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The Prime Minister, the Parties, and the Ministerial Code

By Professor Michael Gordon

The current Prime Minister’s long running battle with the Seven Principles of Public Lifecontinues to gather pace.  Boris Johnson’s actions relating to the pandemic ‘partygate’ scandalhave arguably violated each of the principles established by the Nolan Committee in 1995:  selflessness, integrity, objectivity, accountability, openness, honesty and leadership.  The Prime Minister’s full house of ethical violations concerning his attendance and subsequent denials of social gatherings held in Downing Street, contrary to lockdown restrictions, have also yielded Fixed Penalty Notices from the police for him, his Chancellor, his wife, and other government officials, with the prospect of more to follow.  Yet the Prime Minister remains committed to staying in post, and has refused to resign.

A key accusation made against Johnson by Peter Hennessy (the historian and now member of the House of Lords) is that his actions during the partygate scandal, combined with his refusal to resign, have ‘shredded the Ministerial Code’, generating ‘the most severe constitutional crisis involving a Prime Minister that I can remember’.  Similarly, the political journalist Robert Peston has argued that if Conservative MPs refuse to topple Johnson, they will ‘blithely ignore the ministerial code’, with the consequence that ‘the constitution means little or nothing’.

It is of course understandable why the Ministerial Code has had such prominence in this episode – it is a relatively clear, succinct, and publicly accessible statement of some relevant rules and principles concerning ministerial conduct.  The very idea of a ‘Ministerial Code’ sounds constitutionally important, and also effectively highlights the hypocrisy of Johnson apparently refusing to adhere to the standards applicable to ‘ordinary’ ministers, given the Code is formally issued in each new Prime Minister’s name accompanied by a personalised foreword preaching about the importance of upholding ‘the very highest standards of propriety’ (2019).

Yet the pre-eminence of the Ministerial Code in debates concerning the Prime Minister’s conduct also raises some important questions.  In particular, in this blog post I want to consider whether the Ministerial Code is the best reference point by which to assess the Prime Minister’s actions, and what impact its central status could have on the debate around whether the Prime Minister should resign.

There are two key issues which make it questionable whether the Ministerial Code should be the primary tool for critiquing the conduct of the Prime Minister.  First, the fact that the authority of the Code flows from the Prime Minister, and is therefore a statement of constitutional principles derived from the executive.  Second, the specificity of the Code – and especially the rules concerning the provision of accurate information to Parliament – seems to invite quite technical analysis of the Prime Minister’s conduct, and even his state of mind, when assessing whether the legislature has been misled.

The PM as Arbiter of the Code

First, it is made explicitly clear that the Ministerial Code is the Prime Minister’s document, and it is for the Prime Minister to apply and enforce: ‘Ministers only remain in office for so long as they retain the confidence of the Prime Minister.  He is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards’ (2019, para 1.6).  This was also accepted by the High Court in the recent case of FDA v Prime Minister [2021] EWHC 3279 (Admin).  While the court (dubiously, in my view) held that some questions relating to the Ministerial Code might be justiciable (in this case, the interpretation given to the concept of ‘bullying’), Lewis LJ and Steyn J acknowledged at para [60] that the Prime Minister was the ultimate decision-maker in relation to whether there had been a departure from the standards set out in the Code.

Of course, it has long been true that a Prime Minister has the decisive say over ministerial resignations.  Writing in 1956, long before the publication of a Ministerial Code, the political theorist Samuel Finer – who was sceptical about the ‘constitutional folk-lore’ concerning the existence of a ‘supposed’ resignation convention – identified three factors which determined whether a minister would lose their office: ‘if the Minister is yielding, his Prime Minister unbending and his party out for blood’.  If, as in the present circumstances, the minister under pressure is also the Prime Minister, then his or her decision-making effectively accounts for two out of three of these variables.

Yet if criticism of Boris Johnson’s conduct is made against the benchmark of the Ministerial Code, of which he is the stated arbiter, this sets up an accountability paradigm which is entirely premised on the fact that it is a matter of the Prime Minister’s own moral calculation whether to resign.  If Finer’s third variable – the attitude of the political party – was already peripheral, in focusing on the text of the Ministerial Code it is written out of the picture.

