Strengthening the Legislature

1. Strengthening the Legislature A menu of options for discussion: Not a recipe!

2. Jill Cottrell, CASU, UNDP

3. Jill Cottrell, CASU, UNDP New Zealand

4. Jill Cottrell, CASU, UNDP Australia

5. Jill Cottrell, CASU, UNDP Papua New Guinea

6. Jill Cottrell, CASU, UNDP Fiji Islands

7. Jill Cottrell, CASU, UNDP India

8. Jill Cottrell, CASU, UNDP US Congress

9. Jill Cottrell, CASU, UNDP Overview What is a legislature for? What is the role of its members? Is there reason to suppose that legislatures are less than fully effective? What can be done about it? How much of this can and ought to go into a constitution?

10. Jill Cottrell, CASU, UNDP Role of legislatures - General Represent the people Protect the Constitution Further human rights and other objectives Protect the public interest Build understanding and compromise

11. Jill Cottrell, CASU, UNDP Conservative party - UK Create and sustain government Ensure business of government is carried on Facilitate a credible opposition Ensure government is subject to scrutiny Ensure the voice of the citizens is heard

12. Jill Cottrell, CASU, UNDP Role of Legislatures - Specific Pass laws Approve taxes, expenditure, borrowing etc Hold the government accountable Investigate issues of public importance Approve Treaties? Approve certain appointments? ? = not in all systems

13. Jill Cottrell, CASU, UNDP The functions of members Represent constituents (if they have them) NOT to represent only those who voted for them NOT to simply pass on what the majority wants �Representatives not delegates� Support the policies of the parties to which they belong

14. Jill Cottrell, CASU, UNDP What are the threats to effectiveness? Threat of dissolution Complexity of issues (especially budget) Growing legislative agendas Part time members Insufficiently committed members Ministers don�t attend � and may make announcements to press and not to Parliament! Executive control even of business of parliament Party control: Too great or too weak Lack of resources Interference: Corruption Lobbyists Inadequate links with community Privatisation

15. Jill Cottrell, CASU, UNDP Ideas and Issues: Overview Dissolution Strengthening links between member and constituency Strengthening capacity of legislature as an institution Disciplining members Making legislature more effective in representing the public Improving public understanding

16. Please Note: These are points for discussion and many would be too detailed for a Constitution, even if they were in principle acceptable!

17. Jill Cottrell, CASU, UNDP Dissolution- some possible situations Only by Executive Classic Westminster Only by house PNG: if the Parliament, by an absolute majority vote, so decides By separate Head of State If can�t elect government, pass budget etc After consultation If vote of no confidence passed with no alternative government proposed (Germany) None other than by expiry of term �Washington� feature � proposed for Kenya

18. Jill Cottrell, CASU, UNDP Needs careful consideration What are the consequences for: Stability of governments Accountability of governments

19. Jill Cottrell, CASU, UNDP Strengthening links between member and constituency Facilities at constituency level: Office Staff Regular visits Bolivia: one week a month for home visits Improve links with constituencies: Have advisory committees of constituents Visit schools Can even have community links for list members

20. Jill Cottrell, CASU, UNDP Constitution? In an �unofficial draft� for Kenya: The responsibilities of an individual constituency member of the House of Representatives include � representing all their constituents regardless of whether individuals voted for the member; raising concerns of constituents with government departments; assisting their constituents to present petitions to Parliament; and visiting their constituencies regularly in order to keep in touch with the needs, views and concerns of their electorate.

21. Jill Cottrell, CASU, UNDP Strengthening capacity of individual members Training programmes E.g. Fiji 1998 on the new Constitution Facilities E-mail, information etc Staff Remove factors that limit participation Language Sitting hours (family friendly)

22. Jill Cottrell, CASU, UNDP Strengthening capacity of legislature as an institution Opposition Legislative process Committee system Budget process Questions Auditor General Secretariat Legislatures budget More sittings Research and Resources

23. Jill Cottrell, CASU, UNDP Opposition and leader can be recognised Roles given 1990 Constitution: LoO member Raj Parishad and Constitutional Council Fiji � in various appointments, including to Senate Resources given 2006 Kenyan Draft

24. Jill Cottrell, CASU, UNDP Legislative process Strong committee system Time Should not be possible to rush legislation through Zambia: the Standing Orders should indicate a specific and appropriate time period between the publication of a bill in the gazette and first reading to allow for timely notification and public consultation Make it easier for members to submit �private member�s bills� Drafting Capacity

