Parliamentary Affairs (2019) 72, 996–1013 doi:10.

1093/pa/gsz022
Advance Access Publication 21 July 2019

PRACTITIONER

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Is the House of Commons Too Powerful? The
2019 Bingham Lecture in Constitutional
Studies, University of Oxford
Lord Norton of Louth*
House of Lords, London, UK

* Correspondence: [email protected]

It is an honour to be invited to give the Bingham Lecture in Constitutional

Studies, named after a man whose name resonates in both the law courts and
Westminster. He was one of the most eminent jurists, if not the most eminent, of
his generation. His work on the rule of law was seminal. He was also instrumental
in arguing the case for the creation of a dedicated Supreme Court. I am not sure
if I should mention that I was one of those who led opposition to moving the law
lords out of the Palace of Westminster. This is not the occasion to argue which of
us was right.
My purpose this evening is to address a different aspect of our constitution and
ask whether the House of Commons is too powerful. To even raise the question
would, until very recently, appear risible. Some may still see it as such. For most of
the past century, it has been the received wisdom in liberal circles that the House
of Commons has been ‘in decline’. That great scholar statesman, Lord Bryce, in
his book Modern Democracies, published in 1921, titled one of his chapters ‘The
Decline of Legislatures’. That perception was not novel. One can find it expressed
in scholarly works of the late nineteenth century, not least by Lawrence Lowell in
his Government and Parties in Continental Europe (Lowell, 1896). Nor was it con-
fined to scholars. It was a view shared by commentators and politicians alike.
It was certainly how the British Parliament was seen. Academic and Liberal
politician, Ramsay Muir, in evidence to the House of Commons Procedure
Committee in 1931, said that there was no country in north-western Europe ‘in
which the control exercised by Parliament over the Government—over legisla-
tion, taxation, and administration—is more shadowy and unreal than it is in

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 Is the House of Commons Too Powerful? 997

Britain’ (Norton, 1981, p. 202). Lloyd George, giving evidence to the same com-
mittee, declared ‘The fact of the matter is that the House of Commons has no real
effective and continuous control over the actions of the Executive’ (Norton,

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1981, pp. 201–202). In 1949, Christopher Hollis published a book entitled Can
Parliament Survive? and nine years later Michael Foot penned Parliament in
Danger! The Penguin book, What’s Wrong with Parliament?, written pseudony-
mously by two House of Commons clerks, appeared in 1964 (Hill and
Whichelow, 1964). In 1979, in Governing Under Pressure, Richardson and Jordan
wrote of a ‘post-parliamentary democracy’. The list is illustrative rather than
exhaustive.
Bryce qualified his thesis of decline, and recognised that legislatures were in-
dispensable in large democracies, but he argued that party was the principal cul-
prit for undermining such representative assemblies. In respect of Britain, he
wrote: ‘. . . the power of the cabinet over the majority has grown as parties have
stiffened their discipline, for majorities are strong in proportion to their docility’.
Party discipline was a feature of the late nineteenth century onwards, charted by
Lawrence Lowell, and described by that other American observer of British poli-
tics, Sam Beer, in his Modern British Politics, in 1965. Cohesion in the House of
Commons, he declared, had increased ‘until in recent decades it was so close to
100 per cent that there was no longer any point in measuring it’ (Beer, 1969 ed.,
p. 350). He went on to say that in the House of Commons were:
two bodies of freedom-loving Britons, chosen in more than six-
hundred constituencies and subject to influences that ran back to an
electorate that was numbered in the millions and divided by the com-
plex interests and aspirations of an advanced modern society. Yet day
after day with a Prussian discipline they trooped into the division lob-
bies at the signals of their Whips and in the service of the authoritative
decisions of their parliamentary parties. We are so familiar with this fact
that we are in danger of losing our sense of wonder over them. (Beer,
1969, pp. 350–351)

