I thought some readers would appreciate a New Year caption competition, so here is the first of 2019. It shows me speaking to some students after I gave the inaugural lecture, on Parliament and the Classics, at the Victoria Gallery, Liverpool, last year, to mark the creation of the Network for the Interface of Classics and Politics. I thought it would be an appropriate picture given that in subsequent posts I shall be writing about the relevance of the classics – especially Artistotle’s analysis of oratory – to contemporary politics.
Readers would probably feel there was a gap in their Yuletide celebrations if I failed to post another missive on the Fixed-term Parliaments Act. Events before Christmas – indeed during Christmas – could have been especially difficult had Jeremy Corbyn moved a motion of no confidence in the Government, as some pressed him to do.
As it is, on Monday 17 December, he tabled a motion of no confidence in the Prime Minister, a novel move and one which did not have the same status as a motion of no confidence in the Government. First, it fell outside the convention for finding time for an early debate (the Government finds time for motions of no confidence in HMG), and, second, if carried, it would not have engaged any provision of the Fixed-term Parliaments Act. The Government declined to find time to debate the motion before the House rose for the Christmas recess.
Had the Leader of the Opposition tabled the motion ‘That this House has no confidence in Her Majesty’s Government’ (the wording as stipulated in section 2(4) of the FTPA), and it had been carried, then, under section 2(3), if a ‘period of 14 days’ passes without a new or reconstituted Government being formed (the Act is silent on what form it may take) and achieving a motion of confidence from the House, an early general election is held.
The key point to note is the period of ’14 days’ – not 14 sitting days or fourteen working days. In other words, the 14-day clock starts ticking without interruption from the day the motion of no confidence is passed. If it was passed on, say, Wednesday 19 December, the statutory 14-day period would thus straddle Christmas week and New Year. It would be difficult to recall Parliament on Bank Holidays (not least because of transport difficulties) – thus ruling out 25 and 26 December as well as 1 and 2 January (the latter is a holiday in Scotland) – leaving only Christmas Eve, 27 or 28 December or, exceptionally, a weekend sitting (there are precedents for Saturday, and indeed Sunday, sittings). In short, it would be rushed, and potentially chaotic, at a busy time of year.
There would, though, be no statutory requirement for the House to meet to consider such a motion. Whatever Government was formed, it need not necessarily seek a motion of confidence. (And there would need to be a Government in existence for the House to vote on a motion of confidence.) There is only a requirement for one to be passed to avoid an early general election. The Government could decide not to recall the Commons, with the result that under section 2(3) an early election would be triggered.
There is a certain irony that, if an early election was triggered under section 2 of the Act, Parliament would be dissolved at the beginning of the 17th ‘working day’ before the polling day for the election. Section 3(5) and 3(6) stipulate what constitutes ‘working days’ (excluding weekends and Bank Holidays primarily). Had a similar provision applied to the 14-days under section 2, there would be more time available to get a Government together and face the House of Commons.
This illustrates some of the problems to which the Fixed-term Parliaments Act may give rise. The glimmer of light on the horizon is that, under pressure from the House of Lords, the Government agreed to a provision in the Act requiring it to be reviewed. It is one of the rare Acts that includes provision for post-legislative scrutiny. Under section 7(4), the Prime Minister must make arrangements for a committee to review the operation of the Act ‘and, if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of this Act’, and for the committee’s findings to be published. Section 7(6) stipulates that the arrangements for the review must be made no earlier than 1 June 2020 and no later than 30 November 2020. Well, 2019 is almost upon us….
In my 2016 Michael Ryle Memorial Lecture, I developed the theme that for Parliament these are the best of times and the worst of times. It was a theme to which I returned in my Daily Telegraph article earlier this month (see my earlier post). They are the best of times in that, in relation to the executive, Parliament is the strongest it has been in the era of modern British politics (which I treat as post-1867). They are the worst of times in terms of the relationship to the public, which exhibits little trust in politicians and the institution. Is the former affecting the latter? Is the House of Commons reaching a stage where it is arguably becoming too powerful?
There is a tendency to take a strengthening of Parliament as an obvious good. However, some years ago, Anthony King penned an article entitled, ‘How to strengthen legislatures – assuming that we want to’. Very few appear to question the assumption. There is a case for strengthening Parliament as a policy-influencing, or reactive, legislature, that is, fulfilling the functions of legislative scrutiny, administrative oversight (colloquially, calling government to account), and debate, ensuring the voices of citizens are heard. These are functions particular to Parliament. They are carried out in relation to government. Government maintains a discrete role, crafting and bringing forward policy to which Parliament then responds. The distinction between the tasks of government and Parliament is core to accountability. The government is accountable between elections to the House of Commons and at elections to electors. Voters know who to hold to account for the outcomes of public policy.
We are now in an unprecedented situation in that there is basically a tussle between government and different configurations of the House of Commons for control of policy over Brexit. The situation is complicated, not to say confused, by the fact that the government itself is not united; neither is the Opposition (the alternative government, which it is why it is designated formally as the Opposition). This creates a problem in standing before the electors as unified entities. In the Commons, there are different combinations of Members coalescing behind different approaches, in effect trying to achieve a different policy outcome to that proposed by government. It is not a case of the House of Commons saying aye or no to government, with the onus for generating policy remaining on government, but rather combinations of MPs attempting to substituting alternative policy or policies. This creates a confused situation in terms of accountability, not least if a different policy outcome to that proposed by government is achieved. There is no one body that can stand before the electorate to be held to account.