25. Jill Cottrell, CASU, UNDP Legislative process contd More draft bills - discussion Proper Explanatory memoranda including fiscal and constitutional (including human rights) impact statements Do away with Ordinances

26. Jill Cottrell, CASU, UNDP Delegated legislation � regulations made under authority of laws Problem Little publicity Takes power away from elected members to bureaucrats and executive Sometimes even used to amend principal legislation Laws may not come into effect for years Possible steps Strengthen parliamentary scrutiny Restrict power to amend laws Prevent use to create offences/limit human rights Sunset clauses Provide that if law does not come into effect for x years it lapses

27. Jill Cottrell, CASU, UNDP Questions Formalise system Especially if Ministers are not MPs Could be done even in presidential/semi-presidential system Time limits (to ensure more questions can be asked and answered)

28. Jill Cottrell, CASU, UNDP Committee system Related to Ministries Fiji Constitution: The House of Representatives must, under its rules and orders, establish not less than 5 sector standing committees with the functions of scrutinising Government administration and examining Bills and subordinate legislation and such other functions as are specified

29. Jill Cottrell, CASU, UNDP Committee system contd. Control of membership by Parliament itself Formalise diversity Party Gender/ethnic etc � PNG �membership of the Permanent Parliamentary Committees should be spread as widely as practicable among the backbenchers� Exclude Ministers Fiji: Ministers are not eligible for election to sector standing committees of the House of Representatives. Also PNG Give them powers and resources Summon witnesses etc Research capacity Funds Permit sub-committees

30. Jill Cottrell, CASU, UNDP Human Rights Training of MPs Special committee on human rights? Explanatory memoranda for bills on human rights implications of laws Proposed for Kenya: State must make a statement to both houses of Parliament concerning the state�s proposed response to recommendations of monitoring bodies. In South Africa MPs are part of delegation to monitoring body meetings

31. Jill Cottrell, CASU, UNDP More sittings etc Full time job Fixed schedule for sittings Minimum number of days sitting India: whips proposed 100-130 days for Union Fiji � President (generally ceremonial) can summon house Allow MPs to summon house � regularly and exceptionally

32. Jill Cottrell, CASU, UNDP Budget - Introduction Budgets often responsive to powerful Parliamentary control of budget usually weak (better in presidential systems?) ��I used to salivate listening to the powers of US Congressional Committees where you get junior deputy assistant secretaries coming before the relevant appropriation sub committee to try and justify expenditure and how people at the committee had 20 years experience on the issue.�� The last time a request for money was voted down by the UK Parliament was in 1919.The last time a request for money was voted down by the UK Parliament was in 1919.

33. Jill Cottrell, CASU, UNDP Budget process Adequate notice of budget More information in budget Limit powers of Executive to make budgetary decisions without legislative approval Enhanced capacity Work with NGOs Enhanced powers Budget hearings in committees

34. Jill Cottrell, CASU, UNDP Notice and information Notice OECD: The government�s draft budget should be submitted to Parliament far enough in advance to allow Parliament to review it properly. In no case should this be less than three months prior to the start of the fiscal year Information Some countries have long budget statements � including gender impact Requiring budget information in 3 year context

35. Jill Cottrell, CASU, UNDP Limit powers of Executive to make budgetary decisions without legislative approval Vote on account � allows advance of up to one-third of budget (better than some countries?) Vote of Credit - local or national emergency due to either natural causes, a threat of external aggression or internal disturbances or other reasons, and that it is impractical or inexpedient in view of the security or interest of the State to specify the details (India: on account of the magnitude or the indefinite character of the service the demand cannot be stated with the details ordinarily given in an annual financial statement) � Nepal better?

36. Jill Cottrell, CASU, UNDP Working with NGOs Many countries have experience with budget analysis Can supply MPs with information, training etc.

37. Jill Cottrell, CASU, UNDP Auditor General Independent IC appointment by PM on recommendation of Constitutional Council Should report direct to Legislature Public Accounts Committee should make use of report Problem � lack of teeth? Audit implementation office in ministries? Requirement to report back on action taken Follow up � Ghana Parliament has Committee on Government Assurances the government responds to about 1,000 recommendations from the PAC in an average Parliament, and accepts about 95 per cent of them. In 2004, the NAO estimated that by following its recommendations, the Government had secured savings for the taxpayer of �515 million. The NAO has a target of saving �8 for every �1 that it spends, which it exceeded, once again, in 2004. In addition, the deterrent effect of the work of the NAO and PAC has a definite, but less quantifiable, impact in promoting efficiency and safeguarding public funds.the government responds to about 1,000 recommendations from the PAC in an average Parliament, and accepts about 95 per cent of them. In 2004, the NAO estimated that by following its recommendations, the Government had secured savings for the taxpayer of �515 million. The NAO has a target of saving �8 for every �1 that it spends, which it exceeded, once again, in 2004. In addition, the deterrent effect of the work of the NAO and PAC has a definite, but less quantifiable, impact in promoting efficiency and safeguarding public funds.

