A Commons more likely to arm-wrestle ministers for ultimate power
The UK is witnessing a tussle for control of a fundamental issue of public policy between the Government and the House of Commons. This week the Commons appears to have gained the upper hand. The nature and scale of what MPS have done is unprecedented, but their actions need to be seen in the context of the major changes in recent years. For the House of Commons, these are the best of times and the worst of times. They are the best of times in its relationship to the executive. They are the worst of times in its relationship to the people. The Commons is now more effective than it has ever been in modern political history in challenging the executive. In its relationship to the people, it faces a crisis of confidence. Brexit is the epitome of it exercising its power. At the same time, doing so creates a dilemma in meeting the wishes of the people.
Far from being in “decline” – a refrain for much of the past century – the House of Commons in recent decades has been transformed in its capacity to challenge the executive. This is not the result of a single event. It derives from a raft of behavioural, structural, political, and constitutional changes.
Backbenchers have become more independent in their voting behaviour. The high point of party loyalty was the mid-1950s. Since the Edward Heath government of 1970-74, when the PM pushed some Tory MPS to breaking point, government backbenchers have proved willing to vote against their own side. On occasion, this has led to government defeats, under Heath because of Tory MPS voting with the Opposition, and under the Labour governments of 1974-79 because of a combination of Labour dissent and opposition parties combining against a minority government. The government of John Major suffered significant defeats, not least on the social chapter to the Maastricht Bill.
But backbench dissent reached unprecedented levels after a coalition was formed in 2010. The government lost some of its cherished measures – boundary changes for the Tories, House of Lords reform for the Liberal Democrats.
The defeats suffered by the Government this week are thus not unprecedented as defeats. What sets them apart is the extent to which they constitute the House not simply saying “No” to the Government, but in trying to wrest control of policy from the hands of Her Majesty’s ministers.
However, it is not simply a consequence of behavioural change. There has been an attitudinal change on the part of MPS. They want to be more involved, not just in reacting to what government brings forward – voting against the whips is a rather blunt weapon – but in shaping debate. Pressure from the Commons resulted in the creation of departmental select committees in 1979, which has since been complemented by further reforms – the election of select committee chairs and members (robbing the whips of a major patronage power) and the creation of the backbench business committee.
MPS have become more independent in their behaviour as the power of the whips was hollowed out.
Then there are the political and constitutional changes of the past decade. A coalition was formed in 2010, the first time one has been formed because of the electoral arithmetic of a general election. The powers of the PM were limited by having to gain approval of a coalition partner. Inter-party relations now stood alongside intraparty relations as core to keeping the government in power. The aftermath of the 2017 election has led to minority government and a deal with the DUP – not dissimilar to the Lib-lab Pact of 1977-78 – where, again, inter-party relations are crucial – and Unionists, in 1977 and now, are arguably more hard-nosed negotiators than the Liberals.
We thus see the consequences of behavioural, structural and political change combining to limit government. However, there are then the constitutional changes of recent years. Under the Constitutional Reform and Governance Act 2010, the House of Commons has the statutory power to prevent ratification of a treaty. Then there is the Fixed-term Parliaments Act 2011. This transfers the power to assent to the PM’S request for an election (essentially a formality) to the House of Commons. The House may agree to a PM’S request for an early election, as it did last year, but nonetheless a veto power now rests with the Opposition and indeed with Tory backbenchers. If just one-third of the House fails to vote for an early election (which it could do by abstention), the two-thirds threshold is not met.
The Act also affects fundamentally what was the previous convention governing confidence. An election may be triggered if the House, by a simple majority, passes the motion “That this House has no confidence in Her Majesty’s Government” (and if within 14 days a new government is not formed and achieves a confidence vote). However, a PM calling a vote of confidence, and losing it, will not trigger the provisions of the Act. If Theresa May called such a vote, but lost, her options would be to resign or go to the House of Commons and request an early election. She would then be dependent on the votes of the very MPS who had put her in that situation. If she chose simply to resign, we would be in largely uncharted constitutional territory.
The closest analogy would be the resignation of the Balfour government in 1905 – not a happy precedent for the current government.
All these changes, then, have come together and they create a new situation for the Government in facing the House of Commons. They have done so as the Government seeks to undertake a fundamental constitutional change, also for which there is no precedent. No other state has left the EU under the terms of the Lisbon Treaty. Whereas government could once sail on largely calm parliamentary waters, those waters are now dangerous and largely uncharted.
While the Commons stands powerful in relation to government, its relationship to the public is under challenge. The Commons is neither loved nor respected. Levels of satisfaction are low and declining. The Hansard Society 2017 Audit of Political Engagement reported: “Satisfaction with Parliament over the course of the Audit series has been on a shallow downward trajectory, and this year the situation is largely unchanged. Only three in 10 people (30 per cent) report being at least ‘fairly satisfied’ with the way Parliament works.”
The public does not rate MPS on how well, collectively, they scrutinise government but rather on the actions of the individual members. The expenses scandal of 2009 exacerbated distrust, but it was not the cause of it.
The problem is now compounded massively by Brexit. We know
‘Whereas government could once sail on calm waters in Parliament, those waters are now dangerous and largely uncharted’
definitively how electors voted in the 2016 referendum. We do not know, definitively, why they voted as they did, nor what they expect government to deliver. A great many appear to think they do know (on the “most people agree with me” principle) – generating entrenched positions on each, or rather every, side of the Brexit debate. The different sides do not so much engage in debate as talk past one another. MPS can offer their judgment, but it is impossible for them to act in a way that pleases each and every side and, indeed, may end up pleasing no one. Whichever way the MPS vote on Brexit, it is not only critical for the PM and the Government, but also for the reputation of the House of Commons.
The more the House exercises its powers in dealing with Brexit, the greater the potential to harm to its standing with the public. Compounding the problem is that whenever Parliament’s reputation is threatened, there is no one who has the authority to speak for it. Parliament comprises two Houses. Each is the sum of its members. No one can speak immediately and on behalf of the institution. MPS could try to be proactive in defending the body to which they belong, but they have other priorities.
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.