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Turning Right: Donald Trump and the GOP Direction of Travel 

In January 2022, an NBC poll asked GOP voters whether they considered themselves to be ‘more a supporter of Donald Trump or more a supporter of the Republican party?’ In response, 56% prioritised the party and 36% Trump. A year earlier the same question had the numbers even at 46% each. These numbers suggest some loosening of the former president’s grip on the GOP, yet his continuing presence is most unusual. In another early 2022 poll 50% of Republicans and Republican leaning independents named Trump as their preferred party nominee in 2024. In January 1982 or January 1994 there was no clamour amongst Democratic and Republican party loyalists for the return of Jimmy Carter or George Bush Snr respectively following their one-term presidencies.

Scholars continue to argue about whether the former reality television star’s presidential triumph in 2016 was a one-off aberration. Did it reflect a very particular political moment as two deeply unpopular major party candidates battled in a toxic atmosphere throughout a campaign infused with sexism, or was that toxicity a product of longer-term underlying trends? Trump’s capture of the Republican nomination in 2016 was certainly unexpected, and shocked much of the conservative establishment, yet if the messenger was initially an unwelcome outsider, it is possible to see the message as the culmination of many years of right-ward populist and illiberal travel.

A reminder that the politics of personal destruction were rife decades before the arrival of Donald Trump includes Newt Gingrich’s 1990s embrace of political conflict as no-holds barred culture wars Yet, prior to 2016, the party’s presidential nominee had been an established if not always establishment figure. Reagan’s emergence in 1980 was a surprise to much of the outside world but he had been a high profile player in GOP circles for some time and had nearly captured the nomination in 1976. Subsequent nominees, Bush Snr, Dole, Bush Jnr, McCain and Romney all paid more homage to Reagan’s small government conservatism than Eisenhower’s accommodation to the New Deal, but that also meant that they all operated within an identifiable conservative ideological framework. Opponents complained that this sometimes included racist populist dog whistles. The National Populism on offer from Trump in 2016 had a different flavour as the candidate turned the volume up well beyond whistling and blasted out messages that were denounced by the party’s previous Vice-Presidential nominee as being  “like the textbook definition of a racist comment”.

Nevertheless, there is a school of thought that argues Trump’s populist rhetoric did not translate in populist governance. Instead, it proposes that the efforts to implement  such an agenda  were undone by his own extreme administrative incompetence. This in turn exacerbated the institutional fragmentation which plagues all presidential efforts to fulfil their campaign promises. Hence, Trump’s signature legislative achievement was a set of tax cuts – a policy fully in line with Reaganism and the wishes of more traditional Republican grandees. 

 Such a focus, however, may underplay Trump’s longer term impact. First, he decisively settled some long-running internal GOP policy debates,  not least the division over immigration policy. In 1986 Reagan signed the Immigration Reform and Control Act, which amongst other things, included a pathway to legal status for many undocumented immigrants. In his second term President George W Bush advocated for similar measures and, in 2013, 14 Republican Senators signed on to a bipartisan bill that contained comparable elements. Always more the preserve of the party’s elite, that approach is increasingly taboo. The restrictionist sentiments of party’s base, so explicitly articulated by Trump, now dominates. 

Second, in collaboration with the party’s establishment leaders, President Trump cemented in a conservative majority on the Supreme Court that could last for a generation. The real power player behind this achievement for the conservative movement was then Senate Majority Leader Mitch McConnell of Kentucky. For months he blocked Obama’s nomination of Merrick Garland to succeed Antonin Scalia after the latter’s unexpected death in 2016 on the grounds that a justice should not be confirmed in an election year. Next, after Trump had nominated replacements for both Scalia and the retiring Anthony Kennedy, the White House and McConnell rushed through the nomination and confirmation of justice Amy Coney Barrett. This was to replace ‘liberal lion’ Ruth Bader Ginsburg after her death a mere 35 days before the 2020 presidential election.  

Third, Trump’s continuing influence over the party is illustrated by the numbers of party identifiers who believe that the 2020 election was fraudulent. Even on the day that the deeply shocking events of January 6th 2021 unfolded, 147 elected Republicans chose to ignore the facts and embrace the ‘Big Lie.’ It is not simply that many Republican identifiers still claim to believe the ‘lie’, but that in many states there have been concerted attempts to pass laws that empower partisan bodies to challenge the legitimacy of vote counts. These efforts go beyond the voter restriction measures, anti-democratic though those already are, that have become increasingly common in GOP controlled states in recent years. The new endeavour offers real potential to overturn the will of voters who have been able to participate.

At this stage it remains uncertain whether Trump will choose to run again in 2024. Even if he does not, his brand of politics will live on, embraced by emerging potential candidates such as Florida Governor Ron DeSantis and Missouri Senator Josh Hawley. In the meantime, Trump’s influence will be tested in some of the 2022 Republican Party primaries as candidates he has endorsed compete for votes. In some cases, there has been an unseemly competition to be the Trumpiest candidate. The GOP nomination race for the open Senate seat in Ohio is a case in point. Perhaps the most interesting example is in Georgia where Trump has backed former Senator David Perdue in his challenge to incumbent Governor Brian Kemp. Kemp’s sin was not a policy based aberration from Trumpian principle but his refusal to help Trump overturn the 2020 presidential result in the state. In a twist, and a challenge to Trump, the Republican Governors Association has backed Kemp. Polls suggest a close race between the two.

One irony is that many Democrats feel that their prospects are enhanced when Trump has a higher profile. They might reflect that a majority believed that to be the case in 2016. That view was mistaken then and however far short Trump fell in turning his populist rhetoric into governing reality his legacy goes beyond standard measures of presidential achievement. Trump’s personal longevity as a political force is uncertain and there are some signs that his hold over the GOP maybe slightly eroding, but his provocations intensified the divisions in an already divided polity in ways that will be extremely difficult to heal.

Dr Clodagh Harrington, Associate Professor in American Politics, De Montfort University, and Dr Alex Waddan, Associate Professor in American Politics and American Foreign Policy, University of Leicester.

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A case of innovative parliamentary oversight? Faroese and Greenlandic MPs in the Danish Parliament 

By Mette Marie Staehr Harder and Hallbera West

Controlling the government is a key task of any democratic country’s parliament. One widely used legislative control tool is parliamentary questions which are typically used by members of the opposition. In the Faroe Islands and Greenland, as in most parliamentary settings, members of the national parliaments; the Løgting and Inatsisartut, may pose questions to their national government, thus controlling their government. However, more atypically, the two Faroese MPs as well as the two Greenlandic MPs who are elected to the Danish parliament, the Folketing have an alternative arena for control of their government at home. Hence, in theory, these four North Atlantic members of the Danish Folketing may also pose parliamentary questions to the Danish government concerning the actions or inactions of their home-rule government. If applied this way, the Folketing could act as an alternative arena for control of the national periphery government, and we would be witnessing an example of what we term cross-parliamentary control. 

Questions and Data

Thus far, this type of control in which representatives use the control tool of another country’s parliament to control their home government has not yet been an issue of much attention in the legislative literature. Yet, as the influence of national parliaments vs. governments is challenged due to processes of globalization, international collaboration, and specialization of the executive branch among others, the need to understand parliamentary control and thus the quality of democracy through unorthodox perspectives of multilevel governance grows increasingly important. Therefore, we set out to study the following research question: 

In addition, if such cross-parliamentary control exists we ask: 

To answer these questions, we study a newly collected dataset consisting of parliamentary questions posed by North Atlantic members of the Danish parliament to Danish ministers in a period of 15-years (2005-2020). As the literature quite concordantly states that mostly parliamentarians in opposition make use of tools for control, we exclusively study the questions posed by North Atlantic MPs who represent political parties that are in opposition at home(N=869). As such, our data is selected from the premise that it is within this data, we are most likely to find examples of cross-parliamentary control.  

Importance of cross-parliamentary control

In providing a theoretical possibility for conducting cross-parliamentary control, the case of the Danish Realm is a seldom case – yet it is not unique. Hence, other parliaments – e.g. the French parliament as well as Westminster—may provide similar opportunities for members elected in districts with different levels of national self-government. 

The perspectives on cross-parliamentary control offered by the Danish case have importance beyond the similar cases: Empirically, it is not a new observation that the power of parliaments vs. the executive power is challenged due to processes of globalization, international collaboration, and specialization of the executive branch. Also, research shows that parliaments are finding ways to take back power (Raunio 2014; Martin & Vanberg 2011; Bergman & Strøm 2011: 14-16; Saalfeld 2000; Judge 1995, 8; Norton 1990, 3–4). Yet, the appliance of cross-parliamentary institutions for control as a means which strengthens parliamentary control of the government has not been an object of much scholarly consideration. Rather, instead of cross-parliamentary foci, scholars have studied ways in which international collaboration among parliaments remedy national parliaments’ loss of power. For example, the occurrence of this within international inter-parliamentary institutions (IPIs) has spurred much recent scholarly interest (Cofelice, 2018; Costa, 2016; Costa et al., 2013; Flockhart, 2004). In turn, scholars have stressed the importance of not overlooking the role played by national parliaments in international politics, diplomacy and sub-state units para diplomacy though this is normally thought of as an area of the executives (e.g. Ackrén 2014, Malamud and Stavridis 2011; Pintz 2019; Sabic 2008). Our study contributes to the field of legislative oversight by studying this phenomena from a perspective of multi-level governance rather than the conventional national –or the more recent—inter-parliamentary contexts. 

Results

Corresponding to our expectations, our analyses show that most of the questions posed by the North Atlantic members of the Danish parliament, who are in opposition at home, concern the actions or inactions of the Danish government. Nevertheless, 7.8 pct. of these questions concern the actions or inactions of the members’ home government. Hence, they enact cross-parliamentary control: either as direct control in the short run or as a more indirect, long-run control which create a sense of being potentially controlled from abroad (for this “long-run” sense of being potentially controlled we find inspiration in Bentham’s Panopticon as described by Foucault).  