This first limitation of accountability via the Ministerial Code is now partly being addressed by Parliament taking a greater role in the accountability process.  The vote last week in the House of Commons to order an investigation into the Prime Minister’s statements to Parliament about the non-occurrence of parties in Downing Street is a welcome reminder that it is a matter for the Commons to determine whether a Prime Minister has misled the House.  But while it will surely add to the overall political pressure on Johnson and the government, any such investigation remains some way off – pending the completion of the police investigation and the publication of Sue Gray’s full and final report – and the consequences of it are difficult to anticipate, especially if the Prime Minister manages to survive until that point.  The Conservative Party has a majority on the Privileges Committee, which will carry out the investigation without its current chair Chris Bryant, who has recused himself on the basis of his previous criticism of Johnson.  A vote on any recommended sanctions would then come back to the whole House, where the Conservatives also enjoy the protection of a substantial majority.  And while potential sanctions include a (likely short) suspension from the Commons, the Privileges Committee could not instruct Johnson to resign as Prime Minister.

More importantly, Conservative MPs have not to this point lacked a formal means to remove the Prime Minister, which they could attempt through a no confidence vote in his leadership of the party or even in his government – instead, it has been the unwillingness of a majority of MPs to use these constitutional mechanisms which has ensured Johnson remains Prime Minister.  But at least these parliamentary developments have refocused the debate and remind us that, in this case, whatever the text of the Ministerial Code may say, the Prime Minister does not have the exclusive power to determine his own fate.

Avoiding Technicalities

The second challenge raised by the pursuit of Prime Ministerial accountability by reference to the Ministerial Code is that it may be encouraging an unhelpfully technical approach to the rules which prohibit misleading Parliament.  The relevant provision of the Code (which is replicated in a Commons resolution of 19 March 1997, Cols. 1046-47) says ‘It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity.  Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister’ (2019, para 1.3(c)).  This provision is unusual in the Code in identifying a specific potential sanction – resignation – for misleading Parliament.  And there is also plenty here for those who are used to dealing with legal rules to get their interpretive teeth into, in particular the question of when an error will count as ‘inadvertent’, and what it means for a Minister to mislead Parliament ‘knowingly’.

The risk, however, is that focusing on the textual formulation of this rule encourages a legalistic approach which distracts from the underlying normative purpose of the principle that Ministers should not mislead Parliament.  There will be rapidly diminishing returns from a debate about whether ‘knowingly’ means the Prime Minister must have intentionally or consciously lied to Parliament to violate the relevant norm, or whether having (or claiming to have) a misguided subjective belief that he was giving accurate information based on the assurances he had received would be sufficient to avoid a technical violation.  It also, crucially, sets up the defence Johnson has already used to deny he misled Parliament – that it did not occur to him ‘then or subsequently’ that the gathering he attended to celebrate his birthday would be a breach of the law, so in that sense there has been no knowing deception.

Instead, when establishing whether the Prime Minister misled the Commons, his alleged state of mind need not be the decisive factor.  The scale and significance of the misleading claims are also material, a point which emerges from the speech of Harold Macmillan in the debatefollowing the resignation of John Profumo for misleading the House of Commons in 1963: ‘I do not remember in the whole of my life, or even in the political history of the past, a case of a Minister of the Crown who has told a deliberate lie to his wife, to his legal advisers and to his Ministerial colleagues, not once but over and over again, who has then repeated this lie to the House of Commons’ (HC Deb 17 June 1963 vol.679, cols.54-55). 

In relation to partygate, the current Prime Minister expressed a clear position, repeated in the House of Commons and elsewhere (on one count, the denials of rule breaking were made some 39 times), about a matter of major public significance, which has proved to be inaccurate.  Going down the rabbit hole of whether the Prime Minister did or did not know that he was misleading the Commons is a distraction from the fact that, regardless, he ought to have known.  Especially as the head of the government which enacted the relevant secondary legislation regulating the response to Covid-19, as the political leader responsible for communicating the need for and effect of these rules directly to the people, via television press conferences on a regular basis throughout the pandemic, or even simply (as we are frequently reminded) as a public figure who obtained an education from an expensive school and a leading university.

