Category: Blog

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

Post author By psaparliaments
Post date January 12, 2022

By Stephen Holden Bates

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

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

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

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

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

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

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

Methodological individualists, who claim that “the influence of all social entities can be reduced to the influence of the individuals who are their members and that social entities as such have no causal significance over and above that of their aggregated members”;
Interpretivists, who reject “any notion of objective causality in society” and likely ground social constraints solely in “the practices and beliefs of individuals”;
Poststructuralists, who, it is argued, view organisations as “discursive constructions and cultural forms that have no ontological status or epistemological significance beyond their textually created and mediated existence”; and
‘As-if realists’, such as Hay, for whom an organisation, as with other structural features of society, is “neither real nor fictitious, but a conceptual abstraction whose value is best seen as an open analytical question”.

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

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

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

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

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

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

^[5] As well as broader social structures.

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

Tags House of Lords, Institutions, organisations, select committees, UK Parliament

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Does being watched make MPs behave better?

Post author By psaparliaments
Post date January 10, 2022

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

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

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

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

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

Watching Parliament in 2021

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

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

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

Who is watching?

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

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

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

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

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

What impact is it having?

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

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

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

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

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

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

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

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

Are politicians behaving better?

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

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

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

Tags accountability, data, Expenses, House of Commons, MPs, Parliamentary data, scrutiny, voting, Westminster

Blog

Exposing the hidden wiring of the Parliament

Post author By psaparliaments
Post date January 10, 2022

By Ben Yong (Durham University)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags executive dominance, House of Commons, House of Lords, parliamentary scrutiny, UK Parliament, Westminster

Blog

“Tread carefully” – the UK Parliament as a human rights “defender” within the Northern Ireland devolution framework.

Post author By psaparliaments
Post date January 5, 2022

Leah Rea examines the role of the UK Parliament in ensuring compliance with the UK’s obligations under international human rights law within the context of devolution, in the absence of legislative intervention from successive UK Governments to address inaction by the Northern Ireland Executive.

Human rights discourse occupies a prominent role in Northern Ireland’s politics, with the issue of rectifying state non-action of protection of human rights arguably as old as the province itself. As evidenced by both historic and contemporary legislative records, the progression of human rights standards in Northern Ireland has always been problematic. The example of the 1960s civil rights movement illustrates both the historic propensity for the politicisation of human rights in the region, and the difficulty of securing legislative change in i) the absence of progression at devolved level, and ii) the absence of intervention by the UK Government, particularly when the Government evades international obligations. In recent years, the discussion has been framed within the context of devolution, focusing on where does legislative competency reside, and specifically, at what political juncture can legislative intervention be sought from the UK Parliament to rectify human rights issues in Northern Ireland? As we wait on the Northern Ireland Office (‘NIO’) to implement the pledge made by the Secretary of State for Northern Ireland to introduce the draft Irish language legislationpublished in conjunction with The New Decade, New Approach Agreement 2020, it is worth recalling the UK Parliament’s role as a human rights “defender” vis-á-vis the operation of the Sewel Convention in the context of Northern Ireland’s abortion law between 2018-2019.

Using parliamentary procedure to highlight human rights

Following an early election in March 2017, agreement to form the Northern Ireland Executive could not be reached and subsequently the devolved institutions did not function in Northern Ireland until January 2020. During this time, there were key developments in the recognition of the human rights violations arising from the then law governing abortion in Northern Ireland. In light of these, parliamentary procedure was utilised within the House of Commons to raise the particular matter of human rights in relation to abortion law in Northern Ireland, the UK Government’s corresponding non-compliance with international human rights law, and the need for legislative intervention in the absence of the devolved institutions.

Emergency Debate and navigating Sewel

Following the referendum result to repeal the Eighth Amendment to the Irish Constitution, the constitutional prohibition on accessing abortion, grassroots movements in Northern Ireland called for urgent legal reform to address widening geographical disparity in abortion access and human rights. With the Abortion Act 1967 limited in territorial application to Great Britain, the then legal framework in Northern Ireland comprised of sections 58 and 59 of the Offences Against the Person Act 1861: abortion was only legal to protect the mother’s life, or cases where her mental and/or physical health was seriously at risk, and could not be accessed in cases of Fatal Fetal Abnormality (FFA), rape and incest.

The development invoked fresh political impetus: Labour backbencher Stella Creasy MP utilised Standing Orders (No 24) to bring an emergency debate to the House of Commons on 5 June 2018 for the House to consider its role in repealing sections 58 and 59 of the 1861 Act. Creasy aimed to bring the operational impact of the 1861 Act to the attention of the House – and commence the argument that in the absence of a sitting Assembly, it was the responsibility of the UK Government under international human rights law to legislate to address human rights violations in Northern Ireland.

In the context of Northern Ireland, Creasy referenced the findings of the UN CEDAW Committee inquiry that women and girls had been subjected to “grave and systemic violations of rights”. Conscious there were concerns regarding undermining the constitutional arrangements of devolution, Creasy emphasised the 1861 Act continued to operate across the UK, so Parliament was required to act to remedy the issue on a UK-wide basis. However, she noted the Belfast/Good Friday Agreement 1998 provided for the UK Government “to legislate as necessary” to ensure the UK’s “international obligations” are met in respect of Northern Ireland. Conversely, the then Secretary of State for Northern Ireland upheld the Sewel Convention, stating as abortion was a devolved matter it “would not be appropriate for Westminster” to intervene. Ultimately, the House resolved its affirmation of the motion – and its role as a human rights “defender”.

