Month: September 2023

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Urgent Questions

Dr Chris Monaghan

CHRIS MONAGHAN

Chris Monaghan is a Principal Lecturer in Law at the University of Worcester. He is the author of Accountability, Impeachment and the Constitution: The Case for a Modernised Process in the United Kingdom (Routledge), editor of the Routledge Studies in Law, Rights and Justice book series, and co-editor of Routledge Frontiers in Accountability Studies book series. He is the outgoing Communications Officer of PSA Parliaments.

Please tell us a little bit about how you entered academia and your academic career

Being somewhat obsessed by history as a child and teenager I decided to study history at university. Three years later I graduated and like many history graduates I decided to switch to law with the intention of becoming a solicitor.

I enrolled at my local university on the law conversion course (Graduate Diploma in Law) and progressed onto the Legal Practice Course, which I did part-time in London.

It was whilst studying on the Legal Practice Course that I was encouraged to apply for some part-time university teaching.

I was very lucky and a few months later I was lecturing third year LLB students Commercial Law at Anglia Ruskin University. After the initial nerves I found that I loved teaching and consequently took the decision to set aside my ambition of being a solicitor and secured a permanent lectureship in London. Eventually, I found myself at the University of Worcester, where I have been working since 2016.

Which five books/articles (written by someone else) have been most important to you in your academic career?

This is a difficult one to answer. I think the answer would be:

  1. David Butler, Vernon Bogdanor, and Robert Summers (eds), The Law, Politics, and the Constitution: Essays in Honour of Geoffrey Marshall (Oxford University Press 1999). As a new law student I found this book in the law library and read it cover-to-cover. As soon as I started part-time teaching it was the first book that I bought.
  2. Stephen Sedley, Lions Under the Throne: Essays on the History of English Public Law (Cambridge University Press 2015). This shows how a book can be written to raise serious issues, but also to give a broad sweep of the constitutional history of the United Kingdom.
  3. Penny Darbyshire, Sitting in Judgment: The Working Lives of Judges (Hart Publishing 2011). Darbyshire shows how you can take a perceived preconception of judges and turn this on its head by conducting extensive empirical research and giving a voice to a large number of judges. This book has been instrumental in how I teach students about the judiciary and my own academic writing on the role of judges and the constitution.
  4. Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Hart Publishing 2013). This showed me how you could write an account of the law and the role of judges. Paterson’s approach influenced how I carried out work for the British Library’s National Life Stories project and my own research into the Bancoult litigation.
  5. Alexander Horne, Gavin Drewry and Dawn Oliver, Parliament and the Law (Hart Publishing 2013). This is a great book (with subsequent new editions) and the subject of my first substantial book review.

Which people have been most influential and important to you in your academic career?

There are quite a few people who fit this category. I have been lucky to have had the support of many colleagues and other academics. In particular my former PhD supervisor, Robert Blackburn has been very influential. Over the past decade Robert has supported my career, supervised my PhD and has offered invaluable feedback on a whole host of post PhD projects and initiatives. Finally, Matthew Flinders has been a source of encouragement over the past few years and has really challenged me to develop as an academic. It has been fun and refreshing to work with Matt.

Which of your own pieces of research are you most proud of?

This has to be my PhD thesis which became a monograph: Accountability, Impeachment and the Constitution: The Case for a Modernised Process in the United Kingdom which was published by Routledge in 2022.

What has been your greatest achievement in academia?

Without doubt completing my PhD (which I did on a part-time basis).

What has been your greatest disappointment in academia?

I think in academia you have countless knock backs and disappointments. To be honest most things just fade into the background, even if at the time it was disappointing not to get a paper published in journal X ,or accepted to present at conference Y.  I would add though, how appreciative I am for when disappointing news is delivered, to have constrictive feedback as this helps going forward.

What is the first or most important thing you tell your students about parliaments?

You need to know the detail and keep abreast of developments. I teach Public Law, so Parliament is very much a regular character in my teaching and I encourage students to ask questions and challenge preconceptions. The expenses scandal and sleaze has not helped the image of MPs, so it is really about making students move beyond the popular image of politicians.

Where were you born, where did you grow up, and where do you live now?

I was born and brought up in Bedfordshire. I now life in Worcestershire.

What was your first job?

Selling fabric and material at a high-street retailer.

What was the toughest job you ever had?

Working on a building site. Very early mornings. But worked with some great people and fun to knock things down.

What  would your ideal job be, if not an academic?

Gardener – working outside for the National Trust or something similar. It is a bit different than working indoors all day.

What are your hobbies?

These are gardening, reading, and socialising.

What are your favourite novels?

I went through a stage of reading everything by Graham Greene.

I’m currently reading Heart of a Dog.

What is your favourite music?

For quality and scope it has to be the Beatles.

What is your favourite artwork?

I am fan of the satirist James Sayers.

What is your favourite building?

The Old Royal Naval College in Greenwich. It was a privilege to work there (whilst I was at the University of Greenwich) and to coming to work and see which film or tv series was being filmed that day.

What are your favourite tv shows?

Veep, Stranger Things, West Wing and currently watching The Afterparty.

What is your favourite holiday destination?

It depends. I love city breaks: Berlin was very nice. But maybe the Maldives as this was so different than my usual holidays.

What is your favourite sport?

Tennis to watch. Badminton to play.

What is your favourite food?

My favourite meal has to be a curry (ideally from the Indian restaurant in the village where I previously lived).

Hybrid proceedings in Parliament: yes please or no thanks?

No thanks.

Appointed or elected upper chamber?

An elected upper chamber in an ideal world – but without losing the expertise.

Restoration or Renewal?

Renewal – like most things the problem will get worse the longer that you do nothing. But perhaps we could look at housing for MPs and greater public access to the Palace.

Cat or Dog?

Cats –  they are fantastic.

Trains, planes or automobiles?

Planes. There is something special about flying.

Fish and chips or Curry?

Curry all the way.

Scones: Cornish or Devonshire method?

Cornish. Either way is great though, especially when visiting the West Country.

And, finally, two questions asked by Ira and Bernadette, who are both 4: Would you prefer to ride a dragon or a unicorn, and why?

A dragon would be pretty cool. Perhaps the one from Zog and not the one from Room on the Broom.

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Why Parliaments? Part 3

The future of parliaments as watchdogs

By John Keane

This is the third part of a keynote address, delivered in the presence of King Felipe VI, at the conference to commemorate the International Day of Parliamentarism hosted by the Inter Pares: EU Global Project to Strengthen the Capacity of Parliaments (Cortes Generales, León, Spain, June 30, 2023).

The first part of the keynote on the invention of the cortes model can be read here and the second part discussing past and current threats to parliaments here.

European Parliament building in Strasbourg (European Parliament).

So what of the future of parliaments? Do they have a future? When thinking about these various decadent trends, it’s tempting to conclude that the post-1945 renaissance of parliaments is coming to an end. We may even think that we’re already entering the age of phantom parliaments in which legislatures in more than a few countries are simultaneously real and not real, form without much content. In these make-believe spaces, elected representatives claim to serve the people, even though they are of limited or no significance to the people in whose name they pass laws.

A shift to phantom parliaments and executive rule may be welcomed in some quarters, but before the cava is poured, let’s consider the countertrends, and the reasons why, in these years of the 21st century, the cortesmodel of government remains indispensable.

In politics, nothing is set in stone. To speak in quantum terms, contemporary parliaments are in a state of superposition. Just as the fate of Schrödinger’s cat in a box was undecidable, so are parliaments today suspended unpredictably between alternative outcomes. Fightbacks are possible. They are necessary. Remarkably, renewals are happening at multiple points on our planet.

Consider Denmark’s Folketinget: in meetings called consultations (samråd), its powerful European Affairs Committee regularly grills ministers in real-time during sessions of the Council of the European Union in Brussels and Luxembourg. The National Assembly of the Republic of Korea has signed off on the world’s first comprehensive laws against verbal abuse and bullying (‘gapjil’) by family-run conglomerates and other powerful organisations. Romania’s parliament is now digitally fed citizens’ suggestions and complaints with the help of ION, a smart robot, say the wags, designed to improve the ‘intelligence’ of politicians. Proposals are afoot in the German Bundestag to receive non-binding reports from lottery-selected citizens’ assemblies.

