Just like in Family Fortunes[i] but by chance rather than by design, 100 people responded to our survey[ii] about the importance of different elements of MPs’ work in the UK Parliament.[iii]
From a score of one to five (with five being the most important), respondents were asked to rate the importance of a non-exhaustive list of parliamentary activities. As can be seen in Table 1, contributing to the work of Select Committees is considered the most important aspect of MPs’ work by quite a distance. Next, bunched together quite closely, are, in order, debating in the Chamber, Public Bill Committee (PBC) work and tabling Written Questions (WQs). There is then a bit of a gap to tabling Private Members’ Bills (PMBs) and then another to introducing and to signing Early Day Motions (EDMs).
Rank
Activity
Average Score (max = 5; min = 1)
1
Contributing to the work of Select Committees
4.12
2
Debating in the Chamber (including Westminster Hall)
3.81
3
Contributing to the work of Public Bill Committees
3.60
4
Tabling Written Questions
3.54
5
Tabling Private Members’ Bills
2.73
6
Introducing Early Day Motions
1.70
7
Signing Early Day Motions introduced by another MP
1.43
Table 1: The Importance of MPs’ Parliamentary Work
Although we don’t, of course, have enough respondents to draw robust conclusions, what may be considered more intriguing results come when we look at the rankings of different types of respondents. For example, female and male respondents both ranked the activities in the same order as in Table 1 but, interestingly, female respondents ranked each activity at least 0.29 and as much as 0.67 higher than male correspondents. Furthermore, as shown in Table 2, while academics, MPs and their staff, and parliamentary staff agree that tabling PMBs and introducing and signing EDMs are the 5th, 6th and 7th most important activities respectively, there is disagreement at the top of the rankings. MPs and their staff appear to place greater importance on the talking elements of Parliament, ranking debating in the Chamber first. Academics, on the other hand, rank debating in the Chamber fourth, seemingly placing greater importance on the working elements of Parliament and, in particular, committee work and WQs.
Activity
Rank
Academics
MPs & their Staff
Parl. Staff
Contributing to the work of Select Committees
1
2
1
Debating in the Chamber (inc. Westminster Hall)
4
1
2
Contributing to the work of PBCs
2
=3
4
Tabling Written Questions
3
=3
3
Tabling PMBs
5
5
5
Introducing EDMs
6
6
6
Signing EDMS introduced by another MP
7
7
7
Table 2: The Importance of MPs’ Parliamentary Work by Different Groups of Respondents
These results might raise questions about how different groups of people who variously engage with Parliament understand its importance[iv] and place different emphases on the functions that it fulfils – and should fulfil – in our political life. Such differences might perhaps be fruitfully explored in future qualitative work.
[i] Or Family Feuds in the US, or Familien-Duell in Germany.
[ii] The survey was run as part of Stephen Holden Bates’ 2021-22 Parliamentary Academic Fellowship, which was funded by the UKRI/ESRC Impact Acceleration Account, and is part of on-going work looking at specialisation in the UK House of Commons.
[iii] 100 people answered our online survey between 22nd May and 18th July 2023. The survey was aimed at experts, although we allowed anyone to answer, and was distributed via Twitter, the newsletter of the UK Political Studies Association’s Parliaments Specialist Group and through email contacts. Of the 100 respondents, 30 were parliamentary staff in the House of Commons, 15 were academics, 13 were MPs, 12 worked for MPs, and 10 were parliamentary staff beyond the HoC, with the other 20 compromising members of the public, journalists, people who work for think tanks, and ‘other’. Overall, 30 respondents were female, 63 were male and seven preferred not to say; no respondent said their gender was not the same as the sex they were assigned at birth. Seven respondents said they belonged to a group which was considered an ethnic minority in the country in which they worked, 86 said they did not belong to such a group and seven preferred not to say. Two respondents were removed for the analysis presented in this blog, as there were problems with their answers and/or they did not complete the survey properly.
[iv] Left deliberately undefined in the survey because we didn’t want to impose our understanding of what activities were/should be considered important within the UK Parliament on the respondents.
Equality, Diversity, and Inclusion (EDI) “ensures fair treatment and opportunity for all. It aims to eradicate prejudice and discrimination on the basis of […] protected characteristics” (University of Edinburgh, 2021[1]). In the workplace, EDI is usually addressed centrally, through policies and Human Resources training.
In this blog post I will share the development of an Information Literacy (IL) framework to strengthen scrutiny within Select Committee proceedings. The framework is aimed at highly skilled researchers through an EDI lens.
My role in the House of Commons Library is to work closely with the Select Committee Team and to perform a knowledge exchange role. My work can be summarised in three areas of focus: liaison, outreach, and training.
Information Literacy
One of my first projects after joining Parliament in 2020 was to introduce IL to select committee specialists.
Information Literacy is defined by CILIP; the Chartered Institute of Library and Information Professionals as “the ability to think critically and make balanced judgements about any information we find and use”.
Information Literacy is not a new concept, but it can be divisive amongst scholars and information professionals especially in terms of what it encompasses and how it applies in different context.
Early in the process of creating training content, I knew I had to make this concept meaningful within Parliament: through its “branding” and its applicability.
I chose the term Information Scrutiny. Scrutiny relates back to a familiar concept whilst the introduction of the word “information” introduces a new layer of knowledge and expertise that enhances current practices and encourage reflection on methodology.
To develop an appropriate and challenging Information Literacy framework, I needed an approach suited to this very particular audience and to find a hook to get them to see Information Literacy as an integral part of research and scrutiny.
EDI
EDI has been a focus in Parliament like in many workplaces across the United Kingdom with efforts on recruitment, on progression for colleagues and all the training we can think of to address systemic imbalances.
For Select Committees this is underpinned by the 2019 Liaison Committee report on the effectiveness and influence of the select committee system.
It leant on the work prompted by the 2018 Witness Gender Diversity report to increase gender diversity of witnesses and encouraged committees to continue their efforts and share good practice to increase witness diversity and to go further on BAME representation. .
In practical terms this translates into increasing the diversity of evidence received, the diversity of witnesses, the effort to make everybody able to participate in this democratic process, from start to finish.
It is something I feel strongly about; with my education background, this aligns well with wider decolonisation and critical librarianship practice in the academic sector.
So, I chose to focus on IL and research through a diversity and inclusion angle.
Information behaviour analysis
However, the last thing I wanted to do was to stand in front of an expert crowd and tell them what they already know! This is where the concept of enrichment is key.
To develop the below modules, I conducted information needs and information behaviour analysis to better understand select committee specialists:
Their research practices
How they had evolved to suit the needs of the Select Committee
How policy area affects their research
The typical running of an inquiry
I conducted 15 interviews with specialists across the Select Committee Team and carried out other activities to help me understand research in a Select Committee context such as shadowing inquiries or examining scoping documents and reports.
Co-creation
Co-creation is the practice of creating content with the intended audience. It is a process I found immensely valuable when I worked in Further and Higher Education, and I wanted to explore how I could replicate this in a workplace environment.
From the start, I had the intention of anchoring the knowledge of the modules with clear examples of how some issues or solutions looked like in day-to-day work practices, so I chose to run a peer-review programme.