The Urgent Question and a change in tactics

Shortly after the emergency debate, on 7 June 2018, the UK Supreme Court delivered its judgment in the judicial review brought by the NIHRC against the Department of Justice under the Human Rights Act 1998 on the basis the existing law violated Articles 3, 8 and 14 ECHR of women and girls by criminalising abortion access for FFA, rape and incest. A majority of the Court determined the law was incompatible with Art 8 ECHR in respect of not providing access to women and girls in these circumstances. Responding to the judgment, Creasy availed of procedure to ask an urgent question. In this instance, Creasy directly challenged the Secretary of State for Northern Ireland on the Government’s position of the incompatibility of the 1861 Act with human rights, further urging for the Government to progress the draft Domestic Abuse Bill and adopt it as a vehicle to repeal sections 58 and 59 on a UK-wide basis. She called upon the House, with “its responsibility” under the 1998 Agreement to uphold human rights in Northern Ireland, to “do our job” and call for legislative action. Again, the Secretary of State for Northern Ireland invoked the Sewel convention, asserting the matter was within the legislative competence of the devolved institutions and so the responsibility of Northern Ireland politicians alone, and would not commit to recognising the UK Government’s obligations under international law.

Westminster intervenes: the Northern Ireland (Executive Formation) Bill

Political negotiations continued in Northern Ireland throughout 2019, and by June 2019 the period outlined within s1 of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 for Executive formation had expired. To enable the continuation of negotiations, the Secretary of State introduced The Northern Ireland (Executive Formation) Bill to extend the available timeframe. Illustrating the UK Government’s need for the Bill to come into effect promptly, the Bill was subjected to a fast-track process. Whilst this process usually restricts Parliament’s ability to scrutinise Government Bills, in this instance the accelerated schedule proved feasible for tricky amendments to challenge the Government to uphold its international obligations. Creasy availed of the situation, tabling an amendment (New Clause 10) which obligated the Secretary of State, in the event of continued absence of devolved government in Northern Ireland, to implement the 2018 recommendations of the UN CEDAW Committee. This marked a significant change in Creasy’s tactics: here now was an attempt for direct legislative action from Westminster to rectify human rights issues in Northern Ireland. The Sewel Convention notwithstanding, the amendment was accepted by the Speaker’s Office for consideration.

Proposing her amendment at Committee stage, Creasy acknowledged the House must “tread carefully” in relation to achieving a balance between respecting the devolution arrangement and upholding human rights standards, but affirmed the role of Parliament as a human rights “defender”, emphasising the obligations of the House in accordance with the Belfast/Good Friday Agreement as regards safeguarding human rights in Northern Ireland. She submitted the UK Parliament had failed to adhere to its obligations and had a responsibility to intervene in the continued absence of devolved government.

Responding for the Government, Minister for the NIO, John Penrose stated devolved issues should be the responsibility of the devolved institutions; Parliament should “tread carefully” within the devolved context. The pattern of affirming Sewel then ceased, as the Minister acknowledged the prolonged absence of devolved government in Northern Ireland, and “the result” of which was the list of human rights related amendments. The Minister further noted amendments on issues of conscience, such as the Creasy amendment, were “traditionally free votes” and confirmed the Government would not “break that important principle”. In the absence of a whipping operation Creasy’s amendment was approved by a parliamentary landslide of 332 votes to 99. The Bill as amended was subsequently carried at Third Reading and came into force on 9 July 2018.

Whither Sewel?

It is interesting to chart the developments in this case study as regards navigating the Sewel Convention. Creasy initially sought to uphold Sewel: her original proposal was for the May Government to repeal the relevant sections of the1861 Act via the draft Domestic Abuse Bill and on a UK-wide basis, using the situation of human rights concerns in Northern Ireland as grounds for the necessity of this. However, following the judgment of the Supreme Court just two days later, Creasy emphasised the House’s particular role under the 1998 Agreement as regards human rights in Northern Ireland and urged for the May Government to directly intervene in light of the political vacuum in Northern Ireland. Her successful amendment to the 2019 Act therefore marked a turning point for the Sewel Convention, suggesting that in the event of a human rights violation in the devolved administrations, the UK institutions may intervene on the grounds of their role as final guarantors of human rights obligations in international law. Can we now interpret “will not normally legislate” in the context of upholding international human rights? Equally, we must consider that the requirement of consent under Sewel was a determining factor: in the absence of the devolved institutions, consent could not be acquired.

Moreover, the case study appears to suggest in the situation of a conflict between the convention of free votes upon conscience issues and the Sewel convention affirming devolved legislative competencies, the former takes precedence. Could the role of the UK Parliament as a human rights “defender” depend on individual Parliamentarians according to their own conscience? Or, was relying on the conscience convention an exercise in political expedience for the May Government to navigate the situation Creasy had created with her significant amendment in a tight timeframe? As the NIO recently introduced the The Abortion (Northern Ireland) Regulations 2021 – which empower the Secretary of State to issue direction to comply with the 2018 UN CEDAW Committee recommendations in Northern Ireland – in light of ongoing failure of the Northern Ireland Executive to fully commission abortion services, and so continuing with Westminster intervention in Northern Ireland, the situation on a contentious issue remains complex. The problem of human rights progression in Northern Ireland goes on.

Leah is a PhD Researcher at the Transitional Justice Institute at Ulster University. Her research focuses on examining the relationship between constitutional conventions established by devolution settlements, and the progression (or hindrance) of human rights standards in Northern Ireland. This blog post is based on a paper delivered at the PSA Parliaments Conference 2021.

Tags Abortion, devolution, House of Commons, human rights, Northern Ireland, Sewel Convention, Supreme Court, UK Parliament

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The Owen Patterson Scandal: Standards, Trust and Democratic Norms

Post author By psaparliaments
Post date November 18, 2021
1 Comment on The Owen Patterson Scandal: Standards, Trust and Democratic Norms

By Chris Monaghan, Caroline Bhattacharya and Alexandra Meakin

NB The views expressed in this blog post do not reflect the view of PSA Parliaments

The resignation of Owen Paterson as Member of Parliament for North Shropshire, following revelations that he had been paid half a million pounds to lobby ministers has highlighted what may be an uncomfortable truth, that many MPs supplement their parliamentary salary with taking on second or indeed third jobs. The extent of this practice has been forced into the open, with newspaper reports highlighting that the former Attorney-General Sir Geoffrey Cox had spent substantial time undertaking paid work (earning £700,000) for the British Virgin Islands.

