling of Parliament Act 2022)

• Will this be effective in practice? R (on the application of Miller) v Prime Minister [2019] UKSC 41 raises doubts

Question 33

Explain how MPs and MSPs help to promote good governance values

Answer 33

By means of redress:
Complain to MP or MSP

• Seen as important in maintaining constituency link
• Will know who to approach and can add weight to complaint

If necessary use parliamentary mechanisms (parliamentary debates, PM/Ministers Qs) to raise issue

• E.g. Can submit petitions to Parliament from the public (different from the online petition process)

Helps to identify systemic failings

• Child Support Agency – complaints from families across to UK to their respective MPs. Was fixed

Question 34

Explain what Ombudsmen is

Answer 34

Administrative redress procedures: act seperately and independently of MPs, MSPs as well as the political accountability.
Created to investigate and examine complaints of injustice caused by maladministration

• Some remits are wider (e.g. “have not acted properly or fairly or have provided a poor service” – Parliamentary Health Service Ombudsman)

Do not consider legality or merits of decisions

• But look at other failings, such as maladministration

Question 35

Explain maladministration

Answer 35

Definition: issues or problems in the way in which a public authority has taken a decision.

Acts as the core of the investigations done by the various Ombudsmen which operate in the Uk

Question 36

Explain Crossman catalogie’s operational definition of maladministration

Answer 36

Crossman catalogue: during debate on the Parliamentary Commissioner Bill on October 1966

• bias
• inattention
• incompetence
• perversity
• arbitrariness
• neglect
• delay
• ineptitude
• turpitude

Question 37

Examples of Maladministration

Answer 37

• rudeness (though that is a matter of degree);
• unwillingness to treat the complainant as a person with rights;
• refusal to answer reasonable questions;
• neglecting to inform a complainant on request of his or her rights or entitlement;
• knowingly giving advice which is misleading or inadequate;
• ignoring valid advice or overruling considerations which would produce an uncomfortable result for the overruler;
• offering no redress or manifestly disproportionate redress
• showing bias whether because of colour, sex, or any other grounds;
• omission to notify those who thereby lose a right of appeal;
• refusal to inform adequately of the right of appeal;
• faulty procedures;
• failure by management to monitor compliance with adequate procedures;
• cavalier disregard of guidance which is intended to be followed in the interest of equitable treatment of those who use a service;
• partiality; and
• failure to mitigate the effects of rigid adherence to the letter of the law where that produces manifestly inequitable treatment

Consider in relation to good governance values

Question 38

Explain the basic Ombudsmen model

Answer 38

Task is to investigate complaints of injustice that occurred in consequence of maladministration

• Ombudsman independent of the bodies they investigate
• (Generally) must use other appropriate mechanisms first
• Required to report to Parl. annually on performance of her functions under the PCA 1967
• When identified maladministration took place, she can lay a special report before Parl

Specific scope of the Ombudsman contained within the relevant legislation

• Specified list of bodies which can be investigated
• Subject-matters that are excluded
• Does the person who has “suffered injustice” have direct access?
• Powers to investigate

Question 39

What matters can be investigated by the Parliamentary Ombudsman (created by Parliamentary Commissioner Act 1967)

Answer 39

• Claims by a member of the public that they have to have sustained injustice in consequence of maladministration arising from the actions (or inactions) of a public authority (s.5(1) PCA 1967)
• Cannot investigate if the person claiming to have suffered an injustice has a right of appeal through a tribunal or court (s.5(2) PCA 1967)
• Cannot investigate if it is a “listed matter” in Schedule 3 of the Act (s.5(3) PCA 1967)

Question 40

Who can be investigated by the Parliamentary Ombudsman?

Answer 40

Any public authority or any public body which is listed in schedule 2 (s.4(1), PCA 1967) can be subject to investigation by the Parliamentary Ombudsman
Read section 3

Question 41

Who can ask for an investigation?

