Tag: House of Lords

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Necessary Women: pioneering women working in Parliament

Post author By psaparliaments
Post date January 9, 2024

By Mari Takayanagi.

Throughout the 19th and early 20th centuries, many people lived and worked in the Palace of Westminster. Some worked for the House of Commons or House of Lords, some were family members of office holders, and others were servants in households. This included many women. Indeed, at times female residents outnumbered male residents by nearly two to one: the 1911 census, for example, lists 67 women and 36 men living in the Palace of Westminster in addition to the suffragette Emily Wilding Davison who hid there in a cupboard overnight. There were also of course many staff who did not live in, an enormous variety of roles from Clerks to cleaners.

The presence of so many staff may be surprising, as Parliament is always equated in the general public mind with MPs and Members of the House of Lords debating in their chambers. Although some staff might play visible roles, such as the Doorkeepers in their uniforms and the Clerks sitting at the table, they appear almost as part of the furniture – blending in with the Gothic architecture, ritual and ceremony, rather than as individuals. Even more overlooked are the staff in less visible roles, including many women.

But staff not only work in Parliament, they are also subject to the same kinds of employment and social issues as workers outside Parliament. Recent research by Rebecca McKee has examined ‘unsung heroes’, staff who work for MPs. The staff who work for the House of Lords and House of Commons are similarly unsung. My new book Necessary Women, co-authored with Elizabeth Hallam Smith, uses new archival research to provide the first ever history of women working in the Palace of Westminster. This approach helps reframe Parliament from a solely political workspace to a place of work more generally, highlighting women from all classes working in jobs reflecting gender roles in wider society.

I was delighted to share some of this research at the PSA Parliaments Annual Conference 2023. In this blogpost I’m going to focus on three pioneering women for whom the Second World War brought new opportunities in Parliament: Kay Midwinter, Monica Felton, and Jean Winder.

Kay Midwinter

In May 1940, shock rang around the House of Commons as a woman walked in and stood calmly on the floor of the House, looking around at her new workplace. This was Kay Midwinter, the first female Clerk in the House of Commons. Appointed to free up a man for war service, the ‘Girl Clerk’ as she was termed in the press –she was aged 32 – worked for the House of Commons National Expenditure Committee during the Second World War. Previous experience of working with committees in the League of Nations in Geneva helped her to get the job. Highly praised by her managers and by Irene Ward and Joan Davidson, the female MPs on the committee, Midwinter worked particularly closely with Ward and Davidson on two reports, on the women’s armed services and women factory workers.

Midwinter later reflected on her time in the Commons as follows:

During the war I was standing behind the Speaker’s Chair about 5 or 6 yards from Churchill while he made all his famous war speeches. He used to glare at me as much as to say “What’s this woman doing?” but he never challenged me…. when it came to laying the Report on the table of the House – you know, my male colleagues said “Oh you’d better not do that, you know, it has never been done by a woman before!” So I said “Well, for that reason I’m going to do it!” So there we are. But really one was up against male prejudice throughout. Absolutely. There was never any question of promotion.
[Oral history recording, United Nations Career Records Project, Bodleian Library]

Not only promotion but pay, for Midwinter was paid less than half the rate of her fellow male Clerks doing the same job as her. Ward and Davidson expressed their opinion that she was ‘inadequately paid’ and she did receive a pay rise, although only to the ‘women’s equivalent’ of the male grade. She moved to the Foreign Office in 1943. After the war she went to work for the United Nations, first in New York and then back in Geneva, where she died in 1996.

Monica Felton

Like Kay Midwinter, Dr Monica Felton worked for the National Expenditure Committee in the House of Commons during the war as a fairly small part of a wider public career – but there the similarities end. Felton was as an elected Labour member of the London County Council, most unusual; Parliamentary staff would not usually have such a public party-political affiliation. She was appointed to the Commons as an economic advisor on the recommendation of Lewis Silkin, a Labour MP on the committee who had also previously been an LCC member. He and Felton had a strong shared interest in town planning; her significance as a woman town planner has been studied by Mark Clapson. Felton had a doctorate from the LSE and was previously a lecturer for the Worker’s Educational Association, where she was remembered by students as a Marxist. She worked in the Commons for 18 months before resigning with permission.

