Public bodies and the constitution

Alex Walker
By: Alex Walker

A review in light of recent events

Public bodies have been much in the spotlight in the last few months. Courting controversy and concern is nothing new for the many organisations which conduct public functions at varying degrees of remove from ministerial departments. Yet recent incidents suggest an administration particularly frustrated with some public bodies and those that currently oversee them.

The first episode came in mid-August, when it was announced that Public Health England (PHE) was to be scrapped and replaced with a new executive agency – the National Institute for Health Protection.

The A-Level results fiasco followed, the fallout from which led to the resignations of both the Chief Executive of Ofqual, Sally Collier, and the Permanent Secretary at the Department for Education, Jonathan Slater. The education minister, Gavin Williamson, however, remained in post.

Then, at the end of August, a submission from the Conservative Party to an inquiry by the Committee on Standards in Public Life attacked the Electoral Commission and included the suggestion that it be abolished. The Commission’s chief, Sir John Holmes, was later told that he would not be up for reappointment, despite his desire to stay in the role.

Finally, the government has stated its intention to politically rebalance public body leadership after data showed a higher prevalence of Labour appointees, with controversial figures recently floated for high profile roles.

Whilst there will inevitably be political disagreement about the correctness of the government’s approach in each of these instances, is there cause for concern from a constitutional point of view? In order to arrive at an answer to this, it will be helpful to look first at the constitutional significance of public bodies.

The constitutional role of public bodies

This subject was addressed by Professor Dawn Oliver in a paper published by the Constitution Society in 2017. She makes the case that many public bodies have ‘duties of stewardship’ which in practice are constitutional in nature, referencing the widely accepted constitutional principle of public service: that government should be undertaken disinterestedly in the public interest. As Professor Oliver points out, the Seven Principles of Public Life, although non-statutory, are an expression of this principle of public service and are widely seen as constitutional. Furthermore, they apply to all public bodies and are cited in the Governance Code on Public Appointments (2016). In this broad sense, it can be said that those appointed to public bodies have some constitutional role in upholding these principles. However, it would be a stretch to say that all public bodies perform a constitutional function.

Nevertheless, there are particular public bodies whose function is clearly constitutional in nature. In these instances, independence from the executive is necessary for the fulfilment of this function. Examples include, but are not limited to: the National Audit Office; the Parliamentary and Health Service Ombudsman; the Information Commissioner’s Office; and the Electoral Commission. To generalise, these bodies play a constitutional role in promoting governance in the public interest, and their independence is necessary to prevent potential executive conflict of interest. On the whole, although not exclusively, they are accountable to Parliament.

Finally, public bodies have constitutional significance through their interaction with ministerial accountability. Critics have argued, not without reason, that the relative independence (or perception of independence) of many public bodies has been abused by ministers to avoid taking responsibility for their policy decisions.

Accountability issues

This is what many believe has been happening during the pandemic. To return to the case of Public Health England, it has undoubtedly made errors in its handling of coronavirus. However, as an executive agency (which although semi-autonomous are legally part of ministerial departments) it was always within the remit of the Department for Health and Social Care. Nevertheless, as a recent Institute for Government blog put it, an image of PHE as ‘an untamed quango, at arm’s length from the control of frustrated ministers’ was allowed to persist. Scrapping and replacing PHE with another organisation reinforces the impression that fault lies at its door, rather than that of the health minister.

As a non-ministerial government department, Ofqual operates at further remove from the Department of Education. Nevertheless, politically sensitive policy decisions such as those involved in the A-Level results fiasco should ultimately be made by the minister. Despite this, Gavin Williamson’s initial response was to blame Ofqual (which he later rescinded). It has been widely argued that Williamson staying in his job, whilst both the Chief Executive of Ofqual and the DfE Permanent Secretary have resigned, undermines the principle of ministerial accountability.

‘Political rebalancing’

What about the ‘political rebalancing’ of public body leadership? Although the speculation that Paul Dacre is to be appointed Chairman of Ofcom will draw the ire of his critics, there may in reality not be anything constitutionally improper at play.

The origin of these briefings was the 2018-2019 annual report of the Office of the Commissioner for Public Appointments (OCPA), which showed that amongst those who declared significant political activity more were Labour supporters than any other party. It is worth noting, however, that the number of appointees engaged in political activity over the last 5 years was in fact a very small proportion – less than 10 per cent (as it has been for the last 5 years).

Even so, it is not remarkable that an incoming administration would want individuals sympathetic to its policy programme leading the public bodies that in many cases help administer it. A changing of the guard is perhaps to be expected, and is certainly not unprecedented with a change in political leadership.

Furthermore, despite the pre-emptive briefings about Dacre, there is an open competition process to be followed in these instances – one which is regulated by the Commissioner for Public Appointments. As the Governance Code on Public Appointments recognises, ministerial involvement in appointments is entirely appropriate where there are lines of responsibility between government departments and public bodies. However, executive control of appointments to bodies with a constitutional oversight function, whose full independence is essential to their role, would be another matter.

The Electoral Commission

It is for this reason that the government’s attitude towards the Electoral Commission gives the most cause for concern. In regulating elections and referendums to ensure they are free and fair the Commission performs a patently important constitutional role. This role could not legitimately be performed by the executive – where there would be a clear conflict of interest. In light of the centralising tendencies of the present administration, the suggestion that the Electoral Commission may be abolished is particularly alarming.

To be clear, the Conservative submission to the inquiry of the Committee on Standards in Public Life suggests transferring the Commission’s functions to other bodies, such as Companies House, or setting up the Commission on a similar footing to regulators such as Ofgem and Ofwat. Both of these options would enable greater executive influence of electoral regulation, and ignore the distinct constitutional role played by the Electoral Commission.

The Commission is currently accountable to Parliament and is overseen by a Speaker’s Committee, which is responsible for commissioner appointments and the general direction of travel. These arrangements are meant to ensure independence from improper government influence and avoid partisan bias in the oversight of the Commission. However, as a recent Constitution Unit blog highlights, the Speaker’s Committee that was established after the 2019 election has a government majority for the first time since the inception of the Commission in 2001. This unprecedented level of government influence over the committee has already had an impact – the rejection of the current Chairman’s application for reappointment.

As we have seen, there are several public bodies that perform important roles of constitutional guardianship, for which independence is crucial. Accountability to Parliament, rather than ministers, is necessary and appropriate for these bodies. Attempts to undermine or circumvent this independence are in themselves worrying. Yet, as the case of the Speaker’s Committee on the Electoral Commission suggests, the power of the executive over Parliament in many matters presents further problems – problems which extend beyond the independence and accountability of certain public bodies.