Tag: Westminster

Categories
Blog

The real cost of MPs’ security to constituency representation

By Neil Matthews and Sean Haughey.

The abuse of MPs, both online and offline, is becoming a more prevalent feature of British political life. In the most egregious cases, abuse has escalated into violent and even fatal attacks on MPs. In response, MPs are adopting new security measures at the constituency level to protect themselves from harm. These measures range from the subtle (e.g. no longer advertising the details of surgeries) to the not-so-subtle (such as the wearing of stab vests). We know how these developments are impacting MPs personally, not least in terms of their mental health. We also know about the associated financial ramifications, with the costs of MPs’ security skyrocketing in recent years. But what about the implications for representation and democracy? Are MPs able to perform their representative role just as well amid stricter security protocols? Or are costs incurred to representative democracy when constituency service is securitised?

The security-accessibility trade-off

All security systems come with costs attached. When MPs tighten constituency service security the most obvious cost incurred pertains to accessibility. This security-accessibility trade-off manifests in one of two ways: either through a reduction in opportunities for constituents to meet with their MP, or through the adoption of security protocols which complicate access pathways. In terms of reduced opportunities for constituent-MP engagement, take for instance those MPs who have stopped holding surgeries in public venues (e.g. shopping malls) because of security concerns. Consider also the MP who, after repeated incidents of verbal abuse, admits that he no longer socialises in his own constituency. These examples of retreat from the public square are problematic, because it is through even the most innocuous and impromptu interactions – in the local pub or supermarket for instance – that MPs develop their constituency antennae, learning about the issues which matter to their constituents:

‘We try to be, as constituency MPs, recognisable, available, accessible to all. A successful constituency MP is the person who people feel they can go to in the pub or, as frustrating as that sometimes is, come up to you when you’re doing your shopping.‘

Access to MPs can be complicated by security in a number of ways. Some MPs, for example, have replaced “drop-in” surgeries with appointment-only meetings, a formality which likely results in some constituents being turned away. We also know that, on the advice of police, some MPs have discontinued in-person surgery appointments, instead offering online meetings only. Whilst this might expedite access to MPs for the digitally confident citizen, it will disincentivise engagement for those without the requisite skills. What is more, the value and quality of online meetings – relative to in-person meetings – is open to question. The social scientific evidence underlines the therapeutic value of in-person meetings between MPs and constituents. These in-person meetings are key to the development of “co-presence”, and help build a “human bridge” through which constituents feel listened to. These benefits could be much harder to attain when the interaction occurs through a screen. Similarly, with face-to-face meetings, that personal touch and sense of intimacy is likely compromised by the presence of security guards.

The symbolic costs

Public spaces articulate political and cultural messages. What messages, then, are conveyed to the public when MPs adopt airport-style (or even prison-style) security at their constituency offices? Think bulletproof glass, CCTV, reinforced doors, panic buttons and so on. Whilst these measures may reassure MPs and their staff, the effect on constituents could be quite the opposite, perhaps marking the space as somehow unsafe, where visitors need to be on their guard. Research into other sites that have been securitised suggests as much, whereby defensive urban architecture (designed to mitigate terrorist attacks) has had a chilling effect on public democratic culture, eliciting a range of subjective emotional responses from pedestrians: fearfulness, suspicion, paranoia, and exclusion. Some of the security measures at constituency offices could be eliciting a similar response from constituents. Take, for instance, the MP who tells his constituents they should “be prepared to be searched” when they arrive at his surgery:

‘We are following security guidance, as a result Security Operatives and/or the Police will be screening constituents attending face to face surgery appointments. Please bring along photo ID, leave bags and coats at home where possible, as they will not be permitted in the meeting toom and will need to remain outside the meeting space and be prepared to be searched.‘

(Guidance provided on Julian Smith MP’s website for constituents)

For the architect, Stephen Flusty, places and spaces bearing the features of security – searches of person or property, say – warrant being labelled as “jittery”. They are marked, in other words, by a tense and nervous atmosphere. We might ask then: how many of the constituency offices in the UK are showing signs of the jitters?

Security and trust: a Catch-22?

Security measures at the constituency level could, then, be counter-productive, in that MPs may be undermining the very representative connections they seek to protect. Up until now, the linkage between MPs and constituents at the local level has been held up as a positive exception to what has otherwise been a story of increasing political disengagement across western democracies. But what if new security measures at the local level are making engagement more difficult, placing distance (figuratively and literally) between MPs and constituents?

