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Democratic innovation through AI in parliaments

By Franklin De Vrieze.

As well as debating and adopting new legislation aimed at establishing a sustainable legal framework for the governance of AI, parliaments are also exploring and experimenting with the application of AI in their own operations. New AI guidelines by Westminster Foundation for Democracy (WFD) can inform their efforts.

According to the 2024 AI Index Report by Stanford University, the global legislative landscape has seen a significant increase in AI-related laws over recent years. From 2016 to 2023, parliaments in 127 countries passed a total of 123 bills mentioning AI in various contexts. These laws address a variety of issues, including educational reforms, non-discrimination in AI algorithms, and the establishment of AI training programs. This trend highlights the increasing recognition of the need for regulatory frameworks to manage the development and deployment of AI technologies responsibly.

The legislative measures aim to ensure that AI advancements benefit society while mitigating potential risks of AI being manipulated or misused. Therefore, parliaments need to ensure that the adoption of AI is guided by stringent policies, ethical testing, and comprehensive training, as highlighted in WFD’s recent policy brief, “A Democratic Approach to Global Artificial Intelligence (AI) Safety.”

Current applications of AI in parliament

Parliaments have started exploring and experimenting with the application of AI in their own operations. As Dr. Fitsilis from the Hellenic Parliament argues: “the rise of AI is expected to play a significant role in transforming legislatures from paper-based organisations into data-driven institutions”.

The Inter-Parliamentary Union (IPU) has shared insights on “Use cases for AI in parliaments”, highlighting the growing integration of AI in parliamentary functions.

  • Firstly, AI is increasingly used for transcription and translation, managing records of debates, and subtitling video content. For example, Estonia’s Parliament automates stenography, while Italy’s Senate leverages AI for translating documents. Finland’s Parliament uses AI to summarise documents and create podcast audio, and Brazil’s Chamber of Deputies uses AI to transcribe audio and video files. These tools save time, enhancing productivity and allowing staff to focus on more complex tasks.
  • Secondly, AI is introduced to assist in drafting legislation and amendments and analysing large volumes of text to identify key themes and insights. This can help in creating more comprehensive and well-informed legislative documents. For instance, the Italian Chamber of Deputies uses AI to receive, store and number amendments according to presentation time (voting order) and uses AI to compare amendments to identify similarities. Brazil’s Chamber applies AI to interpret and group amendments, while Italy’s Senate uses it to ensure compliance with drafting rules, ensuring consistency, accuracy and adherence to legal standards.
  • Thirdly, AI supports public engagement by analysing public submissions. Brazil’s Chamber of Deputies uses AI to categorise citizen comments on bills, while Italy’s Senate employs AI to facilitate natural language queries about bills, enhancing accessibility and user experience. This means AI systems are helping citizens interact with parliamentary activities, such as answering questions about legislative processes or providing information on parliamentary sessions.
  • Fourthly, AI is employed in classification systems to manage large data volumes. Italy’s Chamber of Deputies uses AI to categorise plenary session reports, while the European Parliament applies it for automatic text classification with predefined labels.
  • Finally, AI powers chatbots and user support, improving access to parliamentary processes. Italy’s Chamber of Deputies provides a chatbot for querying parliamentary proceedings, and Estonia’s Parliament uses AI to subtitle live broadcasts for the hearing impaired. AI also automates tasks like schedule management and responses to common queries, while enhancing cybersecurity.

Lessons learned

Based on the lived experience of AI in parliament, there are already a few lessons learned on the governance of AI in parliaments, in line with WFD’s new Guidelines for AI in Parliaments..

Parliaments need to adopt a cautious, step-by-step approach to integrating AI, particularly with generative AI technologies. Initial experimentation should occur in controlled environments to mitigate risks before wider implementation. Such approach is emphasised in WFD’s guidelines, highlighting the importance of pilot projects and controlled rollouts to manage potential risks effectively​.

AI systems must be developed and used in accordance with ethical principles to prevent biases and ensure fair representation. WFD’s guidelines stress the importance of developing AI systems that adhere to ethical standards, preventing misinformation and stereotyping​.