Parliaments are also heavily preoccupied with time past and time future. The Welsh legislature regularly consults with the world’s first Future Generations Commissioner. With eyes on the unmade future, the European Parliament has drafted the world’s first AI Act. New Zealand’s (Aotearoa’s) parliament has granted ecosystems ‘the rights, powers, duties and liabilities of a legal person’. The cross-border Nordic network of Sámi parliaments, the Sámediggi is a case of interparliamentary cooperation, featuring consultative bodies whose brief is to promote and preserve indigenous self-determination.

Norway’s Sámi Parliament, the representative body for people of Sámi heritage, opened in October 1989 (Sámediggi).
Watchdog parliaments

How are we to make good sense of this new wave of experiments? My suggestion is to see them as points on a larger canvas, single performances in a grand carnival of parliamentary efforts to rejuvenate the cortes spirit.

Shadows are certainly falling on too many of the world’s parliaments. But these innovations are the first signs of a dawn of renewal. They breathe new life into old institutions originally designed to make binding agreements by lawmakers acting on behalf of different social interests, in the name of the commonweal. More obviously, these parliamentary experiments are today doing what parliaments did for over eight centuries: representing the claims and interests of the represented – and they remind us that parliamentary representation is, by definition, tricky business.

Populists and demagogues be warned: representation isn’t a simple, face-to-face contract between a representative and an imaginary People or Nation. Representation isn’t mimesis. It has a vicarious, fiduciary quality, and this means that when voters choose a representative, representation is as much an ending as it is a beginning. Representation is an open-ended process contingent upon the assent, disappointment and displeasure of the represented. When representatives underperform, or fail on too many fronts, they are sent to hell in a handbasket.

These principles of representation, traceable to the León cortes convened by Alfonso IX, are most definitely alive and kicking in the new parliamentary experiments. That’s why textbooks still tell us that the prime task of parliaments is to represent the interests of citizens by means of free and fair elections. But there’s an error within the textbooks: if we look more closely at what today’s smart, activist parliaments are actually doing, we see a departure of great historical significance ignored by the textbooks.

Parliaments aren’t just chambers or ‘little rooms’ where elected politicians represent their constituents. In our age of monitory democracy, legislatures are becoming watchdog parliaments. In the name of the common good, they blow whistles, sound alarms, warn of wicked problems and pass laws to push back or ban arbitrary exercises of power.

The contrast with parliaments of yesteryear couldn’t be clearer. The first-ever cortes was born of military conquest. Parliaments of the more recent past were too often the castles of the aristocracy, bourgeois mansions, parlours of male privilege, and engines of empire. By contrast, today’s watchdog parliaments, when they work well, stand against conquest in all its various forms. Especially when generously resourced, watchdog parliaments specialise in the public scrutiny and restraint of predatory power. They stand against foolish governments that abuse their power.

Watchdog parliaments snap the chains of majority rule, the blind worship of numbers, by granting voices and rights to minorities excluded from high politics. These parliaments alter our shared sense of time. They extend the franchise to endangered species, wronged ancestors and future generations. In opposition, say, to predatory corporations, greedy banks and rogue mining companies, watchdog parliaments protect and promote the rules of the democratic game. Not to be underestimated is the way they strive to tackle long-term problems, currently sidelined by the short-term mentality of election cycles.

Watchdog parliaments are more than the guardians of electoral integrity. As champions of the public monitoring of power, they target complex, difficult, wicked problems. Their job is to find just solutions for matters such as artificial intelligence, tax havens, polluted environments, pestilences, the plight of stateless peoples, the unregulated arms trade and unending wars of attrition.

When performing these functions, paradoxically, watchdog parliaments push beyond the ‘parliamentary road’ and the fetish of periodic elections. They help redefine democracy and give it teeth. Electoral democracy becomes monitory democracy. Democracy comes to mean nothing less than free and fair elections, but also something much more: citizens’ freedom from predatory power in all its ugly forms, including our reckless relationship with the Earth on which we dwell.

True, the new watchdog parliaments are fragile. They function without much intellectual support. No grand political theories of the order of François Guizot’s lectures on the origins of representative government in the early 1820s, or John Stuart Mill’s Considerations on Representative Government (1861) have come to their defence. They lack guidebooks and operating manuals. This is to say that watchdog parliaments enjoy no scholarly fanfare and no historical guarantees of success. Except to future historians, their chances of survival are unknown.

The only thing that’s certain is that the spirit of these watchdog parliaments – the spirit of young King Alfonso IX – is the grit we humans are going to need as we struggle to deal wisely, equitably, democratically with the rich opportunities and cascading dangers of our troubled century.

About the author

John Keane is Professor of Politics at the University of Sydney and Professorial Fellow at the WZB (Berlin). His latest book is The Shortest History of Democracy (2022), which has already been published in more than 12 languages.

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Why Parliaments? Part 2

Past and current threats to parliamentary democracy

By John Keane

This is the second part of a keynote address, delivered in the presence of King Felipe VI, at the conference to commemorate the International Day of Parliamentarism hosted by the Inter Pares: EU Global Project to Strengthen the Capacity of Parliaments (Cortes Generales, León, Spain, June 30, 2023).

The first part of the keynote on the invention of the cortes model can be read here and the third part discussing the future of parliaments as watchdogs here.

The chamber of the National Assembly of Thailand (The Official Site of The Prime Minister of Thailand)

What about the subsequent fate of the cortes of León? Encouraged by military victories over the Moors, the surviving evidence shows that the cortes managed to survive for several centuries. Long distance government based on the consent of its subjects worked. 

By the end of the fourteenth century, following a merger of the neighbouring kingdoms of León and Castile, the kingdom’s representatives enjoyed considerable powers. Their right of gathering and presenting petitions, and their insistence that agreements struck by the parliament were legally binding, became customary.

Constitutional monarchy produced plenty of strife. The cortes was the site of intense bargaining about definitions of the welfare of the realm. Money was often the key cause of friction. Representatives constantly emphasized that kings were forbidden from manipulating coinage or levying extraordinary taxes without the explicit consent of all the estates. Before the end of the fourteenth century, there were times when the cortes reportedly demanded an audit of the court’s expenditure, even rebates on taxes that had already been paid.

The new León style of government proved geographically infectious. During the thirteenth century, parliaments spread from León and Castile to Aragon, Catalonia, Valencia and Navarre, to Sicily and Portugal, England and Ireland, and across the empires of Austria and Brandenburg. During the next two centuries, parliaments appeared in the large majority of German principalities, in Scotland, Denmark, Sweden, France, the Netherlands, Poland and Hungary. Nearly all these late medieval and early modern parliaments survived until the seventeenth and early eighteenth centuries. Despite the growth of absolutist states, which crushed the assemblies of Aragon, Catalonia and Valencia, many continued to function until the irruption of the French Revolution in 1789. The Navarrese cortes, the Swedish Riksdag and the Hungarian Diéta lasted into the nineteenth century. The powerful Estates of the Duchy of Mecklenburg survived intact until 1918.

By that time, in the aftermath of the collapse of empires and a catastrophic world war, Europe, noted Tomáš Masaryk, had become ‘a laboratory atop a vast graveyard’, a laboratory of democracy in which most European parliaments were besieged by political parties, trade unions, suffragists and other citizens demanding universal suffrage. Many observers expected the dawn of parliamentary democracy, but as we know, the cruel opposite happened. The butterfly of parliamentary democracy became the caterpillar of arbitrary rule. The long democratic revolution unleashed by young King Alfonso IX had run its course.

Here’s another irony: just as ‘the people’ mounted the stage of history, demanding ‘one person, one vote’, parliaments were racked by factional disputes, fierce backlashes and acts of violent sabotage. In countries like Yugoslavia and Romania, monarchs strangled parliaments. Military-backed dictators also savaged their parliaments, as happened in Piłsudski’s Poland and Horthy’s Hungary. Totalitarian rule triumphed in Italy, Germany, Russia and Spain, and also in China, which might otherwise have become the world’s largest parliamentary republic.