The peer-review process was easy and straightforward:
Peer-reviewers had a month to submit feedback. They would receive a shared link to the PowerPoint with slides, slide notes and instructions by email and then 3 weeks later, a gentle reminder
Two types of responses about the content were sought:
General comments such as answers to “does the knowledge flow well?” or “Is this advice practical for your job role? Why?” Peer-reviewers were asked to send answers to those by email.
Using the “comment” function in PowerPoint; targeted questions on slides were asked, usually when specific feedback or an example were needed.
A concerted effort was made to make the peer-review process easy for all users and this included not taking for granted their level of digital literacy so all instructions for the peer-review were included in the PowerPoint.
All the received feedback was imported into a shared document and colour-coded by peer-reviewer to analyse the response. Similar comments were collated and differences in opinion highlighted. This resulted in a list of changes to be made.
Impact
The modules have been extremely well-received. Select Committee colleagues understand why Information Scrutiny is important and how it benefits their practice.
Though the content was developed with specialist researchers in mind, the sessions have been attended widely across teams and departments.
The feedback was mostly positive with some, welcome, suggestions for improvement such as leaving more room for discussion or sharing more examples of how some issues had manifested in Select Committee inquiries.
Measuring the long-term impact of Information Literacy interventions is challenging as it relies on assessing personal development and day-to-day working practices but already colleagues have seen the value of being more reflective on their research, of including EDI as an essential component of their strategy.
Measuring impact by following small cohorts going through the whole course of the framework would provide better impact data. New joiners in the Select Committee Team, for example, would be an ideal target.
Applicability
If you too would like to run an Information Literacy programme here are my top tips:
Make sure to research how your audience research: why, how, who do they talk to, how much time do they dedicate to this. Carry out observations, interviews, have a look at outputs
Find an angle: here I used EDI to enrich my content and have a concrete impact in and beyond Parliament. This could be different for you: look at your department/organisation’s aims and objectives are a good place to start
Get buy-in involve colleagues in your decision –making
Do not assume levels of digital literacy or understanding of key concepts.
Think strategically about knowledge sharing: how can you use the time in your modules more efficiently by sharing content ahead of time
Establish early on how you will measure your impact.
Biography
Anne-Lise Harding (she/elle) is Senior Liaison Librarian at the House of Commons and Deputy Chair of the CILIP Information Literacy Group (ILG).
Anne-Lise’s interests lie in Information Literacy, decolonisation, information behaviour and trainer education. After graduating with an MA in Librarianship in 2011, Anne-Lise held several roles in the education sector; making the transition to the government sector in 2020.
In her role, Anne-Lise supports both the House of Commons Library and Select Committee Teams; focusing mainly on Information Literacy training, liaison and outreach. She is leading on Information Literacy work to make research for scrutiny more diverse, inclusive and representative.
Parliamentary sovereignty has been characterised as the “central organising principle” and “focal point” of the constitution. But it is a doctrine of striking absolutism with uncompromisingly hard edges: it asserts that there is nolaw that Parliament cannot make, that no other body can override or set aside Acts of Parliament (and so on). Yet in practice a range of issues are now considered sufficiently important that ways have been found to soften those hard edges and carve out protections against legislative infringement.
Important constitutional principles (like the rule of law and access to the courts) are protected by common law principles of interpretation, capable of challenging and even overriding the intention of Parliament. Human Rights are protected by both a procedural mechanism designed to bring embarrassing attention to legislation compromising them and a statutory principle of interpretation capable even of overriding Parliamentary intention. The autonomy of the devolved legislatures is protected by a convention constraining Parliament’s legislative authority over devolved matters. And, most famously of all, our membership of and even departure from the European Union involved judicially enforceable statutory limits on Parliament’s legislative power. These are just the most prominent of a complex array of techniques limiting Parliament’s legislative authority without (overly) trespassing on the core status of parliamentary sovereignty.
This post argues that we should think of the procedural rules exemplified in the parliamentary processes of King’s Consent and English Votes for English Laws (EVEL) as a further part of this constitutional tradition.
I realise that my two examples are not promising starting points for fruitful analysis. King’s Consent is a constitutional aberration, which grants the King an inappropriate opportunity to intervene in the legislative process. It should be abolished. And EVEL is widely seen as an idiosyncratic failure– it was abolished, without the House of Commons even needing to vote, after a debate which saw it attacked across party lines – “baffling” (Conservative), “completely pointless” (Labour) and a ”absolute and utter disgrace” (SNP). Nevertheless, I want to suggest that their shared core is worth further attention, as a model for a potentially constructive addition to our repertoire of techniques for limiting parliamentary sovereignty. In this post I (i) characterise that shared core, (ii) briefly consider its possible features and finally – very tentatively – (iii) suggest two areas where it might be sensibly deployed.
The shared core of King’s Consent and EVEL
King’s consent is a rule of parliamentary procedure which gives the King a power to intervene in the passage of certain proposed legislation. It is found in Erskine May, which provides (for Bills to which the process applies):
If the [King’s] consent has not been obtained, the question on the third reading of a bill for which consent is required cannot be proposed
EVEL was a rule of parliamentary procedure which gave English MPs an additional opportunity to scrutinise certain proposed legislation. It was enacted through a change to the Standing Orders of the House of Commons, which provided (while EVEL was in force, for Bills to which the process applied):
A Consent Motion which gives consent…must be passed by the legislative grand committee…before a motion may be made for the third reading of the bill.
Each (obviously) have greater depth and breadth than these extracts reveal – in terms of when they apply, the processes they involve etc. But these extracts capture their shared core, and the features of each that I want to focus on here.
The key point is that both have the same structure: they create a veto process, and if that veto is wielded then the proposed legislation concerned cannot pass through all the stages of the legislative process or, in other words, the proposed legislation cannot become law. Furthermore, each is a binding rule of parliamentary procedure rather than, say, mere guidance. A bill which required, but had not yet received, EVEL consent could not proceed. And a bill which requires, but has not received, King’s consent cannot proceed. So the Deputy Speaker did not merely chooseor exercise a discretion to refuse Tan Dalyell’s attempt to secure a third reading for his Military Actions Against Iraq (Parliamentary Approval) Bill in 1999 – he was compelled to:
Queen’s consent has not been obtained…As the House knows, and as “Erskine May” … makes plain, without Queen’s consent, I cannot propose the question (emphasis added)
Both, then, are prescriptive elements of the law and custom of Parliament with the capacity to prevent legislation completing its passage through Parliament. As a result, they engage the first limb of most influential definitions of Parliamentary Sovereignty, which claims that there is no legislation which Parliament cannot pass. At present that element of parliamentary sovereignty is false to the extent that Parliament cannot pass legislation which requires, but has not received, King’s consent. And from 2015 until 2021 it was also false to the extent that Parliament could not pass legislation which required, but had not received, consent under EVEL. Procedural vetos like these soften the hard edges of parliamentary sovereignty. We should consider the possibility that a better use can be found for this technique than these two examples.
Two characteristics of procedural vetos
As we saw above, there are many other ways to circumvent the less desirable consequences of parliamentary sovereignty. They are hard to measure against each other because they work in different ways and have virtues (and vices) in different dimensions. I will mention only two such dimensions of procedural vetos here: their force, and the place they occupy on the political-legal spectrum.
