When we have a functioning Parliament, it must sweep away the encrusted chaos into which petty bureaucracy has descended. It threatens to overwhelm the state. Parliament is to blame; Parliament must sort it out (but Parliament is itself now is just as dysfunctional).
In July this site published Our plan for the new Prime Minister, but he has had a lot on his plate. One action could begin to clear the Augean Stables of Whitehall: a Powers and Bodies Act.
Initial heads of action for a Powers and Bodies Bill should include:
- Register the Quangocracy;
- Rationalise the birth and dissolution of quangos;
- Codify judicial review;
- Limit the abuse of power by privileged professional associations;
- Restore the separation of powers.
In a series of articles I and others will look at each one of these aims, and maybe add more.
Table of Contents
Register the Quangocracy
If we do not know what public bodies there are, how they are appointed and what money they receive, and how they overlap, then it is not possible sensibly to monitor them or reform them.
Private companies have to provide, on the public register, a registered office, their constitution and their accounts, and are given a unique identifying company number: that way, anyone doing business with them knows with whom they were dealing and where notices can be served. Public bodies, which get large wads of taxpayers’ money, should be no less transparent. A register would show who they are, how many there are, where they overlap (and so where there is redundancy) and who is responsible.
All public bodies derive their authority from elsewhere and must submit to Tony Benn’s questions: “What power have you got? Where did you get it? In whose interests do you exercise it? To whom are you accountable? How can we get rid of you?”
Rationalise the birth and dissolution of quangos;
To rationalise the process of creating, managing and dissolving public bodies, look at what is done these days. It is typical for an Act of Parliament which decrees the creation of a new body to set out in detail its legal form, name, legal personality and such detail as the MPs passing it are unlikely to be bothered with, and Parliament does this time after time. It is not beyond the wit of draftsmen to lay down, in a Powers and Bodies Act, a standard constitution for any new public body, with variations and options perhaps, so that the next time an Act creates yet another quango it can do so in one line.
An advantage of standardisation, apart from saving reams of paper, is to make such bodies comprehensible and, when the time comes, abolishable.
This is the second strand then: a standard procedure for winding old quangos up, or merging or transforming them. If it is made easier, it will be less trouble to clear the detritus of old enthusiasms.
Codify judicial review
- (Future article to follow)
Judicial review has expanded wildly since the Wednesbury decision, to beyond what any could then have imagined. Once a rare occurrence, judicial review of administrative decisions is now commonplace. We need judicial review as a remedy, to ensure the rule of law. However the rules applied are all judge-made law, never reviewed by Parliament, and so judges are free to expand their remit at will.
The astounding judgment of the Supreme Court in the Miller / Cherry case (which struck down the prorogation of Parliament) claimed to uphold the constitution but in reality smashes through it, inventing rules where there were none. That has been the case through throughout the development of judicial review. That being so, rules must be laid down to bring certainty and an end to judicial adventurism.
There is no guarantee that the Miller / Cherry case is the high water mark of judicial intervention. They can go further. Sir Stephen Laws speculated after the judgment that a court might interfere even with the giving of royal assent in future: it would be but a small step of logic from Miller/Cherry. Even foreign treaties and declarations of peace and war are now open to challenge.
Therefore it is for Parliament to supply what they have hitherto omitted to do: to define the law.
Limit the abuse of power by privileged professional associations
- (Future article to follow)
Several professional associations have powers granted to them by Act of Parliament, and they may pretend that they are private organisations with whom the state may not interfere, but where they are exercising legal powers over their members and sometime over others, then they are acting as state bodies and must be accountable for any abuse of the power entrusted to them.
A body such as the Law Society or the Institute of Chartered Accountants has immense power: it may impose rules on its profession and ban anyone from practising. They run private courts which frequently impose fines enough to bankrupt a man.
Hitherto, professional bodies have been trusted to act in the public interest and to behave like gentlemen, and for the most part they do. However there is nothing to prevent those learned bodies from adopting wayward rules. They all used to ban women from membership and had to have their hands forced in the matter, and within living memory the Law Society promoted monopolies and various anti-competitive practices. Today the professional bodies still have such powers that for example, they might choose to ban from practice those who hold to particular political or social ideas. There are hints that some upcoming activists would like to exclude those who will not subscribe to certain minority social ideas. That would be an abuse of powers granted by Parliament, but there is currently nothing to prevent it.
Where the professional bodies act with powers granted by the state for public purposes, their powers must be circumscribed from being abused, as government powers are.
These look like petty matters: a register, or how to create and dismiss bodies, or stopping privileged bodies from acting as they have not acted anyway, and for that reason they have not been addressed by Parliament. However the neglect of such petty matters has allowed for aggregation of inefficiency. Bring all this together, pass a Powers and Bodies Act with all these aspects, and both Government and Parliament will be able to bring back control of their creations and even achieve the ‘bonfire of the quangos’ which is constantly promised and never achieved.