The UK parliament continues to be dismissed as powerless in many academic and popular accounts. Drawing on a large body of quantitative and qualitative research conducted over more than 15 years, a recent article by Meg Russell and Philip Cowley argued that the Westminster parliament is in fact an institution with significant policy influence. Meg Russell summarises here.
In the study of public policy, legislatures tend to be portrayed as relatively weak institutions. This applies to the UK parliament in particular. The classic comparative view associates the Westminster model, of which the UK is seen as the emblematic case, with centralised executive power and an acquiescent legislature. Assumptions of Westminster’s weakness are not, however, confined to comparative scholars or to the recent past. In a 2011 article Matthew Flinders and Alexandra Kelso traced gloom-laden statements of British parliamentary powerlessness back over a century and more. Meanwhile, a public policy textbook published in 2012 reflected the view of many scholars in the field when stating that ‘Despite the name “parliamentary democracy”, the parliament plays only a limited role in decision-making in the British Westminster model’ (p. 139).
Yet in recent years scholars specialising in the study of the UK parliament have found evidence of significant parliamentary influence on the policy process. This may in part be due to changes in parliamentary structures and behaviour, but also simply result from more exhaustive research approaches. I have contributed to this literature through my work on the House of Lords, and the policy impact of the Westminster parliament. Professor Philip Cowley has also contributed greatly, particularly through his work on the Commons. In a recent article in the journal Governance we drew these various strands together – using four large quantitative data sets, complemented by more than 500 interviews with key parliamentary and government actors – to demonstrate that Westminster’s influence is both substantial and probably rising. We conclude that parliament’s critics make two key mistakes – by concentrating largely on the decision-making stage of the policy process, and focusing almost exclusively on visible parliamentary impact (e.g. government defeats on legislation). We broaden the focus to take into account both visible and less visible impact, with a particular interest in anticipated reactions. Our arguments are summarised in this post.
In the last of our series of posts adapted from presentations at the Unit’s 20th anniversary conference Tony Wright reflects on 20 years of parliamentary change and reform. He argues that parliament has become a good deal better over the past two decades, and points to Unit research as making a major contribution to bringing this about.
I am struck by the fact that if you want to campaign for office in the United States, you have to campaign against Washington. Every candidate has to be going to Washington to sort them out, to break the Washington consensus. What I notice is that this has now started to happen here. Everybody campaigning for office here seems to have to attack Westminster, or the ‘Westminster elite’. This was standard fare in Nicola Sturgeon and Nick Clegg’s general election speeches, and in the Labour leadership contest. Now this is an interesting development, and it is certainly different from twenty years ago. Even at this event today, we have been encouraged by Vernon Bogdanor to organise our thoughts around the idea that parliamentary sovereignty is a busted flush, and the serious ways that power has been cut into pieces. I would actually put a more positive spin on it, and say that there has been accountability explosion over the last twenty years. If you think back about the accountability environment then, and what it is now, we are in a different world. In that respect there is much to put in the positive ledger.
But the problem is where does parliament fit in to that changed environment? The health of our representative institutions is something that matters and getting the right relationship between the old forms of representative democracy and the new forms that we might want to develop is where the challenge comes. The mistake we make is how we think we can embrace new forms, and simply forget about these old institutional bits, when the health of our representative institutions actually matters profoundly. And in some respects – and this is why I react against this Westminster elite trope – parliament has got a good deal better over these last 20 years.
In the aftermath of Monday’s Lords defeats on tax credit cuts there has been much talk of a ‘constitutional crisis’. In this post Meg Russell argues that whilst Monday’s vote was certainly unusual, the most significant change is the wider political context: that it is a Conservative government on the receiving end of repeated defeats in the Lords. Much like Labour ministers under Blair and Brown, Conservative ministers will need to learn how to handle a relatively assertive House of Lords in which they lack a partisan majority.
A Conservative government seems to be at war with the House of Lords. The Daily Telegraph claims that the Lords is ‘undermining democracy’. What on earth is going on? Has the Lords suddenly lost hold of its senses and begun acting entirely without precedent? To listen to some government supporters, in particular, one would assume so. Ministers have suffered a string of defeats since May 2015 – a total of 19 up to and including this Monday. The most controversial, of course, was the chamber’s decision to delay approval of the tax credits regulations, which has caused some to proclaim a ‘constitutional crisis’– and has subsequently sparked the government to announce a review into the chamber’s policy powers.
