Increasing the Powers and Resources of Scrutiny

The Public Accounts Committee and Scrutiny Committee laid a joint policy letter to the States at the February States meeting. This was very important to me as I had wanted to increase the powers and resources of the scrutiny function before I was elected and everything I have witnessed since I was elected as Chair of the Public Accounts Committee demonstrated to me why this was necessary.

I am pleased that the policy letter was passed, with an amendment on funding that we did not oppose. This means that the new Scrutiny Management Committee will be better placed under the new machinery of government. Below is my speech.

 

Sir

This policy letter arises from an amendment placed by myself and the Chair of the Scrutiny Committee to ensure that the powers and resources of the new SMC were agreed before the end of this term. We could have decided to go with the original proposals in the SRC report, stating that this should be left to the new Committee to consider. However, we believed that it was important that it should be able to hit the ground running and get changes put in motion as soon into the new term as possible.

It is important to stress at the outset that this States has already agreed the structure of scrutiny that it wants for the future and that it should have more powers and resources. This policy letter is therefore following the direction of the States in setting out what it believes those powers and resources should be.

It is also important to make it absolutely clear that what we propose is not a pick and mix; our proposals set out the minimum requirement to give effect to the new scrutiny structure and reflects our 4 years of experience and more in some cases, of the current system.

We have concluded that specific areas require significant strengthening to ensure that effective scrutiny can be provided.

I am not going to go over all these now, they are clearly set out in the report, but I will focus on some key points.

Firstly, the power to compel, or to use the standard term, ‘the power to send for persons, papers and records’. A power that is standard in the UK and other Crown Dependencies.

The  appropriate legal infrastructure will need to be in place to ensure the enforceability and legality of the proposed approach. Powers to send for papers and records are already vested in various statutory bodies today, such as the GFSC, Children’s Convenor and CICRA. In our view, therefore, the drafting of such legislation should be relatively straightforward.

Secondly, rights of privilege should be extended to any person giving evidence to scrutiny panels and hearings.

At the moment a person attending to give evidence, or producing any document to the Scrutiny Committee or the Public Accounts Committee is entitled to the same immunities and privileges as if they were a witness before the Royal Court, whereas a Deputy enjoys absolute privilege. This may have been an error in the drafting of the legislation as it was intended to be provided for in the original Billet.

This will allow witnesses to be able to speak freely to their elected representatives, a fundamental democratic right.

Thirdly, in terms of  visible impartiality we  recommend that a memorandum of understanding should be in place between the Principal Scrutiny Officer and the Chief Executive that guarantees the operational independence of the former whilst providing him or her with the appropriate management support.

To provide the necessary balance, the Principal Scrutiny Officer must ensure that, any review undertaken complies with the SMC mandate, provides value for money, and is in the public interest. Where a review does not meet these tests, in the opinion of the Principal Scrutiny Officer, the Principal Scrutiny Officer can be formally instructed to proceed by the Committee through a written direction.

Now, we turn to a recommendation in this report that is certainly very timely. That is the ability, in certain contexts, to be able to be review the internal legal advice provided to Departments and Committees.

This is a complex area. However, at Westminster, legal advice has been questioned by Select Committees in certain circumstances. To allow for this to happen, UK Ministers, in effect, waive their insistence on the confidentiality of the legal advice their departments receive.  In the UK, the decision to disclose the Attorney General’s advice on the legality of military action in Iraq, has created a high level precedent which will make it difficult for governments to hide behind the claim that ‘we never make public the advice of our Law Officers’. To those who argue that this was an exceptional case, I would respond that the only thing that was exceptional about it was the level of political pressure which forced eventual disclosure.

Something to consider in light of recent events.

It is clear to both current Committees that the content and rationale of the advice provided to politicians and staff by the officials within St James’s Chambers, should be subject, when appropriate, to review by Parliament. And, standing here occupying the place he used to take I am reminded that this is something that the Late Alderney Representative Paul Arditti felt very strongly about it. I do think it is sad that he can’t be taking part in this debate.

 

Yes, the mechanisms need to be thought through carefully. However, a complete bar on the ability to scrutinise legal advice, is inconsistent with the principles of openness and transparency that lie at the heart of good government. The scrutiny arrangements and perhaps as importantly, the culture within government, must allow for parliamentary oversight of this type of material when it is appropriate.