Answer 41

• Any individual or body who is “aggrieved”/fallen ill (s.6(1) PCA 1967) within 12 months of the inciting event (s.6(3) PCA 1967)
• What if the “aggrieved” person cannot submit a complaint? (s.6(2) PCA 1967)
• “MP Filter” (s.6(3) PCA 1967)

Question 42

What remedies can the Parliamentary Ombudsman apply

Answer 42

Recommendations to fix injustice and damages

Question 43

Are Ombudsman reccomendations binding?

Answer 43

Parliamentary and Health Service Ombudsman: Parliamentary Commissioner Act 1967

• Almost invariably accepted; R (Bradley) v SoS for Work and Pensions [2008] EWCA Civ 36
• Further reports to Parliament (s.10 PCA 1967)

Similar position for other Ombudsman

• Local Government Ombudsman: R. v Local Commissioner for Administration for England Ex p. Eastleigh BC [1988] Q.B. 855, 867 and R. (on the application of Nestwood Homes Developments Ltd) v South Holland DC [2014] EWHC 863 (Admin), para 57

Question 44

Ombudsman: A Practical Example

Answer 44

Local Government and Social Care Ombudsman

• Established by the Local Government Act 1974

Main statutory functions:

• to investigate complaints against councils and some other authorities
• to investigate complaints about adult social care providers from people who arrange or fund their own adult social care
• to provide advice and guidance on good administrative practice

Investigation of a complaint regarding the refusal of a personalised disabled parking space near the complainant’s son’s house

The local authority:

• Did not consider a judgment by the First Tier Tribunal on the complainant’s son identifying that he was “unable to walk” relevant
• Strictly adhered to their policies without considering either the exceptions or how these specific facts applied to their policies

Ombudsman found the authority was at fault in how it treated the complaint’s application

• Pay compensation for distress caused
• Install a personalised disabled parking space
• Implement procedure to ensure issue would not occur again

Question 45

Describe public sector ombudsmen

Answer 45

ombudsmen that are independent of government and investigate complaints against public bodies

Question 46

Describe private sector ombusdmen

Answer 46

Typically established by particular industries and professions to act as complaint handlers. Thus there is an Energy Ombudsman, a Legal Services Ombudsman, and even a Furniture Ombudsman

Question 47

What is the issue of ombudsmen reform?

Answer 47

A review by the Cabinet Office in 2000 concluded that the integrated model should be adopted in England by merging the Parliamentary, Health Service, and Local Government Ombudsmen.
However, new difficulties;

• she (unlike the Health and Local Government Ombudsmen) is not an English, but a UK, ombudsman, with jurisdiction over both English and UK-wide public bodies.
• If the UK Parliamentary Ombudsman were to be merged with the English Health and Local Government Ombudsmen, would the resulting institution be an English or a UK one
• If the former, why should it have jurisdiction over non-devolved matters pertaining to other parts of the country? And, if the latter, why should its jurisdiction be limited in some regards to England?

Question 48

Role of the House of Commons Public Administration and Constitutional Affairs Select Committee (PACASC)

Answer 48

• Scrutinises the Ombudsman’s work
• and, when it considers it appropriate, acts as her champion by orchestrating political pressure when the government proves reluctant to accept the Ombudsman’s findings and recommendations.
• The PACASC frequently follows up Ombudsman reports through hearings with government officials.

Question 49

How can Ombudsmen be regulated

Answer 49

• They are amenable to judicial review: Ombudsmen have discretion, but the courts can intervene if ombudsmen overstep the mark.

Question 50

Are the Ombudsmen’s reccomendations legally enforceable

Answer 50

• When the Northern Ireland Public Services Ombudsman makes a finding of maladministration occasioning injustice, the person aggrieved may ask the county court to require the public body concerned to pay damages.
• In certain circumstances, the High Court can issue an order, such as an injunction, requiring the public body concerned to desist from any further conduct of the type that the Northern Ireland Public Services Ombudsman has found to have occurred as a result of maladministration occasioning injustice.

Question 51

Are findings of Local Government Ombusdmen binding?

Answer 51

Yes, and can only be rejected if they have been successfully challenged by way of judicial review

Question 52

What powers do ombudsmen have in terms of conducting investigations?

Answer 52

• They can require the disclosure of relevant documents
• They can require individuals to present themselves for questioning and examination
• they can refer to those who obstruct their investigation to the High Court