First, their force, by which I mean the degree to which they can be suspended or overridden (when this is very difficult it even begins to make sense to use the language of entrenchment). In this dimension, procedural vetos are extremely flexible. At one end of the spectrum, a procedural rule could be vulnerable to easy circumvention or abolition. For example, when the government decided to abolish EVEL this was very straightforward to achieve with a simple motion in the Commons. But a procedural veto could be designed to be slightly more entrenched – for example the EVEL procedures could have been drafted so that, say, any motion proposing their abolition or suspension was itself subject to the consent procedure, making them more problematic to circumvent. A procedural veto could even be fully entrenched, that is protected by its own provisions against even legislative override. Indeed, the prevailing opinion amongst parliamentary lawyers seems to be that King’s consent is entrenched in this way – that a statute abolishing King’s consent would itself require King’s consent. Whilst in my view this position is extremely problematic with regard to that specific example, it would clearly be possible to craft a veto which more clearly functioned in that way. The upshot is that procedural vetos, as a technique, are very flexible in terms of their force – and therefore in terms of the scale of the obstacle that they present to a government which intend to promote legislation which would violate whatever value or principle they protect. They can be used to impose very soft or very hard limits on Parliament’s capacity to legislate.
Secondly, procedural vetos are more a political than a legal mechanism. Admittedly they seem mildly legalistic: they are part of the law and custom of parliament, they are authoritative rules which depend on tying categorisation to consequence (and so on) – to the extent that legal advice is involved in their application and operation. Nevertheless, the existence, continuation and negotiation of the limitation they impose on Parliament remain firmly in the political arena. The respect of and survival of EVEL were political questions, and its fate rested on politics. The respect of and survival of King’s Consent are political questions, and its fate rests on politics.
These are promising characteristics. Carefully crafted and appropriately deployed (King’s Consent is, and EVEL was, neither) procedural vetos have the potential to be a valuable addition to the constitution’s set of techniques to soften parliamentary sovereignty.
Two possible uses of the mechanism
I want to close by suggesting, very tentatively, two contexts in the contemporary constitution where it might be appropriate to deploy procedural vetos to restrict parliament’s capacity to make law.
First, as a replacement for the Sewel convention, which is designed to protect the legislative autonomy of the devolved legislatures against infringement by Parliament. It is (despite being put on a statutory footing) a purely political constraint, but it is also weak and easily circumvented. Yet it would be relatively straightforward to craft a procedural rule obstructing, say, the passage of legislation certified to trespass on devolved competencies without a statement that the necessary consent had been obtained. This form of procedural veto would maintain the content and political nature of Sewel, whilst buttressing its force. It need not be entrenched at all – even as a simple veto it would have greater force than the present Sewel Convention because it would at least impose a procedural hurdle (say, passing a circumvention motion) on a government promoting legislation in breach of Sewel. This approach has been referred to before (in different contexts by Alistair Carmichael MP and by Ian Loveland) although not in detail. It is a proposal which merits being taken more seriously.
Secondly, as an alternative to the rule in Anisminic and Privacy International, which constitutes a wide and judicially-imposed limitation on parliament’s legislative authority, preventing it – almost entirely – from successfully enacting provisions ousting the jurisdiction of the courts over executive action. This rule achieves a justifiable aim, but it also moves into the legal arena an issue – the appropriate scope of Parliament’s power to enact ousters – that might more appropriately be tackled in the political domain. A procedural veto could be crafted so as to maintain the existing strength of this rule (especially in core cases) but with the additional virtue of returning to the political domain the broader question of the appropriate limits of legislated ousters.
To summarise: Parliamentary sovereignty is not always desirable, in fact a whole variety of ways are often used to circumvent its requirements. Whilst King’s Consent and EVEL are not, in themselves, successful examples of this kind of process they are nevertheless instances of an approach which might be harnessed more successfully in other contexts including, perhaps, as an alternative approach to the Sewel convention and to the rule in Anisminic and Privacy International.
Dr Adam Tucker is Senior Lecturer in Law at the University of Liverpool.
The first scandal that really shook the Johnson government, and which started something of a cascade that eventually led to his downfall, was the ‘Owen Patterson scandal’ of late 2021. The scandal initially arose because Conservative MP Owen Patterson used his parliamentary position to lobby for two companies from which he’d received over £10k as a consultant. Although the real scandal erupted because the government attempted to change the rules to protect him, the question of MPs’ ‘second jobs’ rose to the top of the news agenda. Across the media, debates raged about the circumstances in which it was right for MPs to hold second jobs, with some arguing second jobs brought diverse experience into parliament, and others arguing that they were detrimental to the integrity of democracy. On both sides, it was an oft-repeated refrain that MPs are usually “far too busy” to be holding any other employment. An Ipsos-Mori poll at the time found almost two-thirds of people agree with the statement that “MPs are paid to work full time for their constituents and to serve the country and they therefore should not have time to do other jobs as well” (Ipsos-Mori, 2021).
Questions about elected representatives holding outside interests have been addressed in various ways in the academic literature. Often referred to as ‘moonlighting’, this practice has been scrutinised by academics, who investigate whether it leads to decreased parliamentary activity. In Italy, Gagliarducci et al (2010: 689) show that “politicians with higher outside income are less committed to parliamentary activity in terms of voting attendance”, and Arnold et al (2014) find similar results in Germany. In Ireland, Baturo and Arlow (2018) show that, after leaving office, one in ten Irish TDs (MPs) “engage in consulting, lobbying or board membership”, suggesting that MPs’ second jobs may be stepping stones to future employment. These studies tend to ‘follow the money’, looking at payments that MPs have formally received, and compare these to their parliamentary activity.
In our forthcoming paper, which we presented to the PSA Parliaments Conference 2022, we look at this phenomenon in the UK parliament, asking whether outside interests potentially make MPs ‘too busy to serve’. Rather than focus on the money officially declared in the register of interests, we focus instead on the position of MPs within ‘corporate networks’. To gather our data, we located all 650 MPs within the Companies House database, identifying all the firms on which they sit as company directors. We then look at all the other directors of these companies, and all the other roles held by those directors, and then all the directors of those companies. This gives us a vast network of interconnected companies, what Mizruchi (1996) calls ‘director interlocks’ and what is widely described as ‘the corporate network’.
There is a lot of existing research that seeks to understand this corporate network. Some research suggests that when companies are linked through shared directors, there are significant benefits in terms of access to knowledge, information, and advice (Pfeffer and Salancik, 1978; Sarabi et al., 2021). This backs up those who, during the Owen Patterson debate, argued that MPs’ second jobs are beneficial to parliament because they bring in diverse experience. However, other research raises concerns about a ‘corporate elite’ or ‘inner circle’ (Useem 1986) within which there is actually very little diversity (Heemskerk and Fennema 2009). There is also a very important strand of research showing that directors who hold lots of directorships, known as ‘busy directors’, are actually associated with weak corporate governance and have a negative impact on firm performance (Sarabi and Smith, 2021; Kaczmarek, Kimino and Pye, 2014; Ferris, Liao and Tamm, 2018; Fich and Shivdasani, 2012; Cooper and Uzun, 2012; Méndez, Pathan and García, 2015).
So, when MPs act as company directors, all this existing literature on the corporate network can help us understand the implications for parliament. The question is whether the positions that MPs hold in these corporate networks make them ‘too busy to serve’, as was argued by commentators during last year’s second jobs debate, and as implied by the existing literature on busy directors. In order to answer this question, we measure the position of MPs within the corporate network and compare this to their parliamentary activity. Given the challenges of measuring parliamentary activity, we look at parliamentary questions as a proxy for this activity, basically assuming that MPs who ask more questions are more active in Parliament. We did also control for a range of other independent variables including age, gender, tenure in parliament, political party etc.
