The Speaker of the House of Commons, John Bercow MP, has argued that the Commons is more relevant now than it was when he took office in 2009. Not withstanding the general clusterfuck of the so-called (but mainly imaginary) ‘British Constitution’, he probably has a point.
For most of the latter half of the twentieth century and into the first decade of the twenty-first, the Commons really had been a well-whipped legislation machine; it had become a site of ritualised confrontation between the Government and Opposition, with the result of divisions rarely deviating from the party line. ‘Backbench rebellions’ (the term is itself revealing) were very rare, and, because of the large majorities produced by the two-party system, even more rarely influenced the result.
In recent years, a few things have changed. Firstly, Britain now has a multi-party system. Majorities are thinner, making minority or ‘minimum winning coalition’ governments more likely. This increases the impact of individual backbenchers, whose protests are no longer drowned out by the overwhelming size of the government’s majority. Whether UKIP will replace the LibDems as the ‘third party’ remains to be seen (it is possible, if they can concentrate their vote in particular constituencies), but multi-partyism is probably here to stay, if only because of the divergent nature of party competition in different parts of the UK.
Secondly, there have been procedural changes in the House of Commons; the Speaker is now competitively elected, in a way that increases his prestige as the representative of the House; committee chairs are likewise elected, rather than being stitched up between the whips. Power within the chamber is more dispersed, and there’s (a bit) more opportunity for backbenchers to make themselves heard.
Thirdly, the social composition of the House is changing back, in some ways, to pre-1945 norms: more independently wealthy folk who are used to having their own way, fewer trade unionists who are used to being drilled through division lobbies. These people are not threatened by ‘deselection’, because their livelihood does not depend on it.
Fourthly, the British system of government as it operated from 1945-1997 has unravelled; that system, for all its faults, at least had a certain internal logic that was understood by all. Since the partial, half-hearted reforms of the Blair era, this internal coherence has been lost. It used to be that we had unwritten but well-accepted rules; now no-one knows what these rules are, and their legitimacy is questioned. That provides an opening for backbenchers to have a different understanding of their role.
Fifthly, the Fixed Term Parliaments Act has insulated the government, to some extent, from the risks associated with losing a vote in the Commons; it provides a statutory basis for the idea of ‘confidence’ (which, before, existed only on a conventional basis), and proclaims, for the first time in a written law in the UK, that the government is responsible to Parliament. This recognition of confidence, and of the specific mechanism of ‘votes of no confidence’ means, however, that the government can lose a vote without necessarily having it resign. At the same time, one of the key weapons that a PM can deploy against backbenchers – the threat of dissolution – has effectively been neutralised.
The really interesting vote was on military intervention in Syria – the first time a Government has been defeated in the House of Commons on a matter related to military affairs since the days of Lord North in the American Revolution.
None of this changes the fact that the British political system is fundamentally broken, of course. But it does invite us to consider the health of Scotland’s Parliament, and to think about how the Interim Constitution might strengthen it. With devolution, we were supposed to have not only our own Parliament, but also a Parliament very different from that of Westminster – more consensual, more participatory, and less needlessly confrontational – a mature, balanced, ‘working’ Parliament. Most well- informed commentators would agree that results have fallen short of expectations.
Proportional representation and fixed terms have helped, especially during the minority SNP Government of 2007-2011, but the lack of checks and balances, and of effective parliamentary scrutiny and control mechanisms has become particularly evident since 2011. As the House of Commons has increasingly found its voice, the Scottish Parliament seems to have become more passive.
It’s not, as some falsely allege, that the First Minister is acting like a dictator – far from it – but rather that he is acting, and is allowed to act, exactly as a Prime Minister in a traditional, unreformed, Westminster-style Parliament would. That is to say, with a relatively loyal and well-whipped majority behind them, the Scottish Government can always outvote, and therefore always ignore, the opposition.
The SNP, before they came to office, were well aware of the dangers of concentrating power in this way. Their constitutional policy not only insisted on a written and entrenched Constitution that would only be amendable by a three-fifths majority in Parliament followed by a referendum, but also made provision for the strengthening of the opposition in ordinary legislation; in place of the delaying, checking power of a second chamber, they proposed a minority veto referendum mechanism (similar to that in operation in Denmark, Latvia, Ireland and Italy, to name just a few countries) that would have allowed a two-fifths minority of the members to delay non-financial legislation for a year; the Government would be able to overturn that suspensive veto only by appeal to the people in a referendum. This would have given the opposition real teeth: the ability, if they are not listened to, to inflict a frustrating delay or potentially embarrassing referendum defeat on the Government (of course, if the Government is confident of public support, it has little to fear from a referendum).
The draft Interim Constitution appears to have removed both these checks. There is no provision for referendums or a super-majority for amendments to the Constitution, and no provision for the opposition to have a real influence on legislation. The idea of balanced, moderated, mutually-checked powers, co-operating in a spirit of mutual accommodation, has been replaced by the absolute, unlimited, unbalanced, rule of a single elected assembly.
As the draft Interim Constitution stands, it has ‘out-Westminstered Westminster’, concentrating power rather than dispersing it, and expanding power rather than limiting it. Popular sovereignty is strongly asserted in principle, but denied in practice by the slight-of-hand of transferring that sovereignty to Parliament, rather than letting it be kept in the people’s hands.
Scottish independence gives us an opportunity to build a new constitutional settlement, fit for an inclusive, participatory democracy. The draft Interim Constitution needs a lot more work before it comes close to realising that goal.