Moreover, in line with our initial expectations, which are based on the former findings of Harder and West (Harder 2021; West 2019), we find that Greenlandic MPs make use of this possibility to a much larger extent than the Faroese members do. However, contrary to our expectations, it is the members from the parties that are most critical towards the Danish Realm, which makes the most use of the opportunity to gain information on the actions of their home-governments from the Danish Authorities. Especially, this tendency is particularly strong for Faroese members. We believe this to be a sign that partisan motives at home are more important to North Atlantic politicians in the Danish parliament than we initially expected them to be. 

Finally, and in line with our expectations, most of the questions posed are questions that ask for information regarding the actions or inactions of the government at home. Though we assume that these questions primarily have the effect of creating an awareness of potential control at home as well as providing MPs with concrete information, if picked up by the media at home, some of these questions will quite surely also have partisan effects at home. 

In conclusion, the theoretical possibility of cross-national control turns out to be used by the MPs elected in the North Atlantic peripheries. This type of control has not yet been described in the legislative literature. Moreover, it is not described as a possibility within the few formal institutions that guide the North Atlantic behavior within the Danish parliament (The Danish Constitution most notably). Nor does it seem to have been anticipated among the institutional designers when the North Atlantic representation in the Danish parliament was last adjusted (in the early 1950s). Nevertheless, through their practical representative behavior, North Atlantic MPs have innovated this tool to control their home government – a tool which may even be extra powerful because a foreign government is involved. 

Authors

Mette Marie Staehr Harder, senior lecturer in Political Science, Karlstad University, Sweden and visiting fellow at the Department of Law, University of Copenhagen, Denmark. mm.harder@jur.ku.dk 

Hallbera West, assistant professor in Political Science, University of the Faroes Islands and  program leader of West Nordic Studies. hallberaw@setur.fo

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The Speaker of the Lok Sabha: Performing and Consuming ‘Neutrality’ in the Indian Parliament

By Mouli Banerjee

The Indian Parliament has been in crisis for a while now. With record disruptions, protests that have broken out in the well of the House, regular walk-outs staged by Opposition Members of Parliament, and MPs of the governing coalition often disregarding the House’s Rules of Procedure, the democratic legitimacy of the Parliament of India has been increasingly fragile. How does such a parliament interact with and shape broader public discourse? And more importantly, what can the consumption of the parliamentary proceedings, and its iterations and reproductions outside the walls of the parliament tell us about the legitimacy of a parliament in such ostensibly turbulent times? I suggest that answering these questions requires looking at the parliament as a space, and the different elements and actors that bring it to life, through the lens of performance and performativity. To do that, in this piece, I link these broader questions to a particular figure in performance: the Speaker of the Lok Sabha, the elected Lower House of the Indian Parliament. 

The Parliament as Stage, the Speaker as Performer 

The interdisciplinary interfaces of politics and performance provide a fertile ground for this analysis, making it possible to study parliaments as stages, and meaning-making on such stages as a performative process (Crewe and Müller 2006; Crewe 2015; Spary, Armitage, and Johnson 2014;  Rai and Johnson 2014; Parkinson 2012). These processes have a crucial discursive value, creating normative definitions by repetition and reiteration (Rai 2010). But these performances also need to be staged strategically in order for meaning to not just be created but also be adequately consumed. 

This applies to the performance of all MPs and parties within the space of the Parliament. Here, however, I want to focus on the role of the Speaker of the Lok Sabha in particular, to understand the implications of embodied performances of that role (its generation and its consumption)  within the current Indian democracy. I suggest that the Speaker is a ‘figure in performance’ in more ways than other MPs. By taking on the role of the Speaker, an MP layers their parliamentary performance with an additional role: that of party-neutrality. What tensions emerge, then, between the purported party-neutral position of the Speaker and instances of party-favouritism in a fragile democracy?

The Contentious Neutrality of the Speaker in the Indian Parliament

The position of the Speaker in the Indian Parliament does not imply official neutrality. There is however an expectation of the Speaker’s neutrality, which follows from a slightly convoluted path of explanation. The Tenth Schedule of the Constitution of India, added only in 1985, enlists the “Provisions as to disqualification (of MPs) on ground of defection”. It allows Speakers and Deputy-Speakers of both houses of the Parliament as well as the Speakers and Chairpersons of the states’ Legislative Councils and Legislative Assemblies an exemption from disqualification from their political party on grounds of defection, while they hold the Speaker’s chair, if the voluntarily give up party membership while they hold the chair (even if they are to re-enter the party once they step down from the Speaker’s role) (Government of India 1985). This, compounded with the presiding authority inherently implied in the chair, has come to confer an expectation of neutrality from the Speaker, even as paradoxically the Speaker of the Lok Sabha must not just normally first be elected as an MP on a party ticket but must also in practice return to a party’s folds for re-election in the subsequent terms. There are also no provisions or privileges currently in place to incentivise party neutrality for the Speaker of the Lok Sabha, once they step down from the role. 

Instances of past Speakers of the Lok Sabha performing their expected neutrality have been a part of broader media conversations. Meira Kumar, the Lok Sabha Speaker from 2009 to 2014, stated in a national interview that much to the chagrin of her party (the then-ruling Indian National Congress) she refused to clamp down on protests by Opposition MPs inside the House because they are representatives who must be allowed dissent (NDTV 2012). Before her, Communist Party of India (Marxist)’s Somnath Chatterjee famously faced expulsion and wrath from his party for refusing to vote on the party line and citing his duty to party-neutrality as the Speaker as his grounds for defying party diktat (Bagchi, Suvojit 2018). The Speaker of the last Lok Sabha, who has captured much recent attention,  Sumitra Mahajan of the Bharatiya Janata Party (BJP), had to apologise in Parliament and expunge her own words from the transcript of a parliamentary debate, after protests from Opposition MPs erupted post her party-biased statements from the Speaker’s chair (NDTV2015).

The figure of the Speaker in performance, especially in the performance of this neutrality, thus is clearly politically charged. Much of the mainstream debate on the Speaker’s neutrality takes on a normative tone, i.e. it is framed in terms of whether or not, and to what extent, the Speaker can justly be party-neutral. Employing the lens of performance-performativity instead allows us to step outside this normative reading, and locate the ways in which these claims of neutrality function as a potent tool not only to signal a balanced parliamentary discourse inside the House but to also allow a discursively charged transmission of these embodied performances outside of its walls and into public discourse. 

The Parliament as a ‘Videosphere’

The witnessing of the performance is key to its existing. I borrow here from critical legal perspectives wherein when the courts transformed people from spectators of justice into witnesses and participatory audiences (Resnik and Curtis 2011, 295), part-taking in the physical space/stage of the courtroom where the theatricality of legal discourse-making plays out (Goodrich and Hayaert 2015). This can be extended to the parliament as well – parliaments are screened and transmitted, creating legislative “videospheres” (Goodrich Cf. Peters 2014, 48) where meanings multiply, destabilize and evolve. 

As parliamentary proceedings in India are transmitted and consumed, on television and online, not just via official governmental channels but as material for proliferating news media, how do the Speaker’s performances multiply and proliferate? With every new ‘reproduction’ of the performance beyond original parliamentary proceeding, the performance of neutrality becomes further distanced from the Speaker themselves, and take on an instrumentalised life of their own. This opens up multiple possible avenues of analysis and of future research. I have selected here some examples from video clips of parliamentary debates available on the internet to illustrate my argument.

Which videoclips of the Speaker’s performances, then, do particular media channels choose to instrumentalise, and how do they narrativise them? Some examples from Sumitra Mahajan’s time as the Speaker (form 2014 to 2019) provide us with an entry point to these questions. Hailing from BJP, the right-wing party in power currently at the Centre for its second consecutive term, Mahajan, with a long, successful political career, has been widely popular by her nickname ‘Tai’ (an endearing term for ‘elder sister’ in Marathi) in the Parliament, press, as well as in online conversations on her  interjections in the Lok Sabha (The Indian Express 2014). While the Parliament’s official channel, Sansad TV, maintains neutral thumbnails of Mahajan, it is worth contrasting this with the discursive framing by media channels sympathetic to the ruling party – BJP’s own official YouTube channel as well as the channels of India’s dominant right-wing news media. BJP’s YouTube channel has captioned videos of the Speaker, for example, with “Smt. Sumitra Mahajan strongly censures opposition parties for their irresponsible obstructionism”(Bharatiya Janata Party 2018). Again, telecasting a particularly polarised interaction between Rahul Gandhi, the president of the Indian National Congress (a key Opposition party), and Narendra Modi (India’s current Prime Minister), Republic World, one of India’s leading right-leaning news channels, for example, captioned their video – “Speaker Sumitra Mahajan Criticises Rahul Gandhi’s Behaviour In Lok Sabha” – with a thumbnail that showed a panel of a winking Rahul Gandhi placed next to a panel of a displeased Sumitra Mahajan (Republic World 2018). Another more polarising right-wing channel captioned the same video “Rahul Gandhi COMEDY with Lok Sabha Speaker Sumitra Mahajan” (News Hour India 2019), while the more mainstream national news channel, India Today, reported this debate with the caption “Speaker Sumitra Mahajan Sparks Row For Mocking Rahul Gandhi”(India Today 2019). Most of the polarised video transmissions of Mahajan’s speeches carry thumbnails of her pointing fingers at someone or gesturing to ask for explanations, next to visuals of Opposition MPs with serious faces or downcast eyes. The captions repeatedly use narrative versions of a ‘scolding’ in action.

Performing Rebuke

Of course, all parliamentary performances are open to discursive instrumentalisation by political parties, so what makes these transmissions of the Speaker’s interventions in the parliamentary videospheres different? I would argue that this assumption of neutrality allows the conceptualisation of a framework of “rebukes” to the Opposition, which is operationalised when the parliamentary performance and its visual dissemination come together. It is also relevant that two of the last three Lok Sabha Speakers have been women, and the gendered aspect of the rebuke and its embodied visuals also contributes to the overall performance of neutrality and the authority derived from it. There is much to be mapped out in order to analyse the full implications of these performances of neutrality (and rebuke) and how they are narrativized by parties in power, but this piece has hopefully laid some initial groundwork in the direction of scoping out the ways in which parliamentary discourse proliferates through the videospheres of a rapidly weaking parliamentary democracy. 