Admiral Miklós Horthy, ruler of Hungary between 1919 and 1944, greeted by city officials upon entering Budapest, November 1919, when in a fiery speech he accused the capital’s citizens of betraying Hungary by supporting Bolshevism.

During these first decades of the 20th century, the downfall and disappearance of parliaments gathered pace. Politicians dressed in frock coats and top hats grew scared. The spirit of ‘dead bourgeois parliamentarism’ (Lenin) fractured and paralysed parliaments. Governments rose and fell in quick succession.

In Portugal, whose first 15 years of republican government had been marred by dozens of governments, eight presidents and countless attempted coups, the words of the new dictator Salazar blew like a winter wind across the whole continent, and well beyond. ‘So long as there is not some retrograde movement in political evolution,’ he said in 1934, ‘I am convinced that within 20 years there will be no legislative assemblies left in Europe.’

Rump parliaments

Salazar’s wishful prediction almost came true. By 1941, there were only 11 parliamentary democracies left on our planet. Only three survived in Europe: Britain, Sweden, and Switzerland.

Historians and political scientists tell us the good news that after World War Two parliamentary government made a stupendous political comeback. The not-so-good news is that the long post-1945 renaissance of parliaments is today losing momentum.

There’s writing on the walls of parliaments. We’re living through times in which parliaments are again plagued by legitimacy and performance problems. We need to pay special attention to this new trend. 

We aren’t backsliding to former times, say, to the catastrophes of the 1920s and 1930s. We aren’t even facing the kind of overnight emergencies that gripped Spain on February 23rd 1981 –the moment described with great precision in Javier Cercas’s Anatomía de un instante when, in a hail of bullets, a frightened Cortes fell to the floor and was held hostage for six hours by golpistas.

More recent events in Bolivia, Burkina Faso, Mali, Myanmar, Sudan, Thailand and Yemen suggest that armies are still enemies of parliaments, but the main forces threatening the integrity of parliaments are nowadays different. They seem more banal. Their rhythm is different. But these new threats, if left untreated, are bound in the long run to destroy parliaments as effectively as happened a century ago in the heartlands of Europe.

What are these new sources of ruination? Most obviously, rising tides of reputational damage are lapping around parliament’s doorsteps. Cynicism, grumbling, ressentiment and angry citizens’ protests are becoming commonplace. On an already overheated planet, parliaments are said to be hot air chambers, mere talk shops, fabricators of unreality, quarrelsome kindergartens, warehouses of division, irrelevance and incompetence. Parliaments are the butt of bitter jokes. My Irish working class father – who knew something of the 1605 Gunpowder Treason Plot by supporters of Catholic Spain to blow up England’s House of Lords – liked to say that only one man ever entered parliament with honest intentions, and that was Guy Fawkes.

Tomfoolery and contempt for politicians hurt and harm parliaments from the outside, but just as worrying are the forces of decadence within the walls of parliaments. There’s not just the grandstanding, slam-bang rancour, misogyny and cluelessness of more than a few politicians. Or the ‘dead hand of party discipline’, as Michael Ignatieff put it.

Parliaments are materially corrupted by the combined forces of lobbyists, dark money merchants and revolving doors. In Washington DC, this tangled complex of government agencies, think tanks, corporations, academics and lobbyists with big toes in the lawmaking world of legislatures is known (for obvious reasons) as ‘the blob’.

Something similar is happening in the European Union where, in Brussels alone, nearly 12,000 organisations on the current voluntary EU lobby register declare that each year they spend a total of around 1.8 billion euros on their craft. At least 7,500 organisations operate without scrutiny in and around the European Parliament. Whatever is thought of the ethics of lobbying, the fact is government by moonlight is a growing problem in every parliamentary democracy. Mandatory accountability registers and comprehensive integrity checks to prevent ‘Qatargate’ corruption scandals and to ensure ethical fair play among lobbyists are typically in short supply.

India’s lower chamber Lok Sabha is the nightmare instance of what happens when lobbying, dirty money, shady deals, blackmail and criminality get the upper hand. In what’s known as the world’s largest democracy, more money is spent on elections than in the United States, even though average per capita income is only 3 per cent of US levels.

There’s no state funding for political parties and no proper regulation of party finances. 75 per cent of party funding comes from ‘unknown’ sources, including tax-free electoral bonds bought from the state-owned Bank of India (SBI) and anonymously deposited into the parties’ registered bank accounts. An estimated one-quarter of total election campaign expenditure goes directly to voters as cash and gifts. The upshot is that in Modi’s India parliament becomes a place of business deals, organised crime and ‘resort politics’ (an Indian specialty: party bosses buying off recalcitrant lawmakers in luxury hotel hideaways).1 Following the 2019 elections, unsurprisingly, 43 per cent of MPs in the directly elected Lok Sabha had declared criminal cases against them (self-declaration is an election rule); 29 per cent confessed to ‘serious’ criminal charges, which include murder, attempted murder, kidnapping, rape and other crimes against women.

India’s controversial new ‘temple of democracy’ (Narendra Modi) opened in May 2023 (Press Information Bureau on behalf of Ministry of Parliamentary Affairs, Government of India).

The Indian case shows how, in the name of democracy, parliaments can slowly degrade into mere meetings of more or less corrupted souls. The old saying that the word politics comes from poly, meaning many, and ticks, meaning bloodsucking parasites, then applies with a cruel vengeance. The decadence is perfected when parliaments fall victim to executive capture, to what Thomas Jefferson originally called ‘elective despotism’. In more than a few of today’s democracies, the centre of gravity of government is shifting from parliaments towards media-spun presidential rule. Take note how growing numbers of political oligarchs do everything they can to prorogue their parliaments, take decisions without consultation, all the while ignoring calls for accountability. They boast, contradict themselves and lie with impunity. Their media performances are reality shows. Excrement without nutrient – commonly called bullshit – is their specialty.

When this colonization of parliaments happens, the spirit of the León cortes is replaced by the mantra of Charles de Gaulle: that politics is much too serious a matter to be left to time-wasting, dithering politicians. The trend resembles a slow-motion coup d’état. It is backed by tactics such as government whipping, gag orders, gerrymandering and voter deregistration, emergency rule, compulsory budget limits, and the punishment of dissenting members. There are also kickbacks and favours and, lest we underestimate, sly efforts to outflank parliaments and silence their committees with the help of hand-picked, loyal bureaucrats, journalists, judges and other high officials, as Donald J. Trump attempted during his post-2016 presidency.

Things grow worse when populist parties and their demagogues get their paws on the levers of government. Populism accelerates the transition to elective despotism. Populists like Erdoğan, Kais Saied, Vučić, López Obrador and Kaczyński favour executive rule. They have a taste for prorogued legislatures, or what the English used to call rump parliaments: chambers that resemble chunks of rotting meat infected with maggots, parliamentary representatives who in the name of the people do little more than serve their executive masters on bended knees.

Things grow much worse when populist governments de-regulate, privatize and commodify public services. When neo-liberalism gets the upper hand, parliaments are blindsided. They become complicit in the growth of what should be called democracy exclusion zones: self-regulating banks, lawless tax havens, secret military-industrial complexes, and buccaneer data-harvesting media corporations which elude parliamentary scrutiny and legislative restraint.

The final part discusses the future of parliaments as watchdogs. Please continue reading here.

About the author

John Keane is Professor of Politics at the University of Sydney and Professorial Fellow at the WZB (Berlin). His latest book is The Shortest History of Democracy (2022), which has already been published in more than 12 languages.

  1. See Chowdhury & Keane (2021), To Kill a Democracy, Oxford University Press. ↩︎
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Why Parliaments? Part 1

The invention of the cortes model

By John Keane

This is the first part of a keynote address, delivered in the presence of King Felipe VI, at the conference to commemorate the International Day of Parliamentarism hosted by the Inter Pares: EU Global Project to Strengthen the Capacity of Parliaments (Cortes Generales, León, Spain, June 30, 2023).

The second part of the keynote discussing past and current threats to parliaments can be read here and the third part on the future of parliaments as watchdogs here.

Cloisters of San Isidoro, the place where the first cortes met in León, northern Spain, in 1188 CE (John Keane).