The perception of a House of Commons operating at the command of party-

dominated executive culminated in Lord Hailsham warning, in his 1976
Dimbleby Lecture, of an ‘elective dictatorship’ (Hailsham, 1976), with power in-
creasingly centralised and in the hands of the Cabinet, dominated by the Prime
Minister.
Beer and Hailsam were not alone in writing about a system that was changing,
or was about to change, at the very time that they were writing. Bagehot, in The
English Constitution, did likewise. In the decades after Modern British Politics was
published, MPs became more willing to vote against the party line, but
998 Parliamentary Affairs

perceptions of executive dominance persisted. Part of the reason was because

observers were slow to recognise the change in behaviour. The decade of the
1970s was viewed as exceptional, with subsequent governments, returned with
workable and sometimes large parliamentary majorities, able to deliver their pro-

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grammes with little disturbance from rebellious backbenchers. The style of lead-
ership—what Michael Foley has characterised as the presidentialisation of British
politics (Foley, 1993, 2000)—under Margaret Thatcher and Tony Blair reinforced
perceptions of executive dominance.
The ease with which governments were seen to get their measures through, at
the behest of powerful occupants of No. 10, helped maintain the perception of a
legislature that was essentially the handmaiden of the party in government.
I take that perception as my starting point. The views expressed by Lord Bryce
almost 100 years ago have constituted essentially received wisdom.
Three years ago, I gave the Michael Ryle Memorial Lecture (Norton, 2017). In
that, I argued that the House of Commons, far from being in decline, was more
powerful in its relationship to the executive than at any point in modern political
history, by which I meant since the Reform Act of 1867. My theme was that, for
Parliament, these were the best of times and the worst of times. They were the
best of times in its relationship to the executive. They were the worst of times in
its relationship to the people. Study of Parliament over the past century has been
notable not only for the perception that the institution is in decline, but also for
seeing that within the context of the relationship of Parliament to government.
Little attention has been given to the relationship of Parliament to citizens.
My theme this evening is different. Events of the past few months lead me to
argue, not that for Parliament these are the best of times and the worst of times,
but that these are, simply, the worst of times, both in terms of the relationship to
government and the relationship to the people. One leads to the other. The
House of Commons does not face an existentialist threat, but it is facing a crisis
in terms of its standing, both constitutionally and politically.
In this lecture, I propose, first, to sketch the development of the Westminster
model of government and detail how that determines the relationship of
Parliament to the executive and to the people. I shall then develop my theses that,
in the period from the 1970s to last year, Parliament was stronger than at any
time previously in modern British politics in its relationship to the executive, but
not to the people, and that over the past 12 months the relationship to both gov-
ernment and the people is threatened in terms of what we expect of the institu-
tion within the Westminster model of government.

1. Parliament in the Westminster System

First, then, let me address the development of that model of government.
 Is the House of Commons Too Powerful? 999

Core to the model is that Parliament is a reactive body. The executive puts for-
ward measures to which Parliament responds. Legislatures, as I have defined
them elsewhere, ‘are constitutionally designated bodies for giving assent to bind-
ing measures of public policy, that assent being given on behalf of a political com-

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munity that extends beyond the government elite responsible for formulating
those measures’ (Norton, 1990, p. 1). It is how legislatures respond, before giving,
or withholding, assent, which determines their type. I have elsewhere identified
three types of legislature: policy-making, policy influencing and legislatures with
little or no policy effect. Policy-making legislatures can not only reject or amend
measures brought forward by the executive, but they can substitute policies of
their own. Policy-influencing legislatures can amend or even reject measures
brought forward by the executive, but they cannot substitute policy of their own.
Legislatures with little or no policy effect can neither amend nor reject measures
brought forward by the executive, nor substitute policy of their own. Those in
this last category—typically in one-party or the old Soviet states—are largely con-
fined to fulfilling the core defining role of a legislature, that of giving assent.
Our Parliament is a policy-influencing legislature and, within that category,
occupies a distinct eponymous type. We have given birth to the Westminster
model of government. It has had a long gestation and produced offspring, al-
though only emerging fully formed itself in the late nineteenth century.
The Westminster model has been characterised as a majoritarian, ideally two-
party system, with one party commanding a majority of seats and therefore, as
André Kaiser puts it, ‘can govern with no institutional restrictions, and the other
which is in a minority and functions as “Her Majesty’s Opposition”’ (Kaiser,
2008, p. 21). The system is characterised by what Anthony King termed the oppo-
sition mode of executive–legislative relationships (King, 1976). The two parties
fight it out for the spoils of victory. As King recorded, they have no incentive to
agree: ‘their aim’, he wrote, ‘is not accommodation but conquest’ (King, 1976,
p. 18). The conflict is adversarial and public, taking place in the chamber.
Westminster legislatures have been plenary oriented, having little incentive to
specialise through permanent investigative committees. The system is premised
on the principle that the Government is entitled to get its business, but the
Opposition is entitled to be heard (Norton, 2001). Government, safe in a parlia-
mentary majority, can get its way, but the Opposition has the oxygen of publicity.
The model also stipulates the relationship of Parliament to the people. As
Enoch Powell observed, the House of Commons is the body through which the
people, through their representatives, speak to government and the body through
which government speaks to the people. At the heart of the relationship is the
concept of accountability. Government is chosen through elections to the House
of Commons and that government is then accountable to the people, at the next
election, for its conduct and delivering its programme of public policy and
1000 Parliamentary Affairs