Establishing clear governance structures and transparency measures is crucial. This involves setting up auditing processes, maintaining transparency about AI usage, and ensuring that AI systems can be held accountable for their outputs. The WFD guidelines recommend comprehensive transparency measures and accountability frameworks to build trust and credibility in AI applications within parliamentary functions.

Parliaments benefit from sharing experiences and best practices regarding AI implementation. Collaborative efforts, such as those facilitated by the IPU’s Centre for Innovation in Parliament, help build a collective understanding of effective AI governance. The new Global Community of Practice on Post-Legislative Scrutiny helps facilitate dialogue on applying AI in legislative scrutiny processes, as argued by Dr Marci Harris from POPVOX Foundation.

As AI technology evolves rapidly, parliaments must remain flexible and continuously update their policies. This includes partnering with academic institutions and other stakeholders to stay ahead of technological advancements and their implications. The WFD guidelines highlight the importance of ongoing education and adaptation to ensure that both parliamentarians and parliamentary staff are equipped to handle the evolving AI landscape​.

Conclusion

By building on their existing digital infrastructure, parliaments can harness the benefits of AI while ensuring accountability and protecting democratic values. The WFD Guidelines for AI in Parliament provide a comprehensive framework for this endeavour​. Parliaments may take proactive steps to pilot these guidelines, document use cases, and share best practices globally. This will not only strengthen their role as guardians of accountability but also ensure that AI serves the public good, enhances governance, and upholds the principles of democracy.

  Europe’s first political tech summit in Berlin The summit, taking place on Saturday, 25 January, will bring together the global political tech ecosystem—spanning countries and political parties—under one roof. Westminster Foundation for Democracy will lead a panel on “Democratic innovation through AI in parliaments”. Together with the German and Hellenic Parliaments and other tech experts, the panel will explore the potential of AI in fostering innovation and resilience in parliaments worldwide, balancing technological opportunities with ethical and cultural complexities. Info and registration: https://www.politicaltech.eu/  

About the authors

Franklin De Vrieze is Head of Practice Accountability at Westminster Foundation for Democracy (WFD).

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Westminster Hall: Parliament’s Best Kept Secret?

By Cristina Leston-Bandeira and Louise Thompson.

This blog is based on a paper presented by the authors to the Annual Conference of the PSA Parliaments group in November 2024 at the Senedd Cymru in Cardiff.

Photo credit: UK Parliament / Jessica Taylor: https://ukparliament.shorthandstories.com/cet-westminster-hall-debates/index.html

On 30 November 1999 Labour MP Phyllis Starkey made history, being the first MP to introduce a debate in Westminster Hall, the new parallel debating chamber for the House of Commons.  Agreed to by MPs initially as a temporary ‘experiment’ for just one parliamentary session through which to debate topics put forward by backbench MPs and by select committees, Westminster Hall has recently celebrated its 25th anniversary. It rarely attracts much attention, though recent reforms such as the introduction of debates on e-petitions, have put it more firmly into the media spotlight. 

Despite its 25 year history, we still know little about this parallel chamber – no comprehensive research has been undertaken and internal parliamentary reviews have been very limited. Has it added value to parliamentary business, as hoped when first introduced by the first Modernisation Committee in 1999? Drawing from pilot research we have undertaken over the past few months (including analysis of parliamentary debates and interviews), we take a  closer look at the business taking place in Westminster Hall debates to identify four main ways in which these can add value to the House of Commons.

1. It discusses very specific types of topics

    Although debates taking place in Westminster Hall are wide ranging, they tend to fall into two main areas. Often they are used by MPs to raise ‘hyperlocal’ issues of the sort that would not typically be selected for debate in the main chamber because they only affect a particular constituency.  Recent examples of this type of debate include dental healthcare in East Anglia and support for the hospitality sector in Eastleigh.  Westminster Hall is also a place where very emotive topics can be debated. These are often on health-based issues which have affected their constituents, such as Helen Hayes’ recent debate on lobular breast cancer. Tabled in memory of one her constituents, Heather Cripps, Hayes pushed for better awareness of the symptoms and more research into its treatment. Members of Heather’s family attended the debate and sat in the public gallery. Debates such as this one showcase a much more human side to parliamentary politics and as such, Westminster Hall can be an arena which acknowledges the grief and pain of constituents and their families.