After the war, Silkin appointed Felton to be chairman of first Peterlee and then Stevenage New Town Development Corporations between 1949 and 1951. However, she was fired from Stevenage after going on an unauthorised trip to North Korea for the left-wing Women’s International Democratic Federation in 1951. It was a very controversial visit; on her return, she accused American, South Korean and even British troops of involvement in massacres of the Korean population and other atrocities, on Radio Moscow and in the Daily Worker, and was awarded the Stalin Peace Prize. The episode made her infamous and ruined her career in the UK. She made a new life for herself in India, where she died in 1970.

Jean Winder

Jean Winder was the first woman Hansard reporter. She fought a long battle for equal pay, and like Midwinter, was also assisted by Irene Ward MP. In August 1951, Ward stood up in the House of Commons chamber and said:

The House of Commons is run on the basis of equal pay… but there is one woman on the HANSARD staff in the Gallery, Mrs. Winder, who has not got equal pay… I have got Mrs. Winder’s permission to draw the attention of the House to what I consider is an intolerable constitutional position…
[House of Commons Debates, 2 August 1951, col 1710]

Jean Winder was appointed to House of Commons Official Report, known as Hansard, in January 1944 when the Editor was desperate for staff and unable to find a suitable man. Like Midwinter, Winder was an immediate success in the Commons, highly rated, and performing exactly the same job as her male colleagues who were paid more than she was. Despite support all the way up to the Speaker, the Treasury refused equal pay. It took years of advocacy by Irene Ward before Winder finally achieved equal pay in late 1953. Ward supported Winder in private and in public over many years. This undoubtedly influenced Ward’s politics and relationships with political colleagues as she lobbied inside and outside Parliament.

In conclusion, the stories of Midwinter, Felton and Winder illustrate various themes of Necessary Women including opportunities brought by war, important relationships between staff and MPs, and struggles for equal pay. Sadly, these innovative Second World War appointments had no direct successors in the House of Commons. The next female Hansard reporter was not appointed until 1968, and further female Clerks did not follow until 1969. The indirect and direct contribution of these pioneering women to Parliamentary life and work deserves to be better known.

About the author

Dr Mari Takayanagi FRHistS is Senior Archivist at the UK Parliamentary Archives and a historian of women and Parliament. Her first book, ‘Necessary Women: the Untold Story of Parliament’s Working Women’, co-authored with Elizabeth Hallam Smith, was published in June 2023 by History Press.

Tags History of Parliament, House of Commons, House of Lords, women

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Making the Law Count: The UK Post-Legislative Gap

Post author By psaparliaments
Post date November 24, 2023

By Tom Caygill.

Over recent years, engagement in post-legislative scrutiny in Westminster has declined. A mixture of events (e.g. Brexit) and crises (e.g. Coronavirus) has pushed post-legislative review (by government departments) and, as a result wider, post-legislative scrutiny (undertaken by parliamentary committees) down the government and parliamentary agenda. In this blog post, I examine the nature of this decline, the wider reasons for it and suggest how we can move forward from here. As the UK Parliament is often placed on a pedestal as an example of how to approach post-legislative scrutiny, it is vital that it continues to lead by example.

In 2008, the UK Government agreed to introduce a systematic process of post-legislative review by government departments. Legislation would receive a departmental review within three to five years of that Act entering the statute books. Once such a review was completed, a memorandum containing its findings would be sent to the relevant departmental select committee in the House of Commons, for additional scrutiny.

My 2021 report for the Westminster foundation for Democracy examined the extent and effect of post-legislative review and scrutiny between 2008-2019. Although it was rarely used to begin with, there was an increase in the number of published memoranda by government departments particularly between 2010 and 2015. This also coincided with an activist House of Commons Liaison Committee which was keen to ensure that select committee were undertaking a breadth of different forms of scrutiny (including post-legislative scrutiny).

The story since 2015 however has been a continued decline in the number of post-legislative reviews being undertaken by government departments which means fewer are being sent to House of Commons Select Committees. Although select committees do not need a government post-legislative review in order to initiate post-legislative scrutiny they are considered to be useful triggers to get select committees to consider undertaking post-legislative scrutiny.

