UK MPs “plot” to do their job

As the expected “meaningful vote” on the EU-UK withdrawal agreement looms, and the legally mandated Brexit day (29 March) draws closer, it is worth thinking clearly about what the relationship is between the House of Commons and the executive in the UK system. As it happens, this is the week in my Ph.D. seminar on party and legislative organization in which we read a couple of items specifically about this relationship. Understanding the relationship is important if for no other reason than to inoculate oneself against headlines like this one in the Sunday Times yesterday:

Revealed: Commons plot to seize control from Theresa May ahead of Brexit vote

The print version even had a headline about a “coup”. It is bad enough when the newspapers and talking heads refer to a vote within a party on the continuance (or not) if its leader as a “coup”. It is just that much worse when the possibility of elected representatives taking back power from the executive is so branded.

To be clear, when a collective body to whom a leader (or other collective body) is responsible seeks to replace or diminish the authority of the latter, it is not a coup.

The specific potential actions that got the Times and “one senior figure” quoted therein so worked up is summarized as:

At least two groups of rebel MPs are plotting to change Commons rules so motions proposed by backbenchers take precedence over government business, upending the centuries-old relationship between executive and legislature.

Let’s be clear about something, shall we? The executive in a parliamentary democracy is an agent of the assembly, not vice versa. Thus if a majority of the House of Commons seeks to clip the wings of its agent, this is a principal acting as it should.

It is a separate question as to whether existing statutory law permits a change in control over the order of business, or whether statute first would have to be changed. That is, parliament may already have delegated away some of its rights to make day-to-day changes in business. If that is the case, these “rebel MPs” may be out of luck in the short term, and given the press of time (the Brexit deadline), the short term is rather important. Yet clearly they would have the right, under the structure of the political system, to make an effort to take back powers currently given to the executive.

A second critical point here is that the claim of a “centuries-old relationship” is just plain wrong. On this point, it is indeed helpful that I have just re-read Gary W. Cox’s masterful The Efficient Secret (1987), wherein the author traces exactly the process by which backbenchers relinquished their capacity for legislative initiative (and the emergence of an electoral connection between voters and the executive). The timeline provided by Cox makes clear that there was no single watershed date on which parliamentary power of initiative was abolished. More to the point of the preceding quote from the Times, Cox shows that this process of delegation took place in the middle of the 19th century. Thus we have something less that a “centuries-old” precedent, even if it is undoubtedly true that the executive generally has dominated the agenda of the House for quite a long time.

Cox also makes clear that this relinquishing of initiative did not take place without a fight–MPs regularly resisted efforts to centralize agenda power, but ultimately gave in because it served their own collective interests.

Of course, if a delegation of authority ceases at some moment to serve the collective interests of parliament, what has been delegated can be taken back. At least in principle, as again, if it requires statutory change rather than a procedural motion, it is somewhat more difficult to pull off.

Nonetheless, the governing Conservative Party (which is in a minority in the House) is evidently worried. Today in the House proceedings, there was a series of Points of Order, including several raised by Conservative MPs about scenarios like those sketched by the Times. The exchange is worth watching, at least for those of us interested in parliamentary procedure and executive-legisaltive relations. The exchanges run just over 16 minutes, from around 18:11 (when Prime Minister May answers her last question about her earlier statement to the House) to 18:27 (the last response by the Speaker to the various Points or Order).

The Speaker indicates in one of his responses (to Charlie Elphicke) that it is indeed his understanding that a “statutory instrument” currently can be raised only by a Minister of the Crown. Nonetheless, the next MP to raise a Point of Order (Nigel Huddleston) asks the Speaker to clarify whether MPs are indeed equal, with full access to information about any changes of procedure. (This is a pretty remarkable question!) Then in response to the final Point of Order of the exchange (Matt Warman, who says his constituents have raised doubts about the role of the Speaker), the Speaker says he will defend the rights of the House against “agents of the executive branch”.

Today’s discussion comes against a backdrop of a claim by hardline Brexiteer Tories that the Speaker upended some precedent on procedures in December and again just last week. The issues in question concern what the House can do if, as widely expected, the meaningful vote results in parliamentary defeat of the withdrawal agreement.

The upshot of all this is that the House is not quite as weak as it is often portrayed, and it may be prepared to reassert itself. As Ed Miliband stated in an intervention in today’s debates, the executive works on behalf of the parliament. It may be something that gets forgotten at times, especially by journalists and taking heads. But it is a basic fact of parliamentary democracy.

It is not only journalists and taking heads who forget about the importance of parliament. It is also academics, as another book on my seminar reading list for this week notes. Meg Russel and Daniel Gover’s Legislation at Westminster (2017) offers a much welcome corrective to the mainstream understanding. They push against the “parliamentary decline thesis” and offer a rich analysis, both quantitative and qualitative, of how parliament (both chambers) actually has substantial influence on legislative output. Some of this influence is due to relatively recent changes in parliamentary organization (e.g., changes in the 1970s to institutionalize the select committee system). Again, this serves as a reminder that “precedent” that gives a dominant role to the executive comes with all sorts of caveats, and is subject to occasional rebalancing. In any case, it is not a “centuries-old” precedent, but rather more recent. And it could be that Brexit is showing that it is rather fragile, too.

We may be witnessing a reassertion by the House of its rightful role in determining what course of action its agent, the executive, shall follow.

18 thoughts on “UK MPs “plot” to do their job

  1. You are, of course, correct about all of this. Unfortunately public understanding of civics, political institutions and the nature of democracy is severely low and weak in the UK. The fact that a once-respectable organ – and indeed a national newspaper of record – could produce such a headline and use words such as ‘coup’ to describe the assertion of the legislature’s authority over the executive is deeply worrying.