More than eight centuries ago, in these magnificent sandstone cloisters where we are gathered, a young king convened the world’s first parliament of representatives. The beginning was breathtakingly unexpected, a surprise so startling and precious that later generations jostled to lay claim to its fame. In England, politicians and historians have long been fond of saying that their House of Commons is the Mother of Parliaments. The ‘little room’ in London’s Palace of Westminster, said Winston Churchill a century ago, serves as ‘the shrine of the World’s liberties’. The parliamentary historian and aspiring Liberal politician A.F. Pollard repeated the claim that parliaments were ‘incomparably the greatest gift of the English people to the civilization of the world’. My La Vida y Muerte de la Democracia (2018) politely questioned this English prejudice. It showed how, in the spring month of March 1188, in the walled, former Roman town of León, a full generation before King John’s Magna Carta of 1215, Alfonso IX did something extraordinary: he invented an instrument of government soon to be called a cortes, or parliament. A politically autonomous space where differences of opinion were freely debated and laws made peacefully based on negotiated agreements among representatives of various social interests drawn from a wide geographic radius.

The remarkable invention came laced with ironies. The cortes was among Europe’s first precious gifts to the world of modern representative democracy, yet the unfashionable word ‘democracy’ played no role in its birth. The world’s first parliament stood for the open acceptance of differences, yet it was a child of recolonisation and empire building. Its birth was a moment in the Reconquista, a bitter military struggle of Christians to snatch fields and towns from the Muslims of northern Iberia, to set Spain on a course to become the greatest political power in early modern Europe.

At the epicentre of these ironies stood King Alfonso IX of León (1188-1230). At the ripe age of seventeen, returning from exile in Portugal, he accepted the crown of a kingdom beset with military, monetary and morale troubles. The young king was inexperienced, wet behind the ears, but he caught his doubters and foes off guard. He sprang a big surprise. Was he the bullfighter so sure of his coming demise that fear lost its grip and courage enabled his fightback? Did exile teach him the art of historical timing, the precious sixth sense of knowing what will work and what won’t work in any given circumstance? Had he been inspired by the royal meeting (curia) convened in neighbouring Castile the year before, when town representatives (maiores) were among the dignitaries who assembled to confirm the right of accession to the throne of Queen Berenguela, whom he later married? We can’t be sure.

Representatives (known as procuradores) at the León cortes of 1188 (John Keane).

What’s clear is that Alfonso chose to fight his way out of a tight corner by convening a first-ever meeting with representatives of the leading local estates. Gambling with his crown, making compromises that might have destroyed his kingly powers, young Alfonso IX turned to the local nobility, the warrior aristocrats who were committed in their bones to the reconquest of their lands. He called as well on the bishops of the church, the estate that saw itself as the guardian of souls, and the spiritual protector of God’s lands; and he summoned the citizens of the towns (cives), moneyed ‘good men’ (boni homines) respected for their role as elected officers of the town councils called fueros.

It was from inside this medieval triangle comprising the nobles, bishops and urban citizens – the representatives of soldiers, souls and money – that the modern practice of parliamentary representation was born. It was one of those magical moments when the participants couldn’t possibly have known the world-historical significance of what they were doing.

What happened in León wasn’t breaking news. This wasn’t yet the age of breaking news, but the first-ever cortes, as contemporaries soon christened it, radically altered the poetry of politics. It gave a new meaning to the word itself, which until then had been the local term for both the town where a king resides and a city council whose representatives made proposals and demands and granted services to a monarch.

As for the word representation (procurador), there’s an outside chance that locals had absorbed the notion from local Muslims, for whom a legal representative (wākil) was a religious judge chosen by a merchant to act in his stead, for instance handling his lawsuits and acting as the merchant’s banker and postmaster.

The members of the first cortes were certainly familiar with the Latin term procurator. It referred to a man who acts as an agent of another man, with his consent. It referred to someone authorised to appear before a court to defend another person in a lawsuit or dispute. It was used as well to speak of an official (known as the procurador general) who took care of the property and wellbeing of the city, or who acted as a guardian of the interests of the poor (procurador de pobres).

A great refusal

The León parliament transformed the language of politics. It was also a great refusal of divine, absolute monarchy. This cortes was no gathering where monarchs waved the flags of courtly pomp to impress their subjects on bended knee. Against the backdrop of war, the old medieval custom of convening meetings such as the German Hoftage and English witanegemots to swear fealty to a sovereign’s will was cast aside. Tough bargaining among conflicting social interests in the presence of the monarch was the new custom. A parliamentary monarchy was born.

The first parliament was held in the cloisters of the church of San Isidoro, named in honour of the good bishop of Seville famous for his maxim that only those who govern well are true monarchs. It produced up to fifteen decrees (the authenticity of several is disputed) that together amounted to something like a constitutional charter.

The king promised that in matters of war and peace, pacts and treaties he would hereon consult and accept the advice of the bishops, nobles and ‘good men’ of the towns. It was agreed that property and security of residence were inviolable. The representatives accepted that judicial proceedings and the laws they produced would be respected; and that the king’s realm would be guided, wherever possible, by the good customs (mores bonos) and general laws inherited from earlier times – the so-called Book or Liber Iudicorum from the time of the Visigoths. It was also agreed that there would be future assemblies of the king and the estates.

We need to pay attention to the profound historical and political significance of what happened in León. The assembly was the first recorded gathering of all three estates; the interests of the towns had hitherto been ignored in meetings convened by the monarchs of the region. We could say that the surprise inclusion of the towns was the beginning of many centuries of social and political struggle to equalize parliamentary representation – a struggle that’s nowadays still unfinished. But there was more.

This assembly of representatives of the nobility, church and towns promised a new way of governing. The cortes method of handling power supposed that guarantees of fair play could foster political deals among conflicting interests, thus avoiding the use of naked force. In striking contrast, say, to ancient Athens, where citizens feared division and supposed that democracy required a unified sense of political community, the cortes rested on the opposite precept: on the inevitability of competing and conflicting interests. And, for the sake of the common good, the desirability of forging peaceful compromises among them.

Putting things more abstractly, we could say that the cortes redefined politics in four ways. Its embrace of representation had insurgent, disruptive effects. It sharpened people’s sense of the contingency or alterability of power relations. The cortes questioned arbitrary power. It radicalised the old feudal notion of the contractual right of vassals to resist unjust treatment by their overlords. The cortes encouraged representatives to muster the courage to tell the king to go to hell.

Well before the age of party politics, the cortes also underlined the point that representatives don’t necessarily share the same realities and that parliaments are therefore spaces in which reality itself becomes contestable and negotiable. The cortes anticipated Cervantes. It destroyed the metaphysics of reality: within its walls, representatives affirmed that things always have at least two sides- that the windmills of hard reality are inescapably shaped by interpretations that lend them significance.

But the cortes had a third important effect: it offered the possibility of turning disagreements about reality into binding agreements in support of a common good. During these years, Spain was not yet a country. It was very much an invertebrate polity, to use the words of Ortega y Gasset, a space paralysed by social divisions, rebellions and threats of war. The cortes offered a positive alternative: combining social divisions into a more integrated polity, supported by people with straightened spines; a people bound together by their reliance upon parliamentary negotiations and agreed laws backed by the king.

Finally, the cortes created the space for long-distance government. It widened its footprint. It improved the chances of reaching workable agreements among otherwise mutually hostile groups by limiting the numbers of decision makers, some of whom were required to travel great distances. The cortes showed that representative governments could rule their subjects at arm’s length without losing their trust and consent. The government of large territories was possible exactly because the representatives involved in making decisions were entitled to snap at the heels of the monarch, to defend their respective interests in his presence.

The next part discusses past and current threats to parliaments. Please continue reading here.

About the author

John Keane is Professor of Politics at the University of Sydney and Professorial Fellow at the WZB (Berlin). His latest book is The Shortest History of Democracy (2022), which has already been published in more than 12 languages.

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Parliamentary scrutiny: what is it, and why does it matter?

Parliamentary scrutiny is at the heart of UK politics. In this post, Meg Russell and Lisa James examine the four key methods of parliamentary scrutiny, and offer proposals on how to strengthen it, calling for better behaviour by government and strong engagement from backbenchers.

