Is the House of Commons too powerful?

Last month, I gave the Bingham Lecture in Constitutional Studies at the University of Oxford.  The title of the lecture was ‘Is the House of Commons too powerful?’

When I gave the Michael Ryle Memorial Lecture in 2016, I argued that for Parliament these were the best of times and the worst of times.  They were the best of times in its relationship to government, in that it was now more effective than at any time in modern British politics in scrutinising and challenging government.  They were the worst of times in its relationship to the people, in that people did not judge Parliament by what each House did, but rather by what individual members did.  Scandals undermined public perceptions and people did not trust MPs.

In the Bingham Lecture I argued that events of recent months meant that for the House of Commons these were the worst of times, both in relation to government and in relation to the people.  In recent months, attempts by MPs to wrest control of the timetable and of policy from government challenge the role of Parliament within the Westminster model of government.  Parliament is a reactive body.  Through elections, voters choose those they wish to govern.  There is one body – the party in government – responsible for public policy.  Bolstered by the convention of collective responsibility, it faces the House as one body, resting for its continuation in office on the confidence of the House.  There is a clear line of accountability to the House and to the electors.  Parliament may say ‘no’ to government, it may query and challenge, but ultimately government governs and is answerable to electors at the next election.  Electors cannot hold to account a transient majority in the House of Commons.

Furthermore, electors do not see in a positive light the attempt to wrest control of policy from government.  The most recent Hansard Society Audit of Political Engagement found that 42 per cent of those questioned agreed with the statement ‘Many of the country’s problems could be dealt with more effectively if the government didn’t have to worry so much about votes in Parliament’.  As I said in the lecture, we don’t know how many would have answered affirmatively if the question had been asked in earlier years, but it was not asked, presumably for the reason that it would seem a ridiculous question to ask.  It reflects the extent to which the relationship with electors has changed.  Whereas before, electors did not trust MPs, now they do not trust the House of Commons.

In terms of the Westminster model, there is a case that the Commons is, or at least teetering on the edge of, becoming too powerful, undermining accountability to electors – accountability that is at the heart of the Westminster model – and undermining public trust in Parliament.

__________

This is a summary of the lecture.  I am pleased to report that you will be able to read it in full, should you wish to do so: it is being published in the autumn issue of Parliamentary Affairs.

Advertisements

More on referendums

Last week, I was speaking in the chamber on successive days.  On Wednesday, I introduced motions to take note of two reports from the Constitution Committee on the legislative process and the following day spoke in a QSD (Question for Short Debate) on referendums and representative democracy.  The latter debate was time limited.  So many peers had signed up that backbench speakers only had three minutes each.  I kept within time and my contribution was sufficiently short so that I can repeat it in full here.  Lord Soley’s motion referred to referenda, but in his speech he referred throughout to referendums, so I did not need to take up time explaining why it is referendums and not referenda.  Regular readers will know that referendum as a Latin gerund has no plural.  The Latin gerundive referenda, meaning things to be referred, connotes a plurality of issues.  Anyway, here is the speech.  The same regular readers will also be familiar with some of the points, given more recent posts.

‘My Lords, I congratulate the noble Lord, Lord Soley, on raising this important issue.  I wish to raise two problems with referendums.

The noble Lord raised the issue in the context of representative democracy.  In a representative democracy, electors choose those who will govern on their behalf and can then hold them to account for their actions.  The problem with a referendum is that there is no accountability.  Electors cannot hold themselves to account for the outcome of a referendum.  A referendum is thus, strictly speaking, an irresponsible act.

Once a decision is taken, it is left to others to implement.  This leads to the second problem.  We know how people vote in a referendum, as there is a formal, recorded outcome.  We do not know definitively why they voted as they did.  Politicians may think they know.  The EU referendum is a case in point.  We hear politicians claim that people did not vote for a hard or a soft Brexit, when what they mean is that they think electors voted in a way that aligns with their preference.  They cannot prove it.

The result is that it leaves those who are responsible for acting on the outcome in a difficult, if not impossible, situation.  I have previously likened the UK’s membership of the European Union to a marriage, a marriage of convenience, arranged late when the previous preferred relationship was not proving fruitful. Now electors have voted for a divorce.  That is the starting point.  How do you divide the assets? Who gets custody of the children?  Those responsible for negotiating the terms of the divorce know definitively only that a divorce has been agreed.

I have previously expressed opposition to referendums on grounds of principle, but we are now faced with referendums as a part of our constitutional architecture.  We cannot undo their use, but we need to think through how we handle them in future, as the noble Lord, Lord Soley, indicated.  We need to learn from not just the EU referendum but earlier ones as well.  Will the Minister tell us what thought has been given to a generic referendums Bill?  We need such a measure before we embark on another referendum.’