    2. It is a place where MPs have fewer time constraints

    One of the real benefits to talking in Westminster Hall is that there is far less pressure on time. MPs introducing a debate have longer to talk and, although time limits are sometimes imposed for particularly well attended debates, other contributing MPs will generally have more time to make their speeches. One MP told us that it gave them time ‘to breathe’, allowing them to develop their points and have less choppy debates.  The MP introducing the debate will also get the right of reply to the minister’s response, something which they wouldn’t get in an adjournment debate in the main chamber.

    3. Its layout facilitates ‘physically close’ scrutiny

    Although the main House of Commons chamber can seem small and crowded at busy times, Westminster Hall is a much more intimate atmosphere. During its first ever debate, then Minister Peter Hain described it as ‘the first non-confrontational Chamber that Westminster has experienced in 800 years of political sparring’.  MPs are seated in a horseshoe seating area more akin to select committees, with all MPs and ministers at the same level.  This means that MPs sit much closer to the responding government minister. And the public gallery is within touching distance of them, with no screens acting as a barrier. MPs speak of being able to ‘look the minister in the eye’ and this can put ministers under considerable pressure, particularly during high profile debates.  The close proximity of the public gallery can be particularly powerful, facilitating conversations before and after debates and allowing the minister to see the faces of those impacted by government policy as they deliver their speech.

    4. It offers a kinder parliamentary culture

    The combination of a more intimate seating area and the more sensitive topics often debated there can facilitate a very different culture to the often adversarial Commons chamber. MPs and officials who participate regularly in Westminster Hall speak of a kinder etiquette, epitomised by DUP MP Jim Shannon’s regular notes to MPs to congratulate them on their debate and ministers going out of their way to thank every contributing Member in their responses. Although debates can occasionally become heated, the absence of any divisions and the location of Westminster Hall away from the limelight of the main chamber tends to inhibit overt partisanship in favour of a more collegiate atmosphere. 

    Debates in Westminster Hall can feel more remote to onlookers than those in the Commons chamber, but they offer something quite different. MPs have described it to us as ‘gold dust’ and ‘parliament’s best kept secret’, a chamber which is especially useful when campaigning on behalf of constituents. With the new Modernisation Committee hoping to look at how to make backbench debates more effective, this Parliament could bring opportunities to entrench the value of Westminster Hall in parliament’s work even more fully.

    About the authors

    Cristina Leston-Bandeira is Professor of Politics at the University of Leeds. Louise Thompson is Senior Lecturer in Politics at the University of Manchester.

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    Disability inclusion in the House of Commons in the spotlight

    By Dr Ekaterina Kolpinskaya.

    This blog draws on the author’s time in a POST Fellowship at the UK Parliament. See the full report here: https://hass-cornwall.exeter.ac.uk/research/voice-participation-governance/hoc-work-environments/

    Over the past couple of years, I have been exploring disability inclusion practices for Members of the UK House of Commons as a Parliamentary Academic Fellow with the Centre of Excellence for Procedural Practice of the House of Commons. Working from within the institution, I have examined written rules and guidelines on accessibility, observed these practices in real life, and interviewed members of the House and MPs staff, as well as several Members and peers. The aim of this research is to understand how accessible the House of Commons is to disabled Members, and what adjustments have been made – and could be made – to improve working environment for disabled politicians, i.e., having physical or mental health impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

    The importance of disability inclusion and better descriptive representation has increased substantially with the growing presence and visibility of disability in British society in recent years. Among the population, almost one in four (24%) or 16 million Britons report being disabled, including experiencing mobility issues, low stamina, breathing difficulties, fatigue, and increasingly, reporting symptoms of depression, anxiety or stress. By contrast, only 8 MPs (or 1.2%) declared having a disability in the 2019-2024 Parliament, with the number increasing to 12 MPs (just under 2%) after the 2024 General Election. This discrepancy – although there is significant under-reporting of disability among Members – presents a challenge for the efforts to normalise disability in public life and counter ableist stereotypes, including among voters (though there are encouraging developments) and political parties. Equally, it hinders effective substantive representation of interests of disabled Britons based on first-hand experiences of disability, potentially feeding into their – already – low satisfaction with political institutions and trust in them.

