Posts Tagged ‘parliament’

Who decides who is leader of the opposition?

David Howarth explains the legislation and parliamentary rules that determine who is recognised as the official Leader of the Opposition in Parliament. The political implications of these procedures are significant, given current discussions about who would form a government if the current one were to lose a vote of no confidence.

Jeremy Corbyn has explained his position on what happens if the Johnson government falls:

I am the leader of the opposition, the leader of the Labour party. All the constitutional precedents are, when a government collapses, it’s the leader of the opposition that takes over.

As several commentators have pointed out, Corbyn’s second sentence is inaccurate. True enough, when UK governments collapse, sometimes leaders of the opposition do take over. That happened, for example, in 1905, in 1924 and in 1974. But on other occasions, in 1916, 1922 and 1931 for example, the leader of the opposition did not take over. In 1916, a member of the same party became Prime Minister. In 1922, the new Prime Minister came from the other party in the previous coalition. And in 1931, the same Prime Minister started again supported by a differently constituted majority.

Corbyn is simply wrong. No such constitutional rule exists. If there is a rule at all (which one might doubt), it is that the person best placed to provide a stable administration takes over, even if, as in 1905, that administration was not likely to be able to govern for long.

But perhaps more interesting is Corbyn’s first sentence. Undoubtedly Jeremy Corbyn is the current leader of the opposition and he is the current leader of the Labour Party, but, contrary to Corbyn’s implication, the two things are not the same. Corbyn enjoys important privileges in Parliament, not least the benefit of the convention, enjoyed by no other MP, that the government exercises its discretion to control the time of the House in favour of allowing a debate and a vote on a motion of no confidence that stands in his name. But that privilege attaches to his position as leader of the opposition. It does not attach to his position as leader of the Labour Party.

Corbyn is leader of the Labour Party by virtue of the Labour Party’s own rules, which govern, for example, how he might be challenged, and how those rules themselves might be changed. But he is obviously not leader of the opposition by virtue of the rules of the Labour Party. Political parties, contrary to what they sometimes think, control, at least as far as the law allows, only their own internal workings. They are not organs of the state.

But that raises an important question: by virtue of whose decision is Corbyn leader of the opposition? The answer to that question might surprise some, though it is entirely rational. Corbyn is leader of the opposition ultimately because he is recognised as such by the Speaker of the House of Commons. Two lines of reasoning lead to that result: one legal and one parliamentary.

The law

The first reason for saying that ultimately the Speaker decides who is the leader of the opposition is that the law says so. The Ministerial and Other Salaries Act 1975 authorises the payment of an official salary to the leader of the opposition. Section 2 of that Act says that the leader of the opposition is the member of parliament who is ‘the Leader … of the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons.’ But it then adds, in section 2(2):

If any doubt arises as to which is or was at any material time the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons, or as to who is or was at any material time the leader in that House of such a party, the question shall be decided for the purposes of this Act by the Speaker of the House of Commons, and his decision, certified in writing under his hand, shall be final and conclusive.

That looks like the end of the matter. The Speaker decides. But not quite. Section 2(2) is restricted to ‘the purposes of this Act’, which means for the purposes of paying the leader of the opposition’s salary and the designation of the person who receives the official salary attached to being opposition chief whip. But who decides for other purposes, especially for the purposes of the motion of no confidence convention?

Government and Parliament

The current Speaker, John Bercow, has asserted that in his view the Speaker decides not only for legal purposes but also for parliamentary purposes. In 2016, in response to an opportunistic point of order claiming that Corbyn, having lost the support of the overwhelming majority of Labour’s MPs, could not possibly be considered the leader of his party, Bercow said:

I can confirm that the Labour party currently constitutes the official Opposition and that its leader is recognised by me, for statutory and parliamentary purposes, as the Leader of the Opposition. He will have noticed that I called the Leader of the Opposition earlier to ask a series of questions of the Prime Minister. He will also be aware that today we have Opposition business duly chosen by the Leader of the Opposition, as indicated on the Order Paper. I should perhaps add that in making these judgments and pronouncing in response to points of order, I do give, and have given, thought to the matter, and I have also benefited from expert advice. These matters are not broached lightly.