Mouli Banerjee is a PhD Candidate at the Department of Politics and International Studies, University of Warwick. 

References:

Bagchi, Suvojit. 2018. ‘Somnath Chatterjee (1929–2018) : Remembering the “Gentleman” of Indian Politics | Economic and Political Weekly’ 53 (37). https://www.epw.in/journal/2018/37/commentary/somnath-chatterjee-1929%E2%80%932018.html.

Bharatiya Janata Party. 2018. Smt. Sumitra Mahajan Strongly Censures Opposition Parties for Their Irresponsible Obstructionism. https://www.youtube.com/watch?v=xT4fcWBIu5Q.

Crewe, Emma. 2015. Commons and Lords : A Short Anthropology of Parliament. London, UNITED KINGDOM: Haus Publishing.

Crewe, Emma, and M G Müller. 2006. Rituals in Parliaments. Frankfurt/Main: Lang.

Goodrich, Peter, and Valérie Hayaert. 2015. Genealogies of Legal Vision. Genealogies of Legal Vision. London: Routledge/Taylor & Francis Group. https://doi.org/10.4324/9781315774268.

Government of India. 1985. The Constitution (Fifty-Second Amendment) Act. https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-fifty-second-amendment-act-1985.

India Today. 2019. Speaker Sumitra Mahajan Sparks Row For Mocking Rahul Gandhi. https://www.youtube.com/watch?v=UUMA7ig0Hg4.

NDTV. 2012. Won’t Act against Unruly MPs: Speaker Meira Kumar to NDTV. https://www.youtube.com/watch?v=J7ZHZik6UDQ.

———. 2015. ‘Lok Sabha Speaker Expunges Her Own Remarks After Congress Protests’, 2015. https://www.ndtv.com/india-news/lok-sabha-speaker-expunges-her-own-remarks-after-congress-protests-1258172.

News Hour India. 2019. Rahul Gandhi COMEDY with Lok Sabha Speaker Sumitra Mahajan. https://www.youtube.com/watch?v=PDTnIZdn2p0.

Parkinson, John R. 2012. Democracy and Public Space. Oxford University Press. https://doi.org/10.1093/acprof:osobl/9780199214563.001.0001.

Peters, Julie Stone. 2014. ‘Theatrocracy Unwired: Legal Performance in the Modern Mediasphere’. Law & Literature 26 (1): 31–64. https://doi.org/10.1080/1535685X.2014.888200.

Rai, Shirin. 2010. ‘Analysing Ceremony and Ritual in Parliament’. The Journal of Legislative Studies 16 (3): 284–97. https://doi.org/10.1080/13572334.2010.498098.

Rai, Shirin M., and Rachel E. Johnson, eds. 2014. Democracy in Practice. London: Palgrave Macmillan UK. https://doi.org/10.1057/9781137361912.

Republic World. 2018. Speaker Sumitra Mahajan Criticises Rahul Gandhi’s Behaviour In Lok Sabha | #ModiTrustVote. https://www.youtube.com/watch?v=O21njBl7MqU.

Resnik, Judith, and Dennis Curtis. 2011. Representing Justice Invention, Controversy, and Rights in City-States and Democratic Courtrooms. Yale University Press.

Spary, Carole, Faith Armitage, and Rachel E. Johnson. 2014. ‘Disrupting Deliberation? Comparing Repertoires of Parliamentary Representation in India, the UK and South Africa’. In Democracy in Practice : Ceremony and Ritual in Parliament, edited by Shirin Rai and Rachel Johnson. Palgrave Macmillan UK.

The Indian Express. 2014. ‘Soft-Spoken Speaker Sumitra “Tai” Is a Battle Hardened MP’, 2014. https://indianexpress.com/article/india/politics/soft-spoken-speaker-sumitra-tai-is-a-battle-hardened-mp/.

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What ever happened to impeachment in the United Kingdom? Accountability, history and the decline of parliamentary impeachment

Drawing upon my doctoral research undertaken at King’s College London, this blog post examines why impeachment fell into decline in the United Kingdom. My research considered this decline with reference to key moments of parliamentary and constitutional history, moments where Parliament and the country faced times of crisis. This blog post argues that it is possible to trace the causes for this decline alongside the development of alternative accountability mechanisms. Furthermore, it also argues that there is scope for seeing impeachment not so much as a factional device (which it was at times), but as a major development in permitting the House of Commons to achieve the accountability of key officials within and outside of the executive.

When thinking about impeachment it is safe to assume that most people in this country will not be thinking of the impeachment that originated in the Good Parliament of 1376, where the Commons impeached Lord Latimer on the basis of financial irregularities and his military record, but rather the United States of America.

The previous President of the United States of America Donald Trump was impeached twice, firstly in 2019, and secondly in 2021. Trump was acquitted on both occasions by the Senate.  Prior to Trump, the most recent presidential impeachment was that of President Bill Clinton. President Clinton’s impeachment has been re-explored in popular culture in Impeachment: American Crime Story that has recently aired on the FX network. Impeachment is at the forefront of American popular political culture and countless fictional presidents have resigned to avoid the threat of impeachment (for example House of Cards and Veep), or have been impeached, or in the case of the West Wing censured.

It is not the case in the United Kingdom. As noted above, impeachment originated in England in 1376 during the final years of Edward III’s reign and enabled the Commons to demand that leading officials were held to account for their conduct. The precise nature of the process would not be settled for some time, and impeachment was used in various hybrid forms in the years following 1376. What is clear is that the origins of impeachment are linked to Parliament’s response to times of national crisis, which in 1376 related to England’s military misfortunes during the Hundred Years War, the financial crisis the country faced, and real concerns over how the country was to be governed due to the monarch’s infirmity and the fact this the king’s likely successor would be a child

The last British impeachment concerned Henry Dundas, 1st Viscount Melville, who was accused of the misuse of public funds. Melville was ultimately acquitted by the House of Lords in 1806. Most recently in 2004 there was an attempt to impeach Tony Blair, the then Prime Minister, over the Prime Minister’s conduct in relation to the decision to invade Iraq. This attempt went nowhere, despite a formal motion drafted by experienced MPs and assisted by a legal opinion drafted by Conor Gearty and Rabinder Singh QC of Matrix Chambers.

Why has there not been an impeachment since Melville’s acquittal in 1806? The short answer is that since the 1740s, when Sir Robert Walpole resigned after realizing he longer had the confidence of the House of Commons, impeachment started to be superseded by alternative political accountability mechanisms.

My doctoral research drew heavily on the historical use of impeachment in this country and has considered four case studies that demonstrated how impeachment was used. These case studies were the so-called ‘revival’ of impeachment in the seventeenth century, the use of impeachment during the factional disputes between the Whigs and Tories at the start of the eighteenth century, the impeachment of Warren Hastings in 1787 and the impeachment of Viscount Melville. This blog post will briefly consider the third case study, that of Warren Hastings.

Perhaps the most famous impeachment in British history was that of Warren Hastings, the former governor-general of Bengal. Hastings’ impeachment was the culmination of many years of concern within the metropolis over the conduct of the East India Company’s servants in India and the financial liability of the Company’s control over an increasing amount of territory. Reform of the Company and its governance in India had been attempted by Lord North’s Regulating Act of 1773, there had also been a serious attempt to proceed against a colonial governor, Sir Thomas Rumbold of Madras, and had been both a select and a secret committee into the Company’s conduct. Therefore, it is possible to see Hastings’ impeachment as a product of this perceived crisis over the East India Company and the influence that it (and its often very rich servants) had on the political life of the country.

The call to impeach Hastings was led by Edmund Burke MP and his then political ally, Charles James Fox MP, who were in turn supported by Hastings’ political rival, Sir Philip Francis. The impeachment has been written about by a range of academics and contemporary commentators and was recorded in the popular culture of the late eighteenth century, most notably in the caricatures by James Gillray and James Sayers. In terms of how the impeachment was portrayed by contemporaries, it is interesting to contrast Gillray and Sayer’s treatment of Hastings, as evidenced by Gillray’s caricature, ‘Impeachment ticket. For the trial of W-RR-NH-ST-NGS Esqr’ and Sayers’ caricature ‘For the Trial of Warren Hastings, Seventh Day’.

Having been impeached by the House of Commons in 1787, Hastings was then tried before the House of Lords, with his trial lasting seven years. The prosecution was conducted by the managers, which included Richard Sheridan MP and Edmund Burke MP on behalf of the House of Commons. Hastings was eventually acquitted, but the conclusion of many contemporaries was that the impeachment had not been a success, as the public and politicians had grown tired of the prosecution’s allegations.

It is interesting to consider the question of what if Parliament was today confronted by a modern-day Hastings? The East India Company and Hastings represented a threat to the nation and one that despite legislative reform remained unresolved (see the Regulating Act 1773, Fox’s India Bill in 1783, and Pitt’s India Act of 1784).

If Parliament was faced by a modern-day Warren Hastings, then alternative accountability mechanisms could be used rather than impeachment. There could be an investigation by the relevant select committee, debates in both Houses of Parliament, and the Prime Minister could be persuaded to establish a public inquiry. There could also perhaps, depending on the nature of the allegations, be a prosecution before the ordinary courts.

Taking a step back from the Hastings impeachment, it is important to note that impeachment had originated in the late fourteenth century as a way for the House of Commons to prosecute grievances outside of the ordinary criminal justice system and lead to a trial before the House of Lords. Despite a record of partisanship, arguably never more so than at the start of the eighteenth century, it is possible to see impeachment as a valuable accountability mechanism, in as much as it enabled the House of Commons to hold the executive to account.

So, what about the status of impeachment today? Is it possible that it could still serve a purpose, or is it to be considered as obsolete and confined to the history books?

My doctoral research, which will be published by Routledge as My doctoral research, which will be published by Routledge as Accountability, Impeachment and the Constitution: The Case for a Modernised Process in the United Kingdom (2022), has argued that by drawing upon the development and the operation of impeachment in this country’s history, it offers a way to see impeachment as empowering the House of Commons in the face of a powerful executive.ve.