There is a recent precedent which reinforces this approach.  In 2018, Amber Rudd resigned as Home Secretary having misled the House of Commons Home Affairs Select Committee over the existence of immigrant removal targets.  The information she relied on was prepared by civil servants within her department, but in her resignation letter to the then Prime Minister Theresa May, Rudd wrote ‘I have reviewed the advice I was given on this issue and become aware of information provided to my office which makes mention of targets.  I should have been aware of this, and I take full responsibility for the fact that I was not’ (emphasis added).

There are of course a multitude of factors which shape any ministerial resignation, and no doubt Rudd’s departure from office was influenced by other considerations.  They include the objectionable nature of the removal targets which she had denied existed, wider public outrage about the deportation and denial of rights by the state of the generation of black Commonwealth citizens caught up in the Windrush scandal, and the fact that Rudd’s resignation might be viewed as a form of sacrificial accountability which protected her Prime Minister Theresa May, who as Home Secretary had been the leading architect of the hostile environment immigration strategy which led to Windrush.

Yet with all these caveats, Amber Rudd’s resignation shows that we need not get caught up in excessively technical arguments about the Prime Minister’s state of mind which are elevated in this debate by overfocusing on the written text of the Ministerial Code.  In constitutional terms, this is a precedent which indicates the Prime Minister should be expected to resign.

Nevertheless, even in a situation where 78% of the public do not believe the Prime Minister’s claims, there is no authority which can compel him to accept this conclusion and resign (although as Alison Young points out, there are still consequences for him to bear in the meantime, in the form of vociferous political criticism).  Looking beyond the Ministerial Code, however, at least allows us to construct the argument that the “it never crossed my mind” defence is an inadequate defence – constitutional principles have been violated, because the Ministerial Code is not exhaustive or determinative of the Prime Minister’s obligations to Parliament.

Conclusion

The Ministerial Code is a valuable document in clarifying many standards applicable to government ministers in an accessible way.  But over-emphasis on the Ministerial Code as the central instrument of political accountability generates some challenges. 

If the Ministerial Code becomes a de facto replacement for the deeper constitutional conventions of ministerial responsibility, rather than a supplement to them, it imports a key structural problem: it emphasises the PM–Cabinet accountability relationship over the government–Parliament accountability relationship.  This is especially problematic when it is the Prime Minister whose conduct is the subject of scrutiny, as well as being the formal source of these ethical rules within government.  Reliance on the Ministerial Code as the primary vehicle for establishing ministerial standards also demonstrates that, as well as generating the potential for accountability, the existence of precise written rules can be a limitation if those rules are susceptible to being interpreted narrowly.

These tensions are evident in the debate about whether the Prime Minister should resign over partygate.  The Ministerial Code is obviously not the main problem in the UK constitution at present, but it is nevertheless worth considering how a shift in constitutional discourse might create some scope for more effective accountability in practice.

I’m very grateful to Alison Young for her comments on an earlier draft of this post.

Mike Gordon, Professor of Constitutional Law, University of Liverpool

This post was originally published on the UK Constitutional Law Blog. Republished with the permission of the author.

(Suggested citation: M. Gordon, ‘The Prime Minister, the Parties, and the Ministerial Code’, U.K. Const. L. Blog (27th Apr. 2022) (available at https://ukconstitutionallaw.org/))

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Held in contempt: what’s wrong with the House of Commons?

The sight of Ukrainians standing in front of Russian tanks should provide a sharp corrective to any complacency about the permanence of democratic systems around the world. Of course such complacency would already be misplaced given the evidence of increased autocratic tendencies and democratic backsliding of governments in numerous countries, which is becoming the subject of a growing academic literature. But it is a stark reminder of our responsibility to work to strengthen the effectiveness and public reputation of parliamentary democracy, if we value it.   