We then compared the parliamentary activity of each MP to their position within the corporate network. We found that MPs who hold a ‘brokerage’ role in the network, linking together otherwise unconnected companies and sub-networks, were more likely to ask questions in parliament. Because brokerage roles are usually associated with higher corporate opportunity and more important contributions to knowledge flows, we can suggest that MPs with higher levels of opportunity in the corporate network are more active in parliament. In contrast, we found that MPs who were deeply embedded in the corporate network, being connected to lots of other well-connected actors, were less likely to ask questions in Parliament. This suggests that MPs who are deeply embedded in highly networked groupings of ‘busy directors’ are less active in parliament, which could be because they are ‘too busy’ to serve effectively.
In order to develop a fuller understanding of the reasons behind these trends, further research will be needed. Our next step will be to expand the research in various ways, especially looking at the trends over a longer period of time and looking at larger corporate networks. We are also keen to try to draw a link between the sector of the companies where MPs sit as directors and the nature of their parliamentary contributions. We are particularly interested in the extent to which MPs are asking questions on topics that link to the work of those companies. All of this will require further data collection.
Overall, it is clear that an MPs outside interests do affect their parliamentary activity, and potentially in ways that limit the time they give to their parliamentary duties. In the public discourse, the debate will continue to rage about whether outside interests have a positive impact on parliament, and our forthcoming paper is only one contribution to that debate. But, given that the findings of our paper align with existing literature on the corporate network and with existing literature on political second jobs, it is increasingly clear that MPs’ outside interests are not unconnected from their parliamentary activity. The MPs’ code of conduct states that an MP “should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties”. The word ‘influence’ here leaves a lot of room for interpretation, but it is quite clear that patterns of behaviour in corporate networks do correlate with patterns of behaviour in parliament. At what point this constitutes an infringement of the ministerial code is a debate that will no doubt continue to run.
Our recent book, The Bonfire of the Decencies: Repairing and Restoring the British Constitution, analysed the turbulent 2019-2022 Boris Johnson administration from a constitutional perspective. It noted a worrying tendency. Johnson himself, and various ministers and officials in his government, were prone to disregarding norms. In pursuit of partisan advantage or personal gratification, they were often willing to bypass non-binding constraints to which those in their position should willingly subject themselves. Self-regulation is essential to the proper functioning of any political system; but is perhaps even more important in the case of the United Kingdom (UK), given its lack of a ‘written’ or ‘codified’ constitution. Its absence is therefore a serious concern.
We considered a wide range of trends and incidents. Among them were the so-called ‘partygate’ scandal; the UK approach to the Northern Ireland Protocol; efforts to intimidate and demean legal professionals; the dissemination of misleading information to Parliament and public; departures from good practice in the award of Covid-related contracts; the high turnover of senior civil servants; changes to the status of the Electoral Commission; and the troubling treatment of refugees. Taking these factors into account we identified a series of problematic categories of behaviour on the part of the Johnson governments. They were:
Poor conduct that did not necessarily violate any specific rule;
Departure from rules without clear legal basis such as conventions;
Unlawful activities of a constitutionally challenging nature;
Violations of criminal law by senior officials and ministers;
Willingness to break with treaty obligations and international law; and
The compromising of public institutions and the values associated with them.
Furthermore, as well as being prone to departing from and undermining norms, the Johnson administration also displayed a tendency to evade, belittle, or erode any mechanisms that might serve to limit it (such as Parliament, the courts, and other oversight bodies), particularly in its efforts to perpetrate constitutional violations.
We judged, moreover, that the transgressions that occurred under Johnson were part of a wider and longer continuum. Any relief that the ending of his term as Prime Minister might (understandably) arouse should not distract from a realisation that urgent and substantial corrective action is required. His mere departure has not reversed the damage caused during his premiership. Many changes brought about will remain in force until actively reversed, and initiatives instigated will continue to come into being unless halted. Forces, groups, and people that drove, sustained, and were harnessed by him in his anxiety-inducing conduct during this tenure can be expected to continue to exert themselves, potentially leading to further such harm.
We noted in our work that the post-Johnson UK government would inevitably include within it numerous individuals who variously tolerated, facilitated, defended, and took a prominent role in the patterns of behaviour that made his term of office so objectionable. Ultimately, his party turned on him. But the fact that it installed him as leader at all, and that it took so long to remove him, is not encouraging. The decisive revolt of July 2022 came only after the emergence of clear evidence that he had morphed politically from asset to liability, and growing resentment among colleagues who found themselves personally compromised by some of the dubious characteristics of his administration.
Events since the displacement of Johnson have served to reenforce these points. During the brief and remarkable tenure of Liz Truss, constitutionally dubious occurrences included the removal from post of the Permanent Secretary to the Treasury, Tom Scholar; and the attempt to evade proper scrutiny of fiscal policy. Collective Cabinet responsibility – a central component of the UK system of government – rapidly deteriorated to the point of becoming unviable. Under Rishi Sunak, we have already seen the reemployment of an individual as Home Secretary within days of their resignation from the same post, having breached the Ministerial Code. Furthermore, falling within the Home Office policy brief, the pursuit of questionable policies with regard to the treatment of refugees, inherited from previous governments, has continued and possibly magnified.
These developments are far from encouraging. But we do not wish to encourage despondency. There are a series of steps that can be taken that we hope will help restore, reenforce and reinvigorate our constitution. Some firm proposals are already on the agenda. They include recent recommendations from the Committee on Standards in Public Life that would serve to strengthen mechanisms for upholding the principles according to which government is supposed to operate, such as those set out in the Ministerial Code.
Other measures have yet to receive the same degree of advocacy, but in our view merit consideration. Among them is the idea of an oath of office for incoming prime ministers, to be made publicly in the House of Commons, in the presence of its Speaker. While it would not directly compel better behaviour, this practice might contribute to an improved culture of constitutional compliance. We suggest the following wording:
THE PRIME MINISTER’S OATH.
To uphold the principle and practices of collective Cabinet government
To uphold and respect the conventions and expectations contained in THE MINISTERIAL CODE, THE CABINET MANUAL, AND THE SEVEN NOLAN PRINCIPLES OF PUBLIC LIFE.
To sustain the impartiality of the Civil and Diplomatic Services, the Intelligence and Security Services, and the Armed Forces.
and to have constant regard for THE CIVIL SERVICE CODE AND THE SPECIAL ADVISERS’ CODE.
To account personally to Parliament and its select committees for all the above.
To uphold the rule of law in all circumstances.
Beyond this possible measure, consideration should be given to harder and more entrenched regulation through the establishment of a ‘written’ or ‘codified’ constitution. Such a document would become the ultimate source of legal authority within the UK polity, taking precedence even over the UK Parliament and primary legislation it issued. Establishing an instrument of this type would be a major undertaking, and need to rest on an inclusive and considered process. But it could, we hope, help correct the weaknesses in the system that have lately become apparent, and avoid repetition of some of the excesses of the Johnson era, and that of his successors. It might, moreover, be a means of extracting a lasting, beneficial outcome from recent negative experiences.