Figure 1: Post-Legislative Reviews 2008-2023

Figure 1 shows the extent of the decline which has taken place since a peak in 2012. There are a number of factors which could be at play here. Two big factors slowing the pace of post-legislative review are Brexit and the Coronavirus pandemic which monopolised the intellectual capacity of government departments, for understandable reasons. This pushed post-legislative reviews off departmental agendas, but they have not returned to the agenda of government departments. Another factor potentially at play here is that between 2010 and 2015, the bulk of post-legislative reviews would fall upon the legislation of a previous government (from a different party). There is therefore likely to be a change in enthusiasm from reviewing your predecessors’ legislation rather than reviewing your own. In British politics, governments do not like to admit mistakes as they view it as a sign of weakness.

A further factor here, which coincides with the decline of post-legislative review, is that the House of Commons Liaison Committee since 2015 has taken a less proactive role in shaping the agenda of the committee system. This also means there is no one overseeing the agreement between the Cabinet Office and Committee Office made in 2008. For more information on the gap in scrutiny see my 2020 article on the UK post-legislative scrutiny gap.

There is also a lack of coordination in Whitehall. Lord Norton of Louth has submitted a number of parliamentary questions over recent months in order to identify why post-legislative review has seemingly ground to a halt (no post-legislative reviews have been published on www.gov.uk in 2023). From her answer on the 7^th August (figure 2), the Minister makes clear that no further post-legislative scrutiny work is expected within government before the end of 2023.

Figure 2: Parliamentary Question from Lord Norton on post-legislative review currently taking place.

It does look like we will end 2023 without any post-legislative reviews having taken place. As noted above there is no oversight of this agreement which will only contribute to the lack of urgency from government to undertake these reviews.

The lack of co-ordination in Whitehall is also visible in her response (figure 3) to a follow up question from Lord Norton on the 27^th September 2023.

Figure 3: Parliamentary Question from Lord Norton on which Acts the government considers eligible for post-legislative review.

The fact that the Cabinet Office does not hold information centrally does give away that there is at best limited coordination and oversight of what is happening in government departments in relation to post-legislative review. At the moment the future of post-legislative reviews does not look promising. Although I will note again that this does not prevent post-legislative scrutiny being undertaken. Indeed, special inquiry committees in the House of Lords will initiate an inquiry without a post-legislative review and then ask for one. Further to this, over the course of the last couple of sessions, there have been between 3-4 inquiries across both Houses. So while post-legislative scrutiny has not stopped, the number of inquiries has reduced.

So what might happen next? This of course could be corrected if there were to be a change in government following the 2024 General Election with a future Labour Government being more than happy to review Conservative legislation. However, we would face the same issue of enthusiasm draining as the term of office goes on. So doing nothing is likely to lead to a repeat of the past 15 years with a peak shortly after an election and then a steady decline.

A more proactive response is needed. There is a need for someone to start overseeing the process of post-legislative review and that should be from the parliamentary perspective as government departments will find reasons not to do them without parliamentary pressure. The Scottish Parliament’s Convenors Group (made up of committee convenors) has made post-legislative scrutiny a strategic priority for the sixth session of the Parliament, and this is having results with eight inquiries having been undertaken since the start of 2022 (and more in the pipeline), with two and a half years to go of this session. It looks set to break records in the parliament. A strategic focus can clearly make a difference and this could be something which returns to the House of Commons Liaison Committee or the House of Lords Liaison Committee (which decides which Acts will receive post-legislative scrutiny via special inquiry committees in the Lords). There have also been arguments for a dedicated joint post-legislative scrutiny committee to over see the process across both Houses but to also monitor the agreement between the Cabinet Office and the Committee Office. A simpler approach would be to create a dedicated space for post-legislative scrutiny on the UK Parliament website, in a similar way to which draft bills (for pre-legislative scrutiny) are featured on the ‘Bills & Legislation’ section of the website. This is also an approach undertaken by the Scottish Parliament. There is also an argument that after 15 years, this agreement is in need of review (indeed many in Westminster argue that these reviews should take place 10 years after passage rather than 3-5 years). This is something that either a dedicated committee or one of the Liaison Committees could do. It is clear from the perspective of the House of Commons (in particular) that there is more work to do to institutionalise post-legislative scrutiny in Westminster. As we approach the end of the 2019 Parliament, this is an important time to reflect on the progress made since 2008 while recognising the need to enhance post-legislative scrutiny further.

About the author

Tom Caygill is a Senior Lecturer in Politics at Nottingham Trent University

Tags House of Commons, House of Lords, post-legislative scrutiny, scrutiny, UK Parliament

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What are the implications of having the Foreign Secretary sitting in the House of Lords?