The UK parliament is not immune from these pressures. The Brexit process demonstrated that UK governments are willing to sideline and even – in the case of Boris Johnson’s prorogation – close down parliament in order to achieve their political aims. And the Covid-19 pandemic has seen government become ever more accustomed to using emergency powers that require only retrospective parliamentary approval. As two House of Lords committees have noted in recent reports (Democracy denied and Government by diktat), growing use of skeleton bills which provide only minimal policy detail and leave the rest to be filled in with sweeping regulatory powers has further minimised parliament’s ability to play its role in the democratic system. Meanwhile the executive’s strong control over the Commons agenda limits the ability of MPs to enhance the effectiveness of their own institution.   

In my new book, published in April, I argue that – for too long – MPs have been careless of the reputation of the House of Commons and resigned to a declining spiral of public trust in their institution. MPs need to recognise the threat to our democratic system represented by the contempt in which the public hold parliament. Low public trust in parliament is not a problem that can be easily solved. But nor is it an immutable conundrum before which MPs can simply shrug their shoulders and carry on as before. There are obvious issues about the way in which MPs and the House of Commons operate which could and should be addressed, to make our democratic system as effective and as valued as it should be.

Perhaps most fundamentally, the House of Commons is not descriptively representative of the population it serves. This matters for reasons of justice and symbolism but also the effectiveness and legitimacy of the House. Political parties have made efforts that have been more (Labour) or less (Conservative) effective at increasing the representation of women in the Commons but it is frankly pathetic that gender equality has not been achieved over 100 years since women became eligible to be elected to the Commons – we are still stuck at 34%. Other aspects of diversity – including disability and ethnicity – have been even less susceptible to change. 

And there is no guarantee that even existing slow progress towards an representative house might not be reversed. The evident pressures of life as an MP (including the risk of being murdered in your constituency surgery), anachronistic working practices and the physical constraints of the parliamentary estate could all slow or even reverse recent trends towards increased diversity of MPs. Some of the answers to these problems lie elsewhere, but MPs should think much more actively about how to make parliament an inclusive and accessible workplace which is attractive to a diverse range of candidates.

For example, while many MPs feel that the rituals, traditions, language and heritage of parliament lend gravitas and importance to their deliberations, the way parliament works can also be exclusionary and impenetrable for those on the outside looking in. This may even be the case for MPs themselves. Even those you might expect to be the most accomplished at understanding the plethora of standing orders, precedents, rulings and conventions may lack confidence in deploying them. Sir Charles Walker, former chair of the Commons Procedure Committee cheerfully admitted to me that – after running the committee for seven and a half years he knew “very little “ about procedure. The complexity of parliament’s rules and procedures lead to undemocratic disparities in the ability of MPs to perform their roles, handing power to the whips. They must be simplified. 

A further problem which I highlight in the book as damaging the public reputation of the House of Commons is the exceptionalism of too many MPs. The doctrine of ‘parliamentary sovereignty’ – that parliament is the highest legal authority – leads some MPs to treat themselves as a class apart with damaging consequences for public perceptions of parliament. Such exceptionalism has been at the root of many parliamentary scandals over the years – from MPs’ expenses to #MeToo. Sadly the ‘partygate’ scandal has provided a new and live example of the corrosive effect on public trust when those in power assume there should be one rule for them and another for everyone else. MPs need to recognise the rationale for and consequent limits to their privileges, striving to make the House of Commons an exemplar in following the rules it sets for others, rather than an exception to them.

The catastrophic decline in trust in parliament has so far failed to prompt serious attention from MPs, let alone action. In some ways this is unsurprising – the history of the House of Commons – in common with that of many other institutions – demonstrates that significant change only happens in the window of opportunity following a crisis. Brexit and Covid both posed significant challenges for MPs but neither were seen by them as justification for serious reforms. This is dangerously complacent. Russia’s autocratic challenge to Ukraine’s fledgling democracy should remind us to value and invest in our parliamentary system. The House of Commons is held in contempt, but it need not be.  