There are aspects of Monday’s tax credits vote which were undoubtedly unusual. As explored in an earlier post on the Constitution Unit blog last week, defeats in the Lords on ‘delegated legislation’ (the proposed vehicle for the tax credit changes) are relatively rare. There have been only four previous occasions when such measures were blocked outright by the Lords. None of these (on sanctions against Rhodesia in 1968, the London mayoral elections in 2000, the Manchester ‘supercasino’ in 2007 and access to legal aid in 2012) had such major financial implications as Monday’s vote. This fuelled claims that the Lords was breaking centuries-old convention by not respecting the Commons’ financial primacy. Yet the parent act, the Tax Credits Act 2002, had explicitly given the House of Lords a veto over such orders – even though it is quite possible for explicitly financial legislation (as detailed in this excellent Hansard Society blog) to create orders that require the approval only of the Commons. The well-respected Lords Statutory Instruments Scrutiny Committee had drawn the measure to the attention of the House on the basis of inadequate information about its impacts (a circumstance which the 2006 Joint Committee on Conventions explicitly suggested could merit use of the veto power (para 229)). In fact, the most clearly innovative thing about Monday’s vote was that the Lords did not reject the government’s proposals outright via a ‘fatal’ motion, but only imposed a delay – in the case of Baroness Meacher’s motion until further information became available.
Yesterday MPs voted by 312 to 270 to adopt changes to the House of Commons Standing Orders that will allow ‘English votes for English laws’ to take effect. In this post Michael Kenny and Daniel Gover highlight some of the issues that will need careful monitoring and reflect on the wider implications, arguing that the implementation of EVEL is very likely to impact on debates about the future constitutional character of the UK.
MPs voted yesterday to approve controversial changes to the House of Commons Standing Orders that implement the principle of ‘English votes for English laws’ (EVEL). This attempt by the governing party to address the ‘West Lothian Question’, and to frame its response as a key part of its answer to the question of English devolution, is a watershed moment in the history of parliamentary government in the UK. The ethos underpinning the development of devolution in non-English parts of the UK has now been applied to the largest territory within the UK, and the Conservative party has moved away from the unionist assumption that England rests content to be governed by British institutions. This effort to identify and institutionalise an English dimension to the workings of the UK parliament has attracted a good deal of procedural comment and political controversy. But whatever the political calculations and interests it reflects, the constitutional significance of this attempt to offer some form of devolution for England should not be overlooked.
English votes for English laws: a recap
Under the new procedures the Commons Speaker will be required to ‘certify’ bills, or clauses within them, that meet two criteria: first, they relate only to England (or England and Wales); and second, comparable policy decisions are devolved elsewhere in the UK. On such legislation, MPs representing English (or English and Welsh) constituencies will have the opportunity to give their ‘consent’ to the provisions, through two new mechanisms: first, a Legislative Grand Committee of English (or English and Welsh) MPs will vote on a ‘consent motion’ prior to the bill’s third reading; and second, a ‘double-majority’ voting system will apply when MPs consider Lords amendments (which will also apply on secondary legislation). The effect of these reforms is a ‘double veto’: to pass, certified legislation will require the support both of UK-wide MPs and those representing English (and/or English and Welsh) constituencies. Detailed discussion of the government’s original proposals can be found here. These changes will come into effect immediately, and will affect the passage of a number of bills, even though there is no immediate threat of a ‘West Lothian’ situation in the House of Commons.
The power of the House of Lords over ‘delegated legislation’, and financial matters, has become a hot topic due to threats to defeat the government’s planned cuts to tax credits. There have been claims and counterclaims about the conventions governing these matters, and also some fairly wild claims about how the government might retaliate if defeated. Here Meg Russell provides some factual background.