Amid a general crisis of representation, in which people in the UK typically feel unrepresented by Westminster, there is a risk that the mitigating power of constituency service will be diminished if MPs become (or are perceived to be) harder to reach – or are less present – at the local level. Moreover, if perceptions of disconnect between politicians and the public is a driver of political distrust, and that distrust in turn fuels abuse of politicians, the security steps MPs are taking to mitigate this threat could in fact be exacerbating it.

Importantly, the securitising trend affecting British political life appears set to deepen. The Speaker of the Commons, Lindsay Hoyle – a long-time advocate for greater protections for MPs – has called for a transformation in parliament’s “security culture”. To a similar end, the outgoing Conservative government signed-off on a £31m package to bolster the constituency-level security of MPs; while the recently published Walney review recommends even greater bolstering. Understanding how such enhanced security shapes  the character and delivery of representative democracy in the UK – and the myriad costs it brings to bear on both politicians and the public – warrants greater attention.

This blog post was first posted by LSE blogs. It draws on research by the authors published in Parliamentary Affairs. All views expressed are the authors’ own.

About the authors

Neil Matthews is Senior Lecturer in Politics at the School of Sociology, Politics and International Studies at the University of Bristol.

Sean Haughey is Senior Lecturer in Politics at the Institute of Irish Studies at the University of Liverpool.

Categories
Blog

Parliamentary scrutiny: what is it, and why does it matter?

Parliamentary scrutiny is at the heart of UK politics. In this post, Meg Russell and Lisa James examine the four key methods of parliamentary scrutiny, and offer proposals on how to strengthen it, calling for better behaviour by government and strong engagement from backbenchers.

Background

Parliament lies at the heart of UK politics. The legislature is a core institution in any democracy, but is particularly important in the UK, due to our tradition of ‘parliamentary sovereignty’. The government is dependent on the confidence of the House of Commons, which can potentially remove it from office. Parliamentary consent is required for primary legislation, and parliament is a particularly central and important body in holding ministers to account day-to-day.

This makes scrutiny – the detailed examination of policy proposals, actions and plans – one of the essential roles of parliament. Other functions include representation, and serving as a space for national debate – which in turn feed into parliament’s scrutiny function.

This briefing summarises why parliamentary scrutiny matters, what different kinds of parliamentary scrutiny exist at Westminster, some recent concerns about the decline of scrutiny, and ways in which it can be protected and strengthened.

Why does parliamentary scrutiny matter?

The government is responsible for much day-to-day decision-making, in terms of national policy formulation and implementation. But the government itself is not directly elected, and depends for its survival on the continued confidence of the House of Commons. This makes parliament one of the central checks and balances in the constitution – arguably the most central one of all. To provide government accountability, one of the core functions of parliament is scrutiny.

Parliament is a very public arena, with debates televised and transcribed on the public record. Hence parliamentary scrutiny means that ministers must justify their policies in front of an audience, which provides transparency and accountability, and helps to ensure that policies are seen as legitimate.

Crucially, parliament contains many and varied political voices. MPs are elected from diverse constituencies all over the UK, and represent different political parties. The House of Lords includes members from a wide range of backgrounds, many of whom are independent of political party, and some of whom are respected experts in their field. Parliamentary debates, and other mechanisms such as committee calls for evidence, also enable specialist groups and individual citizens to hear about policy and feed in their expertise, evidence and concerns. All of this ensures that different perspectives are heard in parliament when considering government policy.

The mere existence of parliamentary scrutiny, given its public nature and diverse contributors, can have an important effect. Even where nothing visibly changes as a result (e.g. if a government bill remains unamended) studies show that ‘anticipated reactions’ are important. Policy is more carefully thought through because ministers and officials know that it will be scrutinised by parliament. Hence scrutiny improves the quality of decision-making; and if it is lacking, policy may be poorer as a result.

What are the key forms of parliamentary scrutiny?

Scrutiny takes place both in the Commons and in the Lords, and both on the floor of the chamber and in various kinds of committees. At Westminster, even processes not focused directly on government policy require a ministerial response. Scrutiny and accountability thereby come through numerous mechanisms. These same forums also to some extent subject opposition parties to scrutiny, in the sense that they too must set out their own views on the public record.

The key forms and venues for scrutiny are set out below. In a number of these areas there have been recent concerns expressed about weakness or decline in scrutiny, which deserve attention.

1. Scrutiny of legislation

Most obviously, parliament conducts scrutiny of government legislation, and also of private members’ bills, with slightly different mechanisms operating in the Commons and the Lords.