Post author By psaparliaments
Post date November 15, 2023

By Andrew Defty

The most surprising aspect of Rishi Sunak’s Cabinet reshuffle has been the appointment of the former Prime Minister, David Cameron, as Foreign Secretary. Cameron is no longer an MP and as it is a convention that government ministers sit in Parliament, he has accepted a seat in the House of Lords in order to enable him to take on the role.

Cameron’s appointment raises a number of interesting questions: about the ministerial career of former Prime Ministers; the appointment of Cabinet ministers from the House of Lords; and the implications of this for parliamentary scrutiny.

The political career of former Prime Ministers

David Cameron’s return to front line politics with a seat in the Cabinet is by no means unique but is relatively unusual. As has been widely reported, the last former Prime Minister to take a Cabinet post after leaving office was Alec Douglas-Hume, Conservative Prime Minister from 1963 to 1964, who served as Foreign Secretary under Edward Heath, from 1970 to 1974. Interestingly, Douglas-Hume had previously served as Foreign Secretary while sitting in the House of Lords before becoming Prime Minister. He gave up his seat in the Lords in 1963 in order to become Prime Minister, and for his second term as Foreign Secretary he sat in the House of Commons as the MP for Perth and Kinross.

Other former Prime Ministers who have taken on Cabinet roles after leaving office include Arthur Balfour, Prime Minister from 1902 to 1905, who went on to serve as Foreign Secretary, from 1916 to 1919 in the wartime administration of Lloyd George. Ramsay MacDonald and Neville Chamberlain were both given the opportunity to remain in the Cabinet after stepping down as Prime Minister, with the largely honorary role of Lord President of the Council. Although in Chamberlain’s case this was for only a short period until his death in October 1940.

In recent years, however, there has been a tendency for Prime Ministers to leave parliament completely shortly after leaving office. John Major, Tony Blair, Gordon Brown and most recently Boris Johnson all announced they were leaving the House of Commons shortly after the end of their premiership. Cameron’s appointment to the House of Lords is also relatively unusual. Although it had until recently been customary for former Prime Ministers to accept a seat in the House of Lords, Margaret Thatcher was the last former Prime Minister to do so. Of the seven former Prime Ministers currently alive, Cameron will be the only one sitting in the House of Lords, although two, Theresa May and Liz Truss, continue to sit in the House of Commons.

Why has David Cameron been given a seat in the House of Lords?

In order to enable David Cameron to be appointed to the Cabinet, Rishi Sunak has given him a seat in the House of Lords. Although there is no legal requirement for government ministers to sit in Parliament, it is a very strongly held convention. This is based on the principle that ministers must be directly accountable to Parliament and only members may answer questions on the floor of the House of Commons or the House of Lords.

It has been argued that the convention that ministers must be sitting members of Parliament limits the pool of individuals the Prime Minister can draw upon when making ministerial appointments. In a number of other states, ministers can be appointed from outside the legislature which arguably allows for a wider range of talented individuals to be drawn into the government. In the UK, a Prime Minister who wishes to make a ministerial appointment from outside Parliament does have the option of making someone a member of the House of Lords in order to make them available for ministerial office.

This practice is not particularly unusual. Gordon Brown made a number of direct ministerial appointments to the House of Lords including the former MP, Peter Mandelson, who left the Commons in 2004 but was elevated to the Lords in 2008 in order to become Secretary of State for Business, and Andrew Adonis who was appointed to the Lords in order to become a minister in the Department for Education and Skills. David Cameron himself appointed several business leaders to the House of Lords in order to give them ministerial roles, including Stephen Green, the former group chairman of HSBC and Ian Livingston, the former chief executive of BT. More recently, in 2021 the UK’s former chief negotiator for exiting the European Union, David Frost, was made a peer by Boris Johnson, and appointed as Minister of State in the Cabinet Office with responsibility for Brexit.

An alternative approach could have been to find a safe seat for David Cameron which would have allowed him to return to Parliament as a member of the House of Commons. This would, however, be dependent on a safe seat being made available, possibly by an MP who was already planning to stand down at the next election. This may also have been a decidedly risky strategy given that the government has recently lost several by-elections in supposedly safe seats. In 1964, Patrick Gordon Walker was appointed as Foreign Secretary by Harold Wilson despite having lost his seat in the 1964 general election. He subsequently resigned after losing a by-election in a supposedly safe Labour seat. Moreover, while Cameron may be happy to take on the role of Foreign Secretary, he may not have been prepared to return to the day-to-day grind of fighting an election and being a constituency MP.