  2. Did Parliament ever have legislative freedom, at least in theory? I am reading a biography of Edward III and his parliamentary dealings sound almost modern, though somewhat American. He had his agenda, and he bargained on a few issues important to the Commons to get his agenda through. It may not be most rigorous book ever written, but it sounds like things have been almost the same forever.

    The real problem, in my eyes, grew when the party leaders stopped being agents of the party caucuses and became agents of the party itself. Once Commons was reduced to a standing electoral college/presidential debating chamber, the power of individual MPs began to fade. The idea that Westminster MPs are more independent than their cousins in the colonies may simply be a factor that the British PM can afford to lose more voters in the lobby without losing more votes. May’s protection from an interval vote for a year and Corbyn’s achievement of being dumped and then winning the selection (sic) to succeed himself reduces the power of the bankbenchers and Commons as a whole even further.

    • Parliament had legislative initiative in practice. This is what Cox’s book traces–the gradual reduction in the private member’s ability to advance and pass bills.

    • The centralisation of power in the executive (I don’t want to get smacked for calling it presidentialisation) long preceded the development of wider leadership election models. Until the 1960s the UK Conservatives did not even have a process for caucus elections. When McMillan resigned in 1963 there was an embarrassing process of royal soundings until the Earl of Home ’emerged’ as the new prime minister and party leader.

      Yet by that time the government already had total control of the parliamentary agenda including financial initiative. The balance has actually swung slightly towards the house since that time with independent election of the speaker and committee chairs and more time assigned to the opposition and private members bills. The balance may be about to swing quite dramatically towards the legislature.

  3. For your seminar this week, your students may be interested in the comparable problem in Ontario’s Conservative government:
    “Ontario’s Conservative caucus cannot call for a vote of non-confidence in the leader. By Conservative party rules, Ford can only be taken from his position through “death, retirement or resignation”. Under Ford, a majority government is translating into a four-year elected tyranny. The glimmer of hope in all of this is that people are starting to mobilise and there is renewed interest in replacing first-past-the-post elections with proportional representation, a move that would prevent a repeat of the one-man rule Ontario is currently suffering.”

    https://www.theguardian.com/commentisfree/2019/jan/11/ontario-doug-ford-premier-democratic

    • Yes, add the Ontario Conservatives to the list of parties that have tried to make their own leaders less “parliamentarized” despite the parliamentary system.

    • So what happens, in the extremely unlikely, even that Ford completely loses the caucus? Do they have to defect from the party en masse?

      • During the period shortly after the Brexit vote when the Labour caucus was most united against Jeremy Corbyn, there was talk about most of the caucus forming a separate ‘Parliamentary Labour’ group and being recognised as the official opposition in order to remove a then-deadweight leader.

        The situation is obviously different for a governing party, and, though I’m sure someone will find an example, I think most Canadian midterm changes of government have been in situations where the incumbent government has been reappointed, but the opposition has lined up a coalition to defeat it (the Clark and Gallant governments). Even if enough PC members crossed the floor to put Ford into a minority, it would probably be an open question whether Ford could dissolve the legislature (as Christy Clark tried to do), or whether the opposition would be willing to play along and install the PC rebels’ choice of Premier (or vice versa); if an election, in which most of the rebels would be disendorsed, would be the likely outcome of any mass floor-crossing, then I suspect most MLAs would stick with the government.

  4. Two conflicting opinions on whether the agenda should be set by Her Majesty’s ministers or by Parliament. The answer depends on whether you are a Cavalier or a Roundhead at heart.

    • What an excellent argument for a codified and entrenched constitution all this is. The British constitution at the moment appears to be whatever the speaker believes it to be.

      • Alan (and anybody else who knows the answer), In the U.K., what role do the courts play in determining what the constitution is? And why have we not heard more about threats to take disputes about the relationship between Parliament and the government to the courts?

      • Bob,

        the traditional answer is nil. The contemporary answer is that the new UK supreme court has been prepared to address at least some constitutional issues. In Commonwealth realms with a written constitution, the courts will occasionally address procedural issues within parliaments but they are very reluctant to do so.

  5. Alan, the main issue here isn’t really procedural. It’s whether (or not) Parliament has the authority to tell the government what to do, short of replacing the government with a different one.

    • In legal terms that is a matter of parliamentary procedure. I cannot see the courts in Britain or elsewhere forcing the government to obey a parliamentary instruction. The sanction for that instruction is a no confidence vote which the commons have rejected. If parliament actually legislated, for example, against a no deal Brexit, that is a different story.

      • You write, “If parliament actually legislated, for example, against a no deal Brexit, that is a different story.” Isn’t that exactly the sort of legislation we are talking about? If the cabinet were to fail to implement such legislation, then does the Supreme Court have the authority to step in?

  6. Prorogation is in the air…

    “Jacob Rees-Mogg, the chair of the European Research Group of MPs in favour of a hard Brexit, told a lunchtime conference the Queen should suspend parliament in order to stop Cooper’s bill. “If no deal were taken off the table, Her Majesty’s government would have had to have connived in doing it. It cannot be done if the government is determined to stop it,” he said.
    Rees-Mogg hinted that Brexiter MPs could cause chaos for the government if it appeared to be tacitly allowing the bill a passage through parliament. He said the government could instruct the monarch to prorogue parliament if it were serious about stopping Cooper’s bill.
    “Prorogation normally lasts for three days, and any law that is in the process before prorogation falls. I think that would be the government’s answer. That is the government’s backstop, to use a choice phrase,” he said.
    “And if the government allows no deal to be taken off the table, that would be a failure of the government, and then it would be the job of backbench MPs to hold the government to account.”

    https://www.theguardian.com/politics/2019/jan/23/labour-whip-ready-back-yvette-cooper-no-deal-brexit-amendment

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