Background

Parliament lies at the heart of UK politics. The legislature is a core institution in any democracy, but is particularly important in the UK, due to our tradition of ‘parliamentary sovereignty’. The government is dependent on the confidence of the House of Commons, which can potentially remove it from office. Parliamentary consent is required for primary legislation, and parliament is a particularly central and important body in holding ministers to account day-to-day.

This makes scrutiny – the detailed examination of policy proposals, actions and plans – one of the essential roles of parliament. Other functions include representation, and serving as a space for national debate – which in turn feed into parliament’s scrutiny function.

This briefing summarises why parliamentary scrutiny matters, what different kinds of parliamentary scrutiny exist at Westminster, some recent concerns about the decline of scrutiny, and ways in which it can be protected and strengthened.

Why does parliamentary scrutiny matter?

The government is responsible for much day-to-day decision-making, in terms of national policy formulation and implementation. But the government itself is not directly elected, and depends for its survival on the continued confidence of the House of Commons. This makes parliament one of the central checks and balances in the constitution – arguably the most central one of all. To provide government accountability, one of the core functions of parliament is scrutiny.

Parliament is a very public arena, with debates televised and transcribed on the public record. Hence parliamentary scrutiny means that ministers must justify their policies in front of an audience, which provides transparency and accountability, and helps to ensure that policies are seen as legitimate.

Crucially, parliament contains many and varied political voices. MPs are elected from diverse constituencies all over the UK, and represent different political parties. The House of Lords includes members from a wide range of backgrounds, many of whom are independent of political party, and some of whom are respected experts in their field. Parliamentary debates, and other mechanisms such as committee calls for evidence, also enable specialist groups and individual citizens to hear about policy and feed in their expertise, evidence and concerns. All of this ensures that different perspectives are heard in parliament when considering government policy.

The mere existence of parliamentary scrutiny, given its public nature and diverse contributors, can have an important effect. Even where nothing visibly changes as a result (e.g. if a government bill remains unamended) studies show that ‘anticipated reactions’ are important. Policy is more carefully thought through because ministers and officials know that it will be scrutinised by parliament. Hence scrutiny improves the quality of decision-making; and if it is lacking, policy may be poorer as a result.

What are the key forms of parliamentary scrutiny?

Scrutiny takes place both in the Commons and in the Lords, and both on the floor of the chamber and in various kinds of committees. At Westminster, even processes not focused directly on government policy require a ministerial response. Scrutiny and accountability thereby come through numerous mechanisms. These same forums also to some extent subject opposition parties to scrutiny, in the sense that they too must set out their own views on the public record.

The key forms and venues for scrutiny are set out below. In a number of these areas there have been recent concerns expressed about weakness or decline in scrutiny, which deserve attention.

1. Scrutiny of legislation

Most obviously, parliament conducts scrutiny of government legislation, and also of private members’ bills, with slightly different mechanisms operating in the Commons and the Lords.

Despite occasional backbench rebellions resulting in visible government climbdowns, scrutiny in the Commons is often seen as weak. But this can be overstated, given that ministers think carefully about the acceptability of bills to MPs before they are introduced. Changes in the Lords also often respond to concerns raised (including behind the scenes) in the Commons.

Nonetheless, adequate bill scrutiny depends on government cooperation. Ministers must ensure that bills are in good shape before introduction, and (given government’s extensive control of the Commons agenda) allow sufficient time for debate. They also need to be willing to listen and respond to reasonable points made by parliamentarians. There have been recent concerns about bills being rushed, and about late government amendments.

There are various known weaknesses in the legislative scrutiny process. Commons public bill committees are temporary and nonspecialist, unlike in many other legislatures, and the process of evidence-taking could be improved. Meanwhile, there is no formal evidence-taking stage for bills introduced in the Lords, or that have their committee stage in the Commons on the floor. This limits opportunities for expert input.

Perhaps the biggest concern in recent years has been about the growing use of delegated (or ‘secondary’) legislation, and increasing powers delegated to ministers in bills. This legislation receives very limited parliamentary scrutiny, raising clear accountability gaps if it implements major policy. Particular controversies emerged in this area during the Covid-19 pandemic, but overuse of delegated legislation has long been criticised, including by parliamentary committees, and expert groups such as the Hansard Society.

2. Parliamentary questions and government statements

Written and oral questions in both chambers put ministers on the spot about policy. Aside from scheduled questions, more ad hoc urgent questions allow sustained questioning on a topic, and their use has grown in recent years. Voluntary government statements take a similar form – and when not offered on key topics may trigger an urgent question.

Prime Minister’s Questions (PMQs) are the highest profile forum and have long been subject to criticism for their ‘bearpit’ and adversarial nature. They attract attention, but are unrepresentative of most forms of questioning, which can be more constructive but are lower profile. There are regular calls to reform PMQs but even they may have important ‘anticipated reactions’ functions.

The Cabinet Manual states that ‘the most important announcements of government policy should, in the first instance, be made to Parliament’, but there have been many recent complaints about ministers flouting this rule. This again occurred particularly frequently during the pandemic, but has continued – often to the displeasure of the Commons Speaker. Making major announcements outside parliament denies the opportunity for the kind of sustained questioning and democratic accountability that occurs when making announcements to MPs. Follow-up statements or urgent questions sometimes follow, but may be lower profile.

3. Opposition, backbench and adjournment debates

Parliament holds various kinds of debates in non-government time, including Commons backbench business debates, opposition day debates and adjournment debates. Irrespective of the topic, ministers must always appear and explain the government’s position, creating additional accountability. Often such debates are directly focused on government policy, and/or on topics that ministers would prefer to avoid.

Backbench business debates and opposition day debates may result in a vote on a substantive motion. In recent years there have been criticisms of the government’s relatively new practice of instructing MPs to abstain on opposition motions. Although decisions in these votes are not enforceable, the House of Commons Public Administration and Constitutional Affairs Committee, has suggested that this shows a ‘lack of respect for the House’.

These two forms of debate are guaranteed a minimum number of days per session in standing orders. But recent years have seen a number of long sessions (2010–12, 2017–19, 2019–21), which gives excessive control to the government over their scheduling.

4. Select committees

The select committees are seen as jewels in Westminster’s crown. They are unusual in international terms for conducting extensive and careful non-legislative scrutiny, for their nonpartisan ethos, and for generally producing unanimous reports. Committees in the Commons mostly shadow government departments, while those in the Lords are more crosscutting.

Committees gather expert and other evidence (including some recently using citizens’ assemblies to elicit considered public views). Ministers are often called to give evidence to the committees, as well as the government being required to respond to their reports. There have been occasional concerns about ministers cancelling committee appearances, but this is the exception.

Research shows that, while the select committees have little ‘hard power’ to force changes, they can be influential through putting topics onto the political agenda, feeding valuable evidence into wider debates, and having an ‘anticipated reactions’ effect – through forcing ministers to consider policy carefully, because they know they may have to publicly explain it to committees later.

In the Commons, select committee structures are routinely changed when government departments are reorganised. This can cause concerns – for example most recently when the abolition of the International Trade Committee left little opportunity for scrutiny by MPs of important international agreements (though such scrutiny remains in the Lords).

How can parliamentary scrutiny be strengthened?

There have been some welcome changes to mechanisms for parliamentary scrutiny in relatively recent years, such as the election of House of Commons select committee members and chairs (since 2010), and introduction of evidence-taking by Commons public bill committees (in 2006).

But this briefing has mentioned various weaknesses in parliamentary scrutiny processes, including recent concerns about decline – for example through primary legislation being rushed or subject to late government amendments, and an overreliance on delegated legislation. Recent polling shows that the public wants new laws to be subject to full parliamentary scrutiny. Improved government behaviour could make a good deal of difference in this area, but the Hansard Society has also proposed procedural changes.

Proposals exist for strengthening Commons public bill committees – e.g. by injecting greater permanence and specialism – and for publishing more government bills in draft. The Commons Procedure Committee has proposed improvements to the private members’ bill process.