    By examining accessibility provisions and practices that facilitate work of disabled Members, this study addresses the demand side of parliamentary under-representation of disabled people and reflects on disability inclusion of disabled politicians elected to the House of Commons – a unique workplace environment. That is because Members of Parliament are not employees but elected office holders and are therefore excluded from the provisions of the Equality Act 2010; likewise, The House of Commons is not a ‘public authority’ for purposes of the Act. While these legal exclusions exist, in practice, the authorities of both Houses of Parliament act as if the legislation applies[1], reasonable adjustments for disabled Members are made routinely upon request.

    This resonates with a special constitutional status of MPs, whose work no one should dictate or constrain[2] as they are accountable to their electorate. Their parliamentary parties, more experienced Members, and the House staff facilitate their work by explaining what opportunities this job presents but they do not define expectations meaning that Members are independent in choosing their priorities and activities as MPs. The unpredictability of the role can be challenging for some disabled Members, as management of disabilities often relies on establishing daily routines[3]. However, it can be beneficial for others, as differently from 9-to-5 jobs, MPs’ schedules can be adapted to accommodate their medical needs[4].

    This unique institutional environment, the nature of the role of an MP and often conflicting needs stemming from different disabilities[5] steer the House away from a ‘catch-all’, systematic approach to making disability-relating adjustments for Members and favours ad hoc, individual solutions that result in a complex patchwork of remedial measures aiming to improve work environments for disabled MPs. This approach stands out when considering adjustments to procedural norms and practices that concern Members of the House specifically, while unicameral and bicameral services provided for all passholders (including the House and parliamentary staff, peers, MPs and their staff) are more comprehensive. The latter stem from a strong institutional commitment to improving accessibility (e.g., the House’s Inclusion and Diversity Strategy) and the ongoing efforts to enhance working conditions of House and MPs’ staff (e.g., consolidation of the House services[6], the Speaker’s Conference on the employment conditions of Members’ staff), including as part of the Restoration and Renewal Programme (R&R). There are several examples of good practice with regards to disability inclusion in the House of Commons (and the UK Parliament), namely a good range of support services provided at the unicameral and bicameral levels, as well as by external stakeholders such as the Independent Parliamentary Standards Authority – with support from informal and partisan networks, i.e., ParliAble and political parties, respectively.

    In addition to this comprehensive and well-resourced provision, there have been improvements to physical access and infrastructure of the debating Chambers and of the House of Commons Committees – with an overall goal of making working environment more inclusive and enabling full participation of disabled parliamentarians. That said, several challenges remain.  

    Firstly, while communication about services has improved, a lack of awareness of available health and wellbeing services, particularly with regards to early intervention, remains, and valuable peer networks and targeted support (e.g., from the Workplace Adjustments Manager) especially by Members can be underused, which resonates with MPs’ heightened concerns over public image and anonymity. Members with less visible disabilities such as dyslexia and dyspraxia may be particularly likely to struggle through on their own, while they would benefit from appropriate targeted support (e.g., specialised software, documents in a different format) put in place early.[7] There is also scope to strengthen triangulation of support and the multi-agency approach to identifying and delivering individual disability support on and off the estate with input from the Members’ Services, the PDS and their network of accessibility champions, the IPSA, and political parties (while adhering to GDPR and data protection regulations).

    While improving accessibility is one of the priorities of the R&R programme, there is limited accessibility in parts of the estate, as pointed out by interviewees and campaigners. This has a knock-on effect for Members trying to get to debating Chambers and around buildings[8] and leads to their disproportionate dependence on assisting staff[9]. Challenges for physical accessibility, including to debating Chambers, necessitate Members to have permanent assistance, which increases their visibility as disabled politicians often making them reluctant to request it[10]. Even aids as basic as infrared hearing loops (a device worn on a lanyard around one’s neck to amplify sound) are under-used by Members who do not want to display such a visible marker of disability[11], which may open them for attack or mockery from other Members. While such instances were condemned by the House,[12] they did happen and may make other disabled Members wary of visibility.