between elections to the people’s representatives in the House of Commons.

There is one body—the party in government—responsible for public policy.
Bolstered by the convention of collective responsibility, it faces the House as one

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body, resting for its continuation in office on the confidence of the House. There
is a clear line of accountability to the House and to the electors.
This model has been the result of three critical events, deriving from the
demands of the king, of parliamentarians and of the people, respectively.

1.1 Emergence of Parliament in the thirteenth century

The king needed to raise money, so summoned to court knights and later bur-
gesses to accede to his demand for supply. Parliament in its origins was an assent
giving body (Norton, 2013a, pp. 17–18). Within the first two centuries of its exis-
tence, we see the functions develop that remain the principal functions of
Parliament. That is, debating the demands of the Crown before assenting to
them, be it for legislation or raising money; scrutinising the conduct of the minis-
try; and giving voice to, and seeking redress of, grievances. Those functions fit
within a constitution where the executive, the monarch, remains the fount of
public policy.

1.2 The glorious revolution of 1688

The clash between James II and Parliament led to James fleeing the country. He was
forced out, but for the purposes of maintaining constitutional continuity he was
deemed to have abdicated. The throne was offered to William and Mary on condi-
tion that they accepted the Declaration of Right and then transposed into statute as
the Bill of Rights 1689. The key point is that the Parliament was not seeking to wrest
control of policy from the king, but rather asserting that the king could not bypass
Parliament in making law. The assent of Parliament was required to law and to the
levying of money, but Parliament was—as a legislature—a law-effecting, not a law-
making, body. The monarch remained the maker of public policy. Those responsi-
ble for the Bill of Rights wanted, as Maitland put it in his Constitutional History of
England, ‘a real, working, governing king, a king with a policy’ (quoted in
Wiseman, 1966, p. 5). Furthermore, in dealing with Parliament, monarchs were
usually able to get their way through status, patronage and bribery.

1.3 The reform acts of the nineteenth century

Those without the vote agitated for it, resulting in expansions of the franchise,
the critical Act being the 1867 Reform Act. It enlarged the electorate by 88 per
cent, making it too large for individual candidates to reach and bribe. As Richard
 Is the House of Commons Too Powerful? 1001

Crossman observed, ‘organised corruption was gradually replaced by party orga-

nisation’ (Crossman, 1963, p. 39). Party came to dominate electoral politics and,
consequently, parliamentary politics. The effect was to transfer policy-making
power not from the monarch to Parliament, but from the monarch to ministers,

