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Post-Johnson, constitutional combustion continues. But the fire can be extinguished.

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.

This post was originally published by the Constitution Society and can be accessed here: https://consoc.org.uk/constitutional-combustion-continues/. We are grateful for being given permission to republish the post.

Follow the the society on Twitter at @con_soc

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Restoration and Renewal: Intimidation as a necessary evil?

Can buildings threaten democracy?

In May 2022, the Restoration and Renewal Sponsor Body and Delivery Authority released a report on Understanding the public’s view. Collecting views from over 20,000 people, the report discussed how citizens feel about the Palace of Westminster and its prospective renovation. Much of this input can be summed up by the following quote: “It’s lovely, but it’s quite intimidating”.

It is not just citizens who feel this way. As shown in a History of Parliament article on First Impressions of the Palace of Westminster, parliamentary buildings also appear to intimidate MPs, “reinforc[ing] a feeling of not being welcome”. Jenny Tonge spoke of “a crumbling old Dracula’s castle”, while Robert Cecil felt like “a rather small ant in front of this great institution”.

A report from the Committee on Standards in Public Life described intimidation of office-holders as “a threat to the very nature of representative democracy in the UK”. Intimidation impacts diversity, engagement, and freedom of discussion. Moreover, intimidating buildings are detrimental to the ‘openness’ that modern representative democracies seek to communicate:

Modern parliaments themselves are intimidating buildings that are hard to access for the majority of citizens. They are typically gated and guarded. It also feels to many as if only certain types of people – those with the right suit, the right accent, bank account, connections, or even last names – are welcome to enter them. (Landemore 2022, p.2)

Do intimidating buildings therefore present a threat to democracy? Or do certain audiences consider intimidation necessary, even desirable? Can parliamentary buildings be lovely because they’re quite intimidating?

Walking interviews

Myself, Samuel Johnson-Schlee, and Ryan Swift have been conducting ‘walking interviews’ with MPs, Peers, and parliamentary staff. As we walk a route of their choice, interviewees tell us their views and memories of Parliament. This method allows us to explore key themes at the same time as the buildings they pertain to, since:

“interviewees are prompted by meanings and connections to the surrounding environment and are less likely to try and give the ‘right’ answer. Indeed, it seems intuitively sensible for researchers to ask interviewees to talk about the places that they are interested in while they are in that place.” (Evans & Jones 2011, p.849)

We have discussed interviewees’ earliest memories of this place. We have discussed how they feel inside the Palace, and whether these feelings change over time. Naturally, Restoration and Renewal has also been a frequent topic of conversation: what should change, and what shouldn’t.

The interviewees frequently described the Palace as intimidating, not only in terms of appearance but also layout. Even highly experienced staff members noted that “the Palace does feel imposing…it’s such a labyrinth, and I’m always worried I’m going to get lost.” This reflects the existing literature about parliamentary buildings in general. Such spaces can “reinforce the self-perceptions of those government officials and bureaucrats who identify this exalted territory as their own”, reinforcing “existing hierarchies” (Vale 2014, p.8).

Interviewees also recalled interactions with citizens in Parliament. They shared the key takeaways from these interactions, some of which were rather surprising. For example, it was suggested that for many citizens, the idea of Parliament as an intimidating place is not only expected but desired:

“some people almost want it to be intimidating. I think they’d be disappointed if they see it from the outside (and it’s very impressive) but they came inside and it didn’t match that…they would feel let down.”

This raises an immediate and obvious question: why would anyone want parliamentary buildings to be intimidating?

Meeting expectations, or getting things done?

There are many possible explanations as to why people may want parliamentary buildings to be intimidating. Two seem especially convincing to us.

First: meeting expectations. Walking into Parliament and being intimidated is consistent with what most citizens would expect. This could manifest as feelings of awe, even powerlessness. In any case, it seems plausible that some citizens would be surprised, even disappointed, if their expectations were not met.

Secondly: getting things done. Visitors often come to Parliament with a specific purpose and goal. An intimidating building may seem conducive to that. Citizens may want an environment exuding power and purpose, as an implicit reassurance that their concerns will be addressed. This is reflected in an interviewee’s observation that:

“coming into places like Portcullis House where it’s quite informal…less impressive, intimidating, it doesn’t quite feel as important…Sometimes it is good for [publics] to come through this way and to see all the stone and statues…they feel like something’s going to be done about what they say.”

This alludes to a perception that MPs cannot be productive without an intimidating workplace. This is highly relevant to ongoing questions of trust in institutions, and those who work in them. It is also relevant to debates around ‘virtual’ or ‘hybrid parliaments, and working from home, in which parliamentarians such as Jacob Rees-Mogg have been vocal.

What do we want from our buildings?

At this point we should recall that we are citing perspectives and recollections – not direct observations – of what citizens want. ‘Users’ of this space (parliamentarians and staff) think that citizens might want intimidating buildings. Perhaps this perception reflected interviewees’ own desires for parliamentary buildings to remain intimidating? 