Dr Hannah White OBE, Deputy Director of the Institute for Government

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New visual cues in the UK Parliament

“The medium is the message”. Marshall McLuhan

The use of videoconferencing technologies in the UK Parliament allows political representatives to be seen in a new setting, which representatives can – to a large degree – arrange and present as they see fit. This marks a departure from – and in some sense a juxtaposition with – traditional parliamentary imagery and backdrops. In turn, it also ushers in new discussions of political representation and communication.

For several years now I have been studying Parliament through narrative, in order to better understand existing practices and perceptions (both inside and outside the institution). A useful definition of narrative is provided by Barthes (1975), who discusses narrative as an “ordered mixture of substances”. This means that there is a sequential – or structural – nature to this concept. Narratives are comprised of things that are in themselves purely incidental, even coincidental, but have been presented collectively in a meaningful way in order to express an idea or concept. 

So what are these ‘substances’ in a parliamentary context? How can we identify them? As Puwar (2010)observes, “grilles, galleries, rooms, vents, statues, paintings, walls, halls, curtains, stairwells, seats, rods and feet provide points from which to tell the sedimented, layered and contested stories of occupation, performance and ritual”. In using this observation to build on the aforementioned definition of narratives, we can construct a coherent view of what parliamentary narratives are: an ordered mixture of storytelling substances.

In this context, ‘disorder’ – i.e. any rupture with established narrative(s) – is subject to a swift institutional response. A couple of years ago, in the Commons chamber, MP Peter bone wore what was widely – and fairly accurately – described as a ‘silly hat’ in connection with his charity work. At the time, Commons Speaker John Bercow said that, ideally, the hat would never be seen again by anyone in society, and especially not in the House of Commons. This incident was allegedly a violation of a 1998 ban on hats (yes, there is a ban on hats in the Commons…).

These incidents are by no means particular or peculiar to the UK. We have seen the calling-out of political slogans by Speakers in a range of parliaments, in response to items or statements that appear to be political or partisan. Anthony Rota, Speaker of the House of Commons in Canada, has previously voiced concern over MPs’ backgrounds, on the basis of their straying from ‘political neutrality’. 

There is something intriguing about these moments. The Speakers do not typically focus on how the ‘offending’ items make the MP look; instead, they focus on how these items make Parliament look. Of course, this is reasonable rhetoric for a Speaker, but it also hints at a certain anxiety around rupturing the ‘visual fabric’ – and the inherent theatricality – of Parliament.

The use of videoconferencing technologies (such as Zoom and Teams) has added new storytelling substances into parliaments’ visual discourses. When they are not physically present in the chamber, political representatives are now able to broadcast their immediate surroundings into parliamentary premises, and by extension to the viewing public. This is especially significant in cases such as Prime Minister’s Questions, and other high-profile parliamentary events.

This matters because for centuries, the UK Parliament has largely had visual cues – and the way(s) in which these are ordered – under its exclusive control. This has been turned upside-down (or sideways, at least) by parliamentarians using videoconferencing technology. They now have a measure of control over their immediate surroundings, which they can curate and arrange as they please (within some of the institutional bounds discussed earlier). 

This development raises new questions about visual narratives, discourses, and parliamentary symbolism. Therefore, it has been disappointing to see that direct academic study has been rather limited. Media discussion on this topic – and the popular discourse more broadly – has been both narrow and shallow. Rankings of Conservative MPs’ flag backdrops from best to worst, and rankings of MPs’ houses (as seen via video calls), don’t tell us very much about MPs, much less what they may be trying to represent about themselves (and who/what they represent). 

The closest thing we get to an analysis – in a media context at least – is a discussion of the link between MPs’ backgrounds and their personalities:

While Liz Truss gets very patriotic on Zoom with her large flagpole, SNP Westminster leader Ian Blackford always sits surrounded by signed memorabilia from his beloved Celtic Football Club, with two footballs behind him. Alister Jack, Scotland Secretary, is good at showing his loyalty to the homeland too, with some nice Dumfriesshire oil paintings.