Government control of the House of Commons agenda creates weaknesses, including over the timetabling of bills, ministers’ ability to withhold backbench and opposition days, and parliament’s inability to recall itself from recess. The Constitution Unit has proposed changes in this area.

Fundamentally, improved scrutiny depends on better behaviour by government, but also on strong engagement by backbenchers and other non-government parliamentarians. Even seemingly ‘toothless’ scrutiny mechanisms can have important effects, by subjecting government policy to public exposure and debate. Both government and non-government parliamentarians therefore have important responsibilities to maintain the system of parliamentary scrutiny – in order to uphold good quality government decision-making, and the legitimacy of politics in the eyes of the public.

This blog is part of the UCL Constitution Unit’s briefing series designed to inform policy-makers and the public about key constitutional issues and democratic debates. Our briefings draw on international evidence and examine both long-term trends and current developments in the UK. This is part of our project on constitutional principles and the health of democracy.

It was originally published on the Constitution Unit’s blog and is re-published here with thanks.

About the authors

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.

Lisa James is a Research Fellow at the Constitution Unit.

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The Blindspots of Deliberative Democracy

By John Keane

During the past two decades, more than a few green-minded scholars have championed ‘deliberative democracy’1 or ‘deliberative ecological democracy’, understood as ‘decentralised, organic and grassroots democratic practices that embody ecological values and give greater weight to the interests of nonhumans and future generations’ (Schlosberg et al., 2019). These green theories of deliberative democracy are less than convincing. They suffer multiple flaws. Their sense of history is poor. There is little or no recognition of the way their protests against the fetish of elections and search for new mechanisms of public accountability squarely belong to the age of monitory democracy. Many speak as if they are ancient Greeks; ignoring core features of classical Greek democracy such as slavery, discrimination against women and the worship of deities, they like to say that ancient Athens is the protype of a new 21st-century form of citizens’ assembly democracy ‘where people come together and their voices are heard and translated directly into policy’ (Russon Gilman & Eisenstein, 2023).

There are additional flaws. Deliberative democrats’ penchant for ‘inclusion’ and ‘participation’ through small-scale, face-to-face deliberative forums begs difficult strategic questions about scalability, including whether micro-level schemes (featuring a few dozen human participants) can be replicated in time-space-variable nested ways at the national, regional and global levels, without relying on structures of human and non-human representation that are deemed antithetical to citizen ‘inclusion’ and ‘participation’. Deliberative democrats downplay the conceptual and normative challenges posed by the ‘artificiality’ of small-scale, pilot scheme experiments in which indefatigable citizen deliberators, supposedly with a plenitude of free time on their hands, are expected to behave as if they are rational and reasonable and dispassionate communicators in a good-natured scholarly seminar.2

Structural constraints on the efficacy of deliberative experiments are typically underestimated, or ignored outright. How or whether the big money and big power of corporations, military-industrial complexes and other vested interests wedded to the old carbon-fueled energy regime is to be reined in by citizens’ assemblies isn’t made clear. What’s more, champions of deliberative democracy typically suppose that there is, or could be, a ‘general will’ consensus about the meaning of ‘ecological values’ crafted through calm, reasoned, democratic deliberation. Resembling 19th-century Christian democrats and champions of the parliamentary road to socialism, ecological democrats fancifully suppose that democratic means (public deliberation in assemblies) have a secret affinity with cherished substantive ends (ecological values). Following in the footsteps of ancient democrats, they dislike faction and disagreement. They prefer ‘harmony’. They are convinced that rational, face-to-face deliberation produces synthesis from division and actionable, working agreements geared to policy implementation. Inspired originally by the work of Jürgen Habermas, many ecological deliberative democrats secretly want to recapture the spirit of assembly democracy. Convinced that green politics heralds the rebirth of ‘participative democracy’3, perhaps even the end of elections and politicians, they misread and downplay the strategic and normative importance of courts, general elections, media platforms, integrity commissions and other power-monitoring institutions. Generally, they seem blind to the ubiquity and functional necessity and positive effects of representation within political life.4

About the author

John Keane is Professor of Politics at the University of Sydney and Professorial Fellow at the WZB (Berlin). His latest book is The Shortest History of Democracy (2022), which has already been published in more than 12 languages.

  1. See John S. Dryzek, The Politics of the Earth: Environmental Discourses (New York 2013); and the introduction to Deliberative Democracy and Beyond: Liberals, Critics, Contestations (New York 2002), where the ‘essence of democracy’ is said to be ‘deliberation, as opposed to voting, interest aggregation, constitutional rights, or even self-government’. What is called ‘authentic deliberation’ is ‘the requirement that communication induce reflection upon preferences in non-coercive fashion’. It is claimed that the emphasis on deliberation in this sense renews concern with ‘the authenticity of democracy: the degree to which democratic control is substantive rather than symbolic, and engaged by competent citizens’ (pp. 1-2 ff). ↩︎
  2. Kevin J. Elliott, Democracy For Busy People (Chicago 2023). ↩︎
  3. Examples include Tim Flannery’s Here on Earth: An Argument for Hope (Melbourne 2010), which speaks of a ‘globally participative democracy’ (p. 252) using the example of the Vote Earth campaign during the 2011 Copenhagen negotiations, a partnership between Google Earth and WWF’s Earth Hour which managed to distribute electronic ballot boxes across thousands of web portals, then to urge people to ‘vote Earth’ in support of a robust outcome of the negotiations, guided by the visionary principle (as Flannery puts it) of ‘online elections, organised by the people, of the people and for the people’ (ibid); and ‘From Another Angle: Democracy, with Claudia Chwalisz’, (Carnegie Council Podcasts, April 18, 2023). ↩︎
  4. The merits and weaknesses of the theory of undistorted communication of Jürgen Habermas are detailed in my Public Life and Late Capitalism (Cambridge and New York, 1984). ↩︎
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Is confrontational questioning bad for parliaments and democratic politics?

Parliamentary procedures such as Prime Minister’s Questions in the UK or Question Time in Australia are often criticised for their contentious style of debate. Ruxandra Serban compares questioning procedures in the UK, Australia, Canada and Ireland, and discusses whether a confrontational style has negative consequences for parliaments and for democratic politics.

Parliamentary questions are a well-known feature of politics, and procedures such as Prime Minister’s Questions (PMQs) in the UK, Question Period in Canada, and Question Time in Australia are at the centre of public perceptions of parliament. These procedures receive more attention than their European equivalents, which are considered less ‘interesting’ than the theatrical antics of PMQs. But they are also criticised for being too combative, with the implication that the confrontational dialogue seen during PMQs or Question Time is detrimental to parliament and for politics more broadly. Recently, the new Leader of the House in Canada also promised to change the adversarial character of Question Period. But how confrontational are these procedures, and why? Does confrontational questioning have negative implications for parliament and for democratic politics? And, importantly, what can be done about it?

How confrontational are different questioning procedures?

PMQs in the UK is notoriously conflictual, with numerous studies documenting face-threatening strategies, incivility, and personal attacks in questions and answers. But how does confrontational language at PMQs compare with similar procedures in other parliaments? To investigate this, I looked at four similar parliaments, during four comparable premierships: Enda Kenny in Ireland (2011-16), David Cameron in the UK (2010-15), Julia Gillard in Australia (2010-13), and Stephen Harper in Canada (2006-8). Taken in pairs, the four premierships are of a similar duration, with both Cameron and Kenny having a term of about five years, and Gillard and Harper of about two. All four led similar types of government: coalition governments in the UK and Ireland, and minority governments in Australia and Canada.

I sampled a set of 30 questioning sessions for each case-study, amounting to 3,212 parliamentary questions. Each question was labelled based on whether or not it included a conflictual remark, understood as explicit instances of an MP criticising the government, a political party, policy, or the Prime Minister.

During the periods analysed, the Canadian Question Period was the most confrontational, with 75% of questions including a conflictual remark. The Australian Question Time came second, with 44%, and the UK’s PMQs third, with 40%. Oral Questions to the Taoiseach was much less conflictual, with only 13% of questions including a critical comment. Although some of these patterns may be related to the context of each premiership, my new research shows similar findings apply to the Trudeau premiership, during which around 80% of questions to the Prime Minister included a conflictual remark. Ongoing conversations about excessively contentious questioning in Canada, Australia and the UK suggest that things have definitely not improved over time.