At a time when there is a concern that there has been a disregard for the accepted constitutional norms (as evidenced by the decision to prorogue Parliament for five weeks and failure to enforce the Ministerial Code) it is argued that a modernised form of impeachment could empower the House of Commons to take on the role as the guardian of the constitution and ultimately proceed against government ministers, who are alleged to have acted in a way as to breach the accepted constitutional norms.

Through a mixture of deterrent, sanction and public scrutiny, it is argued that a modernized and revised form of impeachment would make a valuable contribution to the existing accountability toolkit and buttress the political constitution. To avoid concerns over partisanship, show trials and executive dominance of the House of Commons, it is proposed that impeachment would be modernised. No longer would there be a focus on crimes, instead impeachment would be concerned with breaches of the constitution. The eventual determination of wrongdoing would no longer be determined by the House of Lords, but drawing upon the Danish practice of impeachment, it would be determined by a specially constituted Court of Impeachment.

Dr Chris Monaghan, Principal Lecturer in Law, University of Worcester

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Intersectional representation of Arab legislators in the Israeli parliament: The first decade 1949-1959

The gap in political representation between represented and non-represented identities is defined as a “double disadvantage.” It leads to greater invisibility among representatives who belong to several disadvantaged groups and have intersectional identities, compared with those who belong to only one disadvantaged group. The Arab minority in Israel and its representatives in the Israeli parliament (the Knesset) grapple with intersectional identities such as religion, two nationalities and gender. Arab legislators in Israel operate in a unique context. Israel is the only country in the Middle East in which Arabs are a minority. At the same time, the Jewish majority in Israel is a minority in the Middle East, and the state is surrounded by hostile Arab countries. Israel is a democracy surrounded by non-democratic countries. Furthermore, it faces unique challenges. It is under constant attack from the Arab would. It is a country without defined borders and is the target hostile terrorist organizations who believe that Israel does not have the right to exist.

Furthermore, it is a multi-ethnic society with extensive ethnic diversity. The largest ethnic split is between Jews and Arabs. As of 2020, there were 9,291,000 Israeli citizens—21.1% non-Jews, mostly Muslim, Christian, and Druze Arabs, and 73.9% Jews. However, there are also substantial ethnic differences among Jews who come from different regions of the world. Among the Jews, there is an ethnic divide between two major geo-cultural groups: Jews of European or North American origin (Ashkenazim) and Jews of Asian or North African origin (Mizrachim). The latter group generally scores lower than the former group with regard to various measures of social stratification. 

In recent decades an additional distinct group of citizens have come to Israel: Jewish immigrants from the former Soviet Union.  By the end of the century Russian immigrants constituted almost 20% of the Jewish population of Israel. Additional differences within the Jewish groups in Israel relate to religiosity. In Israel, the Jewish religious dimension is a continuum, with traditional and Orthodox Jews situated in between the secular and ultra-Orthodox poles. 

Hence, the Arab minority in Israel differs from the majority both in terms of nationality (Arab and Palestinian) and religion (As of 2020, 17% of the Arab are Muslim, 9% are Christian, and 8% are Druze), in addition to its connection to the global Arab world. While Jews and Arabs formally enjoy equal citizenship rights by law, they vary substantially in practice. 

The study analyzes the content of Arab legislators’ parliamentary activities on the floor and how they deal with their intersectional identities in their representation. In the category of parliamentary activities, I include the use of legislative and non-legislative tools. Examples include parliamentary questions, bills and legislation, motions for the agenda, one-minute speeches and debates during a vote of no confidence and regarding special events. By analyzing the use of these parliamentary tools, I can create the first comprehensive picture of minority representation and address the questions of whether, when or why intersectional identities create invisible representation. 

To visualize the composition of the intersectional representation with respect to nationality, religion, gender, Palestinians and other issues, I created an index of intersectional representation. The index is comprised of five themes (identities): nationality (Arab), religion (Muslims, Christians and Druze), Palestinian (additional nationality) and gender (female and male in a traditional society). In addition to the four identities, I included the category of “others,” which refers to the legislators’ discussions of ordinary issues such as healthcare, the economy and education.

Intersectional representation during Israel’s first decade: 1949-1959

During Israel’s first decade there were three Knesset terms, eight governments and two prime ministers. In this decade Israel absorbed massive waves of immigration, which began immediately with the establishment of the state. Within two years, these immigrants had more than doubled the population. This costly undertaking changed the residential map of the state and its demographic structure. The Israeli economy was based on major government involvement in the economy and a large public sector – for ideological reasons but also for pragmatic reasons. 

Between 1948 and 1966, Arab citizens in Israel lived under military rule, which severely restricted their freedom of movement. In general, Arab citizens were exempt from compulsory military service. However, in 1956 Israel began the compulsory draft of Druze men, after a period of them volunteering for military service since 1948. This law included Circassians, an ethnic group that lives in two villages in the north of Israel. Most of them are Sunni Muslims.

During the first decade, Fedayeen terrorist attacks increased. The Fedayeen were Palestinians who infiltrated Israel from Egypt and Jordan. In addition, Egypt harassed Israeli ships that tried to cross the Suez Canal, and there were Syrian attacks into Israeli territory. Israel protested these attacks in the UN, and of course, they were discussed in the Knesset. The Soviet Union severed ties with Israel in 1953 and began to move closer to Egypt and other Arab countries.

Operation Kadesh- an Israeli military operation against Egypt in October 1956 – was initiated by France and Britain because of the nationalization of the Suez Canal Company by the Egyptian government. They wanted to regain control of the Suez Canal. Israel joined them due to pressure from the European countries and because of the closing of the Straits of Tiran to Israeli ships. Following international pressure, Israel was forced to withdraw from the Gaza Strip and most of the Sinai Peninsula, and a UN emergency force was deployed along the border between Egypt and the Gaza Strip. The withdrawal was completed in March 1957. 

The first decade of the Israeli state was challenging for the Arab minority in several ways. They lived under military rule that severely limited their freedom of movement, livelihoods and free expression. Nevertheless, they were citizens who could vote and be elected to the Israeli parliament as equal citizens. The Jewish immigrants who came to Israel in the first decade settled in abandoned Palestinian villages and neighborhoods in mixed cities such as Jaffa, Haifa and Acre. Finally, the Arabs who remained in Israel became a minority after many years of being the majority, while the rest of their people became part of other countries as refugees.

Hence, the Arab minority in Israel has several identities based on their two nationalities (Arab and Palestinian), religion (Muslims, Christians and Druze), and gender (female and male in a traditional society). In addition to these identities, they are also concerned about the ordinary issues such as healthcare, the economy and education that concern all Israelis. 

An analysis of the demographics of the Arab legislators in all three Knesset terms of the first decade indicates that the Druze and Christians are overrepresented and Muslims are underrepresented. In the first decade of Israel 70% of the Arab minority were Muslims, 21% were Christian and 9% were Druze. In the first Knesset, out of 3 Arab legislators, 2 were Muslims (66.66%) and 1 was Christian (33.33%). In the second Knesset, out of 8 Arab legislators, 3 were Muslims (37.5%), 3 were Christian (37.5%) and 2 were Druze (25%). In the third Knesset, out of 8 Arab legislators, 2 were Muslims (25%), 4 were Christian (50%) and 2 were Druze (25%). 

Figure 1 illustrates the comparisons of the three Arab legislators based on their scores on the index of intersectional representation (the first Knesset). 

It is interesting to see the differences between the three Arab legislators. Indeed, all three of them devoted most of their statements to issues related to Arab nationality. However, MK Amin Jarjoura spent more time than the other two talking about general topics such as healthcare, the economy and education. None of the Arab legislators paid much attention to issues related to Palestinian nationality.

Figure 2 illustrates the comparisons of the Arab legislators based on their scores on the index of intersectional representation (the second Knesset). 

The scores on the intersectional representation index emphasize some of the differences in the foci of the eight Arab legislators. MK Jaber Moade talked more than the others about Palestinian nationality. In contrast, MK Seif el-Din el Zoubi spoke more often about religious issues. Despite being a Muslim, he volunteered to fight with the Haganah, Israel’s defense force, before the establishment of Israel. In 1940, the Arab Supreme Court sentenced him to death due to his cooperation with the Jews. Like Jaber Moade, he convinced his family to join the Jewish side during the War of Independence. Thanks to him the Arab villages that were connected to his family (Sulam, Nin, Tamra, Taibeh and Na’oora) were saved and became part of the state of Israel.

Figure 3 illustrates the comparisons of the Arab legislators based on their scores on the index of intersectional representation (the third Knesset).

The two Druze legislators, Jaber Moade and Hassan Hanifes, present a similar pattern regarding the amount of time they devoted to discussing the two nationalities (Arab and Palestinian). They paid less attention to Arab nationality compared to the other Arab legislators (63.06% and 54.1%, respectively) and more attention to Palestinian nationality compared to the other Arab legislators (17.37% and 14.27%, respectively). MK Hassan Hanifes was also unusual in devoting 10.01% of his time to issues related to gender, a topic that was of little interest to the other Arab legislators (range between 0.93% and 2.59%). In this third Knesset, the issue of religion seems to have disappeared. 

By analyzing all of the talks on the floor of Israel’s parliament by its Arab legislators, I created the first comprehensive picture of minority representation and provided some preliminary answers to the questions of whether, when or why intersectional identities create invisible representation. The figures showed that intersectional representation exists, but within it each Arab legislator decides and acts according to the issues he wants to advance: Arab nationality, which gained the most attention in the first decade of the Israeli state, or Palestinian nationality, which two Druze Arab legislators emphasized more. Other identities disappeared.

Professor Osnat Akirav, Associate Professor at Western Galilee College, Israel

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What does petitioning in the 20th century show us about the relationship between people and parliament?