The situation arises from a unique combination of events: the 2106 referendum; the divisive nature of European integration, which has divided the parties and created divisions within parties throughout the post-war era; the election of Jeremy Corbyn as Labour leader; and the result of the 2017 general election. All this against a backdrop of MPs’ willingness to vote against the whips; long gone are the heady days of what Sam Beer referred to as ‘the Prussian discipline’ of MPs. Electors do not reward parties that are seriously, publicly and consistently split. Not only does this not help parties, but the divisions and uncertainties are not helping how people see the House of Commons. The House is divided across a range of policy positions, rowdy and contributing to uncertainty. MPs appear more concerned with pursuing their particular policy preferences (convinced – whatever the stance is – that they are so obviously right) than they are with the reputation of the institution of which they are members.
The government is still in the driving seat, in that it is responsible for negotiations and determines its business schedule in the House (which it has used to delay debate on the withdrawal agreement), but there are others in the vehicle seeking to grab the steering wheel.
In fulfilling the reactive tasks ascribed to a policy-influencing, as opposed to a policy-making, legislature, both Houses are doing a good job, far better than ever before (hence the best of times). Look, for example, at the work of select committees in both Houses, including in examining the consequences of Brexit. Strengthening both Houses in fulfilling these core tasks is to be encouraged. However, in seeking to wrest control of policy from government, MPs are creating what may prove to be a short-term aberration, but while it lasts it creates an uncertain, and potentially perilous, situation.
As regular readers will be aware, I receive correspondence that addresses me in different forms. My recent post on the subject identified perhaps the most intriguing form, namely ‘Philip of Louth’ (conjures up all sorts of images: ‘And Philip of Louth travelled far and did sit among the council of the wise, and saw that it was good.’ Doesn’t quite work with ‘Mr Louth’, which is how I am addressed in one regular communication.) Over the Christmas period, I have made a note of the different forms of address. Excluding those letters that are addressed to Lord Norton of Louth or Professor Lord Norton of Louth, I have been designated as:
Lord Norton K. Louth
Professor TLNO Louth
Mr P Lord Norton of Lo
The Lord Norton Norton
Professor L. Louth
Professor Norton of Louth
Lord N. O. Louth
Lord Philip Norton Louth
Mr P. Norton
Lord P. Norton
Prof Philip Norton of Louth
The list is not exhaustive. I variously receive letters from one particular charity addressed to ‘His Excellency Lord Norton of Louth’ – I haven’t rushed to correct that one.
Not sure if there are any benefits from the different forms. If HMRC got it wrong, could I return it as ‘not known at this address’? Then again, could they try and tax me under each?
Anyway, Merry Christmas from all the foregoing.
And good tidings for regular readers. There will soon be another caption competition….
The BBC has published an article on unlikely scenarios to break the Brexit deadlock. One comes from former MP George Galloway, who is quoted as saying:
“There are several ways that stasis could be broken. The best one by far is for Her Majesty to decide that only the country itself can rule on where Britain goes next. General election now, that is what I say, that is what I hope she will say.”
This is not an unlikely scenario. It is an impossible one. Under the Fixed-term Parliaments Act, the monarch lost the power to dissolve Parliament. She retains no residual powers in relation to dissolution.
The Act has been on the statute book for seven years. And it is not that long…
UPDATE: Pleased to report that after I contacted the BBC, the article was amended to include reference to the Act.
Today’s Daily Telegraph carried a lengthy article by me on the role of the Commons in the light of the Government defeats in the House this week in relation to Brexit.
My argument, the core of which will be familiar to some readers, is that for the House of Commons, these are the best of times and the worst of times. It was a theme I developed in my 2016 Michael Ryle Memorial Lecture. They are the best of times for the House in relation to government and the worst of times in relation to the public.
A combination of behavioural, attitudinal, structural, political and constitutional changes have rendered the House more powerful than at any other time in modern political history in challenging government. This week’s defeats were not unprecedented as defeats, but they were remarkable in that they constituted an attempt by the Commons not simply to say no to government, but to wrest control over a major issue of public policy.
The public, however, do not judge the House on what it does in fulfilling its core functions, but rather on the behaviour of members. The result is that the House is neither loved nor respected. The Brexit debate exacerbates the problem by creating a situation in which MPs by their votes, whichever way they go, are going to annoy a good part of the population. People have taken entrenched positions on different sides and are not going to be budged from their perch of moral certainty and belief that most people agree with their stance (‘the people did/didn’t vote for…’). As a result, MPs cannot and will not please everybody and may well annoy more people than they please.
Disapproval of what members do reinforces negative perceptions, however ill-founded, and – as I have argued before – there is no single figure of authority to respond immediately to defend the institution. Parliament comprises two Houses. Each is the sum of its members. There is no one authorized to respond to attacks on the institution. When there is a response, it is usually too late to undo the damage. Members could do more collectively to defend the institution, but they are distracted by other concerns.
As I concluded the article, ‘Paradoxically, the House of Commons may thus be both a major winner and a loser from Brexit. It is a unique conundrum for which there is no obvious answer.’