Andrew Blick is Professor of Politics and Contemporary History and Head of the Department of Political Economy at King’s College London and Senior Adviser to The Constitution Society.
Peter Hennessy, FBA, is Attlee Professor of Contemporary British History, Queen Mary, University of London.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
Meg Russell, Alan Renwick, Sophie Andrews-McCarroll and Lisa James argue that for Rishi Sunak to keep his promisetoput integrity, professionalism and accountability at the heart of his government, he must strengthen the standards system, enhance parliamentary scrutiny, defend the rule of law, abide by constitutional norms and defend checks and balances.
But what might such a pledge look like in reality? Against the backdrop of Boris Johnson’s resignation this summer, precipitated by concerns about his approach to standards, integrity and accountability, an earlier post on this blog issued five questions for the then leadership candidates to address on rebuilding constitutional standards and restoring integrity. The subsequent premiership of Liz Truss aptly demonstrated these questions’ continuing relevance. This new post returns to the five core tasks, links them to Sunak’s stated goals, and suggests what his government might do to meet them. It demonstrates close agreement with proposals by respected experts from other bodies in response to Sunak’s pledge.
Strengthening the standards system
The system for maintaining government and parliamentary standards was placed under great stress during the Johnson premiership. Successive Independent Advisers on Ministers’ Interests resigned, ministers unwisely attempted to derail a House of Commons Committee on Standards investigation, and a Privileges Committee inquiry into whether Johnson himself misled parliament is ongoing. Truss’s subsequent claim that her personal integrity was a sufficient bulwark against standards breaches fell far short of the serious commitment to institutional arrangements needed to safeguard integrity.
Rishi Sunak’s commitment to appointing a new Independent Adviser on Ministers’ Interests, expressed during the summer leadership contest, and repeated by the Minister for the Cabinet Office, Jeremy Quin, yesterday in the House of Commons (albeit following the somewhat problematic reappointment of Suella Braverman), is therefore welcome and important. Sunak should also move to strengthen the existing system. The independent Committee on Standards in Public Life (CSPL) made recommendations last year to increase the effectiveness of the Independent Adviser, including by giving them the power to initiate investigations into alleged breaches of the Ministerial Code. This proposal, along with various others made by CSPL – such as placing more regulatory codes and roles on a statutory footing – is currently before parliament, via a private members’ bill introduced by Lord (David) Anderson of Ipswich. Providing government backing for the Anderson bill would be one clear and simple way for Sunak to demonstrate his commitment to integrity.
Rebuilding the scrutiny role of parliament
A further crucial mechanism for both professionalism and accountability lies in the scrutiny role played by parliamentarians. Recent years have seen increasing concerns raised about rushed legislation, the heavy use of delegated powers, evasion of select committee scrutiny, and the problems that these cause: both in terms of democratic principles and the increased risk of poorly thought-through policy. The Truss mini-budget was given only two hours for debate in the Commons, compared to the usual five or so days for a budget, despite the scale of its content.
Some of these problems can be addressed by setting clear expectations of ministers – for example, that they will prioritise select committee attendance. Others will require Sunak to address the mechanisms by which his predecessors limited parliamentary oversight of their policy-making. The Retained EU Law (Revocation and Reform) Bill, which is currently in the early stages of its parliamentary passage, offers an early opportunity to do this. Various experts have criticised the scale of the delegated powers that the bill would give to ministers, allowing thousands of pieces of law to be amended or scrapped with only minimal parliamentary oversight. The extent of the ministerial powers in the Northern Ireland Protocol Bill, currently before the House of Lords, has likewise caused alarm. It is probable that the House of Lords will seek to increase the parliamentary controls on the delegated powers contained in both bills; government openness to such amendments would be a further indication that the Sunak administration is serious about getting democratic accountability back on track.
Defending the rule of law
Integrity and accountability in government both demand a renewed commitment to the rule of law, and to respecting both domestic and international legal obligations.
Domestically, there have been attacks on the courts, as further outlined below. And ministers have too often resorted to using ‘ouster clauses’ to remove certain areas of decision-making from legal challenge.
Significant concerns have also been raised about the willingness of both the Johnson and Truss governments to risk breaching international law. The most high-profile instances of this have concerned their approach to the Northern Ireland Protocol. Sunak now inherits the Northern Ireland Protocol Bill, which began its life under Johnson and was championed by Truss. The bill, which is currently before the House of Lords, has been described as ‘not constitutional’ by the (Conservative) chair of the Commons Northern Ireland Affairs Committee, and as a departure from the UK’s international obligations by the chair (again Conservative) of the Commons Justice Committee. The Lords is expected to amend the bill significantly, at a minimum to raise the bar which ministers must meet if they wish to breach international law. Sunak should think carefully before whipping his MPs to vote against such amendments when they return to the Commons, and should put significant efforts in the meantime into finding a negotiated solution to the Protocol controversy.
Abiding by long-established constitutional norms
Also essential to integrity, professionalism and accountability is adherence to the conventions and traditions which underpin the UK’s political constitution. One important step would be a pledge to abide by the recommendations of the House of Lords Appointments Commission, which vets peerage nominees for propriety – which Johnson didn’t do. Sunak should also take care over the number of members appointed to the Lords – Johnson’s appointments (87 while in officeplus another 26 handed on to Truss, and others possibly to follow) flouted the recommendations of the committee established by the Lord Speaker to manage down the size of the chamber. Excessive prime ministerial patronage is deeply unpopular with the public, and Sunak should return to the standards of restraint established by Theresa May.
The Johnson government was also notable for its willingness to risk drawing the monarchy into political controversy – whether through the unlawful prorogation, suggestions in 2019 that he might ‘dare the Queen to sack him’, or his reluctance earlier this year to rule out requesting a dissolution of parliament in order to circumvent his removal from office by his own MPs. This indicated a willingness to push constitutional arrangements to their limits, and undermine the non-political status of the monarch. The Sunak government should resolutely avoid taking such risks.
Defending political institutions and checks and balances
Finally, a critical aspect of restoring professionalism to public life is repairing the relationships between government and the various constitutional actors which provide institutional checks and balances in policy-making. In addition to parliament, these include the courts, regulators and the civil service. One simple way of demonstrating respect for these institutions would be to avoid the kind of rhetorical attacks on the judiciary, legal professionals, and civil servants which appeared to be sanctioned by both Johnson and Truss. Sunak should also refuse to tolerate the scapegoating of senior civil servants – seen most recently through the unorthodox sacking of Tom Scholar.
The Johnson and Truss governments sought in particular to sideline institutions which they saw as defenders of ‘orthodoxy’. While policy disagreements are legitimate, attempts to shut down or circumvent potential critics are incompatible with professionalism in government. Such efforts were most recently evident in the Truss government’s attempt to bypass the usual independent economic assessments for its mini-budget, and strained relationship with the Bank of England – with very damaging effect. Sunak has promised a different approach, and this welcome recognition of the value of checks and balances should extend to other areas.
Conclusion
For Rishi Sunak to emphasise integrity, professionalism and accountability as central to his leadership is not only constitutionally sound, but also politically astute. Recent Constitution Unit research has shown that members of the public care deeply about honesty and integrity in their politicians. They support an independent and professional civil service, a stronger role for regulators, an ongoing, powerful role for the courts in preventing abuses, and deeper parliamentary scrutiny and accountability. There will be ample opportunities for Rishi Sunak to demonstrate his commitment to these principles in the coming weeks and months.