Both Committees have also expressed a desire for additional clarity in situations where there is uncertainty as to whether advice is legal advice, or rather advice from a Law Officer on a non-legal matter. We believe that guidance on this matter should be clearly drawn to avoid a situation where appropriate parliamentary scrutiny is blocked by the refusal to release advice from a law officer on a non-legal matter.

Legal advice given to States Departments and Committees is primarily provided by the Law Officers of the Crown and lawyers working under their direction at the Law Officers Chambers. Where advice is given by a lawyer to a private or commercial client, that client could decide to “waive” privilege at their discretion and disclose the contents of the advice. However, different considerations arise in relation to advice given by, or on behalf of, a Law Officer to Departments, Committees and other public office holders.

However, as was demonstrated in the disclosure of Lord Goldsmith’s advice on the legality of the war in Iraq and of Jeremy Wright’s own recent advice on the legality of RAF drone strikes on British ISIL targets, there are “exceptional” circumstances when at least the fact of giving advice is disclosed. For the reasons set out above, it is suggested that the situation in Guernsey should mirror that described in England and Wales and, as that approach changes, so should ours.

The key point here is that in certain circumstances it should be possible to view the advice that led directly to decisions being made. This may be very rare but it is also essential. Advice is just that – advice; Boards take the decisions. And if political scrutiny is to mean anything, it has to be able to test the judgements which Boards have made based on the advice they have received.

 

So, last, but by no means least, we get onto the sticky matter of funding. It is very difficult for me, as Chair of Public Accounts Committee to come here and request extra money, but I knew that would inevitably be the case at the start. I would hazard a guess that all members would have expected that, more powers and resources would come at a cost. But, remember, it is not about cost, rather value for money. It will not mean more of the same, but the ability to undertake urgent hearings and respond faster than is possible at present. We are only going to get a stronger scrutiny function if we allocate more resources to it.

 

If this assembly wishes to have effective political, financial and legislative scrutiny then it will cost more money. If members believe that this level of additional expenditure is unjustifiable then so be it, but please do not then constantly reprimand the new SMC for not addressing the numerous areas of public concern that arrive throughout the next political term. This month and next we will be debating areas of huge strategic importance: the alphabet soup of SLAWS, CYPP, SCIP as well as Waste, perhaps CHP and dare I say education?

As things stand the current resources are woefully inadequate. From a financial scrutiny perspective alone, we have just 3 staff to scrutinise 1/2bn of States general and SSD annual expenditure. That’s when no one is ill or on holiday. Compare that with Jersey with spends nearly £800k on the Auditor-General’s office, £311k on Scrutiny, excluding staff costs which are probably a conservative £500k, plus a dedicated building and all that excludes the child abuse enquiry for which £20m has been set aside. Yes it has a ministerial system, but that doesn’t mean that scrutiny should be funded any the less. And in the next term, with a more powerful centre and fewer Deputies, a stronger scrutiny function will become even more important.

It’s not as if what we are asking for is unreasonable. It represents 3 more staff, one of which is for legislation, which currently has no resource and £150k for specialist advice which will be necessary as the SMC focuses on complex areas, where generalist knowledge will be inadequate.

And don’t forget the Deputy resources that will be lost from scrutiny as a result of the new machinery of government. In fact, we have calculated that the loss in terms of Deputy and Non-States members’ time comes to the equivalent of £191k.

Also, remember that in the last budget we agreed to pay an extra £900k for SCIP programme and £200k for additional Policy Council resources. Why is that OK, but not the resources to scrutinise it?

 

As William Gladstone famously pointed out – ‘Men are apt to mistake the strength of their feeling for the strength of their argument. The heated mind resents the chill touch and relentless scrutiny of logic.’

Gladstone correctly identified that many well-meaning politicians cannot see the weaknesses in their own arguments – this is why Scrutiny is so important

And, In the words of Arthur Conan Doyle’s famous fictional detective, Sherlock Holmes “It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.”

This is where Scrutiny comes in – no individual member has, or will have, the time or supporting resources to fully investigate a significant portion of government policy.

Independent political scrutiny is essential and a properly-resourced scrutiny system empowers the individual Deputy as a member of a scrutiny panel.

The recommendations made to the States in this Policy Letter provide for a future scrutiny function with greater capacity, powers and resources to ensure Committees and their agents can be effectively held to account by the SMC.

I believe we have provided an appropriate balance in the context of the changing machinery of government and therefore ask that all members fully support increasing the powers and resources as set out in this policy letter.



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