The focus on this blog will be the Paterson scandal. The blog will outline the events that gave rise to the controversial attempt by the government to protect Paterson from sanction, and in doing so revealed the problems with regulating the conduct of Members of Parliament and holding them to account for engaging in lobbying. The blog will then place the scandal within a broader context.

Factual background

In response to the revelation in The Guardian that Paterson had been paid £500,000 to lobby ministers, an investigation was commenced by the Parliamentary Standards Commissioner, Kathryn Stone, who found that Paterson had breached the rules relating to paid advocacy, declaration of interests, and the use of parliamentary facilities. Her findings were considered by the House of Commons Standards Committee—comprising four Conservative MPs, two Labour MPs, one Scottish National Party MP and seven lay members—who concluded:

“This is an egregious case of paid advocacy. Previous instances have led to suspensions of 18 days, 30 days and six months. Each of Mr Paterson’s several instances of paid advocacy would merit a suspension of several days, but the fact that he has repeatedly failed to perceive his conflict of interest and used his privileged position as a Member of Parliament to secure benefits for two companies for whom he was a paid consultant, is even more concerning. He has brought the House into disrepute. We therefore recommend that Mr Paterson be suspended from the service of the House for 30 sitting days”.

It is customary for the recommendations of the Standards Committee to be approved by MPs without a vote. Ahead of the vote on the suspension of Paterson, however, the former Leader of the House of Commons, Dame Andrea Leadsom, tabled an amendment, signed by 59 MPs, to the motion, declining to endorse the suspension until and if by a specially-formed select committee reviewed the “clearly flawed” standards system for MPs. The Government enforced a three-line whip on the vote and Dame Andrea’s amendment was passed by 250 to 232 Members of Parliament, with only two non-Conservative MPs voting in favour (one of whom was Rob Roberts MP, who had been elected as a Conservative prior to losing the Whip when he was suspended for a separate breach of standards rules). (It is important to note, however, that from the Conservative backbenches, 98 MPs did not vote and thirteen voted against the government).

Any celebrations for ministers were short-lived, however, as the Government was forced into a U-turn almost immediately when the opposition parties made clear that they would not serve on the proposed new select committee. Just hours after the Leader of the Commons, Jacob Rees-Mogg, pledged to work on a “cross-party basis to achieve improvements in our system for future cases”, Paterson resigned as a Member of Parliament, triggering a by-election for December 2021. The Government’s initial approach was heavily criticised and it was seen by opponents and many commentators as shielding one of its own supporters and undermining the accountability of members for breaches of parliamentary rules. Ministers have acknowledged the Government’s mistake and described the U-Turn as the ‘grown-up thing’ to do (Nadhim Zahawi MP, BBC News). The Government has formally asked the Commons to rescind the motion establishing the new Committee, and Paterson’s resignation has meant that he will avoid any suspension.

Analysis

Paterson has resigned, the government has apologised and conceded its mistake. However, this does not negate the sense of double standards and the concern that the Johnson administration is further tarred with the taint of corruption. It has further reignited debate over the number of Members of Parliament who have second jobs. While MPs are barred from acting as “a paid advocate in any proceeding of the House”, there is no universal restriction on second jobs. Just under a third of all Members of Parliament have additional income to their official parliamentary salary, and although this does not just affect one party (the Leader of the Official Opposition, Sir Keir Starmer reportedly received £70,000 for legal advice from private companies), the party with the highest proportion of MPs with second jobs is the Conservative Party (It should be noted that neither Sir Geoffrey Cox nor Sir Keir Starmer are accused of engaging in lobbying on behalf of their clients). A study by Weschle shows that Conservative MPs with a second job ask more parliamentary questions, and that these questions are targeted at larger ministries with more procurement spending and often concern internal policies (such as the state or planning of projects).

There have been some defences of outside interests: Cabinet Office Minister Steve Barclay argued that there is “value in MPs having a continued connection with the world outside of politics”. Legal commentator Joshua Rozenberg has defended Sir Geoffrey Cox, partly due to the need to attract practicing lawyers to serve both in Parliament and as law officers—the ministerial roles of attorney general, solicitor general and advocate general for Scotland. Such arguments have often caused past efforts to bar MPs from holding certain outside interests to fail to gather sufficient support (e.g. the Private Members’ Bills tabled by Peter Bradley in 2002 and Martin Salter in 2007 and the Committee on Standards in Public Life’s recommendations in 2018). Following the Paterson scandal, however, Sir Keir Starmer’s intention to table a motion to ban MPs from paid consultancies or directorships may prove more successful.

The broader decline of trust in parliamentarians and Parliament itself is a matter of concern. New polling by the Committee on Standards of Public Life found that 44% of people rated the standards of conduct of MPs as quite or very low, compared to only 20% taking a positive view, and noted the progressively lower scores reported since 2002. The Hansard Society’s latest Audit of Political Engagement found that 72% of the public believe that our system of parliamentary government needs ‘quite a lot’ or ‘a great deal’ of improvement.

In their book How democracies die: What history tells us about our future, Levitsky and Ziblatt remind us that “[d]emocratic backsliding today begins at the ballot box” (p. 5). In other words, nowadays it is more often elected governments than men with arms who seek to undermine democracy, and often “democracies erode slowly, in barely visible steps” (p. 3). Democracy is safeguarded by institutions such as parliament and written laws and rules upheld by independent courts, but, Levitsky and Ziblatt argue, at least as important are unwritten democratic norms:

Norms are […] shared codes of conduct that become common knowledge within a particular community or society – accepted, respected, and enforced by its members. Because they are unwritten, they are often hard to see, especially when they’re functioning well. […] Like oxygen or clean water, a norm’s importance is quickly revealed by its absence. When norms are strong, violations trigger expressions of disapproval, ranging from head-shaking and ridicule to public criticism and outright ostracism. And politicians who violate them can expect to pay a price. (p. 102)

When applying these arguments to the parliamentary setting, we can make a strong case that parliament as a democratic institution and the norms that underpin parliamentary democracy need to be defended first and foremost from within. And this task does not fall merely on the shoulders of the Speaker of the House of Commons as the highest representative of parliament and ‘conductor’ of parliamentary proceedings, but is a responsibility that should be shared by all parliamentary actors.