Despite occasional backbench rebellions resulting in visible government climbdowns, scrutiny in the Commons is often seen as weak. But this can be overstated, given that ministers think carefully about the acceptability of bills to MPs before they are introduced. Changes in the Lords also often respond to concerns raised (including behind the scenes) in the Commons.

Nonetheless, adequate bill scrutiny depends on government cooperation. Ministers must ensure that bills are in good shape before introduction, and (given government’s extensive control of the Commons agenda) allow sufficient time for debate. They also need to be willing to listen and respond to reasonable points made by parliamentarians. There have been recent concerns about bills being rushed, and about late government amendments.

There are various known weaknesses in the legislative scrutiny process. Commons public bill committees are temporary and nonspecialist, unlike in many other legislatures, and the process of evidence-taking could be improved. Meanwhile, there is no formal evidence-taking stage for bills introduced in the Lords, or that have their committee stage in the Commons on the floor. This limits opportunities for expert input.

Perhaps the biggest concern in recent years has been about the growing use of delegated (or ‘secondary’) legislation, and increasing powers delegated to ministers in bills. This legislation receives very limited parliamentary scrutiny, raising clear accountability gaps if it implements major policy. Particular controversies emerged in this area during the Covid-19 pandemic, but overuse of delegated legislation has long been criticised, including by parliamentary committees, and expert groups such as the Hansard Society.

2. Parliamentary questions and government statements

Written and oral questions in both chambers put ministers on the spot about policy. Aside from scheduled questions, more ad hoc urgent questions allow sustained questioning on a topic, and their use has grown in recent years. Voluntary government statements take a similar form – and when not offered on key topics may trigger an urgent question.

Prime Minister’s Questions (PMQs) are the highest profile forum and have long been subject to criticism for their ‘bearpit’ and adversarial nature. They attract attention, but are unrepresentative of most forms of questioning, which can be more constructive but are lower profile. There are regular calls to reform PMQs but even they may have important ‘anticipated reactions’ functions.

The Cabinet Manual states that ‘the most important announcements of government policy should, in the first instance, be made to Parliament’, but there have been many recent complaints about ministers flouting this rule. This again occurred particularly frequently during the pandemic, but has continued – often to the displeasure of the Commons Speaker. Making major announcements outside parliament denies the opportunity for the kind of sustained questioning and democratic accountability that occurs when making announcements to MPs. Follow-up statements or urgent questions sometimes follow, but may be lower profile.

3. Opposition, backbench and adjournment debates

Parliament holds various kinds of debates in non-government time, including Commons backbench business debates, opposition day debates and adjournment debates. Irrespective of the topic, ministers must always appear and explain the government’s position, creating additional accountability. Often such debates are directly focused on government policy, and/or on topics that ministers would prefer to avoid.

Backbench business debates and opposition day debates may result in a vote on a substantive motion. In recent years there have been criticisms of the government’s relatively new practice of instructing MPs to abstain on opposition motions. Although decisions in these votes are not enforceable, the House of Commons Public Administration and Constitutional Affairs Committee, has suggested that this shows a ‘lack of respect for the House’.

These two forms of debate are guaranteed a minimum number of days per session in standing orders. But recent years have seen a number of long sessions (2010–12, 2017–19, 2019–21), which gives excessive control to the government over their scheduling.

4. Select committees

The select committees are seen as jewels in Westminster’s crown. They are unusual in international terms for conducting extensive and careful non-legislative scrutiny, for their nonpartisan ethos, and for generally producing unanimous reports. Committees in the Commons mostly shadow government departments, while those in the Lords are more crosscutting.

Committees gather expert and other evidence (including some recently using citizens’ assemblies to elicit considered public views). Ministers are often called to give evidence to the committees, as well as the government being required to respond to their reports. There have been occasional concerns about ministers cancelling committee appearances, but this is the exception.

Research shows that, while the select committees have little ‘hard power’ to force changes, they can be influential through putting topics onto the political agenda, feeding valuable evidence into wider debates, and having an ‘anticipated reactions’ effect – through forcing ministers to consider policy carefully, because they know they may have to publicly explain it to committees later.

In the Commons, select committee structures are routinely changed when government departments are reorganised. This can cause concerns – for example most recently when the abolition of the International Trade Committee left little opportunity for scrutiny by MPs of important international agreements (though such scrutiny remains in the Lords).

How can parliamentary scrutiny be strengthened?

There have been some welcome changes to mechanisms for parliamentary scrutiny in relatively recent years, such as the election of House of Commons select committee members and chairs (since 2010), and introduction of evidence-taking by Commons public bill committees (in 2006).

