By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
The Westminster Parliament is elected on a first-past-the-post basis. Each member of the electorate votes for one MP in their constituency. The MP with the most votes wins that seat. The Government is formed from the political party with the most seats in the House of Commons.
This voting system tends to produce Governments who have a large majority in the House of Commons. This led some to argue that the UK Parliament is a form of elective dictatorship. The Government may be elected. But it faces little opposition in the House of Commons. Does this mean that the Government can push through any legislation it wants?
Westminster and Covid-19
The UK’s response to Covid-19 created legislation that some regarded as an unacceptable restriction on civil liberties. The Coronavirus Act 2020 was enacted very quickly by the UK Parliament. It was introduced into the House of Commons on 19 March 2020 and became an Act of Parliament on 25 March 2020. Yet the Act is 321 pages long. Was that really enough time for legislative scrutiny?
It could be argued that this is an unfair example. After all, this was a reaction to an emergency situation. Legislation had to be enacted quickly to ensure the safety of the public. Moreover, even though it received little scrutiny, the House of Commons was able to achieve one significant amendment to the legislation by the Government: as emergency legislation, the Coronavirus Act 2020 contains a sunset clause. Sunset clauses bring legislation to an end unless there is a vote in the House of Commons to continue its application. The Bill originally set a sunset clause that required a vote after two years. The amendment shortened this to 6 months. So, even when there is emergency legislation, it may still be possible for the opposition to get the Government to change its mind.
On the other hand, how much effective scrutiny did this amendment achieve? There have been two debates to determine whether to renew the Coronavirus Act 2020 or to bring its provisions to an end. The first took place on 30 September 2020. It lasted for 90 minutes. The second took place on 25 March 2021. This time the debate lasted for three and a half hours. However, the Commons were also asked to approve new Covid regulations.
For each of these debates, the Bill could also only be renewed or rejected as a whole. Some MPs argued that some provisions of the Act were not working and so should be repealed. However, they were faced with the choice of either repealing or accepting the Act as a whole. This places MPs in a difficult position. Are the problems that arise from the provisions of the Act that are not working sufficiently serious to repeal the Act as a whole, given that the other provisions of the Act are still needed to protect public health? It might be argued that presenting MPs with such a dilemma gives them no real choice at all, and instead gives them little option other than to wave through an extension to the legislation if the Government so wishes.
A related and important question is: why was so little time spent on these important debates? To understand this, we need to look at the Standing Orders which govern how the Westminster Parliament works. The most important in this regard is Standing Order No 14. This has the effect of prioritising the business of the Government. In other words, the Government has control of parliamentary time. It can determine how much time is spent debating a particular issue. Is this a necessary tool to ensure the Government can implement its policies and act in the public good? Or does this go too far, preventing effective scrutiny — and playing into the argument that the UK is, in reality, an ‘elective dictatorship’?
2019, Brexit, and the ‘Zombie’ Government
The events of 2019 paint a different picture. The first vote on Theresa May’s withdrawal agreement saw the largest ever vote against the Government since universal suffrage. This was only the beginning of a parliamentary roller coaster. The Government lost a number of important votes concerning Brexit. The Government also failed on three occasions to get the necessary two-thirds majority needed under the Fixed-term Parliaments Act 2011 to dissolve Parliament and hold a general election.
The parliamentary battled focused on disagreement over Brexit. Whilst the Government, particularly that of Boris Johnson, was prepared to leave the EU with no deal, the majority of MPs in Parliament preferred to leave with a deal – although not the original deal presented to Parliament by Theresa May.
Opposition and backbench MPs were able to use the provisions of other Standing Orders to ‘take control’ of the parliamentary timetable. This provided for the enactment of Private Members Bills – Bills that are not initiated by the Government, but by backbench or opposition MPs. In 2019, two Private Members Bills became Acts of Parliament: The European Union (Withdrawal) Act 2019 and the European Union (Withdrawal) (No 2) Act 2019. Both of these Acts required the Prime Minister to seek extensions to the negotiation period with the EU to prevent the UK leaving the EU with no deal. They effectively forced the Government to do something that was contrary to what the Government wanted to do.
How was this possible? There are a number of factors – and commentators still dictate which are the most important! Significantly, however, 2019 was a highly unusual time. For most of that year, the Conservative Government was a minority Government. Brexit was also an issue that, perhaps uniquely, transcended party politics: not only did different political parties have different views on Brexit, but there were also disputes between MPs in the same political party. The Government’s usual ability to impose its wishes on the House of Commons was, in these unusual circumstances, sorely lacking.
In terms of the UK constitution, this illustrates an important constitutional convention – that the Government only has power to the extent that it enjoys the confidence of the House of Commons. A convention is a form of rule that governs political behaviour but which is not able to be specifically enforced by the courts. It is harder for a minority Government to command the confidence of the House as it relies on MPs from other political parties to support its policies. The situation is even more problematic (from the Government’s point of view) if, as in 2019, the governing party cannot even take for granted the support of all or nearly all of its own MPs.
Westminster v Whitehall
So who holds the balance of power? Some academics refer to this as a balance between ‘Westminster’ and ‘Whitehall’. Whitehall refers to the Government. Westminster refers to backbench and opposition MPs. The balance of power fluctuates between the two, depending on political circumstances, parliamentary arithmetic, the nature importance of the issue under discussion, and the extent to which the Government is able to exercise control over its own MPs.
It’s often seen as a form of battle. Which is why Westminster is seen as an ‘arena’ Parliament, with MPs sitting either on the Government or opposition benches. This encourages a ‘winner takes all’ approach. There is little scope for compromise.
The question we have to ask ourselves is whether this is the form of democracy we want. What is more important, a strong Government who can get things done, or a Government formed from coalitions that facilitates collaboration and compromise?
Want to learn more? Watch The Annual Harry Street Lecture (2021, Manchester University) on ‘UK Constitutional Reform: Westminster or Whitehall?’ presented by Professor Alison Young.