By Anna Bocking-Welch, Richard Huzzey, Cristina Leston-Bandeira and Henry Miller

Petitions and Parliament

Studies of twentieth-century Britain, whether by politics scholars or historians, have generally assumed the irrelevance of petitioning. Colin Leys opened his classic 1955 article on the subject by asking ‘is petitioning a sufficiently important phenomenon to merit attention from students of politics?’ (Leys 1955: 45). For historians tracing the development of the ‘Westminster model’, petitions seemed less important than party politics and elections. The twentieth-century was after all when universal electoral franchise was affirmed, with the development of mass (grass roots based) parties, and when the representative chain from vote to parliament to government became most firmly established. In that context, a tool such as petitions, which had in the nineteenth-century become a key mechanism to enfranchise those at the margins of the political system, seemed irrelevant. And nowhere is this clearer than in Parliament. And yet, extensive literature also shows an expansion of participatory forms of democracy in the twentieth-century (e.g. Cain et al 2003; Dalton 1988; Pattie et al 2004), particularly from the 1970s onwards. So, what does the assumed irrelevance of petitions to the UK Parliament tell us about its relationship with the people during the twentieth-century? There was a clear decline of the number of petitions formally received by the House of Commons during the twentieth century. As Figure 1 shows, there was a dramatic collapse of the number of public petitions (i.e. excluding local or private legislation) during the First World War. To put these figures in historical context, during the nineteenth-century, the Commons typically received 10,000 public petitions, and on occasion as many as 20,000 and even 30,000 public petitions in a session (Huzzey and Miller 2020: 139); with the introduction of e-petitions to parliament in 2015, those numbers would climb up to over 10.000 again (Leston-Bandeira 2019: 423). The nadir for petitioning the Commons came in the middle decades of the twentieth century.

Figure 1: Number of public petitions to the House of Commons (1900-2000)

Sources: 1900-31 period: Parliamentary Papers, Annual Returns of the Number of Public Petitions Presented to the House of Commons (1900-31); 1932-2000 period: Philip Loft, Petitions in the UK, House of Commons Library, Briefing Paper, Number CBP 8620, 11 July 2019, p. 14,

Following a Report by the Select Committee on Procedure (1972-73), the Public Petitions Committee, which had been established in 1833 to receive, record, and classify public petitions to the Commons, was abolished in 1974. The Report had argued that the Petitions Committee was redundant given the small numbers of petitions. It met around four times a session, and some meetings lasted less than a minute. Yet the Report was something of a missed opportunity to re-imagine petitions as a tool for wider public engagement with Parliament. During the hearings, the chairman of the Petitions Committee had agreed that it should be abolished unless reformed. But his proposals for strengthening the Committee, including giving it powers of investigation, as the powers of the current Petitions Committee (re-introduced in 2015), were dismissed out of hand (Procedure Committee 1972-73). A few years later a former member of the Petitions Committee blamed party whips for refusing ‘to give us the power which would make public petitions worthwhile. The powers in authority then decided to abolish the Committee rather than make it truly effective.’ (Leslie Spriggs, Hansard, 16 March 1976, volume 907, column 1169).

Despite the clear decline in the overall number of petitions to the Commons, we must be mindful of some of the limitations of the data. The data in Figure 1 indicates the number of petitions presented, but not how many people had signed them. First, there were still examples of large, mass petitions to Parliament, in some cases signed by millions of people. During the Second World War, petitions for increased state pensions were presented in 1939, 1943, and 1945, and signed by 5m, 4.1m, and 6m people respectively (Loft 2019: 15). Given the party political truce at the time and the suspension of general elections, petitions were a particularly important method for political participation and representation during wartime. 

Second, the data doesn’t capture more informal petitions to individual MPs, which remained very common, and if anything increased, in the twentieth-century. For instance, in 1922, as part of its campaign to lower income tax, the Daily Mail organised over 500,000 telegram petitions from readers directed to MPs, but intended to pass these on to the government (Daily Mail, 2 May 1922: 8) – as a result the House of Commons wouldn’t officially record this type of petition.

Petitions to Parliament then could still be important, and there was something of a revival of the number of petitions received by the Commons in the 1980s and 1990s, as indicated in Figure 1, which anticipated the emergence of e-petitions after 2000. Noting the ‘considerable increase’ of petitioning the House, in 1992 a new Procedure Committee Report recommended modernising the rather ‘archaic’ language required in parliamentary petitions but concluded that existing ‘procedure is basically sound’ (Procedure Committee 1991-92).

Petitions: global, national, local

The decline of petitions to Parliament seems to be due to the expansion of powers of other key institutions such as the executive, local government, and administrative or judicial bodies. This meant that petitions formerly directed to the Commons, were now sent to other authorities (Huzzey and Miller 2021: 242-3). When placed in a comparative perspective, the UK experience was part of a broader trend away from petitioning national legislatures to other authorities without institutional petitions systems, as evident in France and the USA (Huzzey and Miller forthcoming).

While petitions recorded by Parliament’s institutional ‘petitions system’ declined, petitioning remained a popular, widespread, ubiquitous form of political activity directed at national, but also international and local authorities. This explains why late twentieth-century surveys of political participation repeatedly found that a majority of British respondents had signed a petition (Dalton 1988; Pattie et al 2004; Huzzey and Miller forthcoming). Research by Michael Rush shows a steady increase across the century in citizens contacting MPs, reflected in an exponential growth in post to MPs and the development of the practice of constituency surgeries (Rush 2005); in many ways this reflects the expansion of the State’s, and consequently Parliament’s, areas of responsibility in the post-war period. So, the decline of petitions to Parliament does not signify in itself a decline of citizens getting involved with politics or reaching out to authorities.

Petitions to Number 10 Downing Street became in fact a popular choice for petitioners, who recognised the growing power of the prime minister. Moreover, presenting petitions to Number 10 created spectacles that attracted media coverage for campaigns. In the early twentieth-century suffragettes attempted to gain admittance to Number 10 to personally present their petitions to the Liberal Prime Minister H.H. Asquith (Miller 2021: 338-42). Campaigners made the presentation of petitions to Number 10 as visually interesting as possible to maximise photo opportunities. For example, in April 2000, campaigners for global education, marched to Downing Street carrying petitions in the shape of life-size cut-outs of the Prime Minister, Tony Blair (Independent, 21 April 2000: 8).

Petitions were also frequently directed to local councils on a range of issues, including road safety, health, education, and housing. Other petitions were directed at international authorities, such as Jubilee 2000, a global campaign for the cancellation of developing world debt, whose petition was sent to the UN. The Anti-Apartheid Movement sent a series of petitions to the UN and also Commonwealth bodies in the 1970s, while in the previous decade anti-Vietnam War protestors presented petitions to the US embassy in Grosvenor Square.

Such was the ubiquity of petitioning, that petitions were not limited to formal political institutions, but were also sent to companies and other bodies. In the 1970s, for example, gay rights campaigners petitioned breweries regarding the refusal of particular pubs to serve gay customers (Gay News, 2 April 1975, p. 1).  

In explaining why people petitioned, our research suggests that we should pay less attention to authorities and institutions, or specific direct policy outcomes, and more to the uses of petitioning to campaigners, activists, and ordinary citizens. As has been recognised by US political scientists, signing petitions was and is a tool of political organisation and recruitment (Carpenter 2016), and a gateway into wider activism (Carpenter and Moore 2014). As shown by Leston-Bandeira more recently (2019), petitions play a wide range of roles in political systems, such as in linkage and campaigning, besides actual policy and scrutiny roles.

The Campaign for Nuclear Disarmament regularly organised petitions to Parliament, prime ministers, and international authorities, from the late 1950s to the 1980s, all of which were unsuccessful if judged in terms of changing UK defence policy. Yet as CND’s Campaign newspaper put it in 1983: ‘in itself the petition is largely irrelevant, rather we use it as an enabling tool’ (Campaign 1983). The local gathering of signatures was typically combined with other activities, such as fund-raising, and leafletting. The presentation of CND petitions in Westminster or Whitehall was usually accompanied by a march and rally, with the aim of energising supporters, exerting pressure on politicians, attracting media coverage, and raising public awareness.

Conclusion

In twentieth-century Britain, petitioning was valuable to campaigners, signatories, activists, civil society actors, and ordinary people, for a range of reasons, and this remained true even if their requests were not directed at Parliament or granted by authority. In particular, the signature gathering process and presentation of petitions provided focal points that connected and underpinned other types of political activity. Although the number and importance of petitioning Parliament was diminished compared to earlier centuries and today, petitioning remained a widespread, popular, political activity across Britain. The decline of petitions directed to the House of Commons indicates instead a preference from citizens for other institutions, reflecting an expansion of powers and visibility of other authorities. It also denotes a missed opportunity for Parliament which, following the abolishment of its Petitions Committee in 1974, lost relevance for many of these ongoing campaigns.

The Petitioning and People Power in twentieth-century Britain project is funded by a research grant from the AHRC and ESRC (AH/TOO3847/1)

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Reimagining impeachment: A new blueprint for our challenging times

By Chris Monaghan

Henry Dundas, the first Viscount Melville (1742-1811), holds an infamous place in British constitutional history: he was the last person to be impeached. His acquittal by the House of Lords in 1806 marked the beginning of what has become a long pause in the use of an impeachment procedure against politicians or public officials. The last time that events got anywhere near interrupting this long pause came in 2004 when a number of MPs, including our present Prime Minister Boris Johnson, sought to impeach Tony Blair over the invasion of Iraq. The impeachment motion was co-drafted by experienced MPs and placed on the House of Common’s order paper, though proceeded no further (for the motion and background see J Simson Caird, ‘Impeachment’ House of Commons Briefing Paper).

But could it be that the turbulence of recent years when there have been many complaints about the government’s disrespect for accepted constitutional norms, now demands that we shake impeachment processes out of their sleepy historical stupor? It might be possible that reimagining impeachment at Westminster provides a way of ‘shifting the balance’ towards a healthier constitutional equilibrium. Such a shift might have positive effects beyond thinking solely in terms of the executive and the legislature. However, we would need to consider what a new blueprint for impeachment would actually look like. This is important for when we consider below the problem that needs to be addressed, which is an increasing trend for certain members of the executive to display behaviour that demonstrates a failure to show proper respect to the accepted constitutional norms. 