The main problem was not Owen Paterson. (There will always be some bad apples among the bunch.) The key issue was that the government – with the help of their Commons majority and key parliamentary figures such as the current and former Leaders of the House – (a) denied the legitimacy of the outcome of the parliamentary procedure to investigate and sanction MPs’ rule-breaching behaviour and (b) proposed to overhaul the institutional system for evaluating parliamentary standards, also retrospectively for the Paterson case.

Lord Evans, Chair of the Committee on Standards in Public Life, said on 4 November:

[I]t cannot be right to propose that the standards system in the House of Commons should be reviewed by a Select Committee chaired by a member of the ruling party, and with a majority of members from that same party. This extraordinary proposal is deeply at odds with the best traditions of British democracy. The political system in this country […] is a common good that we have all inherited from our forebears and that we all have a responsibility to preserve and to improve.

The two important norms at play here are the acceptance of outcomes of democratic processes (in this case the standards inquiry system) and what Levitsky and Ziblatt call ‘institutional forbearance’, that is the exercise of self-restraint and acting not only in the letters of the law but also in its spirit. The government’s actions in parliament undermined both these values. By imposing a three-line whip on its MPs, the government did not only interfere in what is generally seen as parliamentary business but also signalled that defiance would be considered a serious breach of party loyalty with potential consequences. (Angela Richardson, who abstained, lost her job as a Parliamentary private secretary – before being reappointed after the government’s U-turn.)

High levels of party unity are a key feature of a well-functioning parliamentary system. But a parliamentary party group cannot always be perfectly cohesive in their viewpoints, and when divergence emerges, party leaders usually have an array of institutional tools at their disposal to impose discipline. During every MP’s time in office, occasions will arise when their constituency interests and/or personal views and convictions will stand at odds with the official party line. Those are the moments when an MP needs to decide whether to stay silent for the sake of party loyalty or publicly communicate and act on their dissent, in full awareness that a roll-call vote stays in the historical records. When the issue at stake is not a specific policy but essential democratic norms and procedures, the option to stay silent is a particularly serious one, as MPs fail to fulfil their role as guardians of parliamentary democracy.

On 3 November, 248 Conservative MPs voted in favour of the Leadsom amendment, 13 voted against and a few more abstained and publicly voiced their objection such as the ‘Father of the House’, Sir Peter Bottomley. The government’s U-turn indicates that the broad public outrage and presumably conversations among members of the Conservative Party behind closed doors (and sometimes apparently in semi-public view) have succeeded in safeguarding parliamentary democracy in this instance. But this was not the first time and is unlikely to be the last time that the Johnson government seeks to tighten the executive grip on parliament, and that Conservative MPs must decide when the defence of the role of parliament, democratic norms and ethical principles is more important than party-political goals and personal ambitions.

This post was originally published on the Political Studies Association Blog.

Tags democratic norms, House of Commons, Lobbying, scrutiny, Standards, UK Parliament

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Using the past to help us to understand the future of the Palace of Westminster

Post author By psaparliaments
Post date November 11, 2021
1 Comment on Using the past to help us to understand the future of the Palace of Westminster

Ahead of next Tuesday’s Virtual IHR Parliaments, Politics and People seminar, we hear from Dr Alexandra Meakinof the University of Leeds. On 9 November 2021, between 5.15 p.m. and 6.30 p.m., she will be responding to your questions about her pre-circulated paper on ‘Using the past to help us understand the future of the Palace of Westminster’.

The Palace of Westminster is in a state of advanced disrepair, and faces what was described by a Joint Committee of MPs and Peers in 2016 as ‘an impending crisis which we cannot reasonably ignore’. While a major refurbishment project—Restoration and Renewal (R&R)—was approved in 2018, the future of the Palace remains uncertain, as concerns mount among some MPs about the cost and the prospect of temporarily moving out to allow the work to take place.

The risk of a catastrophic fire, flood or failure of the essential services within the Palace has developed over many decades, as vital maintenance was neglected and the infrastructure serving the building went far past its expected lifespan. Indeed, some of the mechanical and electrical plant dates back to the building’s establishment in the mid-19^th century, as a replacement for the old Palace, destroyed by fire in 1834.

The 1834 fire, as discussed previously on this blog, occurred after multiple unheeded warnings about the state of the building, a situation worryingly similar to today. It is not the only lesson from history, however, which may be relevant for current discussions. This blog posits that through historical analysis we can identify five recurrent themes that help to explain policymaking decisions relating to the Palace as a legislative building (figure 1, below).

A confused governance system has been evident in Westminster for centuries, manifested through divided patronage between the King and Prime Minister in the appointment of architects to work on the Palace in the 18^th century and delays to the rebuilding after the 1834 fire caused by contradictory instructions from ministers, MPs and Peers—an issue still present today. In addition, the emotional attachment parliamentarians feel about their workplace—for example in the form of a connection to their predecessors, transmitted through the very fabric of the Palace—influences the decisions they make about its future.

This is linked to the third recurrent theme: a clear unwillingness to make radical changes to the Palace. When disaster has occurred, there has been a tendency to recreate the past: either in the exact replica of the previous Commons chamber in the 1940s (described by one MP in 1945 as taking ‘nostalgia to the stage of absurdity’), or in Barry’s design for the new Palace after the 1834 fire. These decisions then become precedent to be followed faithfully in future, a form of path dependency that explains the reluctance to move out of the Palace, the fourth theme. Finally, historical analysis shows that you cannot explain decisions about the Palace of Westminster purely by considering what was happening within the building. The intrinsically political nature of the legislature means that wider political events have influenced the policies chosen for the building.