But this briefing has mentioned various weaknesses in parliamentary scrutiny processes, including recent concerns about decline – for example through primary legislation being rushed or subject to late government amendments, and an overreliance on delegated legislation. Recent polling shows that the public wants new laws to be subject to full parliamentary scrutiny. Improved government behaviour could make a good deal of difference in this area, but the Hansard Society has also proposed procedural changes.

Proposals exist for strengthening Commons public bill committees – e.g. by injecting greater permanence and specialism – and for publishing more government bills in draft. The Commons Procedure Committee has proposed improvements to the private members’ bill process.

Government control of the House of Commons agenda creates weaknesses, including over the timetabling of bills, ministers’ ability to withhold backbench and opposition days, and parliament’s inability to recall itself from recess. The Constitution Unit has proposed changes in this area.

Fundamentally, improved scrutiny depends on better behaviour by government, but also on strong engagement by backbenchers and other non-government parliamentarians. Even seemingly ‘toothless’ scrutiny mechanisms can have important effects, by subjecting government policy to public exposure and debate. Both government and non-government parliamentarians therefore have important responsibilities to maintain the system of parliamentary scrutiny – in order to uphold good quality government decision-making, and the legitimacy of politics in the eyes of the public.

This blog is part of the UCL Constitution Unit’s briefing series designed to inform policy-makers and the public about key constitutional issues and democratic debates. Our briefings draw on international evidence and examine both long-term trends and current developments in the UK. This is part of our project on constitutional principles and the health of democracy.

It was originally published on the Constitution Unit’s blog and is re-published here with thanks.

About the authors

Meg Russell FBA is Professor of British and Comparative Politics at UCL and Director of the Constitution Unit.

Lisa James is a Research Fellow at the Constitution Unit.

Categories
Blog

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/

Categories
Blog

Reflections from Shenzhen – understanding Westminster select committees 

By Winnie Zhou

This year, the SCIE Politics Club organized multiple events on the topic of UK select committees. We’ve witnessed many meaningful debates and thoughts coming out during the process. 

At the start of the term, the Head of Humanities and Social Sciences faculty and founder of SCIE’s Politics club, Mr. Richard Driscoll introduced us to the basics of the select committee. To better answer our questions on how the select committee works in real life, Mr. Richard led us through a recent report published by the Health and Social Care and Science and Technology Committees, a select committee in the House of Commons[1]. It concluded the UK’s major lessons from Covid 19 regarding public health management by analyzing six critical areas of responses: preparedness, non-pharmaceutical intervention; social care; impact on different communities, and vaccines distribution. Within each section, specific statistics and quotations of experts are referenced. 

We further discussed the comprehensiveness of the report by reading it in detail. A problem identified in the report was the lack of resources in the NHS. The Royal College of Midwives reported that “NHS was short of over 3,000 midwives and that 40% of RCM members worked three or more hours of unpaid overtime every week, suggesting that the NHS had been ‘reliant upon the goodwill of those who staff the system.'”,[2] the specific data of which provides convincing evidence of the credibility and accuracy of the report. However, the solution explicitly given to this problem, “the experience of the demands placed on the NHS during the covid-19 pandemic should lead to a more explicit, and monitored, surge capacity being part of the long term organization and funding of the NHS”[3], seems vague and unpromising. We are concerned that an unclear short-term and long-term target may be hard to follow up. 

On January 6th, 2022, our school invited Dr. Alexandra Meakin from the University of Leeds to lecture on the select committee system in depth. A majority of our Politics Club members appreciated this opportunity and joined the event passionately. Dr Meakin showed us a detailed understanding of the working mechanism of the select committee and its composition. The lecture taught us that the select committee, usually a permanent division representing the public to examine and make recommendations to governmental policy, consists of MPs elected in the secret ballot. It conducts pre-appointed hearings with experts, goes through the written evidence submitted by experts, and ultimately forms reports to the government. 

Most interestingly, she listed some common arguments about the strengths and weaknesses of the select committee, which inspires interesting thoughts in us. For example, statistics show that the select committee’s suggestions are relatively practical, among which the executives implement over 40% of recommendations. This helps improve policymaking a lot. Also, she explained the advantages of its membership which reflects the composition of parties in the Commons. Hence, a report representing a cross-party consensus would more forcefully influence the House of Commons. 