The problem

The starting point is to address whether the executive is sufficiently responsible to the House of Commons for how it conducts the affairs of state and ministerial decision making. 

The balance between the different branches of the state is key. This responsibility of ministers to Parliament is the lynchpin of the Westminster system of government and our unwritten constitution, developed over time through custom and practice, some of its principles are reiterated today in the Ministerial Code. In making a case for impeachment, I am concerned that the House of Commons, as it is empowered at present, is not fully capable of holding the executive to account in performing its basic function of ensuring ministerial decision-making and the conduct of affairs of state are undertaken in accordance with prevailing political morals, procedures and expectations.

In my view, there is now a tendency in executive conduct n either being not prepared to accept the traditional obligations imposed by the constitution and expressed in convention, or to be too willing to push constitutional boundaries. This undermines the political morality of the constitution and the centrality of ethics and obligations in our public life (see for example Andrew Blick and Lord Hennessy, ‘Good Chaps No More? Safeguarding the Constitution in Stressful Times’).

The accountability mechanisms that the Commons currently has as its disposal have inherent limitations. Ministerial question time and select committees, whilst used increasingly effectively in drawing attention to matters of constitutional controversy, can raise public awareness and so exert pressure, but are not directly capable of ensuring ministerial compliance with the accepted norms and principles of good governance. The last resort of a no confidence motion, which if successful will trigger a prime ministerial resignation or general election, is so self-destructive to backbench MPs of the governing party as to be arguably ineffective for the purpose of securing real accountability. This is because bringing down a Prime Minister could reek havoc within their own political party, risks electoral defeat if this is accompanied by a general election, will incur the wrath of constituency party members, and possibly see an MP lose their seat. It should be noted that a no confidence motion should be distinguished from the willingness of MPs to rebel against their own government, as is currently the case with the government and conservative MPs who do not support any further Covid-19 restrictions. This is because the intent is not to bring down the government, but rather to use the threat of undermining the government to influence policy. 

A core problem is the lack of formal checks and balances in the UK’s unwritten constitution, and the dominance of the government over the legislature that has sovereign legal authority in the state. Where the Cabinet enjoys a comfortable majority in the Commons, as at present, and its own MPs and ministers are willing to accept or to ignore its leadership’s assault on the constitution, there is a virtual vacuum of accountability, however strenuous the attempts of the Supreme Court to fill the void.

There have been several well-catalogued cases of unconstitutional conduct in the last few years. They include the willingness of the present Prime Minister to abuse the royal prerogative to prorogue Parliament during the final crucial stages of the Brexit negotiations, and to undermine the reports of independent inquiries into cases of ministerial and parliamentary misconduct (see for example the criticism of the Prime Minister’s advice to the monarch concerning the prorogation of Parliament and the general background to the Supreme Court’s decision in R (on the application of Miller) v The Prime Minister). 

This increased willingness to disregard constitutional norms for reasons of self-serving political expediency risks undermining respect for British political rules and customs generally. It poses potentially catastrophic consequences too if politicians come to believe that any course of conduct can now be justified and override constitutional niceties simply by reference to its electoral and parliamentary majority: this is pure populism, the antithesis of constitutionalism. 

The solution

In my forthcoming book, Accountability, the Constitution and Impeachment: The Case for a Modernised Process in the United Kingdom (Routledge 2022), I argue that impeachment could provide a remedy. I envisage that the House of Commons could more overtly serve as the guardian of the constitution, possessing a modernised power of impeachment that focusses on breaches of the accepted norms of good governance, both in terms of competence and morality. It would not be concerned with allegations of criminal conduct which can and should be left to the ordinary courts. 

This would be a statutory mechanism, established by my proposed Impeachment Act. It would enable a quorum of MPs, which would be twelve, to initiate investigation of serious ministerial misconduct, provide a framework through which investigations would remove fruitless or politically motivated actions, and an independent means of adjudication and outcome, further elaborated on below. At this point it is worth noting that the quorum of twelve MPs was chosen as the number would ensure that there was always the possibility that an impeachment could be brought, but the relatively low number required would be balanced out against the checks and balances within the statutory framework.

Its principal value would be as a form of deterrent. My proposed modernised procedure would certainly make it easier to bring an impeachment action (removing uncertainty over the existence of impeachment, drawing MPs attention to its utility, and stipulating parliamentary time and resources beyond the gift of government), but in practice it would be rarely used. Its main purpose would be as an ultimate sanction if ministers choose to ignore constitutional conventions, or are simply inept. 

Its use as a deterrent would be further strengthened by including in the Impeachment Act a retrospective sanction, operating as a punitive sanction when the prime minister or minister is no longer protected by a government majority in the Commons. This would clearly distinguish it from a no confidence motion. It is clear that there could remain a valid reason for the House of Commons to proceed against former Prime Ministers, such as the continuing sustained criticism of Sir Tony Blair’s conduct over the invasion of Iraq (see for example the petition to rescind Blair’s knighthood).  In the case of serving ministers backed by the government majority, an impeachment process could allow a small number of MPs to commence a time limited examination into allegations of unconstitutionality or incompetence. The point of this would be a high-profile case being made for impeachment that would be accompanied by a report by leading experts, which in itself could serve as a deterrent in the first place, even if the minister was in the short-term protected by their party’s majority in the Commons. 

What would a modernised form of impeachment look like?

My proposals for a modernised impeachment process would be set out in an Impeachment Act. This reimagines impeachment, identifying its rationale and normative purpose, attempting to steer clear of the problems long associated with impeachment. For example, to address concerns over partisanship and MPs using impeachment to proceed against former ministers without merit for purely party-political purposes, I provide procedural safeguards. These include a central role played by the Speaker of the Commons, and a preliminary inquiry by an Independent Panel of Experts, followed by a report by an Impeachment Committee of the Commons. This committee would be specially created to carry out this purpose and would be independent of the Committee on Standards and Privileges.

Historically, once the Commons voted to impeach an individual, then that individual was tried before the House of Lords under the presidency of the Lord Chancellor. Clearly this process has become an anachronism and the involvement of neither the Lords nor Lord Chancellor are desirable today. 

If we are to draw up a modern impeachment process, it should draw on the experience of other comparative legislatures. A useful model is Denmark, where a minister who has been impeached by the legislature is then tried before a specially constituted Court of Impeachment. It was successfully utilised in 1995 in a gross case of illegal ministerial tampering with visa applications to prevent Tamil refugees entering the country. 

The House of Commons would fulfil its role as the guardian of the constitution by calling out unconstitutional conduct and impeaching those responsible. The impeachment is not the final determination of guilt, and it is important that there is a separate forum for reaching a verdict, which would be the Court of Impeachment. In my book I suggest the Court for UK purposes be composed of seven senior judicial office holders and seven suitably qualified lay (non-parliamentary) members serving ten years terms of office. After the lengthy pre-trial processes in Parliament, it would fall to the Court to determine whether a violation of the constitution as set out in the letters of impeachment had occurred. If the answer was yes then, then unlike the traditional operation of English impeachment in times past, there would be no custodial sentence or fine. I envisage that the remedies available to the Court be limited to a declaration of misconduct and/or disqualification from holding public office.

The proposals for reform in my book, Accountability, the Constitution and Impeachment: The Case for a Modernised Process in the United Kingdom, may appear radical, controversial and out of time. However, an impeachment process operating to support and strengthen the authority of the legislature and sanction ministers to comply with ideas and practices of good governance operates successfully elsewhere and should be seriously considered for the UK. As a concept it was pioneered in England in former times and subsequently emulated in other countries in modernised forms. 

A new impeachment process for the UK, working in the way set out at length and in detail in my book, is not designed to replace existing political accountability mechanisms, but rather to buttress and support those mechanisms, and draw attention to the great importance for ministers to respect the fundamental principles of good governance and our constitution. 

Chris Monaghan is a Principal Lecturer in Law at the University of Worcester. I am grateful to Professor Robert Blackburn, Professor Matthew Flinders, Professor Alison Young and Professor Mike Gordon for their extremely helpful feedback.

Accountability, the Constitution and Impeachment: The Case for a Modernised Process in the United Kingdom will be published by Routledge in June 2022. 

This post is cross-posted with permission from the United Kingdom Constitutional Law Association Blog and the original post is available here.

(Suggested citation: C. Monaghan, ‘Reimagining impeachment: A new blueprint for our challenging times’, U.K. Const. L. Blog (12th January 2022) (available at https://ukconstitutionallaw.org/)

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A committee is an organisation, not an institution – but what is an organisation? A response mainly to myself

By Stephen Holden Bates

I was surprised to read in John Connolly, Matthew Flinders and David Judge’s recent article on House of Lords committees that a co-authored paper of mine – indeed, one where I was the corresponding author – was used to support the view that committees should be considered institutions, rather than organisations. That’s strange, I thought, because that’s not what I think. However, there it is in black and white in our abstract (and again on page 437): “committees are institutions embedded in wider social structures”[1]. Below I set out why I think I was wrong to state that committees are institutions rather than organisations and why this categorisation matters. 

In defining committees as institutions rather than organisations, Connolly, Flinders and Judge follow the usage adopted by Longley and Davidson[2], citing the distinction drawn between them by Douglas North. In almost certainly the most famous and popular definition out there, North defines institutions as “the rules of the game in a society or, more formally… the humanly devised constraints that shape human interaction”. They consist of “both informal constraints (sanctions, taboos, customs, traditions, and codes of conduct), and formal rules (constitutions, laws, property rights)”. Organisations, according to North, are “groups of individuals bound by some common purpose to achieve objectives” and include “political bodies (political parties, the Senate, a city council, a regulatory agency), economic bodies (firms, trade unions, family farms, cooperatives), social bodies (churches, clubs, athletic associations), and educational bodies (schools, universities, vocational training centers)”.