The Elizabeth Tower covered in scaffolding, 2019; image: Ethan Doyle White, CC via Wikimedia Commons

Looking to history helps to explain how R&R became necessary but it can also explain why its future remains unclear. While the Parliamentary Buildings (Restoration and Renewal) Act 2019 legislated for an independent governance structure, the future of the R&R project continues to be subject to the views of the House of Commons Commission. A number of MPs remain opposed to leaving the Palace of Westminster even temporarily, demonstrating the same attachment to the building as has been witnessed for generations. There have been repeated efforts to scale back the scope of programme, in a further sign of the tendencies towards conservatism and to reflect the economic impact of the coronavirus pandemic. A key lesson from the historical analysis is that major work to the Palace of Westminster has tended to occur only when unavoidable: despite the approval of R&R, it may be that history repeats itself and the ‘impending crisis’ warned of in 2016 occurs.

The threat of a crisis is one major reason why the future of the Palace of Westminster matters. The risk to the Palace is not just about the potential loss of an emblem of national identity, but also the very real dangers faced by the people working in or visiting Parliament. Former Leader of the Commons, Andrea Leadsom, has warned that ‘it is only by sheer luck that no one has been injured or killed’ to date. But the future of the building also matters for the health of our democracy. Legislative buildings are not just symbols of the institution, but their architecture, design and décor affect how people—parliamentarians, staff and visitors—behave within. Through the necessary work to fix the pipes and stonework, the UK Parliament has an opportunity to think about how it can build a legislative building fit for the 21^st century, shaped by the public and designed to facilitate their engagement with democracy. Taking this opportunity before crisis occurs would demonstrate that MPs and Peers really have learnt from the past.

To find out more, Alexandra’s full-length paper ‘Using the past to help us understand the future of the Palace of Westminster’ is available here.

This blog was originally posted on The History of Parliament Website and is reposted with permission.

Tags history, parliament, refurbishment, UK Parliament, Westminster

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Parliaments are watching to make sure climate legislation has an impact

Post author By psaparliaments
Post date October 8, 2021

How have parliaments responded to the Paris Agreement during the past five years? In which way are parliaments making sure that climate legislation does have an impact? These were some of the questions guiding the new report “Parliaments and the Paris Agreement”, published by Westminster Foundation for Democracy, ParlAmericas, INTER PARES, and GLOBE International. Based on this report, we put forward five golden rules for conducting climate-proof Post-Legislative Scrutiny.

By Rafael Jimenez Aybar and Franklin De Vrieze.

With only a few of weeks until the start of COP-26 in Glasgow, the role of parliaments in advancing international climate commitments deserves a spotlight. Parliament’s critical role in the development, implementation, and monitoring of their country’s climate objectives is often underestimated.

The recent report “Parliaments and the Paris Agreement” shows that, to date, action on climate by parliaments has gone beyond adopting climate policies and legislation. The report also notes how parliaments focus on implementation and impact, thus contributing to promoting environmental democracy by upholding the environmental rule of law.

While legislation is of critical importance to achieve national climate commitments, it is equally vital to ensure that the legislation is implemented and has the intended outcomes. This process is often referred to as Post-legislative Scrutiny (PLS) or ex-post impact assessment of legislation.

PLS can help identify implementation shortcomings, areas of improvement and good practices. While PLS can provide oversight of the implementation gap, the gap between ambitions legislated for and those delivered, PLS can also provide a window for increasing legislative ambitions in line with what the science demands.

PLS can be applied to climate-specific legislation as well as to general legislation which is not specifically environment- or climate-focused. In case of the latter, one speaks of a climate and environmental “lens” over PLS.

Based on the new report, we outline five golden rules for conducting climate-proof PLS. The five golden rules capture the do’s and don’ts for parliaments willing to engage on PLS of environment and climate legislation and PLS of general legislation with an environment and climate lens.

1. Make the work of parliament climate-proof. Climate-proof PLS is not the job of the Environmental Committee only. All committees need to be engaged. This means that parliaments need to organise their internal processes to ensure that environmental oversight spans the entirety of its work, including through inter-committee communication and environmental and climate mainstreaming in committees’ work. This requires that all MPs and staff have been informed of the national targets related to mitigation of greenhouse gas emissions and the strategy on adaptation.

For instance, the Scottish Parliament applies its sustainable development Impact Assessment Tool to all its legislation. It helps parliamentarians moving beyond simply asking ‘what is the economic cost or benefit of this law’ to asking, ‘what is the carbon cost?’. The UK Parliament Environmental Audit Committee has a cross-government mandate to consider the extent to which government departments and public bodies contribute to environmental protection and sustainable development.

2. Make all PLS inquiries climate-inclusive. For PLS of general legislation, it is important that environmental impact is explicitly included in the PLS guidance, calls for evidence, and questions used in data collection. The PLS report needs to include a section on findings and recommendations relevant to the environment and climate; going beyond findings and recommendations related to the thematic remit of that law. This is similar to the approach that says that any legislative impact report must have a section relevant to gender equality.

An example is the Indonesian Parliament which has started PLS of the ‘Law on Job Creation’ with specific attention to the risks of driving environmental degradation.

3. Employ environmental treaties as entry-point for environmental PLS. Parliaments have a key role in ratifying international environmental and climate treaties. PLS can provide a window of analysis to check on the government’s commitments and adherence to such treaties as reflected in the national law. Furthermore, delivery against international treaties takes place at national, regional, and sub-regional level. Parliaments are critical to ensure that this happens.

4. Look at the role of implementing agencies of legislation. Each law designates an institution, department or ministry for its implementation. In many countries, the piecemeal development of environmental legislation risks regulatory overlap. Through PLS, MPs can review the role of implementing agencies of environmental laws, in order to consider whether compliance and enforcement regimes exist, and what is their effectiveness, legality, and coherence.

