Richard Kirkham compares the role of commissioners in Scotland and Wales.
How much autonomy does a watchdog require in order to
perform its function effectively? One product of the space created for
fresh thinking by devolution has been the evolution of two distinct
models with which to answer this question, both of which offer greater
clarity than to be found in the old British constitution model.
Famously, James Madison stated that for a liberal society to flourish auxiliary precautions were needed to cover for the risks of democracy. His solution to this dilemma is one that still dominates: namely the separation of powers between the executive, the courts and the legislature. But over 200 years later, many constitutional orders around the world have taken this basic understanding and refined it considerably. The tripartite core still provides the dominating foundation, but a range of specialist institutions have been introduced to add a layer of objective scrutiny to the system. Constitutional watchdogs such as the auditor-general, ombudsman, electoral commissions, and the standards and information commissioners are now ever present and gaining sufficient longevity to suggest permanence. For most, a role and function exists that has risen above politics.
Such arguments are widely understood, but the Westminster settlement has resisted formalising the status of watchdogs. By contrast, in newer constitutions watchdogs are written into the constitution itself whilst in parliamentary democracies such as Australia and New Zealand, solutions have been devised to reflect the reliance placed upon watchdogs. It is in this respect that devolution in the UK provides an interesting insight into the future.
