Public bodies, quasi-law and religion

On 10 November 2014, the Public Accounts Select Committee (PASC) published its Report, Who’s accountable? Relationships between Government and arm’s-length bodies: the result of its inquiry “Accountability of quangos and public bodies”, which was launched on 28 February 2014. Whilst at first sight the Environment Agency’s handling of the recent flooding problems might seem to have little in common with “law and religion”, there is a link between the accountability of the type of organizations considered within the report and the substantial corpus of quasi-legislative measures emanating from such bodies, many of which impact directly or indirectly on the activities of religious groups and individuals. 

PASC Inquiry

In February 2014, the PASC established “an inquiry into the accountability of public bodies; including quangos, arms-length bodies, non-ministerial departments and executive agencies”, and its aims were to:

  • examine how public bodies are held to account by ministers and Parliament;
  • explore how well the public bodies model of non-ministerial control works in a crisis;
  • scrutinise whether public bodies deliver functions more effectively and efficiently than central government departments;
  • explore issues around the independence of public bodies; and
  • consider how Chairs of public bodies should be appointed.

The inquiry considered case studies of public bodies, including the relationship between Defra and the Environment Agency and beween the Department for Education and Ofsted; and it also considered the abolition of the UK Border Agency and the move to bring immigration and visa policy back into the Home Office.

PASC Report on Accountability

Whilst “quango” is an extremely ill-defined term which is best avoided, what became apparent during the inquiry was a more general inconsistency in organisational forms and names: for example, the Environment Agency is not an executive agency as its name would suggest, but in fact an Non-Departmental Public Body.  Nick Hurd MP observed “the system is full of anachronisms and anomalies”, examples of which are described in paragraph 9 of the Report.  The PASC Press Release commented:

“[t]he Committee’s report describes an inconsistent and cluttered system of quangos, executive agencies and non-ministerial departments which is poorly understood even in central government and where accountability is confused, overlapping and neglected, with blurred boundaries and responsibilities. It calls for a clear “map of the state” to be drawn up to simplify and rationalise the structure of the state, including a clear ‘taxonomy’ so that it is clear how each is governed and overseen, and who is accountable for what,”

and with regard to public appointments:

“[i]n many cases how individuals are appointed to the boards of public bodies also remains obscure. So is the basis for deciding whether or not to reappoint a person, as the controversy surrounding the departure of the previous Chair of Ofsted demonstrated. The Government and the Commissioner for Public Appointments should clarify who is involved in a public appointment, at what stage, and whether they advise or decide.

The Chair of the Committee, Bernard Jenkin MP, commented:

“[w]hoever wins the election, there is bound to be more change in the structure of Whitehall, involving arms-length bodies. It would be very helpful to any government with a new mandate to establish a clear framework for such decisions before the election.”

Public bodies, quasi-law and religion

In addition to primary and secondary legislation, such as Acts and Statutory Instruments, Churches and similar organizations are subject to a number of extra-statutory provisions, such as Codes of Practice, Guidance, Directions, Rules &c, generally referred to as “quasi-law”[1] or “soft law”[2]. Provisions such as these are generated both by government departments and by non-governmental bodies such as those considered in the PASC Report.

Many of the bodies formulating quasi-legislation that is of importance to religious groups are Non-Departmental Pubic Bodies, (NDPBs), including: Equality and Human Rights Commission; Human Tissue Authority; Human Fertilisation and Embryology Authority; Information Commissioner’s Office; Children and Family Court Advisory and Support Service; and Office of the Children’s Commissioner.

The complex interplay between quasi-law and conventional legislation is demonstrated by the case of the two doctors allegedly offering gender-specific abortion which was revealed through a ‘sting’ organized by the Daily Telegraph and is currently the subject to a private prosecution. The paper’s actions fell within the ambit of the Editors’ Code of Practice of the Press Complaints Commission.[3] Under the Abortion Act 1967, medical practitioners are afforded a significant degree of discretion, although the Crown Prosecution Service considered the BMA guidance on the law in this area to be ‘far from clear’. This also differs from that of the non-governmental, British Pregnancy Advisory Service, “Britain’s largest single abortion provider”. The CPS decision not to prosecute was guided by its own Code of Practice, and took into consideration the on-going investigation and possible sanctions by the General Medical Council, guided by its Good Medical Practice, through the Medical Practitioner Tribunal Service, which has its own Indicative Sanctions Guidance.

In 2010, government scrutinized all those bodies with quasi-legislative responsibilities,[4] and this culminated in the Public Bodies Act 2011.  Despite curbing some of the Bill’s proposed “Henry VIII powers”, the Act provides the Minister with significant on-going powers to institute change, and by 31 December 2013, 93 per cent of the planned abolitions and mergers had been completed, reducing the number of public bodies in the Programme by 283 to 621.[5]

Whilst the PASC Report focuses on the organization and accountability of NDPBs, a forthcoming publication (which we await with interest) will examine the legislative impact of quasi-law on religious groups and their members.[6]

Comment

Both studies were confronted with similar issues. “Quasi-law” is not a term of art: it exists in many different formats; is produced by many organizations and for a range of purposes; and the degree of compliance required varies from voluntary to mandatory. Just as the PASC Report identified the difficulty in producing a taxonomy of accountability, so the legislative study encountered problems in identifying a taxonomy for the legislative effect of the various instruments produced. The Report concluded [78]:

“We have reviewed the state of accountability for arm’s-length bodies in the UK and found inconsistency, overlaps, confusion and clutter. The Cabinet Office’s public bodies reform programme has been limited to just one form, the non-departmental public body, and we have been presented with no evidence that it has increased accountability. In the interests of continued accountability, when functions move in-house, the same or greater transparency must apply. Clear information enables democratic scrutiny and counters the disillusionment that stems in part from lack of understanding. We have called for a more professional and transparent approach to the management of the hundreds of public bodies which surround central Government.”