For example, the National Assembly of Nigeria is currently assessing the Environmental Impact Assessment Act and the Act on the National Agency for the Great Green Wall.

5. Review the legislative targets. It is important that legislative targets for climate and environment are adequate, timely and achievable. Setting targets alone does not in itself improve environmental outcomes. PLS of climate and environment legislation should therefore focus its assessment not only on targets, but also performance against those targets – asking if the targets and actions to meet them are doing enough.

For example, the Canadian Parliament enacted a review clause in the Net-Zero Emissions Accountability Act to ensure a parliamentary review after 5 years of it coming into force with the aim to sharpen the targets.

Rafael Jimenez Aybar is Environmental Democracy Adviser and Franklin De Vrieze is Senior Governance Adviser at Westminster Foundation for Democracy (WFD).

Tags climate change, COP-26 Glasgow, parliament, parliamentary scrutiny

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Parliaments or Legislatures, or perhaps Assemblies? Names, origins and meanings

Post author By psaparliaments
Post date September 30, 2021

Cristina Leston-Bandeira, University of Leeds

@estrangeirada

For parliamentary geeks out there, this is a recurrent discussion: parliament or legislature? Which term is the ‘right’ term to use? Which one reflects the true nature of the institution that embodies the representative and legislative branch in a political system. I suggest we should relax more about the exact term and instead acknowledge their differing origins and meanings, whilst recognising the diversity of terms out there – assemblies, councils etc. After all, words are imbued with our own culture and history – why should it be any different with the word used to refer to this institution?

A while ago I started working on a textbook about comparative legislatures – unfortunately, life was a bit too mad at the time and I couldn’t bring it to fruition (maybe a retirement project?). But, as part of Chapter 1, I actually completed some research on the names and history of development of legislatures (or is it parliaments?). Here are some notes from that research.

The institution supporting the representative and legislative branch of governance has been known by different names across the world and over time. This is often associated with local culture and language, but can also indicate a focus on a particular function to the detriment of others. The terms ‘legislature’ and ‘parliament’ are the most commonly used generic terms and are regularly used inter-changeably – they have, however, different origins and refer to different functions. In short, legislature is North American originally and refers to the function of making law. Parliament has European origin and refers to the function of debating.

The term ‘legislature’ tends to be more ordinarily used in Anglo-Saxon environments and/or countries with a strong American influence. The development of this term is closely associated with the expansion of the nascent American colonial legislatures. As their expansion in a context of independence was closely associated to the right of making law, the label of “legislature” – to legislate, to make ‘legis’(law) – became the natural appellation of these institutions. It is therefore a term linked to American influence, but also to an understanding of this institution as a legislation-making body.

The term ‘parliament’ however is more common in Europe and in environments with a strong European influence. The term comes from the French verb ‘parler’ – to speak, to discuss. It refers therefore to a different dimension of this institution: as an arena for debate. As we see below, the medieval parliaments were mainly gatherings for discussion, and the term parliament is associated with these. This term can be dated back to medieval times in Europe, being therefore the most well-established nomenclature for this institution.

Other common names include Assembly (often National Assembly and associated with the need to reaffirm the national sovereignty of the people), Congress (usually encompassing a lower and an upper chamber), Chamber (Chamber of Representatives, Chamber of Deputies, etc, encompassing an explicit reference to the primacy of the role played by the Plenum chamber), Council, House and Senate (a popular name for upper chambers). But many parliaments also have their own country specific names, such as Althingi (Iceland), Bundestag (Germany), Diet (Japan), Majlis (Saudi Arabia and other Islamic countries), Sabha (India) and Sejm (Poland). And some of these names refer instead to the idea of ‘gatherings’, ‘coming together’, or even ‘events’, which speak to other types of functions performed by these institutions but are also a nod to the way they developed from ad-hoc gatherings to permanent institutions.

Legislatures are not a new feature of our societies, they have existed for many centuries. What is specific to the modern parliament is its complexity of membership and of roles performed, and the way it is integrated nationally in the governance fabric of our societies. It is difficult to date exactly when the first parliaments existed, as this is closely related to how one defines a legislature plus the linkage of the institution with its place (are legislatures that have changed location and/or building, the same legislature, for example?). Besides this, the development of legislatures is often conflated with the development of democracy and/or representative government. Although related, they are not necessarily the same. There are plenty of examples of legislatures, still today, that have little resemblance to democracy or representative government.

The definition of a parliament, in its basic form, can be summed up as a group of people meeting together at the same time and location (even if digital) to discuss matters that affect the collective of a community. This may simply constitute a discussion and not lead to an effective decision or a vote. Some identify the medieval legislatures as the first ones, other point to the Greek assemblies (with associated myths: the Icelandic Althingi, the Isle of Man Tynwald, England for Westminster, etc.). The first legislatures were mainly forums for discussion, whereby people would meet to discuss key issues of the day. The abiding power of these forums to make decisions or to simply consult and discuss varied considerably, across the ages and contexts.

Whilst the ancient Athenian Agora is the most well-known early assembly-like institution, this was by no means an exceptional institution. Other assemblies existed already at the time across ancient Greece. Most operated as public spaces for discussion, open to whoever wish to join the debate. Some assemblies had deliberative powers and decisions would be voted upon, though the power to vote would be limited to male citizens who attended the respective meeting. There is also evidence of much earlier presence of assemblies in the Indian sub-continent, in the Vedic age, meaning circa 3000-1000 BC, which exercised considerable influence. The Roman era also includes many types of early institutional expressions of a legislature in the form of councils, assemblies and, of course, the well-known Senate, which was particularly powerful during the Roman Republic. These legislatures varied very considerably in composition, participation, role and powers across the different Roman regimes. Some involved direct democracy participation, some had legislative powers, some were simple forums for discussion of local issues. A common characteristic of all of these different types of legislatures is their transient nature and, in most cases, lack of national remit.