The basis of Bercow’s answer, which is now entrenched in Erskine May, the bible of parliamentary procedure, is that the position of leader of the opposition is a parliamentary job. It is mentioned in the Commons’ standing orders and recognised in the daily practices of the House. As such, the only options for deciding who holds the position are the House itself and the Speaker. The problem with saying that the House decides, that MPs might vote on who counts as the leader of the opposition, is that it leads to an absurdity. A government-supporting majority would be able to designate one of their own as leader of the opposition. And so, the decision must be for the Speaker.

The government might counter that the motion of confidence convention is an exception. It might argue that the convention forms part of the rules that give the government discretion to determine what the House debates, so that for the purpose of those rules the government itself should also determine who counts as leader of the opposition. But that view also leads to an absurdity. If the government could designate the leader of the opposition for the purpose of the convention, it could, for example, designate one of its own backbenchers or even a minister, as leader of the opposition, and thus never have to face a motion of no confidence. That cannot possibly be right. The Commons might have delegated its power to control the time of the House to the government for many purposes, but those purposes cannot possibly include making the government immune from motions of no confidence.

Another possibility is that the government might refuse to comply with the convention, declining to allow the leader of the opposition designated by the Speaker to move a motion of no confidence. That would raise interesting and important questions as to how the Speaker might nevertheless enforce the convention.  He might, for example, accept a privilege motion, exempt from the government’s control of the order paper, perhaps on the basis that the government, in defying a clear convention and a ruling of the chair as to who is leader of the opposition, would be treating the House with contempt. Alternatively, he might accept the no confidence motion, or a motion paving the way for it, anyway, using Standing Order 24.

A new opposition leader?

The conclusion that the Speaker decides who is leader of the opposition has potentially important current political consequences. If large numbers of Labour MPs, under the leadership perhaps of Tom Watson, were to declare themselves to be a separate parliamentary party, in numbers greater than those staying loyal to Corbyn, it would ultimately be for Bercow to decide whether Corbyn or Watson was the person entitled to have his motions of no confidence debated and voted on. The internal rules of the Labour Party would be irrelevant.

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Note: the above was first published on Democratic Audit. Featured image credit: UK Parliament/(CC BY-NC 2.0) licence.

About the Author

David Howarth is Professor of Law and Public Policy, University of Cambridge.

 

 

 

 

A national unity government led by backbenchers to block no-deal Brexit is a dangerous idea

The idea of a government of national unity to prevent a no-deal Brexit is a destructive contradiction and would only serve to sharpen divisions, writes Lea Ypi.

The metaphor of the body politic can be an attractive one to think about political community, especially when the body is on the verge of collapse and you have a name for the disease: Brexit. The UK has been branded ‘the sick man of Europe‘ and needs a good cure before it is too late. What better suggestion than the idea of a national unity government, united only by the noble purpose of extending article 50 to avert a no-deal?

The idea of a government of national unity to prevent a no-deal Brexit is a destructive contradiction. First, there is a contradiction in its appeal to the nation. A government of national unity identifies the whole nation with the part opposed to a no-deal Brexit. It not only ignores the will of the other part of the nation, inclined to leave the EU, and indeed leave by October 31st, but denies its claim to be part of the nation, even in name.

Second, there is a contradiction in the promise of unity. A national unity government would sharpen divisions, not only in the nation as a whole but in its parts.  A cross-party government formed and dissolved with the sole purpose of fixing Brexit by extending article 50 (assuming a further extension is any kind of fix) can avoid taking responsibility for the consequences of its very consequential decisions. By its temporary nature, by its concentration of executive discretion, by its absence of a wider programmatic commitment, it lacks the democratic credentials to chart a process of future reconciliation. It prevents citizens from linking their grievances on Brexit to wider political issues, and to engage with the deeper question of what kind of society they all want to share.

Not only does the solution sharpen divisions in the nation, it sharpens them in its political parties.  In parliamentary democracies, these are the primary agents that help citizens distinguish their political views, the principles they subscribe to, and the selection of policies that reflect their commitments. A government of national unity is the work of all but the responsibility of none. Such is the hope of course, yet British history has not been kind to pioneers of national unity. Lloyd George, the artifice of a power-sharing deal with the Conservatives in 1916, was the last Prime Minister the Liberals ever had. In 1931, Ramsay Macdonald’s decision to form a government of national unity with Tories led to his expulsion from the party, and to Labour being wiped out of power until 1945. 1945 was of course the year that marked the end of yet another government of national unity, and with it the eclipse of the prime minister that championed it – that same prime minister about whom Boris Johnson has written a biography and of whom he admires the statesmanship.