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and within the bicameral Parliament confirmed the primacy of the elected
House.
The Reform Acts also determined the relationship of Parliament to the people.
‘Virtual representation’ gave way to direct election. MPs were chosen by the peo-
ple in competitive elections and stood on a party label. Parties fought for the all-
or-nothing spoils of election victory. The winning party formed the government,
the second largest party became the Opposition. The House of Commons was the
arena in which the government was challenged and tested by the Opposition.
Throughout, the executive—initially the Crown and then ministers of the
Crown—has been responsible for generating public policy. There is thus nothing
new in characterising Parliament as a policy-influencing, or reactive, legislature.
Throughout the twentieth century, there was little to demonstrate what it was
from which the House of Commons was ‘declining’, but there was a valid debate
to be had as to whether it was as effective as it could be in challenging government
and holding it to account. The Opposition may criticise, but there was little evi-
dence of the House making a difference, certainly in pluralist terms of observable
decision making. Parliament was powerful in institutional terms. The executive
could not bypass Parliament—the Glorious Revolution saw to that—but insofar
as it was constrained by Parliament, it was by procedure and not by vote
(Norton, 2001).
Although electors turned out in numbers to vote, there was little regular con-
tact between MPs and electors in between elections. Much of the contact was at
the local level, MPs serving as local dignitaries and benefactors (Norton, 1994,
pp. 708–710), rather than a relationship affecting how Members operated at
Westminster.
This debate as to Parliament’s role is, I contend, now a dated one. Parliament
is no longer the subservient body derided by observers, and often its own mem-
bers, over recent decades. We are in a very different situation and, now, a danger-
ous one.

2. The changing face of Westminster

In recent years, we have seen two major changes. The House of Commons has be-
come notably stronger in its relationship to the executive. The change falls into
two periods, one gradual and cumulative and the other more concentrated: they
comprise the period from the 1970s through to 2018 and the second that of the
past 12 months. The first saw a notable strengthening of the House of Commons,
1002 Parliamentary Affairs

but without notable recognition of that fact by the public. There was notable pop-
ular distrust of MPs.
The second saw a tussle, unprecedented in modern political history, for con-

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trol of public policy, one that was noticed by the public and not especially appre-
ciated. A consequence is that there is now popular distrust of the House of
Commons, creating a crisis of public confidence.
Let me deal with the first period, the strengthening of the House of Commons
in relation to government, but not to the public, before addressing the remark-
able events of recent months.

3. The best of times, the worst of times

3.1 Parliament and government

Until the 1970s, it was possible to portray the House of Commons as a chamber-
oriented, unspecialised and predictable body, MPs voting loyally with their par-
ties—the Prussian discipline referred to by Beer—and with government enjoying
a virtual monopoly on the information laid before Parliament. MPs lacked the
means to acquire data to question government. There was neither the political
will nor the resources to challenge government effectively.
Since then, the position of the House has been transformed, with changes in
behaviour, attitudes, structures and constitutional practices that in combination
have rendered the House more effective than it has ever been since 1867. They
have strengthened the House in fulfilling the functions expected of it within the
Westminster model.

3.1.1 Behavioural and attitudinal changes The 1970s was the pivotal decade in
crafting a House of Commons more willing to challenge government through
vote and more able to scrutinise it through specialist investigative committees.
The trigger for behavioural change was the prime ministerial leadership of
Edward Heath. Several controversial measures and policy U-turns, combined
with Heath’s unwillingness to listen to backbench concerns about them, led Tory
backbenchers to vent their disagreement, and frustration, through the division
lobbies (Norton, 1978). They voted against the whips not only more often than
before, but also in greater numbers and with more effect (Norton, 1975, 1978).
Despite an overall majority, the government was defeated six times. The behav-
ioural change endured, especially under Labour from 1974 to 1979 (Norton,
1980, 2004).
Majorities achieved by subsequent governments helped contain much of the
cross-voting that took place, but they were not able to save the government on all
 Is the House of Commons Too Powerful? 1003

occasions. Despite a three-figure overall majority, the Thatcher government be-

came the first twentieth century government with an overall majority to lose a
Bill at Second Reading, when in 1986 the Shops Bill was voted down (Regan,

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1987, pp. 218–235). The Major government endured widespread dissent, espe-
cially on the issue of European integration, and several defeats (Norton, 1998, pp.
82–89). The Blair and Brown governments saw growing backbench dissent from
2003 to 2010 and the coalition government from 2010 to 2015 witnessed unprec-
edented levels of dissent by government backbenchers (Norton, 2012, pp. 181–
193), unprecedented that is until the government of Theresa May. What we are
witnessing now is dissent on an industrial scale, but we should not be surprised
by the fact of dissent. Before 1970, the government could take its majority as
given. If it persisted in the face of backbench disquiet, it would win. Since then, it
has usually been assured of its majority, but not guaranteed it.
The behavioural changes of the 1970s generated an attitudinal change on the
part of backbenchers (Norton, 1983, pp. 54–69). They realised that voting against
their own side, even defeating it, did not result in dire consequences for the future
of the government or for their own futures. In the analysis of Sam Beer, a deferen-
tial attitude gave way to a more participant attitude (Beer, 1982, p. 181). MPs
wanted to be more involved in considering the policies and conduct of govern-
ment and not simply voting through what was laid before them.
These changes created the conditions for reforms to the structures and proce-
dures of the House.