Why do MPs use conflictual remarks in their questions?

To understand why MPs pursue confrontational questioning, we need to look at the incentive structure of oral parliamentary questions. Questioning time is scarce, and oral questions to the Prime Minister in the parliamentary plenary (a meeting open to all MPs, usually in the Commons chamber) is the most visible political event of the week. In the media spotlight, political parties have an opportunity to embarrass their opponents, and also to put their side at an advantage in the competition for issue ownership and votes at the next election. Recent studies have documented how parties amplify their attacks in questions in the run up to an election. There is, hence, a clear incentive for both government and opposition parties to control how MPs ask questions, and to ensure a cohesive questioning strategy.

Who gets to ask questions at Question Period in Canada and Question Time in Australia is, to an important extent, controlled by political parties. In both cases, parties have ‘tactics’ or strategy committees that plan questioning approaches and topics for each week. In Canada, although on paper questioning is spontaneous, party whips hand over a list of questioners to the Speaker before each Question Period. Similarly, in Australia, parties decide which of their MPs will ask questions at Question Time. MPs in leadership positions, such as the Leader of the Opposition and main party leaders, have precedence over backbenchers, and the latter must also follow the main questioning lines set by their party. Backbenchers on the government side are often reduced to asking ‘helpful’ questions, and rarely get to ask other questions, for example on matters relevant to their constituencies. In the UK, parties also strategise their questions for PMQs. The Leader of the Opposition undertakes weekly preparation with their team, which establishes the main attack lines for each PMQs session. Backbenchers also largely follow these lines, and occasionally receive questions planted by whips. However, the fact that government backbenchers do not always just ask helpful questions to the Prime Minister, but also pursue other topics, and are occasionally even critical of the government, suggests that PMQs is not as tightly controlled by parties as its Canadian and Australian equivalents.

This highly charged political atmosphere and winner-takes-all incentive structure leads to an adversarial questioning culture: whether in leadership or in backbench roles, MPs are socialised by their parties into a confrontational style of questioning, and whilst some might see this as a small, distinct part of their job, for others, especially for women and new MPs, it is intimidating and off-putting, and not a style of communication that would be admissible in other workplaces. The fact that confrontational questioning is an established part of the culture of some parliaments is also evidenced by the involvement of Speakers. In all four parliaments, Speakers mainly intervene to limit shouting and noise in the chamber, but rarely to limit confrontational questioning, unless unparliamentary language has been used.

Are confrontational questions bad for parliament and for democratic politics?

If questioning is perpetually dominated by conflictual language, what are the implications? In terms of what the public thinks, evidence is mixed. In the UK, surveys and focus groups reported that the aggressive nature of PMQs puts members of the public off politics. Similar evidence exists in Canada. But a study of oral questions in 22 countries found that questioning mechanisms that allow open, spontaneous and adversarial exchanges increase engagement with and attention to politics. Using an experimental design, another study found that watching PMQs does not decrease trust in parliament, and makes citizens feel better equipped to understand politics.

Whilst adversarial questioning may be seen as entertaining, and captures the attention of the public, it also normalises a type of negative, aggressive debating style, and paints a particular picture of what democratic politics looks like, and of what parliaments do. The snappy soundbites and shouting that define PMQs and Question Period contribute to a wider environment of negative language and interactions in politics. A growing body of literature spanning different countries has shown that the language and style of political debate have consequences for democratic politics, and can, for example, cultivate an increasingly polarised political environment. Parliaments are a space for the expression of disagreement among political actors. But the routine deployment of vicious insults is arguably not necessary to express disagreement with decisions of the government or Prime Minister, or with technical aspects of policy.

In terms of negative effects on parliament, the key question is whether the incentive structure that encourages conflictual questioning prevents MPs from using questions to scrutinise the government in a meaningful way. If oral parliamentary questions are dominated by political attacks, and MPs must play their parties’ game, there is less room for the kind of detailed scrutiny of the executive which parliaments must be able to perform. Confrontational questions also encourage confrontational answers, leading to a less than ideal deliberative interaction. Concerns about the role of procedures like PMQs in perpetuating negativity in politics should hence be taken seriously, as should the implications of adversarialism for scrutiny.

What can be done?

The incentive structure that leads to an adversarial questioning culture in some parliaments is difficult to dismantle, as it is also related to other components of the political framework, such as the electoral system. Unless parties agree to a ‘truce’ on confrontational questioning, it is difficult to see how meaningful change could happen. But questioning takes place within rules of procedure, and some procedural options can ensure that parliamentarians have both opportunities for spontaneous interaction and a ‘safety valve’ for the expression of conflict, as well as forums for a more focused dialogue with the Prime Minister or ministers, centred around requests for information and explanation.

Evidence from recent research suggests that spontaneous plenary questioning is the least conducive to focused scrutiny – MPs use the opportunity to ask questions on a wide range of topics, and to score political points. This is exacerbated in contexts that are highly party-controlled, like the Australian Question Time or the Canadian Question Period. On the other hand, closed questioning, with questions submitted in writing in advance followed by supplementary questions, creates a forum for more detailed scrutiny. The Irish Dáil provides an illustrative case for how these two types of questioning work together. Oral Questions to the Taoiseach is structured around closed questions, submitted in writing and in advance. Leaders’ Questions allows spontaneous questioning. The two procedures ensure that parliamentarians get both a chance for detailed scrutiny and long-term policy questions, and one for more spontaneous political interactions and topical questions. A similar effect can be achieved if the plenary procedure is complemented by a committee procedure. In the UK, the Commons Liaison Committee – which consists of the chairs of select committees –  complements PMQs with detailed scrutiny of the Prime Minister on a small set of topics, and ministers are questioned separately on a rota at Departmental Question Time.

For procedures to be truly complementary, they must have different features. If one includes closed questions, the other should include open questions; if one is in plenary, the other could be in committee. The Canadian House of Commons recently introduced a Prime Minister’s Question Time on Wednesdays, similar to the UK’s PMQs. The rest of the week, Question Period includes a set of ministers, as well as, occasionally, the Prime Minister. This is a change from the traditional model of Question Period, which included both the Prime Minister and ministers attending questioning every day. By only separating the questioning opportunity for the Prime Minister and not introducing any other procedural changes, the new PMQs turned out to be just as adversarial as the old Question Period model. MPs operate under the same set of rules, and have no incentive to change the style of questioning.

Another procedural element that singles out the Canadian Question Period as a puzzling case of excessive conflictual language is time limits. MPs are allowed 35 seconds to ask a question, and answers must comply with the same time limit. The Australian Question Time is similar, with a time limit of 30 seconds for questions. These are both outliers in the population of questioning procedures that include prime ministers, most of which allow a moderate time limit for questions of up to two minutes. In an environment that already encourages conflictual language, short time limits for questions and answers further incentivise a snappy remark that can make it into a social media clip, as opposed to meaningful scrutiny. Increasing the time limit for questions slightly may facilitate an interaction that allows more elaboration, and which is not exclusively focused on delivering the attack line.

Conclusion

Procedural solutions can ensure that parliament performs its functions well, and that the government is held to account, but they do not remove the broader problem. Adversarial questioning validates and contributes to a political culture of aggressive confrontation and constant negative campaigning. Instead of accepting this as a permanent feature, it is worth continuing to ask whether it is a type of politics that is desirable.

This blog draws on a recent article published in the British Journal of Politics and International Relations, entitled ‘Conflictual behaviour in legislatures: Exploring and explaining adversarial remarks in oral questions to prime ministers’.

About the author

Ruxandra Serban is an Associate Lecturer in Democratic and Authoritarian Politics at UCL.

This post was originally published on the Constitution Unit blog and is re-published here with thanks.

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Trends in Canadian Non-Government Legislation: A Tale of Two Houses

By Charlie Feldman1

Non-government legislation warrants close attention as sittings of Canada’s 44th Parliament, 1st Session resume later this month. Thus far this session, the Senate of Canada has seen more Senate Public Bills (SPBs) introduced than in any session in Canadian history, and this record-setting total will only increase. Meanwhile, a trend in the opposite direction appears to be emerging in the House of Commons as fewer Private Members’ Bills (PMBs) – and fewer items of Private Members’ Business overall – are being introduced compared to previous non-pandemic sessions.