    Equally, Members’ assessments of how procedurally accessible for disabled Members the House of Commons is are mixed. Some point out that they are ‘incredibly hostile and quite frankly, ableist’ and ‘on occasion [prevent them] from representing … constituents’. Others – while disagreeing with certain practices (e.g., bobbing, conduct during PMQs, lack of allocated or reserved sitting) – pointed out that there is much good will in the House (and among the Speaker and his Deputies), once their attention is engaged.[13] In particular, ad-hoc, case-by-case adjustments to etiquette and courtesies observed in the Chambers are made frequently upon request and with support from the Speaker (or of the Deputy Speaker in Westminster Hall). This does not require a collective buy-in of the House or a cost-benefit analysis that would accompany a more systematic, far-reaching adjustments (e.g., reflected in Standing Orders and affecting the workings of the House). It also reflects the need to consider each adjustment within the context of other adjustments and needs of Members.

    Overall, there is a sense that the House of Commons wants to be inclusive and accessible to disabled Members, but it is a busy place where partisanship trumps collegiality, and it is very difficult to organise.[14] Additionally, disability-related concerns – in addition to being complex and not sometimes in conflict with each other – are often outweighed by considerations of institutional efficiency and effectiveness and trade-offs with required resources and associated costs, as shown by discussions of retaining elements of remote participation and the R&R programme.[15] Considering the small number of visibly disabled Members and Members who self-identify as disabled, the House mostly adapts existing systems on a case-by-case basis (on demand) rather than designs a comprehensive system.[16] For example, there is a provision for individual adjustments in the debating Chambers in Erskine May 21.6.  This reinforces the need for individual Members to adapt to the ways of the House, not the other way around.[17]  

    The pace of institutional change and adaptation – especially if it aims to be sustainable and lasting – is slow. Development of unicameral and bicameral services, semi-formal workplace networks and a multi-agency approach to supporting disabled politicians, as well as improvements to accessibility in some parts of the parliamentary estate are examples of good practice and a significant step forward for the institution. Likewise, technical solutions and aids provided by parliamentary services and the IPSA improve daily lives and work of disabled Members significantly. However, these successes are more modest when it comes to adjusting procedural norms and practices that rely heavily on consensus within the House that in turn requires cross-party collaboration and a more collegiate and less adversarial culture of interactions between Members from the opposite sides of the aisle.

    [1] Interview 35, 11 August 2023

    [2] Interview 27, 15 December 2022; Interview 19, 16 March 2023; Interview 21, 31 March 2023

    [3] Interviewed by Ekaterina Kolpinskaya on 19 May 2023; Interview 10, 16 August 2023; Interview 14, 24 April 2023

    [4] Interview 21, 31 March 2023; Interview 7, 24 May 2023

    [5] E.g., low light is beneficial for those with ADHD but challenging for visually impaired Members.

    [6] Interview 20, 03 February 2023

    [7] Interview 40, 13 April 2023

    [8] Interview 1, 13 July 2023; Interview 18, 17 July 2023; Interview 16, 24 May 2023

    [9] Interview 1, 13 July 2023

    [10] Interview 1, 13 July 2023

    [11] Interview 34, 06 June 2023

    [12] Interview 7, 24 May 2023

    [13] Interview 14, 24 April 2023

    [14] Interview 13, 24 April 2023

    [15] Interview 3, 02 March 2023; Interview 27, 15 December 2022

    [16] Interview 5, 03 July 2023

    [17] Interview 7, 24 May 2023

    About the author

    Dr Ekaterina Kolpinskaya is a Senior Lecturer in British Politics at the University of Exeter.

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    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.

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    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.

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

    It is remarkable that after a series of U-turns on key policy announcements and the resignation of two senior members of her Cabinet, the event which may well have precipitated the Prime Minister’s resignation was a parliamentary vote on an opposition motion which the Government actually won.