Effective prime ministerial leadership?

Some years ago, I published an article analysing prime ministerial leadership in terms of purpose, skill and circumstance.

Prime ministers need certain skills to navigate an increasingly pluralist political environment.  As I wrote, ‘The individual in the office will largely determine the skills that are available.  Circumstance will determine which are needed.’  The occupant of No. 10 needs basic, and enduring, skills of impression management as well as having a feel for the office, understanding what is required.  He or she require specific skills of selection, leadership and the ability to anticipate and react.  Prime ministers have the strategic options of command, persuasion, manipulation and hiding.  A good prime minister selects effective ministers, knows when to give a lead, when to leave it to others, and when on occasion to hide.  At times, the power to persuade is more important than the capacity to command.  On occasion, one may need to manipulate and use lobby briefings or even backbench MPs to fly a policy kite.  The ability to adapt is also important.  Margaret Thatcher had clear goals, but as one of her Cabinet colleagues put it to me, ‘she recognised a brick wall when she saw one’.  She could bide her time, or tack, if necessary.

But to what purpose are these skills deployed?  Some prime ministers may be effective politicians, but they have no clear goals.  Some may have clear policies, but they lack the skills necessary to deliver them.  To understand and explain prime ministerial leadership, it is necessary to look at why someone seeks the top job.  I developed a typology of prime ministers:

Innovators seek power to achieve some future goal, which they themselves have largely devised, and are willing to work to bring their party along with them, however willingly or unwillingly.  They tend to be driven by ideas. Margaret Thatcher is an obvious example.

Reformers seek power to achieve a future goal, but one previously formulated and agreed by their party; it does not bear their personal imprint.  Clement Attlee falls in this category, delivering the measures promised by the party’s 1945 manifesto.

Egoists seek power so that they may exercise and keep power.  Their motivating force is essentially that of self.  To maintain themselves in office, they are principally concerned with the present, not some future ideologically-inspired goal.  Examples would be Sir Anthony Eden and Harold Wilson.

Balancers are concerned principally with ensuring the maintenance of peace and stability, both within the party and, more importantly, within society.  Hence, they are oriented to the present rather than the future.  Examples include Tory prime ministers such as Harold Macmillan, but also include Labour premier James Callaghan.

These are essentially preponderant types.  They are not fixed, nor mutually exclusive.  A prime minister may straddle categories and may change over time; Churchill in wartime was a very different premier than he was in peacetime.  They do, though, provide an analytic framework for understanding the occupants of No. 10 and how they compare with others.

Theresa May was constrained by circumstance.  She was a reformer, there to deliver on a goal set by a referendum.  In this respect, it was a unique circumstance.  Julian Amery observed that a good jockey rides a difficult horse.  Theresa May was not only a poor jockey, lacking the skill to adapt and to utilise informal space (the unclubbable prime minister), but also in effect changed horses (the 2017 House of Commons against that of 2015).  She was effectively unseated.

Looking at skills and purpose helps one distinguish candidates in the current Conservative leadership race in a way not possible by simply taking their stances on Brexit.  Boris Johnson and Michael Gove may not be poles apart on Brexit, but they differ in terms of purpose.  Gove is closest to an innovator, Johnson to an egoist.  The several candidates differ in skills, including in their oratorical skills.  I have addressed oratory in an earlier post and will return to it in the context of the current leadership contest.

One other dimension, relevant in the current contest, is that the skills necessary to win an election may be different to those required to be a good prime minister.  Some occupants of No. 10 have been credited with winning an election almost single-handedly (Ted Heath in 1970, for instance, and John Major in 1992), but this has not necessarily translated into an effective ministry.  Being both a good campaigner and an effective leader in government may obviously be desirable, but not always achievable.

European disunion: ending a marriage

In a chapter I contributed to European Disunion: Between Sovereignty and Solidarity, published in 2012, I focused on Britain’s relationship to the European Union.  I used the analogy of a marriage: ‘… the UK can be characterised not so much as an awkward partner as a reluctant bride, delaying saying “yes” because her heart still yearned for others and unhappy in a domestic relationship that does not allow her to play the role she expected.’  The marriage has been one of convenience more than love and the relationship variously fraught, though so long as we have been in the marriage we have carried out our household obligations.

I think the analogy retains its utility now that we have served divorce papers.  In any marriage that has lasted more than forty years, a divorce can be messy.  Even if it were an amicable break, there would be the issue of what to do with the house and children (if any) and the assets acquired over that time.  Arguing over who gets what is not necessarily easy.  There is talk of a ‘clean break’ Brexit.  It is possible simply to walk away from a marriage, but that may mean that one side keeps the house and assets, but lose out on the alimony.

