Ahead of Tuesday’s votes on Brexit, attention has focused on the rights and wrongs of the House of Commons seeking to ‘seize control’. Meg Russell argues that there’s nothing unusual about a democratic parliament controlling its own procedure and business. Indeed, the core principle of parliamentary sovereignty already gives the Commons control by default.
With stalemate over the Prime Minister’s Brexit deal, rejected dramatically by the House of Commons on 15 January by 432 votes to 202, there is increasing talk of parliament ‘seizing control’. On Tuesday, following the Speaker’s controversial decision to allow a vote on Conservative backbencher Dominic Grieve’s amendment speeding up the timetable, MPs will vote on a series of propositions about what should happen next. These include a further proposal by Grieve that the government’s usual control of the agenda should be set aside on specified days to allow MPs to make decisions on Brexit, and a proposal from Labour’s Yvette Cooper that such control be set aside to allow time to debate a private member’s bill demanding that ministers avoid a no deal Brexit by requesting an extension to Article 50.
Consequently, some inside government have expressed concerns that the Commons, with the Speaker’s assistance, is overreaching itself. It has been reported that an internal government document warns of MPs’ moves ‘represent[ing] a clear and present danger to all government business’, and even meaning that ‘the government would lose its ability to govern’. One senior legal figure (whose career was spent inside the government) has argued that changes of this kind could set dangerous precedents for the future, even potentially dragging the monarch into a constitutional crisis (though other legal experts have firmly rebutted such claims).
So are we entering dangerous constitutional territory? What is, after all, so odd about the idea of a democratically-elected chamber gaining greater control over its own time, and its own rules?
It is worth briefly reflecting on how UK politics has reached this unusual point. There are three key factors that make decision-making in today’s House of Commons very different to at other times in the recent past:
- First, the Brexit referendum, whose result MPs feel bound by, notwithstanding the fact that prior to the vote most MPs’ preference was to remain in the EU. This leaves some MPs feeling constrained in their choices and their ability to vote sincerely.
- Second, the outcome of the 2017 general election, which resulted in a minority government.
- Third, the nature of the Brexit issue, which cuts completely across party lines (at least in the two main parties), such that the usual voting blocks in the House of Commons have broken down.
The central principle in the UK constitution is parliamentary sovereignty. That is, the ultimate source of political authority is parliament, which can (at least in theory) make and unmake any law, and has the power to remove the government from office via a no confidence vote. Parliament’s sovereignty has often been misread as effectively meaning executive sovereignty, so that government can always get its way – but that interpretation is erroneous. The executive’s traditional power depends on factors that are currently missing – namely, a single party majority government and disciplined political parties. Meanwhile the referendum has challenged parliamentary sovereignty itself – pitting it against popular sovereignty (ie. pitting direct democracy against representative democracy).
Given this tradition of parliamentary sovereignty there is nothing outlandish about parliament telling the executive what to do. Ultimately parliament is in charge, and ultimately it has the power to sack the executive (which it may yet choose to do if it can’t get what it wants). That has always been the case. But usually tensions are minimised, because the two are of a similar mind, and any negotiation takes place on the detail of policy, with the key decisions often resolved within the governing party and in private.
The House of Commons is in charge of its own procedures, and these may be amended by majority vote. At least in theory, changing procedure is easier than changing the law – it’s a one stage process simply requiring a majority vote in the House of Commons. In ‘normal’ circumstances that holds few risks for the executive, as it enjoys a stable majority.
Although not always the case historically, for over 100 years government control of the agenda has also been explicitly written in to the system. That is most visible in the famous Standing Order No. 14, which states that ‘save as provided in this order, government business shall have precedence at every sitting’ (listing exceptions including time set aside for opposition days and backbench business). But of course potential exists to change this rule at any time if a majority wished to do so, and a motion to that effect were put to the vote. The Grieve and the Cooper motions look to do this only on a strictly temporary basis (on particular days), for a specific purpose. But in theory MPs could at some time choose to do away with Standing Order No. 14 altogether. Nonetheless if this happened it could of course also be reinstated by a future majority. As the Commons controls its own rules, no such change is irreversible.
In comparative terms, the degree of government control over the UK’s parliamentary agenda is seen as quite extreme (this is often commented upon in the academic literature). What is more common is for the agenda to be agreed by representatives reflecting the majority, commonly through a committee known as the “bureau”, “business committee” or similar. Often this simply agrees the agenda, but in some cases that agenda must be put to the chamber itself for approval – the latter applies in the Scottish Parliament.
The possibility of adopting such a model of agenda control has been much debated at Westminster in recent years. In 2009 the Select Committee on the Reform of the House of Commons (commonly known as the ‘Wright committee’) proposed that a ‘House Business Committee’ should be established, made up of frontbenchers from the main parties, alongside backbenchers elected by the whole house, with the Deputy Speaker in the chair. The idea was that the committee would determine the proposed agenda for the week ahead, but crucially this would be put to the House of Commons for decision – and would be amendable – as in the Scottish Parliament. Although these proposals were approved in principle by the House of Commons before the 2010 general election, they were never put into effect. Instead, only the committee’s proposal for ringfenced ‘backbench business’, scheduled by a Backbench Business Committee, was implemented.
So, first, there is nothing unusual internationally about a parliament controlling its own agenda. Second, this has previously been the case in the House of Commons. And third, revival of such a principle has received relatively recent support from the Commons itself. In a system with a business committee the relevant government will normally be able to negotiate things fine with the support of its backbenchers and, where relevant, coalition partners or other supportive parties. Unlike many other countries we have no history of this kind of cross-party forum for agreeing parliamentary business – primarily because we have generally had single party majority governments (sustained by our first past the post electoral system). Governments have thus naturally come to assume that they have control, underpinned and emphasised by Standing Order No. 14. But in truth they only enjoy this on the basis that a majority of the House of Commons supports it (and oppositions have been happy to go along with this, in the hope that they will eventually take over such control).
If the only unusual factor in our current situation were minority government, Theresa May could approximate to a cross-party business committee model, by seeking the support of another party or parties to get reliable, majority control of the agenda. But given that she lacks the support of a large number of her own MPs, she has no reliable block around which to build such an arrangement. This is worsened by the fact that Jeremy Corbyn is in a similar position, while other parties (notably the Liberal Democrats and SNP) are further away from her on the key policy and therefore unlikely to help out.
This set of circumstances is not only pretty unique in UK terms, but internationally. Usually parties in parliamentary systems vote reliably as blocks. Hence it is not primarily the Speaker, or the opposition, that has got the government into this situation – it is above all Conservative MPs. Although there are extra challenges created by being a minority government, Theresa May’s biggest problem is that she has failed to win support even from the most ardent Brexiteers on the Conservative benches for her Brexit policy.
By attempting to ‘seize control’, senior MPs of all parties are trying to steer a course out of what has become a potentially intractable situation. They are, yes, raising fundamental questions about the rights and wrongs of parliamentary agenda control. But some such questions are reasonable, and at least debatable – including whether a minority government (far from the norm in British politics) should automatically enjoy the kind of power guaranteed by Standing Order No. 14. Ironically, the Wright committee’s proposals were easily able to be shelved in 2010 by a majority (albeit coalition) government that wanted to retain its established privileges. It is now, in a minority government situation, that the kind of more inclusive cross-party forum that it proposed might have come into its own.
About the author
Meg Russell is Director of the Constitution Unit. She is joint author of Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (OUP, 2017), and was Specialist Adviser to the Wright Committee.