It is not clear to me (and why I am so upset with myself) why, after reading these definitions, you would then want to categorise committees as institutions. It is true that some institutionalist scholars, such as Peters, argue that it is difficult to differentiate between institutions and organisations in practice. It is also true that other institutionalist scholars, such as Lagroye[3], are more concerned with the particular research programme surrounding some social phenomenon that may or may not be called an institution or an organisation, rather than whether the social phenomenon is correctly labelled as such. It is also true that yet more institutionalist scholars, such as Hodgson, have suggested that organisations are a special kind of institution. However, even if you follow Hodgson, organisations-as-special-institutions would seem the appropriate label for committees, rather than simply institutions.

Contra Hodgson, I would want to maintain a sharp ontological distinction between institutions and organisations, even if they are always empirically intertwined. Drawing on Archer, institutions are part of the cultural fabric of society and organisations are part of the structural fabric. In making this distinction, I would also want to adopt definitions which differ slightly from North’s definitions above. Institutions are “systems of established rules, conventions, norms, values and customs; [they] consist of, or are constituted by, established rules, conventions, norms, values and customs”. Organisations are particular kinds of meso- or micro-level (depending on size!) social structures – “systems of human relations among social positions”. Following Elder Vass, those social positions which comprise organisations tend to be specialised and related hierarchically, although not always.

If we take UK Select Committees as an example (because that’s basically all I know about), select committees are organisations[4] made up of certain specialised social positions – chair, member, clerk, operations manager, media and communications officer, etc. – which are occupied by MPs and parliamentary staff and which have (relatively) defined chains of command. Committees-as-organisations are enmeshed within, and shaped by, numerous formal and informal institutions[5] (which are reciprocally shaped by the committees and the individuals who work within them). Some of these institutions operate within specific committees (for example, the custom in at least one committee that there is an unofficial Deputy Chair); some operate system-wide and at the level of Parliament (for example, the formal, codified rule that every government department will have a select committee shadowing it, or the informal convention that the Treasury Committee is chaired by an MP from the government benches, or the value of consensus that permeates committee interactions); and some are societal-wide (for example, laws regarding employment practices, or norms regarding acceptable behaviour during meetings). 

Why does it matter if we understand committees, not as institutions, but as organisations and, particularly, as organisations in the manner outlined above? Drawing on critical realist thinking, I would like to suggest it matters for at least two interrelated reasons. First, while both organisations and institutions contribute to outcomes, they contribute in different ways. Organisations and institutions are different kinds of social entities with different causal powers and mechanisms. For example, to use Elder-Vass’s phrase, coordinated interaction is an emergent property of organisations due to the way in which they bring individuals together through authority relations and within specialist positions. It is the coordinated interaction mechanisms of organisations which allows for the production of communal effort, a common purpose, and collective reflexivity, identity and strategic calculation, even if those outcomes are also mediated by norms of behaviour. So, the ability of a chair and members of a select committee to decide upon and subsequently run an inquiry, the forcefulness of committee recommendations, the efficiency and resourcefulness of parliamentary staff, and the reputation of committee chairs are due not only to parliamentary rules (institutions) and the intellect, charisma, etc. of individuals (agency) but also, crucially, the way in which those individuals are related to each other (organisation). Again drawing on Elder-Vass, if the MPs and parliamentary staff concerned were not organised into such committee organisations, these powers of select committees – to set the (parliamentary) agenda, to shape government policy, to raise the parliamentary and media profile of whoever is Chair – would not exist.

This, then, points to a second, larger reason why it is important to reflect on what committees are: our answer helps point us towards a particular way of looking at the world and, in turn, a particular kind of political science (and, indeed, a particular kind of politics). Understanding committees as organisations as outlined above is to make an ontological commitment about the social world that goes beyond the commitment made when understanding them as institutions and, by implication, as intersubjective elements of the cultural domain[6]. This understanding of organisations as structural “entities which ‘make a difference’ in their own right, rather than as mere sums of their parts” – as part of “the material circumstances in which people must act and which motivate them to act in certain ways” – helps to differentiate realists from: 

This particular realist view of committees-as-organisations, then, points us towards a particular kind of parliamentary studies; one which seeks causal explanations underpinned by a non-Humean notion of causality and within which structural features of parliaments and society contribute by necessity to such explanations, not only because they are analytically useful but also because they have a meaningful social reality. Conceptualising committees differently would likely lead us down another path of how to study parliaments.

Dr Stephen Holden Bates is a Senior Lecturer in Political Science at the University of Birmingham.

[1] I put this lack of intellectual consistency and betrayal of my critical realist roots down to the fact that I was a father of 9-month-old twins at the time of submitting the article and had had about 3 minutes of sleep since they had arrived on the scene.

[2] Although note on page 5 that, when noting the vigour of modern-day committee systems, Longley and Davidson favourably quote Mattson and Strøm: “By broad consensus, committees are considered one of the most significant organizational features of modern parliaments” (emphasis added).

[3] Thanks to Claire Bloquet for discussions about French institutionalism and how it differs from versions I’m more familiar with.

[4] Which are part of a larger organisation called Parliament which, in turn, is part of a larger organisation called the state.

[5] As well as broader social structures.

[6] Or the non-commitment of not thinking the difference matters.

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Does being watched make MPs behave better? 

By Ben Worthy and Cat Morgan ( Birkbeck, University of London)

One of the central dilemmas of democracy stems from the information gap between voters and those they elect. After politicians are elected, a yawning knowledge gap opens up between the seemingly all-knowing elector and the only occasionally interested or rarely watchful constituents. Of all the information gaps across democracies, this is perhaps the most fundamental, the most fragile – and the most fraught with complications.  

This gap can be both profound and dangerous for democracy. The information asymmetry can mean that once elected, representatives could easily engage in hidden behaviour that runs contrary to what their voters want. As Strom argues, this includes voting against their constituents’ wishes, using their position to make money, or simply not doing their job very well. As we’ve seen from the Brexit votes and, more recently, the lobbying smash and burn U-turn around Owen Patterson, this is not some abstract possibility.  

So how can we stop legislators ‘deviating, rent seeking or shirking’? One way is to simply provide more information or data to voters. Transparency advocates argue that this can have two separate effects. There’s the concrete impact of exposing individual legislator’s behaviour when it’s out of line or out of order. Then there’s a broader effect through ‘anticipated reactions’, meaning that the mere possibility of being watched makes misbehaviour less likely.  

Yet, with these solutions come with a warning. The hoped-for effects hinge, crucially, on if politicians perceive themselves to be watched. It also assumes what watching will then do. Being watched should, in theory, make us behave better, but it can also just make us better at hiding, or even throw the spotlight into the wrong place.  

Watching Parliament in 2021 

Our Leverhulme Trust funded study has looked at who is watching Westminster. Over the last decade, there are certainly many new ways to do so. Since 2005, a host of new formal and informal ‘political observatories’ or  Parliamentary Monitoring Organisations which aim to put ‘politicians permanently on their toes’. A family of political theory label this ‘monitory’ or ‘counter democracy’ and hope it creates permanent accountability and even ‘humility’ among those under observation.  

In the UK, there is now an ecosystem of ever-expanding tools and sources. You can see data direct from Parliament itself detailing attendance, voting and activity. There’s also a growing number of third parties providing monitoring, most famously TheyWorkForYou, providing individuals MPs’ voting and activities, and Public Whip, collecting rebellion data. If the data isn’t there you can ask for it via an FOI, as someone did about Owen Paterson long ago.  

Beyond this, there’s a shifting landscape of searchable digital platforms of MPs’ expenses data, Register of Interests declarations and sites watching everything from Climate Change voting records, which MP earned the highest additional income 2017-2019 (clue-he’s Prime Minister) to the changes made to MPs’ Wikipedia pages. The data is certainly there, but is it having an effect? 

Who is watching? 

For data to have an effect, it needs to be used. Analysis of TheyWorkForYou.com found users to be a mixture of the engaged public, private companies, NGOs, and the media, with most users already engaged or interested in politics. Outside of these usual suspects academics are significant data users, creating detailed analyses of which MPs blocked Brexit.  

Another interesting group of users are MPs themselves and their staff. TWFY cite 2% of all users as coming within the Parliamentary estate. Their use of data seems to be a mixture of research on others, self-defence of their own records, and championing their reputation. Labour MP Madeline Moon used the data to defend her work: 

TheyWorkForYou says that I have above-average commitments in terms of debates, I ask above-average numbers of questions and I have an above-average response to my electorate when I have letters, although I admit that it also indicates that my voting record is lower than some (HC Deb, 26 September 2019, c958) 

Not only the users but the uses are varied, and data are deployed in a seemingly infinite variety of ways. They are deployed heuristically to understand MPs’ voting positions, or inferentially, around lobbying or donations. Aggregated data easily becomes a metric to measure, compare and create yardsticks for what constitutes a ‘good’ or ‘bad’ MP, giving the illusion of objectivity and measurability. 

Once gotten by these groups, data are then picked up or developed by the media, campaigners as well as across social media. After the controversial Owen Paterson ‘standards’ vote data was quickly found on how many of those supporting Paterson had an outside income or were themselves under investigation. The public may become caught up when data is used to drive a narrative, when it is part of a wider campaign or when they purposely or accidentally see a tweet or an article. What happens next can be unexpected. A lot of monitoring fizzles into an angry wave but not always. In 2013, The Sun used voting record data to create a list of the country’s ‘laziest MPs’ featuring Lucy Powell, who quickly pointed out she was on maternity leave. Not only was the article withdrawn, but the controversy helped the push for proxy voting in 2019.  

What impact is it having? 

MPs do feel they are ‘being watched’ and behave according, albeit to very different degrees. The exact impact is highly dependent on the individual, with MPs in safe or unsafe seats likely to behave very differently. It is also dependent on the data itself, as most voting behaviour can (perhaps) be justified in a way that expenses largesse cannot.  

Monitoring and watching have most frequently led to accountability. MPs put out more explanations and justifications in Hansard, on Twitter or in the local press – some of which are anticipated (“how will your MP vote”). In 2020, Conservative MPs voting against the government’s Covid-19 lockdown measures and tier system took to Twitter to explain their decisions – both before and after key votes.  