I think the analogy is valuable for drawing out the nature of what is entailed in leaving the EU.  It illustrates the problem of identifying what constitutes Brexit.  A divorce is a legal ending of a marriage, but the real tussle is over dividing the assets.  Divorce mean divorce. It remains a divorce whether amicable or acrimonious.  The amicable to acrimonious spectrum is a wide one.

I offer that as a possible aid to explaining the nature of Brexit, given that there is little else to assist, with no precedent to guide us.  I do so without prejudice to either side of the argument.  As I explained in a recent debate in the Lords, the discourse on Brexit is toxic and I associate myself with neither side.  There are proponents on each side that lack balance and self-awareness.  Being convinced that one is so obviously right and that one’s opponents are deluded does not always create a sound basis for persuading others to see the light.

The unclubbable Prime Minister

In my earlier post on the importance of informal space in Parliament, I noted that, ‘as the examples of Edward Heath and Margaret Thatcher demonstrate, party leaders cannot afford to neglect informal space.  Theresa May is not a natural when it comes to utilising such space, but at times like this, she and her allies may find it essential.’

As Laura Kuenssberg of the BBC reports, the PM tended to make a virtue of the fact she was not a clubbable person – ‘At the start she boasted about not being a creature of Westminster’s bars and cliques’ – and continues ‘But it meant this very private politician had few true friends to help when things turned sour, and neither the powers of patronage, nor the capability to schmooze or arm twist to get people around to her point of view.’

Ministers may be good at performing in the chamber and in committee – what I have termed formal space – but to succeed in politics that is necessary, but it is not sufficient.  It is what goes on in the tea and dining rooms, the corridors, and even the division lobbies that can affect their future success.  They need to be seen and to listen to backbenchers. Knowing the mood and building up goodwill is important.  A good rule of politics is to make your friends before you need them.  Neglecting informal space leaves politicians vulnerable when they come under pressure.  Theresa May has spent her premiership under pressure.  She failed to learn the lesson of her predecessors.  She has been another Heath in never making use of informal space, rather than a Thatcher or Major, who did recognise its importance but who found being Prime Minister too demanding to continue mixing with backbenchers on a regular basis.  A good rule for any Prime Minister is never to neglect the corridors of the Palace of Westminster.

Some problems of the constitution

I have just signed a contract with Manchester University Press for a book entitled Governing Britain: Parliament, ministers and our ambiguous constitution.

It is designed, as may be inferred from the title, to address uncertainties, or conundrums, in our constitutional arrangements.  It is not designed to provide an overall introduction to the constitution. Nor is it intended to advance a particular view of constitutional change.  There are various works that already do that, some better than others, but that is another story. Rather, it will comprise a series of short essays crafted to tease out problems that have arisen or been overlooked and that merit elucidation.

The inspiration for the book is Some Problems of the Constitution, penned in the 1950s (and later updated) by Graeme Moodie and Geoffrey Marshall, a work that is short, accessible and a gem for those interested in uncertainties of the constitution, such as the position of a ‘deputy’ Prime Minister – a subject I shall also be addressing.  Other subjects I will cover include parliamentary sovereignty, choosing a Prime Minister, conventions, ministerial responsibility, devolution, Parliament and Brexit, the relationship between Parliament and the Supreme Court, and, surprise, surprise, fixed, or semi-fixed, term Parliaments.

I mention this in the hope of whetting your appetite.  Don’t get too excited. It will be some months before I deliver the manuscript.  Whether that is before Brexit is another matter.  I propose to deliver on time.  There is no backstop.

For publication details, see here.

Yet more on the Fixed-term Parliaments Act…

The saga of media misunderstanding of the Fixed-term Parliaments Act continues….

Recently, The Times carried a report asserting that, if the Government was defeated on a Queen’s Speech, both main parties would have 14-days within which to form a government in order to avoid holding a general election.  I wrote to point out that, if the Government was defeated on the Queen’s Speech, no provision of the Fixed-term Parliament Act was engaged.  The 14-day provision applies only if the motion ‘That this House has no confidence in Her Majesty’s Government’ is carried and if, within 14-days, a  Government does not manage to have passed the motion ‘That this House has confidence in Her Majesty’s Government’, an election takes place.

The letter was published, but the letters editor did not realise the motions (no confidence, confidence) were different and edited the letter in such as way as to make no sense at all, suggesting if a motion of no confidence was carried, a Government then had 14-days to get the same motion passed!

I have since had an apology for the mistake and it has at least been corrected online.

I did suggest someone at The Times should read the Fixed-term Parliaments Act.  The same applies to other media, including the BBC.  It is a very short Act.