About the authors
Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.
Alan Renwick is Professor of Democratic Politics at UCL and Deputy Director of the Constitution Unit.
As I sit and watch the turmoil at Westminster on the morning (afternoon in London) that Liz Truss announced her resignation; the morning that the 1922 Committee of Conservative backbenchers scramble to find a leader in a week’s time; a seemingly firm date of October 31 for a budget statement from a recently appointed Chancellor of the Exchequer; and cries for an election, there seems to be no way forward that does not continue the chaos. But there just may be a way to calm the waters somewhat. A proper and timely use of prorogation.
Prorogation, where one session of Parliament ends and a new session is prepared for, has received much negative press and commentary in the last few years, in the UK and in Canada. It has been seen as a way for a Prime Minister and a government to avoid facing Parliament when there was an imminent need for a decision of Parliament. But there are times when prorogation is appropriate. In most cases it is used when a parliamentary session has effectively exhausted the government’s agenda and there is a belief that the government needs to set out the next stages of its “new” agenda for the following session. In some countries this is effectively set as an annual or biannual process, in others it is discretionary. In either case, there is also room for the Prime Minister to ask for the King to prorogue Parliament as a necessary re-set button, either when a new King’s Speech is required to address an emergency, or to set out a new way forward for the government in light of changed circumstances. Sometimes, such pauses are just necessary to stop, rethink, plan and explain a way forward. The present circumstances would, I suggest, be such a cas, although some consideration would have to be given to ensuring that legislation that meets the revised agenda, or to meet urgent needs is carried forward in the next session.
The way forward would be for the Conservative party to choose a leader, have the King appoint them as Prime Minster, then have that person request that Parliament be prorogued for a couple of weeks to allow them to put a cabinet together, prepare an agenda, and then to have that agenda presented to Parliament through a King’s Speech. There would then follow debate and a vote of the House of Commons in support of the Speech or else defeat and an election. This process would allow the new Prime Minister to gather their thoughts, form a cabinet with appropriate deliberation, and present a coherent plan to Parliament to be aired and discussed before specific actions are taken. It would also result in the constitutional legitimacy that the House of Commons can provide by voting on the King’s Speech.
No doubt there will be those who will argue that this is merely a political tactic and an attempt to govern without facing Parliament. Or else they will claim it is a way to avoid addressing the urgent needs of the country in difficult economic and international times. Surely, a short pause for a new Prime Minister and their cabinet to work their way through the issues, consult with the cabinet, the caucus, the public service, experts and concerned parties, is better than trying to address the issues piecemeal and in short soundbites amid the clamouring from all directions.
For those who argue that there has been a promise to deliver a much need economic update or mini-budget on or before October 31, otherwise the country and the economy will lose the confidence of the international community and the public, one need only look at the rushed and ill considered economic policies made by Liz Truss without fully thinking them through. By setting a timeline that would result in a Prime Minister being chosen by next Friday and expecting such a major economic statement the following Monday, the scene is set for history to repeat itself. While the country and the economic world need an indication of how the UK proposes to address the serious issues of inflation, income security and energy sustainability, the new Prime Minister and Chancellor will undoubtedly be granted the time necessary to put together a considered and responsive budget. It is also more likely that the public and international markets will accept and understand the position of the budget if it is set within the context of an overall government agenda laid out in a King’s Speech. Calm and measured is often what is needed, not bold and reckless – just to meet an artificial deadline set by predecessors.
There are, and will continue to be, those who argue that an election is needed and that whoever is chosen as Prime Minister will lack any mandate to govern. While it may be true that the Prime Minister and their government will not have faced the electorate as such, the Westminster system of government is not one that works in such a straight line. The question of legitimacy and capacity to govern is one that is based on parliamentary support and confidence, with the public having the ability to judge what has occurred in the previous Parliament, as much as looking forward to the next. The Prime Minister and cabinet emerge from the various members of the House of Commons. It is the Commons, as a collection of elected representatives, that determines who is best able to govern. The Commons, by its votes on major proposals and legislation demonstrates confidence in the government and continually tests the government as it delivers on its proposed agenda and faces events that arise during the life of the Parliament. Although the most visible test of confidence comes in the form of a straight-up motion of non-confidence, votes on major government initiatives can also demonstrate confidence. The Commons is given the opportunity to discuss the proposed agenda through votes on, among other matters, the King’s Speech and budgetary matters It is the Commons, as representatives, not the public, that decides these issues during the life of a Parliament. We elect Parliaments (members of the House of Commons) not governments.
Immediately following an election, we look to the make-up of Parliament to determine who is likely to be called on as Prime Minister to form a government. It may be the existing Prime Minister, who had the confidence of the previous House of Commons, or it may be a new Prime Minister. If a new Prime Minister, they may be given a slightly longer period of time to form a government and prepare a King’s Speech to open the new Parliament. It is in that Parliament that the new Prime Minister is tested and secures the legitimacy to govern. It is at this time, and through this mechanism, that the new Prime Minister sets out their agenda and seeks support of the government’s mandate. Although a bit more traumatic, and possibly chaotic, sometimes it is necessary to choose a new Prime Minister during the course of a sitting Parliament. In such circumstances, it is arguably only right that they have the same opportunity as a Prime Minister appointed following an election to choose their cabinet from members of the House of Commons, set their own course of action in the circumstances, and to present them to and have them tested in Parliament, in the same manner.
For comparison, when dissolution occurs, Parliament ends for the length of the election and the time to put a government together and prepare a King’s Speech and for the Prime Minister to meet Parliament. This can take longer when there is a change of Prime Minister and there is a question of who should be called on to take on that role. There is no parliamentary business, budget or focussed parliamentary debate during this time. Although Parliament ceases to exist during this time, the previous Prime Minister and government continue to govern, albeit in a reduced capacity. In the present circumstances, if the Prime Minister has resigned, another person would still need to be called on to be Prime Minister, thus leading to a different type of constitutional “crisis”. It is also noted that a dissolution is considerably longer than a prorogation, which suspends Parliament for a shorter, defined period, and allows Parliament to be recalled to consider a new Agenda, or at least to address enough of the issues required to provide the degree of stability that might be required to cover the dissolution and election period.
Elections are not the only safety valve in a Westminster democracy. Prorogation as a reset can provide a similar respite when necessary.
Many events occur during the life of a Parliament which the public looks to the Parliament and the government to resolve. Economic challenges, wars, international crises, natural disasters and political change. Over the course of five years, the economic, international and political landscapes change. Political fortunes, membership and leadership of the various parties and caucus also change. When such changes occur the Parliament that was elected is required to change with them. In some such cases, the government through the testing of Parliament requires a reset. In the present circumstances, a new Prime Minister taking a short pause, preparing an agenda and seeking a new mandate through the elected House of Commons, could provide the stability, even if temporary, that the UK needs. Whether Parliament supports the new Prime Minister, the government and the direction proposed in the King’s Speech, or whether Parliament believes it is time for the electorate to decide, is a decision for the House of Commons. Whether they have made the right decision will ultimately be decided by the electorate.
The present situation is like the driver who tries to fix the engine of a moving car while keeping the car on the road at the same time. It’s just better to pull the car to the side of the road, fix the car, read the map, and then get back on the road.