3.1.2 Structural change Pressure from Members led to the Procedure

Committee recommending a series of departmental select committees, with the
House in 1979 voting to bring them into being, despite a sceptical Cabinet and a
hostile Prime Minister. We are just coming up to the 40th anniversary of the crea-
tion of the committees. Their introduction was the most important reform in the
latter half of the century and arguably the most important of the century.
The departmental select committees created a new dimension to executive–
legislative relationships. The opposition mode in the chamber was complemented
by a non-party mode in committee. The committees became comprehensive in
their coverage of government departments and enabled policies to be analysed
concurrently through committees meeting each week, rather than consecutively
in the chamber. They proved prolific in producing reasoned, evidence-based
reports. They proved magnets for interest group submissions. They provided the
House with alternative sources of advice to that of government.
They soon became an integral part of the parliamentary landscape. They have
been strengthened by the Wright Committee reforms of 2010, with the chairs of
select committees being elected by the whole House and members by their
1004 Parliamentary Affairs

respective parliamentary parties. The effect has been twofold. It has removed a
significant patronage power held by the whips. It has given the chairs of commit-
tees a greater profile and independence.
Greater specialisation on the part of the Commons, and development of the

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non-party mode, has not been confined to the creation of departmental select
committees. The Joint Committee on Human Rights, appointed in 2001, some-
thing of which Tom Bingham would have heartily approved, has succeeded in
raising awareness of human rights, certainly in terms of parliamentary discourse
(Hunt, Hooper and Yowell 2012; see also Norton, 2013b). The Wright
Committee reforms resulted in the creation of the Backbench Business
Committee, enabling a committee of the House, elected by the House, to deter-
mine the matters to be discussed in backbench time, something previously in the
gift of government. The House of Commons was previously an outlier among
legislative chambers in terms of the agenda control exercised by the executive.
The Backbench Business Committee has enabled backbenchers to bid for slots to
have motions debated, variously on topics that the government would prefer not
to be debated. The 2015 Parliament saw the introduction of the Petitions
Committee, set up to consider petitions, primarily e-petitions, and to determine
what, if any action to take on them. It may pursue an issue itself, refer it to a de-
partmental select committee or schedule a debate in Westminster Hall. A petition
that attracts 100,000 signatures will normally be debated. The availability of e-
petitions has transformed the nature of petitioning the House of Commons. It
was a practice falling into disuse. It is now utilised on a substantial scale, provid-
ing a means of citizens having some input into the parliamentary process. Earlier
this week (on Monday, 13 April), there was a debate in Westminster Hall calling
for the netting of trees to be outlawed. It was prompted by an e-petition signed
by 350,000 people.
All these committees are select committees. They can take evidence—the
power to send for persons, papers and records—and report to the House. They
have a persuasive, but not a coercive capacity. Committees in the legislative pro-
cess, that do have a coercive capacity, have also seen significant change. In 2006,
standing committees—standing in name only and dominated by the opposition
mode of executive–legislative relations—were succeeded by public bill commit-
tees that, unlike their predecessors, can take evidence. Witnesses can thus be
called and interested organisations can submit evidence. There are still problems
with the committee stage of Bills, but—as the research of Louise Thompson has
shown—the work of public bill committees has a greater impact, not least in
terms of government action at later stages, than is generally acknowledged
(Thompson, 2015).
These changes, taken individually, are significant. Taken collectively, they have
rendered the House of Commons more effective in challenging government than
 Is the House of Commons Too Powerful? 1005

at any time since the development of the Westminster model in the nineteenth
century. And that is without considering changes at a more practical and individ-
ual level—MPs now being better resourced individually and collectively—and in

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terms of constitutional practices that have made the House of Commons more
powerful, in pluralist terms, in exercising the capacity to say ‘no’ to government.

