Constitutional Desiderata for Idealised Models of Democratic Governance: Protecting Parliamentary Process and Administration

Introduction

Tarunabh Khaitan’s characteristically emphatically written paper – Balancing Accountability and Effectiveness: A Case for Moderated Parliamentarism - is a complex and layered account of the blind spots of constitutional and political scientists, alike, on the existence of three interlocking variables that ought to be considered when proposing an optimal system of democratic governance.

Tarun’s model of moderated parliamentarism (“MP”) consists of a range of intentional design choices on these three variables:

a. executive-legislative regime type (parliamentary, presidential and all the variations in between);

b. electoral system (e.g, majoritarian, proportional representation etc); and

c. party system (e.g. bipartisan, multipartisan etc).

The MP model proposed by Tarun is to be taken as an idealised vision of governance; one that is acontextual, ahistorical and analytic in nature. The proposed model of MP is not put forward as a descriptive empirical model, nor as an off-the-shelf-model for direct implementation in different systems. Rather, it is an idealised model - a measuring tool to judge existing systems and assess their relative strengths and weaknesses. MP balances – as optimally as possible, since they are constantly in tension – the competing imperatives of (i) a stable and effective system that is also (ii) representative and accountable.

Tarun’s thesis proposes that the “big-C” Constitution needs to include provisions that reflect choices made on each of the three variables in order to facilitate the creation of a system that comes as close as possible to MP. Currently, constitutional provisions tend to focus primarily on variable (a)– executive-legislative regime type. The remainder – electoral and party system – is generally relegated to small-c constitutional statutes, customs and codes. Tarun argues that constitutional ignorance, silence and invisibility of choices on (b) and (c) undermines the possibility of setting up an effective system of democratic governance. Constitutional systems should instead reflect and optimise the realisation of choices relating to (a) to (c). Even if (b) and (c) are eventually incorporated into a political system via small-c constitutional instruments, the big-C Constitution should be drafted in a way that anticipates the choices that will be made on (b) and (c). The latter should not be ‘retrofitted’ into small-c constitutional instruments after choices are crystalised on (a) in the big-C constitution.

This is what this blog post picks up on – the idea of constitutional invisibility. In particular, with respect to two factors that can also impact the quality of democratic governance in a polity. First, constitutional provisions also need to regulate parliamentary procedure to prevent it from being captured, instrumentalised and manipulated by the government in power to emasculate any checking functions the legislature may otherwise have. Second, provisions that protect parliamentary administration are also necessary. In Tarun’s paper, parliamentary procedure is seen as tagged to a vibrant opposition culture – with the opposition discharging democratic functions of checking the government in power. However, what needs more attention in constitutional conversations is how the legislative veto and checking function is actually exercised; how the parliamentary agenda is set; how debates are conducted; how legislatures can be mismanaged to hinder this checking function. Rules of the house all impact on the efficacy of the legislature as a checking institution. This is where parliamentary process and administration come into play. The aim of the discussion below is to show that idealised visions of democratic governance may need to move beyond the three variables proposed by Tarun—that is, beyond (a) to (c) above. Accepting that Tarun is proposing an idealised vision of democratic governance to be used as a measuring tool, this post focuses on what might be missing from this idealised vision of democratic governance. It focuses on two features in particular: constitutionally safeguarding the integrity of parliamentary process and protecting parliamentary administration.

Safeguarding the Integrity of Parliamentary Process

Scrutiny of the executive is the mainstay of the legislature. There are many ways in which the executive can short-circuit this scrutiny: capture of the legislature and the utilisation of secondary legislation or executive edicts to bypass parliamentary scrutiny tend to occupy the imagination of constitutional scholars. A further mode for evading scrutiny can be done by manipulating parliamentary process. In a recent article in the Political Quarterly, David Judge spoke of Boris Johnson’s walk on the “dark side” of parliamentary scrutiny: a demonstration of the executive’s manipulation of parliamentary process to evade scrutiny. A number of aspects of parliamentary process were manipulated to evade scrutiny: delayed convening of select committees; interference with the staffing and operations of such committees; a reluctance by ministers to attend and speak candidly to select committees; the delayed publishing of bills before formal scrutiny process begins in Parliament and, most drastically, the prorogation of Parliament (the latter done unsuccessfully).

There are two ways in which the risk of manipulation of process could be minimised: (i) strengthen the opposition which, in turn, can prevent the manipulation of procedure to evade scrutiny by the majority; and (ii) constitutionally protect parliamentary process by recognising existing custom and conventions and introducing / recognising cross-party contributions to the design of parliamentary process. Tarun’s paper contains considerable content on (i). Beyond that, how can we prevent executive / majoritarian manipulation of parliamentary process? Formal constitutional protection of parliamentary process (typically embodied in standing orders issued by parliament) tend to be skeletal in recognising the existence of such standing orders but not introducing any protective measures beyond this recognition (see, for example, Article 50 of the Australian Constitution and Article 157 of the Constitution of Singapore). Small ‘c’-constitutional protections via codification of constitutional conventions on parliamentary process – conventions that will predate any more recent erosion of parliamentary practice – is one option. For example, in the UK there is a Guide to Making Legislation issued by the Cabinet Office that sets out the practice of producing Bills and taking them through Parliament; a document called Core Tasks for Select Committees produced by the Liaison Committee of Parliament. Such codification, however, ultimately is animated by the will of the executive / majority party to be subject to scrutiny – something I pick up on in the concluding section of this post.