38. Jill Cottrell, CASU, UNDP

39. Jill Cottrell, CASU, UNDP Secretariat and Budget IC Must be one Details by law Staff to be provided by Government Changes possible: Independent body Legislative service commission Control of own budget

40. Jill Cottrell, CASU, UNDP Research and Resources Library Research staff Computers

41. Jill Cottrell, CASU, UNDP Civil service Educate civil servants about role in regard to parliament Include duty to respond in Code of Practice

42. Jill Cottrell, CASU, UNDP Qualified members Now: IC says must be citizen, 25, �committed to the spirit of the people�s movement� and not holding publicly funded post For CA: not have been punished for any criminal offence involving *moral turpitude *a crime with an intent to steal or defraud; a crime where physical harm is done or threatened; a crimewhere serious physical harm is caused by reckless behavior; or a crime of sexual misconduct. Possible: Educational qualifications? Level? Makes it too elite? Moral standards Bar if convicted of certain offences (as for CA) Should it be for life? Should it be more precise?

43. Jill Cottrell, CASU, UNDP Accountability of members Automatic loss of position if don�t attend IC � (CA) if misses 10 consecutive sittings without notice Could be � any 10 without good reason? Fiji � 2 consecutive without permission of Speaker Recall Publicity about performance Democratic parties Voters can not nominate �failures� Code of Practice Declaration of assets (Ontario � Integrity Commissioner) Removal for misbehaviour

44. Jill Cottrell, CASU, UNDP Recall Uganda Constitution British Columbia (Canada) Any voter may initiate Not for 18 months Must be signed by 40% of eligible voters Can�t happen again before General Election

45. Jill Cottrell, CASU, UNDP Reducing party control �surfeit of partisanship� in which the vast majority of MPs perceive their first duty of loyalty is to party rather than Parliament Control on power to dismiss member? Must be possible to take judicial review Reconsider floor crossing rules They assume that voters vote only for parties Apply only to list members? Or apply only for first 18 months of Parliament? Should be no party control over human rights issues?

46. Jill Cottrell, CASU, UNDP Improving Legislature-public relations Requiring publication of record Petitions Scottish Parliament � petitions committee and procedure NGOs � links with Public hearings Popular initiatives etc Weaken legislature?

47. Jill Cottrell, CASU, UNDP Strengthening constructive criticism of Parliament Interim Constitution: No comment shall be made about the good faith of any proceedings of the Legislature-Parliament, and no person shall make or disseminate anything about comments or suggestions made by any member, deliberately misinterpreting or distorting their meaning. Commonwealth Parliamentary Association (6.1) As the democratic embodiment of the public�s political views, each Parliament must respect the right of individuals and particularly the media to criticize its role, integrity and performance. It must properly react to such criticism with argument and through its own conduct rather than with punishment. (6.3) Inaccurate reporting by the media should not be considered as a contempt of Parliament.

48. Jill Cottrell, CASU, UNDP Stating what the role of the legislature is in the Constitution South Africa: The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.

49. Jill Cottrell, CASU, UNDP Improving public understanding Public sittings Of house and committees Fiji: ? of house must approve sitting in camera Public relations Visitors� Centre? Newsletters Media Broadcasting of committees and house Public Education

50. Jill Cottrell, CASU, UNDP New roles? Approving appointments In US � is check on power of executive Is being considered in UK But??? Approving treaties Involvement could be earlier? To see national interest is served by negotiations Approving contracts? If affect national resources in major way? Ivory Coast � proposed for Kenya

51. Jill Cottrell, CASU, UNDP Increasing appeal of parliamentary career Limit size of cabinet Give enhanced remuneration to committee chairs Status more like Ministers?

52. Jill Cottrell, CASU, UNDP Limiting what legislature can do? Prevent it fixing members� salaries Fiji: Parliamentary Emoluments Commission Prevent laws being passed that benefit sitting members Cannot come into effect until after next general election?

53. Jill Cottrell, CASU, UNDP Thank You!