While it is not particularly unusual for governments to make appointments to the House of Lords in order to allow individuals to become ministers, it is relatively rare for members of the House of Lords to hold such senior ministerial office. There are usually somewhere between twenty and thirty ministers in the House of Lords, compared to around eighty in the House of Commons. Governments need to appoint ministers in the Lords to enable someone to speak in the upper House on behalf of each government department, but ministers in the Lords tend to hold more junior ministerial positions, as Ministers of State or Parliamentary Under-Secretaries. In recent years, the only member of the upper House who has routinely sat in the Cabinet is the Leader of the House of Lords.

This was not always the case. Up until the end of the nineteenth century it was common practice for Cabinet ministers, including the Prime Minister to sit in the Lords. The last Prime Minister to sit in the Lords was Lord Salisbury who left office in 1902, although the practice of appointing Foreign Secretaries from the upper House continued well into the twentieth century. Lord Curzon was Conservative Foreign Secretary from 1919 to 1924 and was widely expected to succeed Andrew Bonar Law as Prime Minister in 1923. He lost out to Stanley Baldwin in part because it was felt the Prime Minister should sit in the Commons. Lord Halifax was Foreign Secretary at the outbreak of the Second World War and, as noted above, the Earl of Home, was Foreign Secretary before renouncing his title, perhaps mindful of Curzon’s difficulties, to become Prime Minister in 1963. The last Foreign Secretary to be appointed from the House of Lords was Lord Carrington, who held the post from Thatcher’s election in 1979 until his resignation following the Argentine invasion of the Falkland Islands in 1982.

What are the implications of the Foreign Secretary sitting in the House of Lords?

Lord Carrington’s experience is perhaps revealing of the difficulties Lord Cameron could face. With Carrington unable to answer questions in the House of Commons, answering Foreign Office questions in the Commons was delegated to two junior ministers. In most circumstances this worked admirably well, but when the Falklands crisis erupted, MPs in the House of Commons did not conceal their anger at their inability to question the Foreign Secretary directly. In addition to being accountable to Parliament for their department, senior ministers play an important role in defending the government and the Prime Minister. Lord Carrington’s inability to provide the kind of support the PM needed in the House of Commons contributed to his decision to resign. Lord Cameron may be a useful and experienced ally to the Prime Minister in public and in the media but there is little he can do if things get sticky in the House of Commons.

Cameron’s appointment also means that there is real concern about the impact on parliamentary scrutiny of having the Foreign Secretary sitting in the Lords. The Foreign Secretary will not be available to answer departmental questions in the Commons, which come around about once a month. Nor will he be available to answer urgent questions, which are much more common now than they were when Lord Carrington was Foreign Secretary. In particular, if there is a major international incident which threatens international security or UK interests, the government’s response in the House of Commons will be provided by a more junior minister, who quite possibly does not attend Cabinet. Alternately if the situation is particularly grave, the Prime Minister may find himself delegating for the Foreign Secretary in the House of Commons. Which may appease the Commons but won’t make life easier for the Prime Minister.

The Speaker of the House of Commons was quick to make a statement about the need to ensure that parliamentary scrutiny of foreign policy is not undermined by Lord Cameron’s appointment:

[G]iven the gravity of the current international situation, it is especially important that this House is able to scrutinise the work of the Foreign, Commonwealth and Development Office effectively. I have therefore commissioned advice from the Clerks about possible options for enhancing scrutiny of the work of the Foreign Secretary when that post is filled by a Member of the other House. I also look forward to hearing the Government’s proposals on how the Foreign Secretary will be properly accountable to this House.

On the other hand, the Foreign Secretary will not avoid parliamentary scrutiny altogether. The House of Lords is likely to institute its own mechanism to provide regular questions to the Foreign Secretary. Moreover, there is considerable expertise in foreign affairs in the Lords, including several former permanent secretaries from the Foreign Office. As a new peer, Cameron will also be unfamiliar with the practices of the second chamber and will quickly realise that he cannot rely on the same level of support in the chamber as he once enjoyed in the more partisan House of Commons.