In terms of any ‘anticipated effect’, there is evidence of some behaviour change when MPs are under scrutiny, with a reluctance to claim expenses (especially by women MPs) in the Commons.  

Beyond the individual data can be used to rank or compare and can become a benchmark, and a basis for a moral judgement. There is evidence that monitoring, as with monitoring data elsewhere, compels members to ‘raise their reputational game’ and to be ‘be seen doing it’ (Mau 2019, 163).  

While this can drive ‘better’ behaviour, can it also lead to gaming? Nick De Bois, an MP with a very slim majority, pointed out  in his memoirs that MPs can speak in debates 

Sometimes…so you can enlighten constituents on your position on any given issue. Either that, or because it’s not a good thing to have against your name ‘Below-average number of speeches in the House of Commons’ on that pesky ‘They Work for You’ website, which relentlessly measures how active you are in the chamber. 

But MPs do not feel they are being watched fairly. They seem to feel that monitoring is skewed or biased. 30 Conservative MPs published an open letter to the Guardian in 2019 complained about being misrepresented on their climate change records and a full 50 complained in a letter to the Head of mySociety in 2021 about the same thing.  

Nor are they being watched evenly. Certain MPs are watched more than others, and there are skews and biases. Moreover, the data only highlights some areas, such as voting or expenses, leaving constituency work or lobbying in darkness.  

Are politicians behaving better?  

More data does make for some better behaviour. Overall, it increases accountability, justification, and explanation – as well as representation. MPs are explaining more and even folding data into their representative performance. It has also created behavioural change and driven measurement rankings, which itself has an anticipatory effect – no MP wants to be on this sort of list.  

Monitoring has a self-perpetuating momentum, and data about MPs staff, familial employees or meetings has shifted the boundaries of what is known about legislators and for what they are accountable. It has opened new areas intentionally or by accident. An MP in 2021 must be aware of their voting record, their attendance and expenses in a way they would not have been in decades past.  

However, Parliament is a political place, so it’s no surprise that data equals political conflict. Data is used by groups against individuals, groups, and the institution for political and partisan reasons. This then provokes, in turn, explanation, resistance and further conflict. Data can sometimes close the gap between voters and legislator, but it can make for more conflict and controversy as it does so. 

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Exposing the hidden wiring of the Parliament

By Ben Yong (Durham University)

‘Who runs the House?’ While most people were watching the Johnson government stumble from one crisis to another in early December 2021, peers in the House of Lords repeatedly asked this question in a rare debate on House governance. How the House of Lords (and Parliament as a whole) is run and the arrangements underpinning that may seem mundane, but ‘mundane’ issues can tell us something about the UK’s constitutional arrangements which are lost in theoretical frameworks such as political and legal constitutionalism, or separation of powers theories which focus on relationships between the branches of government.  

The Lords debate was in part prompted by a House of Lords External Management Review (‘EMR’), published in early 2021, which looked at how the House of Lords is governed and services and support administered. The EMR concluded, amongst other matters, that the accountability arrangements for the administration of the Lords were far from clear. Ultimately, the EMR recommended that the House of Lords Commission needed to be put on a statutory basis; there needed to be a clear statement of the governance arrangements; and a Chief Operating Officer should be appointed.

The debate highlighted that peers’ knowledge of the EMR and the general principles of House governance in the Lords was spotty. Indeed, some peers expressed surprise that the Leader of the House did not, in fact, lead the House (a misconception also common among MPs). Lord Davies’ comment summed up the view of many who attended the debate: ‘The governance of the House is … a mystery to me.’ Other contributions were evidence of Yong’s Law: the longer a debate on House governance continues, the greater the possibility that someone will mention catering, and its cost. Significantly, several Peers expressed fears about the imposition of bureaucratic structures upon a House which had traditionally seen itself as self-regulating.

Anyone with a knowledge of previous reviews of Lords governance would be unsurprised by this, or the EMR’s conclusions and recommendations (for a more in-depth discussion of House governance, see Ben Yong, ‘The Governance of Parliament’ in Alex Horne and Gavin Drewry (eds), Parliament and the Law (2nd edn Hart 2018) 75). Indeed, weak House governance and the confusion of parliamentarians has been a persistent issue in both the Commons and the Lords. 

So what are the governance arrangements of the Houses and why does it matter? Each House has an administrative organisation responsible for providing infrastructure and support for parliamentarians so that they can carry out their constitutional functions. This administration sustains and strengthens the House as an institution. The governance arrangements set out who is in control of the administration; and provide a line of accountability for the provision of that administration. 

One part of the governance arrangements is led by members; the other by officials. In the House of Lords, for instance, on the member side, there is the House of Lords Commission, responsible for political and strategic direction for House administration. The Commission is chaired by the Lord Speaker, and consists of (amongst others) the Leaders of the three parties, the Crossbenchers Convenor and the chairs of certain domestic Committees. Below the Commission are a number of domestic committees which scrutinise the internal working of the House (as opposed to select committees, which scrutinise the work of the executive), and support the Commission. On the official side, there is the Management Board, led by the Clerk of the Parliaments, which is responsible for implementation of Commission policies and day-to-day administration.  

Together these groups work to support peers in their work and maintain the institution. But there are problems. A key one is that the Lords House Commission is structured to be insulated against executive interference: it is cross-party in nature, and there is no government majority. Moreover, the Commission usually meets monthly and membership turnover is uneven (in the Commons, it is less than two years for most members). The result of all these factors is that political will is often lacking, or slow to crystalise. The Commission decides by consensus, if it decides at all. And even where the Commission does agree upon a course of action, it may still require agreement from the House itself. In such a political vacuum, the official-led Administration often cleaves to the status quo. 

There is also a lack of clarity about who is in charge, and therefore, who is accountable. In the debate, peers were quite confused about this. But they are right to be. There are multiple actors with claims to represent institutional interests. Even the titles of key actors suggest conflicting jurisdictional claims: there is a Lord Speaker and a Leader of the House—who is leading or speaking for the House? There is the House of Lords Commission, but as already noted, it is not the most strategic of actors. Nor is it the most visible: meetings are held in private with limited minutes often taking several weeks, if not months, to be published. It has no statutory basis. By contrast, the Clerk of Parliaments does have a statutory basis as Corporate Officer of the House (the Parliamentary Corporate Bodies Act 1992); and in practice is responsible for the day-to-day administration. But as the EMR noted, it is not clear how the Clerk is accountable to the Commission, or indeed, anyone. It is unsurprising there is confusion about who does what in the Lords.

The House of Commons has similar problems. One disgruntled former Clerk of the House gave his book on the House of Commons a harsh subtitle: ‘The Story of an Institution unable to put its own House in order’ (Barnett Cocks Mid-Victorian Masterpiece (1977)). In 2014, an ad hoc committee led by Jack Straw published a review (‘the Straw Review’) on House governance in the Commons. It was the first MP-led review of House governance in over 40 years. The Straw Review found a haphazard set of governance arrangements which lacked clarity; and a Commission which failed to provide adequate direction. 

In a way, the dilemma of governance is the problem of legislatures in condensed form: how can a group of nominally equal members collectively act together when they do not owe each other formal allegiance? With legislation, this problem is usually resolved through party majorities. But where the issue concerns not party, but rather what the institution needs, it is not easy to secure agreement. That is because firstly, it is difficult to turn parliamentarians’ minds to the institution; and secondly, there can be reasonable disagreement about what the institution does need. Without party and a clear set of governance arrangements, inertia and inaction become the obvious default. 

And so the Houses of Parliament are often slow to act on matters outside legislation, because of limited political will and a lack of clarity about who is responsible for what. The 2009 Expenses Scandal was caused in part by a failure of Commons governance to get a grip on the issue. Bullying and harassment of staff by parliamentarians in both the Commons and Lords were also failures of governance. And then there is the ongoing saga of the multibillion Restoration and Renewal (‘R&R’) project of the Palace of Westminster. The Palace is crumbling, and has been for well over a decade. This is in spite of a Joint Committee recommending a full decant from the Palace and sponsor and delivery bodies set up by statute. The Houses continue to dither and delay on timing (on R&R, see the untiring and ongoing work of Dr Alexandra Meakin).

So what? Why should we care? For one thing, the Commissions are primarily responsible for their respective House budgets—which together amounted to just under a billion pounds in 2020-1. This is not small money (although dwarfed by the budgets of the large Whitehall departments: the Home Office budget, for instance, was £16 billion in 2020-1). The governance arrangements can determine what resources are given to parliamentarians and committees. The Houses’ budgets matter, therefore, because they shape the capacity of Parliament to carry out its functions (Colin Lee and I discuss this in a chapter in the forthcoming third edition of Parliament and the Law). 

But more importantly, one reason for executive dominance over the legislature is that Parliament finds it difficult to act coherently: it is hobbled by a lack of clear leadership. Mainstream public lawyers have focused so much on the courts and issues like the location of sovereignty or legislative intent that they neglect the concrete institutional particularities of Parliament. This is not about political versus legal constitutionalism, and prioritising the ‘political’ over the ‘legal’. Rather, this is about recognising that there is more to each branch than its relationship with the others; that each branch has its own internal issues which may impede its effective functioning. Failures of governance can impact on the institution’s performance and ultimately, its legitimacy. ‘Mundane’ issues such as House governance and administration may be ‘constitutional’ matters as much as parliamentary sovereignty or legislative intent. 

My thanks to Arabella Lang, Alexandra Meakin and Patrick O’Brien for their comments on an earlier draft.

Dr Ben Yong, Associate Professor of Public Law and Human Rights, Durham Law School

This post was originally published on the UK Constitutional Law Association’s Blog. Thank you to the editors and Dr Ben Yong for allowing us to cross-post.

You can view the original post here: https://ukconstitutionallaw.org/2022/01/10/ben-young-exposing-the-hidden-wiring-of-the-parliament/

The suggested citation: B. Young, ‘Exposing the hidden wiring of the Parliament’, U.K. Const. L. Blog (10th January 2022) (available at https://ukconstitutionallaw.org/))