3.1.3 Constitutional change There are three principal changes, one close now
to constituting a convention of the constitution, another that modifies a constitu-
tional convention, and the third that introduces a new statutory power, albeit in
practice the one that has had the least impact.
The most important change has been the development of the constitutional
practice, amounting now almost to a convention, that before British armed forces
are committed to action abroad, the consent of the House of Commons must be
sought and obtained. Committing British forces to action is a prerogative power,
exercised by ministers who are answerable to the House for their actions.
Previously, such action may be debated by the House, with ministers reporting to
the House what was happening. What was not sought was the prior approval of
MPs.
What we have seen over the past two decades has been the practice of the
House of Commons being consulted, and if necessary voting, on government
proposals to commit forces in action abroad.
The precedent was set under Tony Blair in respect of war in Iraq. The principal
debate, authorising action, took place on 18 March 2003 and the motion sup-
porting the government carried, with Opposition support, by 412 votes to 149. It
was, according to Tony Blair ‘the only military action expressly agreed in advance
by the House of Commons.’ (Blair, 2010, p. 428) In August 2013, Parliament was
recalled to debate the military action in Syria. The use of force was opposed by
both Opposition and some Conservative MPs, with the result that the govern-
ment was defeated by 285 votes to 272. Prime Minister David Cameron immedi-
ately accepted the outcome. ‘It is very clear tonight’, he said, ‘that, while the
House has not passed a motion, the British Parliament, reflecting the views of the
British people, does not want to see British military action. I get that, and the
Government will act accordingly.’ (House of Commons Debates, 29 August 2013,
cols 1555–6)
The vote confirmed in the eyes of some commentators that it was now a con-
vention that no government could embark on military action without first getting
the endorsement of the House of Commons (Strong, 2014; Constitution
Committee, 2014), though such a status was not endorsed by Downing Street.
Last year [2018], Prime Minister Theresa May authorized air strikes in Syria, in
conjunction with the United States and France. She justified her action on the
1006 Parliamentary Affairs

grounds that revealing the plans for action ‘would have fundamentally under-
mined the effectiveness of their action and endangered the security of our
American and French allies’ (House of Commons Debates, 17 April 2108, col.

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207). She then appeared before the Commons in two emergency debates to de-
fend her action. The very fact that the Prime Minister was at the Despatch Box
explaining why approval had not been sought from the House in advance of ac-
tion reflected a major change in expectations.
In constitutional terms, this is the most significant change of the past century.
It is not the only one. The enactment of the Fixed-term Parliaments Act 2011 also
has significant constitutional consequences. The most obvious, and intended, ef-
fect has been to deny the Prime Minister the power in practice to determine the
date of a general election, within a maximum five-year life span of a Parliament.
Under the provisions of the Act, the Prime Minister can ask the House of
Commons to vote for an early general election. The ease with which Theresa May
was able to obtain approval by MPs for an early election in 2017 may mask the
significance of the measure.
There are two other consequences (Norton, 2014, pp. 203–220; 2016, pp.
3–18). One is to change the convention governing confidence votes. Previously a
Prime Minister could say that a motion was so important that it was a matter of
confidence and, if defeated on it, the government would resign or call an election.
That was a means of maximising the government’s voting strength in the House
of Commons. Edward Heath used it on the Second Reading of the European
Communities Bill in 1972. John Major deployed it on the social chapter of the
Maastricht Treaty. The Fixed-term Parliaments Act limits the convention in that
a Prime Minister may threaten the resignation of the government, but now can-
not say that if defeated there will be an election.
Secondly, it empowers the Opposition and government backbenchers in that
it hands to both a veto power. An early election can be triggered by a vote of the
House of Commons, but to be carried it requires a two-thirds vote of all MPs.
The Opposition could decline to support it. Abstention would be sufficient to
deny the required two-thirds majority. The same applies to government back-
benchers. Imagine a situation where a majority of Conservative backbenchers
make clear to the Prime Minister that, if she persists in a policy with which they
disagree, declares it an issue of confidence, loses the vote and asks the House to
vote for an early general election, they will decline to support the motion. I think
it unlikely that they would be sufficient in number to prevent the two-thirds ma-
jority being achieved, but the fact that it could happen may constrain Downing
Street.
The only alternative for a Prime Minister seeking an early election is to engi-
neer a vote of no confidence in the government, which requires only a simple
 Is the House of Commons Too Powerful? 1007