    To be sure, many would argue that the Prime Minister’s position was already untenable before Wednesday evening but any hopes of retaining office went downhill quickly following the chaotic mismanagement of a vote on a Labour motion on fracking. While the Labour Party may take some pleasure in contributing to PM’s downfall, much of the damage was self-inflicted.

    What is an opposition day debate?

    Wednesday was one of twenty afternoons set aside in each parliamentary session to debate issues raised by opposition parties. Although so-called opposition days allow the opposition to set the agenda, they rarely cause serious difficulties for a government which can command a majority in the House of Commons. A government with a majority can usually be assured of defeating an opposition motion. Moreover, even if the government loses a vote on an opposition day motion, in most cases these are not considered to be binding and the government is not obliged to make any changes in response. Consequently, government’s may even choose to ignore an opposition motion entirely and not bother voting at all. Opposition days do provide an important opportunity for opposition parties to raise issues of concern and possibly to embarrass the government by forcing its MPs to vote against something which may be popular, such as extending free school meals, but can’t generally be used to force the government to take action.

    Labour’s motion on fracking was slightly different in that it included a clause which would set aside the standing orders of the House of Commons, which state that the government has control over parliamentary business. The motion then allowed for the opposition to take control of the parliamentary order paper at a later date (29th November) in order to bring forward a bill which would ban the use of fracking in the UK. This was an unusual tactic but reflects a similar episode during the Brexit debates in 2019, when a group of MPs took control of the parliamentary agenda in order to bring forward a bill to prevent a no-deal Brexit.

    This was an interesting tactic by Labour, facilitating a parliamentary vote on the standing orders which can be changed by a vote in the House, rather than seeking to press the government to take action without any real power to compel it to do so. As a result, the opposition sought to turn a non-binding opposition motion into a resolution with real effects. This meant the government could not afford simply to ignore the opposition motion and cede control of the legislative agenda to Labour.

    Moreover, Labour’s decision to focus on fracking was also key. The Prime Minister had proposed lifting the ban on fracking, but this is an issue on which Conservative MPs are divided. Not only was a moratorium on fracking included in the party’s 2019 manifesto, but several Conservative MPs  represent constituencies where plans for fracking have been subject to considerable local opposition. In short Labour sought to force Conservative MPs to vote against a key manifesto pledge and in favour of something which many of them oppose. By combining this with an attempt to take control of the parliamentary agenda, Labour effectively forced the government into a position in which it felt the need to whip its MPs to vote against the motion.

    Three-line whips and confidence motions

    While Labour might be seen to have laid a trap for the government, the chaos which followed was largely self-inflicted. The Conservative response was to issue a three-line whip, effectively compelling Conservative MPs to vote against the opposition motion or be subject to disciplinary action. Given the size of the government’s majority this should have been enough to defeat the motion. It is possible that several Conservative MPs would have abstained, some may even have decided to vote for the Labour motion, although this seems unlikely. Although this is a serious disciplinary matter, as several commentators have since observed, the penalty for abstaining on a three-line whip is unlikely to have extended to having the whip withdrawn and, if the MPs in question had particular constituency concerns, the government would usually have been sympathetic to their predicament.

    However, at some point on Wednesday, the Government decided to make this a confidence motion, implying that if the government was defeated it would be forced to resign and call a general election. Although set piece votes, such as those on the Queen’s speech or the budget are generally considered to be confidence issues which the government must win, the government can declare any vote a matter of confidence. It was, however, a considerable escalation of the stakes to make a vote on an opposition motion on such a divisive issue a confidence vote.

    Ironically opposition days can be used to table motions of no confidence in the government and unlike most opposition day motions these are considered binding. Given the difficulties facing the Truss government Labour may well have considered this, but perhaps dismissed the idea on the grounds that a confidence motion was more likely to unite Conservative MPs around their leader. By choosing to turn a vote on which its MPs are divided into a confidence vote, the Conservative leadership, however, managed to create a level of disruption which the Labour opposition could not hope to have achieved simply by tabling a confidence motion. MPs who might reasonably be allowed to quietly abstain on an issue which was particularly sensitive in their constituencies, were now being asked to put their own re-election chances on the line to prop up the Prime Minister.