It is from the medieval legislatures, though, that we can identify a clearer path of development towards the institution of the modern parliament. Many authors date the creation of the first parliaments in the 13 century and place it in England, with the De Monfort Parliament in 1265, seen as the first expression of a national legislature. But this development is progressive, representing the culmination of the expansion of smaller scale assemblies. It is also a process present elsewhere in Europe. The first parliaments were born out of a need of Monarchs to negotiate with the members of their aristocracy, and of increasingly larger territories under their ruling. As territories under one Monarch became larger and the need for taxation became a more complex task, the need to negotiate terms with local Barons and other aristocracy representatives became all the more pressing. As the context and environment of those negotiations became more formal and regular, the beginnings of the notion of a parliament started to materialise.

In his detailed comparative analysis of medieval parliaments in Europe, Marongiu shows that the predecessors of the modern parliament – curia, courts, concilia, estates – were developed firstly as occasional public relations reunions, which were “summoned by sovereigns whenever it seemed opportune to ask [secular and ecclesiastical dignitaries] counsel or opinion” (Marongiu, 1968: 45). As these reunions became more regular and larger, their relevance and formality expanded eventually leading to the new parlamentums. The first parliaments were therefore about communication and public relations. But as parliaments became institutionalised and part of a national governance chain, their focus shifted to the relationship with the executive and to the function of legislating.

I’m European, so parliament feels like the most natural word to use. My first language was French (parlement), my second language Portuguese (parlamento) and my third one is English (parliament). So parliament it is; that doesn’t mean I don’t use the term legislatures and I’m perfectly relaxed about using the term, as my recent article with David Judge shows; I’d probably rarely use the term ‘legislators’, but understand where North American colleagues come from when they do. So rather than worrying about what is the right term (whilst ignoring the many other terms that exist, such as Assemblies), it may simply be best to accept both. Or indeed adapt and create new words, as Brazilians have done: by adapting the American legislature word and meaning, they created ‘the legislative’ as a noun – o legislativo – which does not exist in European Portuguese as a noun. Ultimately words simply reflect their history and culture, there is no right or wrong, it’s about what each means, the same with parliament (or is it legislature?).

If you want to find out more about it all, I really recommend the following:

Loewenberg, G. and Patterson, S. (1979), Comparing Legislatures, University Press of America.

Marongiu, A. (1968), Medieval Parliaments – a comparative study, Eyre and Spottiswoode.

Tags assemblies, etymology, legislatures, names, parliaments

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Parental Leave, ‘Locum MPs’ and the Independent Parliamentary Standards Authority

Post author By psaparliaments
Post date July 7, 2021

In this blog, Nick Dickinson argues that Stella Creasy’s call for better parental leave rights for MPs is a vital step. But a better system can’t be achieved by IPSA alone, and asking it to do so may undermine the aim of a more representative Parliament in the long run.

The Labour MP Stella Creasy has written to the Independent Parliamentary Standards Authority (IPSA), the body that regulates MPs’ pay and expenses, after the authority denied a request to fund the appointment of a ‘locum MP’ to provide full maternity cover. While Creasy has argued that IPSA must “follow the law on maternity cover” in this respect, the regulator has responded, through its chief executive Ian Todd, that the “concept of a locum… is misconceived in relation to an MP” as a matter of constitutional principle.

In the context of the systematic underrepresentation of women in British politics, IPSA’s position seems hard to justify – appearing to put constitutional niceties ahead of gender equity. Parliament has a long history of direct and indirect discrimination against women MPs, with the fight for better parental rights only the latest in a long list of fights to make Parliament more equitable. IPSA’s position is also undermined on this occasion by having provided funding for a locum position for Creasy previously in 2019, albeit only after similar pressure being applied.

Yet the clear and pressing need to address parental leave for MPs cannot fall to IPSA alone. Independent bodies of various kinds are common in UK. However, IPSA is unique in exercising functions which so directly affect core institutions of British democracy – and which were held until comparatively recently to be the sole prerogative of a democratic sovereign Parliament. For the same reason, its central tasks are sharply delimited: to determine MPs pay and pension contributions and to regulate and administer the system of expenses (or ‘business costs’, as the regulator now calls them).

Throughout its existence, IPSA has been the subject of a variety of attacks by MPs on its decisions. While this was initially directed at the exercise of its core tasks, in particular the regulation of expenses, over time controversies have shifted towards what IPSA is not doing rather than what it is. This has included, among other things, criticism in support of a greater HR role for MPs staff, for whom IPSA provides resources and template contracts, in the context of bullying and harassment scandals in the Commons.

These critiques all have individual merit, but taken together they amount to a form of mission creep with the potential to backfire badly. As scholarship on agencies such as IPSA has shown, their independence is assured through the intensive management of reputation. Contrary to the expectations of public choice theorists, however, this is achieved not through ‘empire building’ and taking on a broader role but by a ruthless focus on narrow core competencies. At a time where some of IPSA’s have once again become controversial this lesson is all the more important.

Moreover, the effective exercise of IPSA’s pay setting competency itself has substantive consequences for gender parity in parliament. Maintaining an adequate level of pay has been shown improve legislator quality by overcoming barriers faced by women in entering legislative bodies. Kotakorpi and Poutvaara (2011), for example, take advantage of a one-off pay reform of Finnish legislators to show that increased remuneration led to increases in levels of higher education among candidates and office holders, but only among women. Likewise, Atkinson, Rogers and Olfert (2016) also find a positive effect of increasing legislators’ compensation on the proportion of highly educated women in the Canadian parliament by increasing the pool of candidates.