The Foreign Secretary will also not entirely avoid scrutiny by MPs. Although he can’t appear to answer questions in the chamber of the House of Commons, members of the House of Lords can appear before House of Commons select committees. He is likely to be much in demand from the House of Commons select committee on foreign affairs, as well as a number of joint committees which comprise members from both Houses, most notably the joint committees on human rights and national security and the Intelligence and Security Committee.

As a former Prime Minister, David Cameron is an experienced parliamentarian, but his ministerial experience is confined to that of being Prime Minister. He may find the role of Foreign Secretary and the demands of adapting to scrutiny in the House of Lords particularly demanding. It is also possible that the absence of a Foreign Secretary in the House of Commons may place increased demands on the government and even the Prime Minister himself. Both will be hoping that the benefits outweigh the undoubted challenges ahead.

About the author

Andrew Defty is Associate Professor of Politics at the University of Lincoln and member of the Lincoln Parliamentary Research Centre (ParliLinc).

This piece was first posted on Andrew Defty’s Who Runs Britain? blog.

Tags Foreign Secretary, House of Lords, prime minister, scrutiny

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Procedural Vetos and Parliamentary Sovereignty

Post author By psaparliaments
Post date December 1, 2022

Adam Tucker

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.

Tags House of Commons, House of Lords, King's Consent, parliamentary sovereignty, UK Parliament, Vetos

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New visual cues in the UK Parliament

Post author By psaparliaments
Post date March 4, 2022

“The medium is the message”. Marshall McLuhan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags House of Commons, House of Lords, Remote Parliament, Videoconferencing, Visual Cues

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

Post author By psaparliaments
Post date January 20, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags House of Commons, House of Lords, impeachment, scrutiny, UK Parliament, Westminster

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

Post author By psaparliaments
Post date January 12, 2022

By Stephen Holden Bates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

^[5] As well as broader social structures.

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

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

Blog

Exposing the hidden wiring of the Parliament

Post author By psaparliaments
Post date January 10, 2022

By Ben Yong (Durham University)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Urgent Questions

Professor Philip Lord Norton of Louth

Post author By psaparliaments
Post date December 28, 2020

PHILIP NORTON

Professor Philip Lord Norton of Louth is Professor of Government and Director of the Centre for Legislative Studies at the University of Hull. He has been a Conservative Life peer in the UK House of Lords since 1998.

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

I have been interested in politics, and especially Parliament, since I was about 11, and it has been a consuming passion ever since. When I got to university, I realised that an academic career – researching and teaching – was my vocation and I have spent my life disseminating knowledge about politics. Even in the Lords, I see my role as essentially educational. I got my first permanent academic post at Hull in 1977 and I was fortunate to be promoted early – I achieved a personal professorship when I was 35. The campus is ideal as a working environment and I have not been that interested in being lured from it.

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

I’m not sure I could confine it to five. There have been so many that have influenced me, not least those that have shaped how we think about politics, but none that I would isolate as creating a ‘Eureka’ moment – more like lots of mini-Eurekas along the way. Mind you, I may have an ‘I forgot Goschen’ moment and suddenly realise – probably in the middle of the night – that there is one obvious work, so obvious that it has escaped me completely.

Which person/people has/have been most influential/important to you in your academic career?

I think the three most important in terms of encouraging me and enabling me to go further have been three people, sadly no longer with us: my PhD supervisor, Stuart Walkland, the Hull VC when I got my chair, Professor Bill Taylor, and my long-time Hull colleague, Professor Jack Hayward.

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

My early research of dissension in the House of Commons, my analysis of party groupings in the Parliamentary Conservative Party, and – the standard answer – my latest book (Governing Britain). I got particular enjoyment from researching, not least because of the archival research involved, the history of the 1922 Committee.

What has been your greatest achievement in academia?

I think I would opt for getting my chair when I did, though being fortunate enough to get my initial appointment to Hull ranks alongside that. I almost missed the invitation to an interview. I had been away and only found it when I returned on a Sunday. The interview was the following day! Had I missed it life would have been very different.

What has been your greatest disappointment in academia?

I can only think of one and I am not telling! I still hope that it will be rectified…

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

That Parliaments matter because politics matter.