Protecting Parliamentary Administration

A further area for consideration is the need to build the broader administrative services of the legislature that support legislators in discharging their functions. This includes providing information and knowledge support to meet know-how needs to discharge their scrutiny functions and also strengthening administrative support services to provide a counter-balance to the civil service that is at the disposal of the executive branch to discharge its constitutional obligations and achieve policy advances. The parliamentary administrative service also serves as a repository of institutional memory in an institution that is otherwise characterised by turnover of manpower. Institutional memory of parliamentary practice can be critical – especially in view of the discussion in the preceding section.

Outside of administrative support, there is a strong knowledge need on the part of parliamentarians that needs to be fulfilled. “Knowledge is power”: in order to scrutinise policy and legislation, parliamentarians need information. Policy can cover areas of great technical complexity and individual parties and parliamentarians may lack resources to support their knowledge and information needs. Resources for adequate parliamentary library and research services tend to be an afterthought but are also a part of the institutional infrastructure of a functioning legislative body. There is a need for resources, technically skilled staff and a permanent base of staff that develop specific expertise over time.

Administrative and research support services within Parliament are also amenable to capture and control in a way that compromises their ability to discharge their functions for the benefit of the legislature as a whole, versus those that seek to exert control over the body for their own ends. The constitutional principle of separation of powers underpins parliamentary autonomy and, should similarly, inform parliamentary administrative autonomy. This autonomy can be compromised where parliamentary administration is too reliant on the executive for staffing and resources. In addition to independence, autonomy is also premised on having neutral staff with sufficient experience and expertise to be able to stand up to attempts to capture.

Constitutional recognition of parliamentary administration as an institution within the separation of powers universe can be an important safeguard. However, the constitutional visibility of parliamentary administrative services can vary across jurisdictions. For example, Article 30 of the Austrian Constitution and Article 98 of the Constitution of India recognise the need for a parliamentary administrative service and provide some basic parameters for the recruitment and staffing of the administration – however, stop short of acknowledging their constitutional importance and need for protection.

Conclusion: What Kind of Future do Legislatures Have?

Much of the focus of Tarun’s paper and this post has been the legislature within the separation of powers universe. However, it is the legislature that has been the subject of much criticism in recent conversations about democratic erosion. The criticism of political parties involves – indirectly – a critique on the functioning of the institution which parties constitute – the legislature. Many criticisms confront the legislature – it is either being trumped by an increasing concentration of power in the executive branch of government; or side-lined by unaccountable bodies. Legislatures are losing public / political legitimacy as an institution. There is a perceived drop in the perceived representativeness of the legislature (given the multitude of problems that now exist with elections) and the perceived compromise of parliaments in their capacity to discharge their checking and accountability functions. It is for this reason that we are seeing both government and citizens bypassing the legislature as a representative channel through a wide range of mechanisms: the executive branch seeks to ascertain public opinion through other means (consultations etc.) and citizens engage with the government through bodies other than their elected representative in the legislature (via social justice movements, associations etc.). This is a separate issue to the more nefarious bypassing of legislative scrutiny by the executive branch (through, for example, the use of secondary or delegated legislation). This is bypassing the legislative body as an institution on the basis that its’ ability to represent the views of the public has been compromised. With its accountability function, the legislature faces competition in the form of fourth branch institutions. Some of which are also – from the perspective of deliberative democracy and public consultation – taking over the representative functions of legislatures.

Therefore, even before we consider what an idealised parliamentary system might look like – in this case MP – we need to consider the general a priori question of the future of legislatures. What kind of a future does the legislature have in democratic governance? What structural, seismic shifts do we need to consider to make legislatures relevant and credible again, before we look at the units that make up the legislature (opposition, minority parties, parliamentary administration, parliamentary process)?

This opens up the bigger question of who the potential agents of change will be? Who is incentivised and empowered – given the problems that most democracies face now – to undertake the changes to move closer to any idealised model of democratic governance? The executive branch has no incentive to correct its s instinctive preference for a less powerful legislature. Opposition and minority parties are too occupied with ‘politicking’ and maintaining their hold on electoral power – in the face of an increasingly volatile electoral environment. The judicial branch is reactive to the issues that come before it and will face challenges in triggering structural changes. “Parliament” itself – especially when subject to capture – lacks the power and coordination to originate reform. This requires us to first confront the who question – who will drive reform – before the how / what questions of what reform will look like.

Swati Jhaveri is a Candidate for the DPhil in Law at the University of Oxford

Suggested citation: Swati Jhaveri, ‘Constitutional Desiderata for Idealised Models of Democratic Governance: Protecting Parliamentary Process and Administration’, IACL-AIDC Blog (18 May 2021) https://blog-iacl-aidc.org/workshop-my-paper/2021/05/16constitutional-desiderata-for-idealised-models-of-democratic-governance-protecting-parliamentary-process-and-administration.