Instead, Parliament should take responsibility for the constitutional reforms required for a real solution to the problem. One obvious device would be the use of ‘alternates’ – or substitute candidates elected alongside the primary candidate in each constituency. If the candidate wins office but is unable is unable to serve for any reason (illness, death, extended travel, or, as in this case, parental leave), then the alternate takes their place fulfilling the full functions of the office holder. Alternate positions are widely used in Latin America and can be found in systems around the globe.

Routine use of alternates may also come with other benefits in terms of broadening descriptive representation. By increasing the pool of candidates for office, parties may gain more leverage to strategically nominate members of underrepresented groups to alternate positions. A system of alternates would also allow MPs to take leave for other reasons, for example mental health. This has been highlighted most recently by Labour MP Nadia Whittome’s decision to take time off to recover from Post-traumatic stress disorder (PTSD). But the ability of more MPs to regularly take such breaks may become increasingly important in light of the psychological pressures of modern politics. Again, this impact is very likely to be gendered issue given the broader unequal burden of mental health in the population as a whole.

In sum, Stella Creasy’s call for better parental leave rights for MPs is a vital step towards a more equitable politics. But a better system can’t be achieved by IPSA alone. Moreover, asking it to do so may undermine the aim of a more representative and democratic Parliament in the long run.

Dr Nicholas Dickinson is Bingham Early Career Fellow in Constitutional Studies at Balliol College, Oxford.

Blog

Cummings on stage: what does it tell us about select committees?

Post author By psaparliaments
Post date June 9, 2021

Marc Geddes explores fresh drama in the theatre of Westminster. In this blog, he discusses Dominic Cummings’ recent select committee appearance and considers the insight it can offer into the effectiveness of select committees.

Asked if the prime minister, Boris Johnson, is a fit and proper person to get us through the COVID-19 pandemic, the former chief advisor to the prime minister, Dominic Cummings, replied: ‘No’. This damning verdict was given as part of evidence to the joint Science and Technology/Health and Social Care committee inquiry into lessons to be learned from COVID-19. The appearance was high-profile: newspaper articles speculated at length about the session in advance, it was discussed that morning on BBC Radio 4’s Today Programme, the session was trending on Twitter, and it remained headline news throughout the day and into the next. To use the analogy of theatre: it was a front stage political drama. It raises a significant number of questions about the government’s handling of COVID-19. But what does it tell us about select committees? I think there are three interesting issues.

A first issue is about how effectively select committees are able to develop detailed questioning. It was interesting to note how the session played out largely in a non-partisan way (with some exceptions). But more than that, the session showed us the importance of sustained and effective questioning. Greg Clark and Jeremy Hunt – chairs of their respective committees – took up the first hour to question Cummings before other committee members had an opportunity to ask questions. The ability to follow a line of inquiry was crucial to following up on key claims and asking for concrete evidence of Cummings’ allegations through written documents. The chairs were also unafraid to ask follow-up questions when committee members failed to do so (e.g. when Cummings first accused Hancock of lying to the Cabinet, the committee member expressed shock but moved on to another subject). Cummings was held to account, but the session raises questions about the wider questioning skill of committee members. Perhaps there are structural issues at play: with fewer questions, members need to ask more direct and arguably more adversarial questions; knowing you have 30 minutes instead of ten makes a big difference.

While Clark and Hunt, in particular, have come out looking well, there is also a bigger question to be answered about what the joint committee gained from the session. The hearing was wide-ranging (and perhaps unnecessarily long). Cummings made a significant number of eyebrow-raising claims. His answers were long and rich in detail, sometimes backed up by pictures, graphs and text messages. The hearing was an exercise in explanatory accountability: understanding what happened, in detail. It helps paint a picture of how Number 10 operates, which – given the gravity of the decisions – is hugely important. But it was also a picture painted according to one former advisor that has fallen out with, and is disliked by, many in government. His account was therefore partial, and full of contradictions. He was reflective about things he wanted to talk about, but evasive when it came to things he did not want to discuss. The joint committee had a big task in testing the former advisor’s claims, with some (though not complete) success. The committee was good at pushing for evidence and information, but Cummings was still able to talk generally about ‘groupthink’ and system failure without always going into specifics. A second issue that this hearing raises, then, is how individual testimonies fit into the wider picture, and also how effectively the committee gathered accurate information.

A third issue concerns the witness. I have already implied that there is some doubt surrounding the truthfulness of Cummings’ account. Let us not forget that Cummings’ appearance took place despite him being found in contempt of Parliament for refusing to appear in front of a different select committee in 2019. This should raise questions about his motivations for attending in this instance. An underlying issue – as discussed in this recent Constitution Society blog – is the possibly complex relationship between committees, witnesses and contempt, which has been the subject of a number of parliamentary inquiries over the years (as also recently discussed by Paul Evans for the Hansard Society). In any case, a wider issue for Parliament to consider is the truthfulness and credibility of the account of somebody who has previously been found in contempt of Parliament. It is not clear, in the end, how much credibility we should give to Cummings’ evidence. This, in turn, raises the thornier question of whether it was in the committee’s interest to hear from Cummings directly in this way – something that only time will tell.

All three issues return us to a fundamental, existential question: what’s it all for? What is, ultimately, the purpose of this hearing, this inquiry, and scrutiny by select committees? Evidence sessions are an incredibly important part of the scrutiny process. It is through them that committees are able to explore key policy and political issues, gain information about what happened, and to evaluate if things were done as effectively as they could have been. This doesn’t happen through one single hearing, but through multiple different sites across Parliament: along the committee corridor and in hearings, through bilateral meetings, through written communications, through oral and written questions across the Commons and Lords, and much else besides. Through this, Parliament is able to build webs of scrutiny that can be significant for strong accountability – provided that chairs and members are able to ask effective questions in order to establish the truth.

Marc Geddes is Senior Lecturer in Politics at the University of Edinburgh. He is author of Dramas at Westminster: Select committees and the quest for accountability, which won the Mackenzie Prize for Best Book Published in Political Science in 2021.

This blog has been kindly shared with us by The Constitution Society. Please find the original post on their blog series here