The current question over tax credits
The current argument concerns the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015, published on 7 September, which significantly limit people’s eligibility for tax credits. This is a piece of ‘delegated legislation’ (a ‘statutory instrument’) meaning that it is subject to an expedited parliamentary process, much less onerous than the process for passing a bill (see summary here). The government is seeking to use powers delegated to it under the Tax Credits Act 2002, which allows for regular updating of rates and bands. This kind of delegated power is commonplace, to ensure that a new bill is not required every time there are small changes to the implementation of policy. Delegated legislation may be either ‘affirmative’, meaning that it requires the explicit approval of both chambers of parliament, or ‘negative’ meaning that it will pass into law automatically unless one of the chambers objects. This is an affirmative instrument, which was agreed by the Commons on 15 September, and is due for debate in the Lords on Monday. Notably, delegated legislation cannot be amended, only rejected or agreed.
The specific scenario in which select committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. But Patrick O’Brien indicates that the research he conducted with Robert Hazell shows the practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement. What is more, it creates opportunities for dialogue and for judicial accountability.
When is a judge not a judge? Lady Justice Hallett carried out a public inquiry into the ‘On the runs’ scheme in 2014. In its report on the same issue in March 2015 the Commons Northern Ireland Affairs Select Committee commented rather sternly that
‘we chose not to summon Lady Justice Hallett to attend, but we consider it to be a regrettable discourtesy to Parliament that she declined our initial invitation to give evidence to the Committee, especially as she had not acted in a judicial capacity when carrying out her review‘. [at para. 11]
Is a judge who chairs an inquiry acting as a judge, or acting as an inquiry chair? Judges, concerned about the implications of being drawn into disputes that are often highly politically charged, tend to believe that they are acting as judges and that their reports should speak for themselves. Parliamentary committees can find this attitude defensive and frustrating. Several years ago the Commons Cultural, Media and Sport committee ran into a similar conflict with Lord Justice Leveson in relation to evidence he gave as chair of the inquiry into phone hacking.
The specific scenario in which committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. However, research I have done with Robert Hazell suggests that such ‘judge-led inquiry’ sessions, despite the problems that may attend them, make up only 5% of all evidence sessions these committees have with judges. The reality is that the vast majority of judicial evidence sessions are uncontroversial. The practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement by both judges and parliament.
Government defeats on the floor of the Commons, as seen last week, remain exceptionally rare, perpetuating assumptions that parliament is relatively weak. However, through analysis of 4361 amendments to 12 government bills, and over 120 interviews, Daniel Gover and Meg Russell find empirical evidence that parliament has significantly greater influence on government policy than is often assumed.
The Westminster parliament occupies a highly visible place within British politics and policymaking. Despite this, the conventional wisdom is that parliament’s impact on public policy is relatively weak. In recent years, Westminster has been dismissed by commentators as ‘an elaborate rubber-stamp’, ‘a legislature on its knees’, and even ‘God’s gift to dictatorship’. This pessimistic account has been largely shared by academics, albeit with greater nuance, who have tended to regard Westminster as an extreme example of an executive-dominated legislature. One of the primary reasons for this assessment is that there are few explicit signs of conflict between parliament and the executive. For example, government defeats on the floor of the Commons, as was seen last week over Europe, remain exceptionally rare.
Yet recent research has begun to challenge this consensus. One of the central strands to this new research agenda is our own major investigation into the Westminster legislative process – the first results from which were recently published in Parliamentary Affairs. Our study is based around detailed analysis of the passage through parliament of 12 case study bills: seven from 2005-10 under Labour, and five from 2010-12 under the coalition. The bills were selected to reflect the diversity of legislation considered by parliament. Some were high-profile and contentious, such as Labour’s Corporate Manslaughter and Corporate Homicide Bill, its Identity Cards Bill, and the coalition’s Public Bodies Bill. But others were more routine and less controversial, on which different dynamics might be expected to apply, such as the coalition’s Budget Responsibility and National Audit Bill and Labour’s Energy Bill. Our research involved painstaking analysis of the origins and outcomes of over 4000 legislative amendments proposed to these bills, as well as around 120 interviews with key actors on them including ministers and their shadows, backbenchers, civil servants, and outside pressure groups. Our findings strongly suggest that the Westminster parliament is far more influential on legislation than is often assumed.