majority to be carried. This could mean some ministers having to vote no confi-
dence in themselves, or at least abstain from voting.
Those are the most important constitutional changes in practice. The third is a
statutory change, empowering the House of Commons to refuse permission to

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ratify a treaty. Part 2 of the Constitutional Reform and Governance Act 2010 pro-
vides that treaties shall be ratified if within 21 sitting days neither House has re-
solved that the treaty shall not be ratified. If the House of Commons votes against
ratification, and persists in voting against, the treaty is not ratified.
The provisions of the Act transferred a convention, in the form of the
Ponsonby rule, into statute. However, it is a power that has not been employed
since the passage of the Act and there are practical political issues, not least in
terms of scheduling debate on a motion to deny permission to ratify. The issue of
parliamentary scrutiny of treaties is the subject of a recent report from the House
of Lords Constitution Committee (Constitution Committee, 2019). There is
more to do.
However, my key theme is the extent to which the House of Commons has
been bolstered in its relationship to the executive within—and this is a crucial
point—the confines of the Westminster model of government.

3.2 Parliament and people

I turn to the other side of the coin, or rather the other relationship that
Parliament has, that is, with the people. The work of the House—the changes
that I have outlined—have not impacted greatly on public consciousness.
Attitudes toward Parliament are characterised by distrust and dissatisfaction.
MPs are not among the principal categories of occupations trusted to tell the
truth. Doctors, and indeed professors, are trusted. MPs, like estate agents, are
not. Nor is there a feeling they are doing a good job. In the Hansard Society 2016
Audit of Political Engagement, only 32 per cent of those questioned were satisfied
with how Parliament was doing its job (Hansard Society, 2016, p. 24). Only 29
per cent were satisfied with how MPs generally did their job (Hansard Society,
2016, p. 29). Eurobarometer data showed that only one-third of those surveyed
in the UK ‘tend to trust’ Parliament.
As I argued in the Ryle lecture, Parliament has faced pressures that are external
to it. As data from the National Centre for Social Research has shown, the civic
culture is eroding, with distrust fuelling more distrust (Goodwin, 2019).
Deference to Parliament has been undermined by popular cynicism, a less inter-
ested and less informed media, and the emergence of social media, all of which
have contributed to a more distracted population, one wanting instant gratifica-
tion, and with a short attention span. People have tended to engage in selective
retention, picking the soundbite that feeds their prejudice, and taking repetition
1008 Parliamentary Affairs

of the soundbite as confirming its veracity. Parliament is not well suited in deal-
ing with the need for instant news in immediately digestible form.
However, there is another reason that contributes to low levels of public trust