Our findings suggest not; there was broad consensus that changes in this respect would be a positive step, at least in theory. For example, a Conservative Peer commented that:

“Change is not a bad thing…We protect many of our traditions and it’s right that we should…at the same time…we should be in a position of saying ‘actually, doing it [another] way might work’.”

An SNP MP commented that when:

“you find yourself here as an elected Member…you’re absolutely going to go along with what this building is telling you to be, which is absolutely rooted in the establishment…this ancient place basically says…‘here’s a path for you to follow’, as opposed to people coming to this place and thinking ‘how I make a change here?’.”

However, in practice, our findings still suggest a mixed picture. A staff member ventured that “even people who structurally are alienated by parliament also wouldn’t want to change it. Because it’s kind of part of the specialness…And if you are in a very neutral, modern space, you might lose that romance and charm, that for some reason gets to a lot of people”. This appears to validate Kim Dovey’s observation that architecture:

“shape[s] a representational world wherein certain forms of identity and place are stabilized and authorized through built form. Architecture engages in imaginative play with our dreams of status, sexuality, security and immortality; our fears of violence, death and difference…architecture has great inertia – it inevitably ‘fixes’ a great deal of economic capital into built form…architecture is ‘society’s superego’ in the sense that it enforces a social order.” (2010, p.39)

We see such inertia (representation and embedding of a social order) at play here; it is even seen to apply to those who are marginalised and alienated as a result(!). This shows us just how pervasive the embedded power dynamics in parliamentary buildings can be, and how reluctant people can be – even those who would most clearly benefit – to change them.

What we talk about when we talk about intimidation

We can safely assume that a desire for intimidation is not universal. As Sabina Siebert points out, “[d]eriving a sense of power and entitlement from the buildings is interpreted by some

people as positive, but others are critical of it”. Our initial findings suggest considerable variance and complexity in what citizens want from their own parliament. 

Our interviews also demonstrate how important it is to fit the space to the audience. Citizens want a space that reflects their expectations. Sometimes they expect to be awed, sometimes they expect to have their concerns addressed, and sometimes they want to explore a welcoming and inclusive space.

There are forms of intimidation that must always be condemned and avoided.  For example, we would recall a staff member’s observation that those with experience of elite universities may feel much more at ease in the Palace. As a result, “maybe it’s more intimidating to people who don’t feel like they’re part of the groups that tend to go to those sort of places”. 

Moreover, citizens don’t just want their representatives to be responsive to their desires and expectations. They expect representative spaces – and the use of them – to be responsive. This provides an additional impetus for greater engagement. Moreover, as Matthew Flinders has pointed out, Restoration and Renewal involves a public building and public money. Citizens should therefore be part of this process. 

Staff and MPs need to be part of a dialogue about their workspace. Our interviews with MPs, in particular, revealed how much the buildings affect the work going on inside them. It is important to find out what different publics want to change about Parliament, and what they want to keep. Ideally, this should involve walking interviews, to discuss and experience the space at the same time. We may be surprised by the answers we get. What seems clear is that people can respond very positively to being overwhelmed by history, if it is their history.

Alex Prior is a Lecturer in Politics with International Relations at London South Bank University

Disclosure statement – LSBU Centre for Social Justice & Global Responsibility provided funding

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How Sunak can restore integrity, professionalism and accountability

Meg Russell, Alan Renwick, Sophie Andrews-McCarroll and Lisa James argue that for Rishi Sunak to keep his promise to put 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.

In his first speech as Prime Minister, Rishi Sunak promised to put integrity, professionalism and accountability in government at the heart of his premiership. This promise is to be warmly welcomed – commentators and experts have raised consistent alarms about slipping constitutional standards in recent years, and research shows that the public care deeply about honesty and integrity in their politicians.

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.

  1. 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.

Sophie Andrews-McCarroll is Impact Research Fellow at the Constitution Unit.

Lisa James is a Research Fellow in the Constitution Unit.

This blog post was originally published on the Constitution Unit’s Blog. We are grateful to the Constitution Unit for allowing us to republish the post. You can see the original post here: https://constitution-unit.com/2022/10/27/how-sunak-can-restore-integrity-professionalism-and-accountability/

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There’s a time and place for prorogation — and this is it

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:

S. Chaplin, ‘There’s a Time and Place for Prorogation—and this is it’, U.K. Const. L. Blog (25th October 2022) https://ukconstitutionallaw.org/2022/10/25/steven-chaplin-theres-a-time-and-place-for-prorogation-and-this-is-it/

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How did the Prime Minister win a vote in Parliament and lose her authority?