Steven Chaplin, Adjunct Professor Common Law and Fellow uOttawa Public Law Centre
This blog post was originally published on the UK Constitutional Law Blog. The original post is available here:
It is remarkable that after a series of U-turns on key policy announcements and the resignation of two senior members of her Cabinet, the event which may well have precipitated the Prime Minister’s resignation was a parliamentary vote on an opposition motion which the Government actually won.
To be sure, many would argue that the Prime Minister’s position was already untenable before Wednesday evening but any hopes of retaining office went downhill quickly following the chaotic mismanagement of a vote on a Labour motion on fracking. While the Labour Party may take some pleasure in contributing to PM’s downfall, much of the damage was self-inflicted.
What is an opposition day debate?
Wednesday was one of twenty afternoons set aside in each parliamentary session to debate issues raised by opposition parties. Although so-called opposition days allow the opposition to set the agenda, they rarely cause serious difficulties for a government which can command a majority in the House of Commons. A government with a majority can usually be assured of defeating an opposition motion. Moreover, even if the government loses a vote on an opposition day motion, in most cases these are not considered to be binding and the government is not obliged to make any changes in response. Consequently, government’s may even choose to ignore an opposition motion entirely and not bother voting at all. Opposition days do provide an important opportunity for opposition parties to raise issues of concern and possibly to embarrass the government by forcing its MPs to vote against something which may be popular, such as extending free school meals, but can’t generally be used to force the government to take action.
Labour’s motion on fracking was slightly different in that it included a clause which would set aside the standing orders of the House of Commons, which state that the government has control over parliamentary business. The motion then allowed for the opposition to take control of the parliamentary order paper at a later date (29th November) in order to bring forward a bill which would ban the use of fracking in the UK. This was an unusual tactic but reflects a similar episode during the Brexit debates in 2019, when a group of MPs took control of the parliamentary agenda in order to bring forward a bill to prevent a no-deal Brexit.
This was an interesting tactic by Labour, facilitating a parliamentary vote on the standing orders which can be changed by a vote in the House, rather than seeking to press the government to take action without any real power to compel it to do so. As a result, the opposition sought to turn a non-binding opposition motion into a resolution with real effects. This meant the government could not afford simply to ignore the opposition motion and cede control of the legislative agenda to Labour.
Moreover, Labour’s decision to focus on fracking was also key. The Prime Minister had proposed lifting the ban on fracking, but this is an issue on which Conservative MPs are divided. Not only was a moratorium on fracking included in the party’s 2019 manifesto, but several Conservative MPs represent constituencies where plans for fracking have been subject to considerable local opposition. In short Labour sought to force Conservative MPs to vote against a key manifesto pledge and in favour of something which many of them oppose. By combining this with an attempt to take control of the parliamentary agenda, Labour effectively forced the government into a position in which it felt the need to whip its MPs to vote against the motion.
Three-line whips and confidence motions
While Labour might be seen to have laid a trap for the government, the chaos which followed was largely self-inflicted. The Conservative response was to issue a three-line whip, effectively compelling Conservative MPs to vote against the opposition motion or be subject to disciplinary action. Given the size of the government’s majority this should have been enough to defeat the motion. It is possible that several Conservative MPs would have abstained, some may even have decided to vote for the Labour motion, although this seems unlikely. Although this is a serious disciplinary matter, as several commentators have since observed, the penalty for abstaining on a three-line whip is unlikely to have extended to having the whip withdrawn and, if the MPs in question had particular constituency concerns, the government would usually have been sympathetic to their predicament.
However, at some point on Wednesday, the Government decided to make this a confidence motion, implying that if the government was defeated it would be forced to resign and call a general election. Although set piece votes, such as those on the Queen’s speech or the budget are generally considered to be confidence issues which the government must win, the government can declare any vote a matter of confidence. It was, however, a considerable escalation of the stakes to make a vote on an opposition motion on such a divisive issue a confidence vote.
Ironically opposition days can be used to table motions of no confidence in the government and unlike most opposition day motions these are considered binding. Given the difficulties facing the Truss government Labour may well have considered this, but perhaps dismissed the idea on the grounds that a confidence motion was more likely to unite Conservative MPs around their leader. By choosing to turn a vote on which its MPs are divided into a confidence vote, the Conservative leadership, however, managed to create a level of disruption which the Labour opposition could not hope to have achieved simply by tabling a confidence motion. MPs who might reasonably be allowed to quietly abstain on an issue which was particularly sensitive in their constituencies, were now being asked to put their own re-election chances on the line to prop up the Prime Minister.
It is not clear why the government chose to do this. One must assume that Conservative whips felt that a three-line whip was not enough to ensure victory and there was a real danger that Labour would win the vote. It is also worth considering the wider implications of a Labour victory. If Labour had been successful in seizing the agenda and bringing forward its own legislation on this issue, it might well have repeated the trick on subsequent opposition days, significantly disrupting the government’s own legislative agenda.
It’s hard to know what intelligence Conservative whips had about the scale of the potential backbench rebellion on the Labour motion but there is very little evidence that a sizeable and damaging rebellion was impending. On Wednesday afternoon less than a handful of Conservative MPs publicly stated that they could not vote with the government on this motion, and most of the dismay on Conservative benches revolved around the fact that the government had chosen to make this a confidence issue.
Confusion in the chamber and in scuffles in the lobby
The government’s problems were compounded by the handling of the issue as the day progressed. Having decided to make this already divisive issue the one on which the Truss government would survive or fall, someone in number 10 got cold feet and decided not to risk it. The minister closing the debate at the despatch box, Graham Stuart, dismayed the House by stating that ‘quite clearly, this is not a confidence vote’, repeating ‘obviously this is not a confidence vote’. Stuart was asked to clarify this by the Conservative MP, Ruth Edwards, who stated ‘many of us have been told today by our Whips that if we vote for, or abstain from voting against, this motion, we will lose the Whip.’ His response, ‘that is a matter for party managers, and I am not a party manager’ was hardly a lesson in clarity.
The effect of this was twofold. There was clearly some confusion as to whether this was a confidence issue. Stuart’s initial statement that it was not a confidence issue was arguably clear, but his follow up did little to settle the matter, particularly for MPs who had been told all day by the whips, presumably in the most robust terms, that they must vote with the government to prevent a general election. Secondly, it is apparent that this last-minute change had not been communicated to the whips, effectively undermining their authority. As Conservative MPs made their way into the division lobbies there were reports that the chief whip and the deputy chief whip had both resigned, and for several hours afterwards the government was unable to confirm if either were still in place.
There were also reports of an unseemly row between Conservative MPs in the division lobby. A groups of Conservative MPs, including cabinet members, were accused of physically manhandling at least one reluctant Conservative MP into the lobby in support of the government, prompting the speaker to launch an investigation into bullying.
To compound the confusion, in the commotion in the division lobbies it is apparent that several MPs failed to record their vote using the electronic card readers when entering the lobbies. For a time it appeared that the Conservative rebellion was even greater than it eventually proved to be, and perhaps most remarkably, that the Prime Minister had not voted.