However, she also admitted some flaws in the select committee. The cross-party composition may make the select committee less effective in giving a thorough recommendation, as reaching consensus may sacrifice some detailed plans. MPs are also busy with businesses outside the select committee, so they may not devote sufficient time to drafting a comprehensive report. Compared with the Commons in general, the select committee usually does poorly in terms of diversity. Most detrimentally, the select committee lacks formal power. They can not directly implement but merely suggest policies to the government. Nor does the committee have any mechanism to follow up the changes in governmental policies. That’s why around 60% of the recommendation provided by the committee cannot be implemented as expected. 

Dr. Alexandra Meakin’s lecture inspires interesting thoughts among our club members. We actively participated in the Q&A session to discuss further the role of the select committee. One of our members asked about how the committee balances between the power constraint on the Chair, and the consistency of the policy recommendation or the committee’s expertise. To further explain, the student considered that giving the Chair a relatively huge power to control the committee’s agenda may be a prerequisite for systematic policy recommendation over time, yet this may allow the power of the Chair to grow uncontrollably – a threat to the democracy. Dr. Meakin agreed that this conflict constitutes the core conflict within the select committee. Based on her expert knowledge, she concluded that, in practice, different chairs solve this problem with their approach. Some may lean towards reaching a consensus in the committee at the sacrifice of effectiveness, while others may take a more rigid grip to reinforce their ideas. This would also have something to do with the composition of the committee. The extent of party politics in the committee may be a crucial factor determining how fiercely effectiveness collides with consensus. 

Inspired by Dr. Meakin’s answer, another club member added a follow-up question. Because the composition of the committee reflects the composition of the Commons, the club member was wondering whether this membership benefits the majority party, and if so, to what extent the committee can still achieve its goal of supervising the government, especially over some fields at the core of party struggle. Dr. Meakin admitted the composition does somehow formally benefit the majority party while offering some counter-arguments for us to think about. For example, the backbench MPs don’t necessarily agree with the governmental policies, if not critical of it, thus are still likely to provide insightful recommendations. Also, being in the same party with the government, the MPs from the majority party are more incentivized to give constructive criticism for the governmental policies, as improving the government’s performance yields benefit in the elections. Yet, it’s correct to question the extent of criticism the committee can give. With the harsh party whip, a select committee with a majority of MPs from the majority party is unlikely to provide criticisms at the risk of infringing the government’s fundamental interests. In response, one student added another question: the select committee supervises the government, then what institution is responsible for overseeing the select committee? Dr. Meakin’s answer of “the Parliament” also led us to think about democracy in the UK. The lack of the absolute doctrine of separation of power in the UK political system may indicate the impossibility of strict supervision over the majority party’s power. 

In addition to theoretical analysis, we have seen other interesting practical questions. One student extended our previous club activity to discuss the effectiveness of policy during the Covid and how the select committee may help improve that. Another student also asked about how the lesson from the select committee may improve our work at the student council. Dr. Meakin shared constructive suggestions for us from her years of experience working for a select committees. The event ultimately concluded with our heated discussion and abundant new knowledge in our heads. 

With continued interest in the topic, we plan to organize a Mock Education Select Committee at the Humanities and Social Sciences week at our school, on the subject of “cap on the number of international students admitted in the UK universities,” a relevant topic to us all. Members from our Political Club will represent the 11 MPs in the committee, while four competitors outside of the club will act as four experts to provide written evidence and go through a hearing process. We hope that this event can boost students’ interest in political affairs and encourage critical thinking throughout the process. 

Author Details

Winnie Zhou is 18 years old and is a student at Shenzhen College of International Education (SCIE).

[1] Health and Social Care, and Science and Technology Committees, House of Commons. “Coronavirus: lessons learned to date: Sixth Report of the Health and Social Care Committee and Third Report of the Science and Technology Committee of Session 2021–22.” Sept. 2021, https://committees.parliament.uk/publications/7496/documents/78687/default/

[2] Ibid., p.28

[3] Ibid.

Categories
Blog

The Prime Minister, the Parties, and the Ministerial Code

By Professor Michael Gordon

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

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

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

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

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

The PM as Arbiter of the Code

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

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

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

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

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

Avoiding Technicalities

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

Mike Gordon, Professor of Constitutional Law, University of Liverpool

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

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

Categories
Blog

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

Categories
Blog

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

Categories
Blog

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/)

Categories
Blog

Does being watched make MPs behave better? 

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

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

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

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

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

Watching Parliament in 2021 

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

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

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

Who is watching? 

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

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

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

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

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

What impact is it having? 

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

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

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

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

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

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

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

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

Are politicians behaving better?  

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

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

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

Categories
Blog

Exposing the hidden wiring of the Parliament

By Ben Yong (Durham University)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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