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

Louth, Lincolnshire – my family were firmly rooted in the county – and I retain my links with the town. I have been a governor of my old school, Louth King Edward VI Grammar School, for more than thirty years and am presently in my second stint as Warden of the School. Upon my appointment to the Department in Hull, I moved to the city – I was made an honorary Freeman in 2016 – and since getting my peerage have divided my time between living in Hull and London.

What was your first job?

Temporary Lecturer in Politics at the University of Sheffield. I interrupted my PhD at the university to complete a Master’s degree at the University of Pennsylvania as a Thouron Scholar and while there got a letter asking if I would take up a temporary lectureship on my return to fill in for Dr Noah Lucas who was on research leave.

What was the toughest job you ever had?

Possibly being head of department and taking over at a difficult time when the previous head suddenly quit. I took it on at short notice while not only maintaining my full teaching load, but also while chairing the House of Lords Constitution Committee.

What are your hobbies?

Don’t have much time for hobbies as such – when I said politics was my consuming passion I should have said all-consuming. I do, though, enjoy travelling (of which more below). As an inveterate tea-drinker, I love finding tea-shops, in essence anywhere that serves good tea and has character, which can range from a station cafeteria to Betty’s or the Goring Hotel. I also find time for dining out with friends and the occasional theatre visit.

What is your favourite music?

Classical music is the Rolls Royce of music in that it is designed to last. Since the 1960s, modern music has increasingly demonstrated built-in obsolescence. It is so ‘here today, gone tomorrow’ that I don’t keep up with it anymore.

What are your favourite pieces of artwork?

Dutch Old Masters, largely as a result of discovering the Rijksmuseum in Amsterdam.

What is your favourite building?

The obvious I’m afraid – the Palace of Westminster. It has the awe-inspiring effect intended by Barry and Pugin. Even now, when it is seriously showing signs of its age, it continues to have the same impact when I walk in as it did on the first day I turned up as a member.

What is your favourite tv show?

Top of a lengthy (and somewhat eclectic) list is ‘Yes, Prime Minister’, largely for the wonderful combination of humour and politics as well as the scripts and casting. To my mind, the best episode is ‘The Key’. I still play episodes and will regularly quote from it.

What is your favourite holiday destination?

Don’t do traditional holidays – haven’t done one since I was about 21 – but love travelling, usually undertaken when going to deliver conference papers or speak at parliaments. Travelled to different continents – most remarkable experience was when I was in Mexico and had a four-man bodyguard throughout my stay – but especially jump at opportunities to deliver papers at venues within Europe because I can get there by train. I do occasionally get away for a weekend break – usually to Amsterdam, Edinburgh or Paris.

What is your favourite sport?

Don’t have one in terms of watching. In terms of playing, I played table-tennis competitively when I was young – among other things Louth town champion, junior champion (have the shields to prove it), participant in some national tournaments, and captain of the University team. I still have my captain’s tie.

Boothroyd or Bercow?

Pass. They are both friends of mine.

Restoration or Renewal?

Like the dictionary, have trouble with the ‘or’.

Cat or Dog?

Cat.

Fish and chips or Curry?

Fish and chips.

Tea or coffee?

Tea. Lots of it.

Planes, trains or automobiles?

Trains. Hate planes, love trains.

And, finally, a question asked by 8-year-old Seth: Would you rather walk on Lego in your socks for five minutes, or talk to the most boring person in the world for an hour?

I have no experience of walking on Lego, with or without socks (though, given how accident prone I am, it is always possible), whereas I am well experienced at talking to the most boring person in the world for an hour or more. I would opt for the latter as I know I can listen while mentally writing an article.

Photo by Chris McAndrew (used under license CC by 3.0)

Tags Conservatives, House of Lords, Philip Norton, Professor, University of Hull, Urgent Questions

Blog

Post-Legislative Scrutiny in Paris and London

Post author By psaparliaments
Post date June 30, 2020

How do the national parliaments of France and the UK assess the impact of the legislation they have adopted? In this article, Franklin De Vrieze compares the role of parliamentary committees and the outcome of the legislative impact assessments in both countries. It is based on the recent Westminster Foundation for Democracy publication, Post-Legislative Scrutiny in Europe.

Tags House of Commons, House of Lords, legislation, legislative studies, parliament, parliamentary scrutiny, parliamentary studies, post-legislative scrutiny, scrutiny