Paragraph 14 of the Report recommends that:

“the Government adopt a taxonomy of public bodies such as that proposed by the Institute for Government [Table 2 of the Report] but with more detail to provide for all circumstances, which sets out the legal status of each type and how it is held accountable”.

The IfG model envisages five types of body: constitutional; independent public interest; departmental-sponsored; executive agencies; and core departments, each with well-defined functions. The adoption of such an approach should assist in improving the accountability of these bodies, but will not necessarily address the legislative effect of the “quasi-legislation” they produce unless additional changes are made to the underpinning statutory measures.

Postscript:  Is the law of the Kirk quasi-law?

As readers of this blog will be aware, much of the law of the Church of England is part of the general law of England and there is nothing “quasi” about it at all, (although confusingly, it does employ a range of quasi-legislative instruments).[7] More equivocal is the status of the law of the Church of Scotland.

Traditionally, the Kirk and its courts were seen as having their own proper authority and jurisdiction, so that Lord Justice Clerk Moncreiff could declare in Wight v Presbytery of Dunkeld (1870) 8 M 921 that

“The jurisdiction of the Church courts, as recognized judicatories of this realm, rests on a similar statutory foundation to that under which we administer justice within these walls… Within their spiritual province the Church courts are as supreme as we are within the civil; and as this [dispute] is a matter relating to the discipline of the Church, and solely within the cognisance of the Church courts, I think we have no power whatever to interfere”.

On that basis, in the nineteenth century Acts of the General Assembly were presumably regarded as part of the general law of Scotland precisely because it was the supreme court of the Church with its own jurisdiction parallel to those of the Court of Session and the High Court of Justiciary. The modern position, however, is probably that enunciated by Lord President Rodger in Percy v Board of National Mission of the Church of Scotland [2001] ScotCS 65 2001 SC 757 when he described his understanding of the status of the courts of the Church as follows:

“[T]he General Assembly enacts laws which have many of the stylistic and other hallmarks of the kind of legislation which is enacted by Parliament. The procedures of the Church courts are replete with terminology which is familiar to practitioners of Scots law. The language does nothing indeed to conceal the hand which those trained in Scots law have had in guiding such proceedings down the centuries. None the less, despite their outward appearance, the laws of the Church operate only within the Church and her courts adjudicate only on matters spiritual. In other words, the formality and indeed solemnity of all these transactions and proceedings does not disclose an intention to create relationships under the civil law, rather, it reflects the serious way in which the Church regulates the matters falling within the spiritual sphere” [14].

So has the Church of Scotland become one of the bodies that makes “quasi-law”? The Kirk is not listed in the Scottish Government’s current National Public Bodies Directory; but its powers and responsibilities are acknowledged by the Articles Declaratory set out in the Schedule to the Church of Scotland Act 1921. Article VIII gives the Church “the right to interpret these Articles, and, subject to the safeguards for deliberate action and legislation provided by the Church itself, to modify or add to them” and provides a modified Barrier Act procedure by which the Church, through its courts, may do so.  On that basis, the General Assembly abolished provincial synods by Act V of 1992 even though Article II declares that the government of the Church “is Presbyterian, and is exercised through Kirk-sessions, Presbyteries, Provincial Synods, and General Assemblies” [emphasis added].

That, in itself, looks remarkable like an example of a non-governmental body making quasi-law (or even, possibly, making subordinate legislation); though whether the generality of Acts and Regulations of Assembly may be regarded as quasi-law remains an open question.  But we still hold to the view that, whatever their precise status in Scots law, they are not merely the rules of a private club.  

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[1] A term that can be traced back to R E Megarry in: (1944).Administrative Quasi-Legislation.Law Quarterly Review. 60 (1), 125-126.

[2] The term generally used in the EU.

[3] The Press Complaints Commission closed on 8 September 2014 and has been replaced by the Independent Press Standards Organisation (IPSO).

[4] i.e. 679 Non-Departmental Government Bodies, (a.k.a. quangos); 222 other statutory bodies were reviewed under the Cabinet Office Structural Reform Plan.

[5] Progress on Public Bodies Reform, National Audit Office, 2014.

[6] D N Pocklington, “Quasi Law and Religion”, Chapter 9, Religion and Legal Pluralism”, Ed. R Sandberg, [to be published, Ashgate Publishing, Farnham].

[7] N Doe, The Legal Framework of the Church of England, (1996, Clarendon Press, Oxford). 17-22; and N Doe, Christian Law: Contemporary Principles, (2013, CUP), 158-161.

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Suggested citation: David Pocklington and Frank Cranmer: ‘Public bodies, quasi-law and religion”’ (Law & Religion UK 10 November 2014) (available at http://wp.me/p2e0q6-43I)

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