These were extreme circumstances. Only in the phantasies of the most ardent Leavers can Brexit be compared to a World War. Nor can it be compared to the Great Depression, though some Remainers have tried. Still, the fact that parties are systematically punished for their participation in governments of national unity is not the result of unfortunate historical accident. It is the logical expression of a very basic democratic tension, one where in consequential political moments, politicians that owe their power to the people they represent, turn crucial political decisions into matters for professionals. The price of cross-party unity is the depoliticization of those very political problems that move people to associate with parties in the first place, their classification as accidents that must be averted rather than as products of human will.

This leads to the third contradiction in the idea of a Brexit-stopping national unity government: the government part of the formulation. A government is an agent that uses executive power to make decisions in the name of the people. Its actions are supposed to be rooted in an organic web of democratic processes and institutions that enable the people’s will to be articulated in an intelligible way. This is why parties have conference debates and decisions, leadership campaigns, electoral manifestos. This is why they are chosen to represent citizens, and how they are held accountable for their performance in government, and in opposition. This is why popular sovereignty is the soul of the body politic.

A government of national unity led by backbenchers rather than the current Leader of the Opposition would not only suspend party democracy in the present, it would destroy confidence in it for the future. Just like the denial of authority to the seventeen million or so citizens who voted Brexit, the denial of dignity to the half-million Labour members represented by Corbyn reveals the enduring inability of pro-Remain elites to comprehend, let alone relate to, opinions they oppose. Both are treated as some kind of disease from which we will be cured, provided the right treatment is found. Both display the same thoughtlessness vis-a-vis the process that led to these decisions, and the likely consequences of further ignoring their rationale. This is the way not to solve Brexit but to dig the sick man’s grave.

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Note: the above was first published in The Independent.

About the Author

Lea Ypi (@lea_ypi) is Professor of Political Theory at the London School of Economics and Political Science and co-author of The Meaning of Partisanship.

 

 

 

All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: Pixabay (Public Domain).

Brexit and parliamentary legitimation: beyond constitutional minutiae

David Judge writes that, while much of the discussion around Brexit and Parliament is about procedure and conventions, it should also be about the bigger picture: what does Brexit tell us about the fundamental principles of the UK’s parliamentary state and representative democracy?

Politicians and the punditocracy have become consumed with the minutiae of parliamentary procedure and constitutional conventions – of the use of standing orders, the provisions of the Fixed-Term Parliaments Act in relation to a no-confidence vote and its consequences, and the potential spill-over embroilment of the judiciary and the monarchy – as the ‘do or die’ Brexit strategy of Boris Johnson’s government appears to replicate the on-board conditions of a nose-diving plane. Assuming, however, that whatever happens after 31 October 2019, the UK ‘plane’ will land somewhere, then perhaps what we need to be thinking about right now is not only how we respond to the immediate emergency but how we understand what’s happening in light of the fundamental principles of the UK’s parliamentary state and representative democracy’.

Parliamentary democracy: the official version

The UK is a parliamentary state. Officially it is designated as ‘a parliamentary democracy’. This official ‘standard account’ sees the UK as a variant of representative democracy; and deems state decision-makers to be both representative of and responsible to ‘the people’ through the process of elections. More specifically, in this UK variant, parliament is identified as the state’s primary representative institution and is deemed to exercise legal sovereignty.

Threaded through this account are assumptions about legitimacy, authorisation, accountability and control. These are not merely normative assumptions, as historically the UK parliament has fused the principle of consent with that of representation and has served to legitimate government and its activities. It is this idea of the parliamentary legitimation of government that has been of historic importance, and is now crucial to understanding what is happening with Brexit.

Basic principles of parliamentary democracy

As a representative institution, parliament is embedded in a process of making present the interests and views of citizens who are not physically present at the point of decision. Representative democracy does not assume a homogeneous ‘demos/people’, or a pre-given ‘general will’, instead it assumes permanent contestation and the representation of diverse social interests and opinions. As a process of adjudicating amongst, and reconciling, conflicting claims parliamentary democracy assumes the articulation of some common interest; and provides, through electoral processes and representative institutions, a capacity for communal judgement of that articulation. It is a dialectic process of authorisation and accountability.