While some scholarship exists regarding Private Members’ Bills in the Canadian House of Commons – including in work from its former Law Clerk and Parliamentary Counsel – far less appears to be written on equivalent legislation in the Senate, Senate Public Bills. Current academic attention on the legislative functions of the Canadian Senate focuses on engagement with government legislation and, in particular, the Senate’s increasing rate of amendment. This focus makes sense given recent reforms to the Senate appointment process and their possible effects on partisanship; however, the SPB story is one worth considering. 

While it would be notable on its own if SPBs were increasingly introduced but went nowhere in the legislative process, these bills are increasingly enacted. At this point in the session, more SPBs (8) than PMBs (5) have received royal assent. Might the Upper House currently have the upper hand when it comes to non-government legislation?

The new Senate record in context

The number of SPBs introduced in the Senate in recent parliamentary sessions (1994-present) is illustrated in Figure 1 (keep in mind that the 44th Parliament, 1st Session remains in progress).

Figure 1: Senate Public Bills introduced in recent parliamentary sessions

It should be recalled that parliamentary sessions have different durations and there may be more or less non-government legislative activity given other circumstances – for example, the outbreak of the Covid-19 pandemic in the 43rd Parliament, 1st Session or the abnormally short 40th Parliament, 1st Session (the so-called ‘coalition crisis’). What is particularly striking about the SPB record being set during the 44th Parliament, 1st session is the relative length of the session compared to others. The longest single session in parliamentary history was the recent 42nd Parliament, 1st Session (2015-2019). Over the course of its 1378 days, the Senate sat 308 times and saw 68 SPBs introduced. Contrast that to the current 44th Parliament which so far has seen 138 Senate sittings in its first 600 days (at the time of this writing) but has seen 73 SPBs introduced. In other words, the Senate is seeing more SPBs introduced in less than half the time as observed just two parliaments ago.

As a historical context note based on Library of Parliament data, during the previous 80 parliamentary sessions in which SPBs were introduced (e.g., prior to the current session), the average was 8.6 SPBs introduced each session (median 3.5 SPBs introduced each session).

Wither the PMB?

With respect to the House of Commons, the number of PMBs being introduced is declining relative to the number of SPBs introduced. At the time of this writing, the PMB-to-SPB introduction ratio is at a 30-year low (excluding the abnormally short 40th Parliament, 1st Session discussed above and the first session impacted by the Covid-19 pandemic). The decreasing introduction gap between the two types of bills can be seen in Figure 2 below.

Figure 2: Number of non-government Public Bills introduced in recent parliamentary sessions (Data from LEGISinfo. It is important to recall that SPBs do not carry over from one session to another within the same parliament whereas PMBs are reinstated after a prorogation. In other words, in any second or subsequent session of the same Parliament, the PMB number will automatically include bills from the previous session or sessions of that same parliament that did not complete their legislative journey.)

The drop in introduced PMBs during the 43rd Parliament, 1st Session is explained because the Covid-19 pandemic led to fewer parliamentary sittings and a focus on government legislation responding to the pandemic. However, notice that the 42nd Parliament, 1st Session – the longest single parliamentary session in Canadian history – has a drop from previous sessions. Why would fewer PMBs be introduced in a longer session than in shorter ones that preceded it?

As explained in House of Commons Procedure and Practice, “Private Members’ proposals can take the form of a public bill, a motion, or a notice of motion for the production of papers”. As bills are only one aspect of non-government business, it might be suggested that MPs are opting to introduce more motions instead of bills. However, in looking at the other types of private members’ business – motions and notices of motion for the production of papers – a decline similar to that observed with PMBs becomes apparent, as illustrated in Figure 3.

Figure 3: Private Members’ Business (other than bills) in recent parliamentary sessions (Data from the Status of House Business documents for the end of recent parliamentary sessions. See: https://www.ourcommons.ca/DocumentViewer/en/44-1/house/status-business)

Nothing in the parliamentary record clearly explains why MPs not in Cabinet are opting to introduce fewer initiatives. This is an area worthy of further examination and analysis. Importantly, there may be a relationship with the increasing number of SPBs.

Bicameral effects

When an SPB passes the Senate, an MP must be found to sponsor the bill as a matter of Private Members’ Business. MPs not in Cabinet can sponsor one SPB over the course of a Parliament pursuant to Standing Order 86.2(2). If a House sponsor cannot be found, the bill is dropped from consideration, which is rare but occurred earlier this year.

While MPs participate in a lottery to determine the order in which they can advance a matter of Private Members’ Business in their name, SPBs jump the queue. In a 2017 white paper, the Government noted that it might consider “ways to manage Senate Public Bills that delay the replenishment of Private Members’ Business, possibly by having a separate rubric for these bills”.

No action has been taken to revise the process, which has produced some perhaps unexpected results. A particularly notable example is the case of An Act to Recognize Charlottetown as the Birthplace of Confederation. MP Wayne Easter introduced this PMB on March 24, 2016 as Bill C-253 and it never advanced (given Mr. Easter’s position in the lottery). However, the same bill was introduced as an SPB by Senator Diane Griffin on February 15, 2017. That SPB, Bill S-236, passed the Senate, was subsequently sponsored by Mr. Easter in the House, and received royal assent in December 2017. In short, the Senate’s version of the legislation became law before the House version even came up for debate, despite the House version being introduced earlier.

In the current session, some PMBs and SPBs bear striking similarities – including the following: An Act respecting the National Strategy to Combat Human Trafficking (C-308 and S-263), An Act to develop a national framework for a guaranteed livable basic income (C-223 and S-233), and Strengthening Reporting Obligations for Sex Offenders Act (Noah’s Law) (C-336 and S-226). Could it be that some MPs are seeking to advance their initiatives through the Senate in the hopes of having them pass faster than if they were advanced as PMBs in the House? This was the motivation behind the Charlottetown bill.

While the parliamentary rules around similar and identical items are designed to limit one Chamber considering the same thing twice, nothing stops the same initiative from being advanced in each House of Parliament simultaneously. Notably, there is a prohibition against using the legislative drafting services of the House of Commons to advance initiatives for the Senate. The Members By-Law of the House of Commons states that “[t]he funds, goods, services and premises provided by the House of Commons to a Member may not be used to support Senators, the Senate or the Government of Canada in the performance of their duties and functions.”

One other bicameral note warrants mention: When SPBs are received from the Senate, they are subject to review by the House’s Subcommittee on Private Members’ Business (SMEM). That committee reviews non-government public bills against certain criteria and must meet to consider SPBs, regardless whether there are PMBs to consider at the time. Importantly, the committee examines PMBs and SPBs differently. PMBs are subject to a more robust review by SMEM – including in respect of their constitutionality – something that is not required of SPBs. This could, in theory, motivate some to pursue an SPB over a PMB as the Senate has no SMEM-like committee for SPB review.

Conclusion

Parliamentary trends with respect to non-government legislation appear to be changing as more SPBs are being introduced while fewer PMBs and other items of Private Members’ Business are being introduced in the House of Commons.

Further research is warranted on increasing SPB introduction. In particular, has their content changed in recent years? If so, does it relate in some way with Senate composition changes, such as it becoming a gender-equal House for the first time in history? Or, are other activities motivating the SPB rise? Of particular note, recent research demonstrates that senators are now disproportionately lobbied relative to their MP counterparts. Could increased lobbying find expression in increased SPBs?

More research is warranted to explore why individual House legislators not in Cabinet appear to be advancing fewer initiatives in their own right while senators are introducing more. It may be that MPs are increasingly seeking to collaborate with a senator to advance an initiative through the Upper House in the hope that it will complete the legislative process more quickly. Whether the government will seek to encourage the House to reform practices in this area – as suggested in its 2017 white paper – remains to be seen. With Parliament’s imminent return, however, non-government legislation in Canada’s Parliament warrants a watchful eye.

  1. President of the Canadian Study of Parliament Group. The views in this work are those of the author and not of any employer. ↩︎