    It is not clear why the government chose to do this. One must assume that Conservative whips felt that a three-line whip was not enough to ensure victory and there was a real danger that Labour would win the vote. It is also worth considering the wider implications of a Labour victory. If Labour had been successful in seizing the agenda and bringing forward its own legislation on this issue, it might well have repeated the trick on subsequent opposition days, significantly disrupting the government’s own legislative agenda.

    It’s hard to know what intelligence Conservative whips had about the scale of the potential backbench rebellion on the Labour motion but there is very little evidence that a sizeable and damaging rebellion was impending. On Wednesday afternoon less than a handful of Conservative MPs publicly stated that they could not vote with the government on this motion, and most of the dismay on Conservative benches revolved around the fact that the government had chosen to make this a confidence issue.

    Confusion in the chamber and in scuffles in the lobby

    The government’s problems were compounded by the handling of the issue as the day progressed. Having decided to make this already divisive issue the one on which the Truss government would survive or fall, someone in number 10 got cold feet and decided not to risk it. The minister closing the debate at the despatch box, Graham Stuart, dismayed the House by stating that ‘quite clearly, this is not a confidence vote’, repeating ‘obviously this is not a confidence vote’. Stuart was asked to clarify this by the Conservative MP, Ruth Edwards, who stated ‘many of us have been told today by our Whips that if we vote for, or abstain from voting against, this motion, we will lose the Whip.’ His response, ‘that is a matter for party managers, and I am not a party manager’ was hardly a lesson in clarity.

    The effect of this was twofold. There was clearly some confusion as to whether this was a confidence issue. Stuart’s initial statement that it was not a confidence issue was arguably clear, but his follow up did little to settle the matter, particularly for MPs who had been told all day by the whips, presumably in the most robust terms, that they must vote with the government to prevent a general election. Secondly, it is apparent that this last-minute change had not been communicated to the whips, effectively undermining their authority. As Conservative MPs made their way into the division lobbies there were reports that the chief whip and the deputy chief whip had both resigned, and for several hours afterwards the government was unable to confirm if either were still in place.

    There were also reports of an unseemly row between Conservative MPs in the division lobby. A groups of Conservative MPs, including cabinet members, were accused of physically manhandling at least one reluctant Conservative MP into the lobby in support of the government, prompting the speaker to launch an investigation into bullying.

    To compound the confusion, in the commotion in the division lobbies it is apparent that several MPs failed to record their vote using the electronic card readers when entering the lobbies. For a time it appeared that the Conservative rebellion was even greater than it eventually proved to be, and perhaps most remarkably, that the Prime Minister had not voted.

    In the end the Conservatives won the vote with some ease. The Labour motion was defeated, it was later announced that the whips had not resigned, and the record was corrected to show that the Prime Minister had voted with most of the rest of her party. Thirty-two Conservative MPs abstained, although some of these will have had permission to miss the vote and will presumably have been paired with an opposition MP who was also missing.  In a bizarre coda at 1.30 in the morning Downing Street issued a statement that although the vote had not been a confidence issue, it had still been a three-line whip and those who did not have a reasonable excuse for their absence would face ‘proportionate disciplinary action.’ It is not clear if this process had begun by the time the Prime Minister resigned twelve hours later.

    With its fracking motion Labour presented the government with a knotty problem, which certainly required careful handling. Instead, the government contrived to alienate its own embattled backbenchers by selecting the nuclear option and making it a confidence vote. It then further alienated them by changing its position only minutes before the vote took place. The melee in the division lobby only added to the sense of confusion and lack of control at the heart of government. That the government won the vote is largely irrelevant, as in the process it lost what remaining credibility it had amongst its own MPs. The episode is a remarkable example of the importance of party management in the House of Commons and that opposition parties do not necessarily need to win a parliamentary vote in order to undermine the government.

    Dr Andrew Defty, Associate Professor of Politics at the University of Lincoln 

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

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    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.

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    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/))

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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