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 post was originally published on the Who Runs Britain Blog and can be found here: https://whorunsbritain.blogs.lincoln.ac.uk/2022/10/21/how-did-the-prime-minister-win-a-vote-in-parliament-and-lose-her-authority/

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Breaking the Glass Chamber: Women, Politics and Parliament, 1945-1997

By Anna Muggeridge

Throughout the second half of the twentieth century, women struggled to achieve political representation at the highest levels and at times, what progress and gains had been made could be lost. The number of women sitting in the House of Commons at any one time, for example, did not slowly but steadily increase. Fewer women were elected in the general election of 1951 than had been elected in 1950; fewer in 1966 than in 1964, and fewer in 1979 than (October) 1974. 1979 famously saw the first woman Prime Minister, but Margaret Thatcher’s relationship with feminism and the wider women’s movement is but one contentious aspect of her premiership. Notably, Thatcher only appointed one woman to a Cabinet position (Baroness Young, who served for just two years) and when Thatcher herself resigned and was replaced by John Major, the country had no women in Cabinet until 1992, when Gillian Shephard and Virginia Bottomley were appointed Education and Health Secretaries respectively. The first Black woman MP, Diane Abbott, was not elected until 1987, almost seven decades after the first white woman, Nancy Astor, took her seat in 1919. And in 1997, Labour’s landslide victory saw more than 100 women elected but this achievement was diminished and trivialised by labelling them ‘Blair’s Babes’. The story of women parliamentarians, and indeed women’s wider engagement with politics, through these years is therefore more nuanced and complex than an initial glance might suggest, and there is still much to be discovered about their experiences.

In September, the Mile End Institute at Queen Mary, University of London, will host a conference which seeks to bring together historians, political scientists, and sociologists to generate new conversations, relationships, and understandings of what politics meant to and for women in the second half of the twentieth century. In addition, the conference will play host to a number of current and former female members of both the House of Commons and the House of Lords, who will reflect on their own experiences, including Baroness Angela Browning, Dame Margaret Hodge, Baroness Estelle Morris, Baroness Emma Nicholson, Baroness Dawn Primarolo, Baroness Gillian Shephard, and Siân James. We will also hear from campaign groups including 50:50 Parliament and the Fawcett Society, who will lead discussions about the future of women in politics. Keynote lectures by historians, sociologists and political scientists – including Professor Laura Beers, Professor Julie Gottleib, Professor Khursheed Wadia, Professor Clarisse Berthèzene, and Professor Sarah Childs, will enable scholars to reflect on the different insights and perspectives from cutting edge research on women in political campaigns, parties and institutions.

It is only by drawing together those working in a range of disciplines, as well as those with direct experience of working in and with parliament, that a true picture of women’s experiences in politics in this period will start to emerge. More significantly, the conference offers the opportunity to develop new directions in research into women’s politics in the later twentieth century, shaping the questions and lines of enquiry of current and future researchers into this relatively understudied area of British political history.

Papers at the conference will address a variety of local, national and international themes. With talks by, for instance, Micaela Panes on women’s activism in South Wales before the 1970s; Tom Chidwick on women’s role in the campaign for a Scottish Assembly, and Charitini Ntini on women’s in the Provisional IRA during the Troubles in Northern Ireland, we ask how far national identities impacted on gendered politics in this period. Other papers explore women’s experiences on the international stage, something which has often been overlooked, such as Richard Johnson’s examination of women and Euroscepticism or Charlotte Lydia Riley’s analysis of women and British overseas development policy.

A number of talks will explore the experiences of women from minoritized backgrounds in this period. Farah Hussain’s timely keynote invites us to consider the role Muslim women play and have played within the Labour party. Beckie Rutherford asks how disabled women conceived of themselves as ‘political’, while Ashlee Christofferson will address the whiteness of ‘sex discrimination’ legislation. While there may, broadly speaking, have been progress in terms of the number of women sitting in Parliament between 1945 and 1997, there is still much opportunity to reflect on how other aspects of individuals’ identities—their race, class, sexuality or religion, for example—intersected with their gender within and outside the House of Commons.

Indeed, many of the papers at the conference will address campaigns which did not (necessarily) take place within parliament, such as Rose Debenham’s talk on the women of Greenham Common; Frances Galt’s research into women’s industrial disputes around the time of the 1970 Equal Pay Act, or Grace Heaton’s analysis of women’s roles in the campaign for the ordination of women. At the same time, other papers will consider how structures, institutions and cultures worked to exclude women: and how women sought to break down these barriers: with Emma Lundin providing a comparative perspective on gender quotas and gatekeeping strategies and Gillian Murphy reflecting on the post-war lobbying group Women for Westminster.

The conference therefore offers a unique opportunity for academics, politicians, policymakers and campaigners to come together to discuss the female political experience in the second half of the twentieth century, and, in so doing, open up new directions for current and future research. We very much hope that you will join us at the Mile End Institute at Queen Mary, University of London from Thursday 15 to Saturday 17 September. Details of how to watch the main sessions if you are not able to attend in person will be available nearer the time. You can view the full programme and sign up for tickets at the MEI website.

Dr Anna Muggeridge is Lecturer in History at the University of Worcester and a Visiting Research Fellow at the Mile End Institute.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Reimagining impeachment: A new blueprint for our challenging times

By Chris Monaghan

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

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

The problem

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

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

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

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

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

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

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

The solution

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

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

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

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

What would a modernised form of impeachment look like?

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

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

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

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

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

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

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

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

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

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

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

By Stephen Holden Bates

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

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

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

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

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

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

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

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

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

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

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

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

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

[5] As well as broader social structures.

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