These visual cues – by which representatives can (attempt to) connect with publics and/or their own constituencies – underlines the significance of MPs as “living symbols of a locality” (Crewe 2015). The nature of these visual cues – and their likelihood of success – varies widely. From the aforementioned flagpoles, football memorabilia, and oil paintings, to Clive Betts’ Lego Palace of Westminster, it is fair to say that these backgrounds are neither accidental nor incidental. They are attempts by MPs to communicate, or to connect: to represent themselves to publics, and to represent publics (or some element of them) to publics. 

A common theme across what we have discussed so far – visual ‘disruptions’ in Parliament, as identified by Commons Speakers, and the independently-curated backgrounds facilitated by videoconferencing – is institutional anxiety. A lot of this is focused around the presence of new technology in the Commons, especially that which enables communication at a distance. I have written previously about then-Leader of the House Jacob Rees-Mogg’s assertion, in June 2020, that a ‘virtual parliament’ is damaging to politics, which “is better done face-to-face, even if the whites of the ministerial eyes are six feet away”.

Leaving aside Mr Rees-Mogg’s words – and their highly militaristic connotations – it is also interesting that the UK Parliament was at pains to show that, even as a virtual/hybrid parliament, it was still the same legislature. Back in April 2020, its news feed was careful to note that “[t]o maintain continuity and tradition…the symbolic and historic Mace is still placed on the table whenever the House is sitting and a socially distanced Speaker’s processing still takes place”.

This anxiety is also palpable outside of the ‘Westminster village’. Playwright and screenwriter James Graham, in May 2020, discussed the importance of physical proximity in order to build and maintain empathy (which is unarguably an important component of representation). Nevertheless, his central argument, including the assertion that “there was no Microsoft Teams in ancient Athens”, is highly problematic. First of all, a lot of things weren’t present in ancient Athens, including a model of democracy that we would find equitable or desirable (this point is relevant to direct and representative models of democracy). 

Secondly, Graham’s central argument – that an absence of physical presence equates to an absence of opportunity to build empathy – simply does not hold up, in theory or in practice. Let’s deal with practice first. When MPs’ chosen backdrops are visible and thereby available to publics, there is engagement (even if this takes the form of satire, ridicule, or open hostility). In other words, we see de-mystification in these moments. It is difficult to overstate how much of an asset this can be; in building empathy, in underlining MPs’ status as ‘living symbols’, and – crucially – to complementing physical proximity.

I saw this first-hand while conducting research for the Inter-Parliamentary Union’s upcoming Global Parliamentary Report on public engagement with parliaments. For logistical reasons (relating to geographical distance and to Covid-19) almost all of the research interviews and focus groups were conducted via Zoom. This, as you might imagine, created a different atmosphere – and, in several respects, a more personally engaging one –than if the discussions had all taken place in constituency offices, or in parliamentary buildings. The spaces we saw on Zoom were windows into the personae of MPs and staff. 

This is the same sense of empathy that so many commentators (inside and outside of Westminster) perceive to be at risk, and that videoconferencing technology can – in fact – help to generate. 

Let’s now turn to theory. John Parkinson (2013) observed that legislatures are “places where competing narratives are told and claims on public resources are made, scrutinized, prioritized, accepted, repackaged and rejected”. Puwar, as we have already discussed, acknowledged that the stories told in – or, more accurately, by – parliamentary space are contested ones. Contestation – within what we might describe as normative bounds – is intrinsic to Parliament’s institutional identity. Parliament exists because of contestation.  

The idea that videoconferencing technology, ‘virtual parliaments’, and so on, constitute a rupture, or a situation of precarity, within an established parliamentary narrative (relating to democratic and historical continuity, for instance) is unfounded in theoretical and basic practical terms. The UK Parliament (more than most parliaments) continues to operate in a state of narrative flux, meaning that contestation itself can be read as a political status quo. Videoconferencing technology continues this process in a highly visual way, but with the benefit of a greater potential for empathy through seeing a glimpse of MPs’ real lives, however they may choose to present them. 

Dr Alex Prior, Lecturer in Politics, London South Bank University and Honorary Research Fellow at the University of East Anglia.

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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/)