Ultimately, therefore, there is a ‘democratic bargain’ at the heart of parliamentary democracy that seeks to fashion, out of this diversity and contestation, ‘winners who are willing to ensure that losers are not too unhappy and for losers, in exchange, to extend their consent to the winners’ right to rule’.

Legitimation frame of Westminster

There is no disputing that the historic practice of parliamentary democracy in the UK has privileged the imperatives of government and executive independence over the doctrine of ministerial accountability and responsibility to parliament. As a result, the normative logic of the doctrine has effectively been inverted, with parliament having to seek, through successive reform initiatives, to ‘reinvert’ – or more idealistically still to ‘revert’ – to a more favourable balance between executive and legislature in order to lever greater executive accountability and responsibility.

Yet, in these attempts, parliament has been confronted by an ‘executive mentality’ wherein governments are predisposed to undervalue the requirements and culture of transparency and parliamentary control when formulating and implementing their policies. Nonetheless, the very same governments have defined, shaped and legitimised their behaviour in terms of parliamentary sovereignty and parliamentary representation. This ideational frame posits a parliamentary-centric vision to justify an executive-centric mode of decision-making. And, so, embeds within the UK state an elemental ‘democratic incongruity’.

Notions of legitimacy: input, throughput, and output

At its simplest, legitimate power can be conceived as ‘power that is rightful’. A distinction has long been made between political legitimacy derived from participatory inputs (primarily conceived in the UK in terms of democratic elections and electoral representation) and performance-related outputs (often conceived in terms of the efficacy of state decision-makers in producing policies to promote socio-economic well-being and maintain the stability and territorial integrity of the state itself; or, in the case of the Johnson government simply getting Brexit ‘done’).

Yet, what happens in the space between political input and policy output is also of vital significance in any state, and constitutes a third dimension of legitimacy This is what Vivien Schmidt identifies as ‘throughput legitimacy’. Her basic contention is that ‘the quality of the governance processes, and not only the effectiveness of the outcomes and the participation of the citizenry, is an important criterion for the evaluation of a polity’s overall democratic legitimacy’.

This process-oriented focus is of direct relevance to the understanding of the significance of the UK parliament. Simply stated, parliament provides for the (macro, system-wide) institutionalisation of ‘throughput’ legitimation. In fact, Schmidt’s notion is epitomised in the institutionalised processes of deliberation, scrutiny, contestability, and accountability – with their associated elaborate procedures, rituals and symbols – which are embedded in Westminster’s contributions to state decision-making processes. While all modern UK governments, pre-2016, might have sought the practical circumvention of these processes, nonetheless, they all acknowledged their normative centrality to the legitimation of their actions.

So, what should we be thinking about?

It might be politically expedient in the short term for a government to seek to avoid scrutiny, or to try to side-step the ‘the trial of discussion’ in parliament, for example, by proroguing parliament, or controlling the parliamentary time-table to ‘run out the clock’ before 31 October. Ultimately, in the longer term, such tactics may well come back to haunt such a government, by undermining the very ‘throughput’ legitimation claims upon which its authority is based.

Any government that claims that parliament is seeking to ‘block’ Brexit, to frustrate the will of ‘the people’ as expressed in the 2016 referendum, and is, therefore, unrepresentative of ‘the people’, is challenging a fundamental principle of parliamentary democracy. The assertion of a mythical single, unified collectivity of ‘the people’ runs counter to the essence of parliamentary democracy. In such a system MPs represent the ‘political nation’ (however constituted in any political period) and its many differences and divisions; and, in the specific case of Brexit, parliament registers the Richter magnitude of the post-referendum fault-lines now fragmenting families, constituencies, political parties and nations in the UK.

The countenancing of an election strategy based upon ‘parliament versus the people’ is neither smart electoral politics nor a smart governing strategy for a government that will still be subject to the basic logic of parliamentary legitimation of executive actions. Should such a strategy be pursued, however, it might prompt those who recognise a ‘present and serious danger’ to parliamentary democracy to explain, far more actively, what parliament ‘is’ and ‘does’ (and why it is often difficult for parliamentarians themselves to defend the institution of parliament).

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About the Author

David Judge is Professor Emeritus of Politics at the University of Strathclyde.

 

 

 

All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: Pixabay (Public Domain).

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