In the end the Conservatives won the vote with some ease. The Labour motion was defeated, it was later announced that the whips had not resigned, and the record was corrected to show that the Prime Minister had voted with most of the rest of her party. Thirty-two Conservative MPs abstained, although some of these will have had permission to miss the vote and will presumably have been paired with an opposition MP who was also missing. In a bizarre coda at 1.30 in the morning Downing Street issued a statement that although the vote had not been a confidence issue, it had still been a three-line whip and those who did not have a reasonable excuse for their absence would face ‘proportionate disciplinary action.’ It is not clear if this process had begun by the time the Prime Minister resigned twelve hours later.
With its fracking motion Labour presented the government with a knotty problem, which certainly required careful handling. Instead, the government contrived to alienate its own embattled backbenchers by selecting the nuclear option and making it a confidence vote. It then further alienated them by changing its position only minutes before the vote took place. The melee in the division lobby only added to the sense of confusion and lack of control at the heart of government. That the government won the vote is largely irrelevant, as in the process it lost what remaining credibility it had amongst its own MPs. The episode is a remarkable example of the importance of party management in the House of Commons and that opposition parties do not necessarily need to win a parliamentary vote in order to undermine the government.
Dr Andrew Defty, Associate Professor of Politics at the University of Lincoln
This year, the SCIE Politics Club organized multiple events on the topic of UK select committees. We’ve witnessed many meaningful debates and thoughts coming out during the process.
At the start of the term, the Head of Humanities and Social Sciences faculty and founder of SCIE’s Politics club, Mr. Richard Driscoll introduced us to the basics of the select committee. To better answer our questions on how the select committee works in real life, Mr. Richard led us through a recent report published by the Health and Social Care and Science and Technology Committees, a select committee in the House of Commons[1]. It concluded the UK’s major lessons from Covid 19 regarding public health management by analyzing six critical areas of responses: preparedness, non-pharmaceutical intervention; social care; impact on different communities, and vaccines distribution. Within each section, specific statistics and quotations of experts are referenced.
We further discussed the comprehensiveness of the report by reading it in detail. A problem identified in the report was the lack of resources in the NHS. The Royal College of Midwives reported that “NHS was short of over 3,000 midwives and that 40% of RCM members worked three or more hours of unpaid overtime every week, suggesting that the NHS had been ‘reliant upon the goodwill of those who staff the system.'”,[2] the specific data of which provides convincing evidence of the credibility and accuracy of the report. However, the solution explicitly given to this problem, “the experience of the demands placed on the NHS during the covid-19 pandemic should lead to a more explicit, and monitored, surge capacity being part of the long term organization and funding of the NHS”[3], seems vague and unpromising. We are concerned that an unclear short-term and long-term target may be hard to follow up.
On January 6th, 2022, our school invited Dr. Alexandra Meakin from the University of Leeds to lecture on the select committee system in depth. A majority of our Politics Club members appreciated this opportunity and joined the event passionately. Dr Meakin showed us a detailed understanding of the working mechanism of the select committee and its composition. The lecture taught us that the select committee, usually a permanent division representing the public to examine and make recommendations to governmental policy, consists of MPs elected in the secret ballot. It conducts pre-appointed hearings with experts, goes through the written evidence submitted by experts, and ultimately forms reports to the government.
Most interestingly, she listed some common arguments about the strengths and weaknesses of the select committee, which inspires interesting thoughts in us. For example, statistics show that the select committee’s suggestions are relatively practical, among which the executives implement over 40% of recommendations. This helps improve policymaking a lot. Also, she explained the advantages of its membership which reflects the composition of parties in the Commons. Hence, a report representing a cross-party consensus would more forcefully influence the House of Commons.
However, she also admitted some flaws in the select committee. The cross-party composition may make the select committee less effective in giving a thorough recommendation, as reaching consensus may sacrifice some detailed plans. MPs are also busy with businesses outside the select committee, so they may not devote sufficient time to drafting a comprehensive report. Compared with the Commons in general, the select committee usually does poorly in terms of diversity. Most detrimentally, the select committee lacks formal power. They can not directly implement but merely suggest policies to the government. Nor does the committee have any mechanism to follow up the changes in governmental policies. That’s why around 60% of the recommendation provided by the committee cannot be implemented as expected.
Dr. Alexandra Meakin’s lecture inspires interesting thoughts among our club members. We actively participated in the Q&A session to discuss further the role of the select committee. One of our members asked about how the committee balances between the power constraint on the Chair, and the consistency of the policy recommendation or the committee’s expertise. To further explain, the student considered that giving the Chair a relatively huge power to control the committee’s agenda may be a prerequisite for systematic policy recommendation over time, yet this may allow the power of the Chair to grow uncontrollably – a threat to the democracy. Dr. Meakin agreed that this conflict constitutes the core conflict within the select committee. Based on her expert knowledge, she concluded that, in practice, different chairs solve this problem with their approach. Some may lean towards reaching a consensus in the committee at the sacrifice of effectiveness, while others may take a more rigid grip to reinforce their ideas. This would also have something to do with the composition of the committee. The extent of party politics in the committee may be a crucial factor determining how fiercely effectiveness collides with consensus.
Inspired by Dr. Meakin’s answer, another club member added a follow-up question. Because the composition of the committee reflects the composition of the Commons, the club member was wondering whether this membership benefits the majority party, and if so, to what extent the committee can still achieve its goal of supervising the government, especially over some fields at the core of party struggle. Dr. Meakin admitted the composition does somehow formally benefit the majority party while offering some counter-arguments for us to think about. For example, the backbench MPs don’t necessarily agree with the governmental policies, if not critical of it, thus are still likely to provide insightful recommendations. Also, being in the same party with the government, the MPs from the majority party are more incentivized to give constructive criticism for the governmental policies, as improving the government’s performance yields benefit in the elections. Yet, it’s correct to question the extent of criticism the committee can give. With the harsh party whip, a select committee with a majority of MPs from the majority party is unlikely to provide criticisms at the risk of infringing the government’s fundamental interests. In response, one student added another question: the select committee supervises the government, then what institution is responsible for overseeing the select committee? Dr. Meakin’s answer of “the Parliament” also led us to think about democracy in the UK. The lack of the absolute doctrine of separation of power in the UK political system may indicate the impossibility of strict supervision over the majority party’s power.
In addition to theoretical analysis, we have seen other interesting practical questions. One student extended our previous club activity to discuss the effectiveness of policy during the Covid and how the select committee may help improve that. Another student also asked about how the lesson from the select committee may improve our work at the student council. Dr. Meakin shared constructive suggestions for us from her years of experience working for a select committees. The event ultimately concluded with our heated discussion and abundant new knowledge in our heads.
With continued interest in the topic, we plan to organize a Mock Education Select Committee at the Humanities and Social Sciences week at our school, on the subject of “cap on the number of international students admitted in the UK universities,” a relevant topic to us all. Members from our Political Club will represent the 11 MPs in the committee, while four competitors outside of the club will act as four experts to provide written evidence and go through a hearing process. We hope that this event can boost students’ interest in political affairs and encourage critical thinking throughout the process.
Author Details
Winnie Zhou is 18 years old and is a student at Shenzhen College of International Education (SCIE).
[1] Health and Social Care, and Science and Technology Committees, House of Commons. “Coronavirus: lessons learned to date: Sixth Report of the Health and Social Care Committee and Third Report of the Science and Technology Committee of Session 2021–22.” Sept. 2021, https://committees.parliament.uk/publications/7496/documents/78687/default/
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/))