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and satisfaction and that it is how people view the House of Commons. They do
not look at it in terms of result-based performance, but more what Green has
termed the actor-based perspective (Green, 2013, p. 418). In other words, they do
not focus on what MPs do collectively in fulfilling the functions ascribed to
Parliament. They are not looking at the work of select committees or debates in
Westminster Hall. They are focusing on the behaviour of the individuals that
form the House of Commons.
The result is that all the great work of select committees has little impact on
public awareness compared to a scandal involving individual MPs. The ‘cash for
questions’ scandal of 1994 impacted on public perceptions of MPs as serving their
own interests rather than the public good. The misbehaviour of a few MPs was
generalised to the whole population of the House. This was then compounded in
2009 with the expenses scandal, MPs being seen to make illegitimate, and at times
illegal, claims for expenses. Claims for moats and duck houses entered the public
consciousness. Gordon Brown called it ‘the biggest parliamentary scandal for two
centuries’ (Winnett and Rayner, 2009, p. 349). The scandal exacerbated public
distrust of MPs.
Further compounding the situation, as I argued in the Ryle Lecture, was the
incapacity of Parliament to respond immediately and robustly to the situation.
There were two reasons for this. One was the fact that there was no one—and
there remains no one—who can speak for Parliament. Parliament comprises two
discrete Houses. No one in either can speak for the other. Furthermore, each
House is the sum of its members. There are disparate leadership positions, but no
one authorised to speak quickly and authoritatively on behalf of either House
and certainly not to speak for Parliament.
Given this, any response to criticism requires collective action. The expenses’
scandal destroyed MPs’ self-confidence. They were essentially shell-shocked by
what happened and the response to it. A survey of MPs who left the House in
2015 found everyone questioned thought that the public perception of MPs had
been significantly and negatively affected by the expenses’ scandal. One said that
the public lack of trust in politicians was ‘a blow that I don’t think we will recover
from in a lifetime’ (quoted in Norton, 2017). MPs adopted what I have termed a
bunker mentality, hunkering down in the hope that public dissatisfaction would
eventually dissipate.
The problem is that it won’t go away, not least with the media continuing to
pursue issues such as expenses. It was a headline issue again last week (Daily
Telegraph, 11 May 2019) and the important point to note is that it was a
 Is the House of Commons Too Powerful? 1009

‘headline’ issue—it was the lead story in the Daily Telegraph. Scandal sells news-
papers. Reports of departmental select committees do not.
That is the challenge facing, and continuing to face, Parliament. There is a col-

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lective lack of self-confidence to come out of the bunker, guns blazing.
I turn to where we are now, which is the worst of the times, not just in terms
of the relationship to the public, but in the relationship to the executive.

4. The worst of times

Parliament faces now a situation that is the result of several unique events: Prime
Minister David Cameron responding to backbench pressure to commit to an in/
out referendum on EU membership; the 2015 general election and its outcome;
the election of Jeremy Corbyn as Labour leader; the 2016 referendum and its out-
come; the election of Theresa May as Conservative leader; her decision to seek
and gain an early election, and that election and its outcome.
The result is a situation where the government has a political commitment to
deliver on the outcome of the 2016 referendum, but it is unable to mobilise a ma-
jority in the House of Commons to support the Withdrawal Agreement negoti-
ated with the EU. The result has not just been the House of Commons failure to
agree on any particular outcome, but also an attempt by some MPs to wrest con-
trol of the parliamentary agenda in order to achieve an outcome satisfactory to
them.
This is of constitutional importance because it represents the House of
Commons exercising power, not within the Westminster model of government,
but in a way that challenges it.
We need to disaggregate the two elements entailed in the challenge by MPs
such as Dominic Grieve and Yvette Cooper. Insofar as MPs are attempting to
take control of the parliamentary timetable, there are grounds for saying that it is
a case of the House of Commons ‘taking back control’. The government enjoys
control of the parliamentary agenda—as I said earlier the Commons has been
something of an outlier in terms of the extent to which the executive determines
the parliamentary timetable—but the extent of that dominance is a result of what
happened in the twentieth century. Government has enjoyed the precedence it
has because of the Balfour reforms of 1902 (Norton, 1981, p. 20). There had been
earlier changes, primarily towards the end of the nineteenth century, but the pre-
cedence enjoyed by government for the bulk of the twentieth and early twenty-
first centuries was the result of the Balfour reforms.
The element of the Commons ‘taking back control’ in this respect was the pas-
sage of the Business of the House motion moved by Oliver Letwin at the begin-
ning of April and passed by 312 votes to 311.
1010 Parliamentary Affairs

However, where it is not a case of the House of Commons ‘taking back con-
trol’ is in seeking to wrest control of policy from government. The European
Union (Withdrawal) (No. 5) Bill was a Private Member’s Bill promoted by Yvette
Cooper and the provisions essentially provided for the Commons to decide the

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date of an extension sought under Article 50(3) of the Treaty on European
Union.
To take back control, you need to have had it before. As I have said, even at
the time of the Glorious Revolution, Parliament still looked to the king to come
forward with demands. There was some debate in the Lords during consideration
of the EU (Withdrawal) (No. 5) Bill as to whether it set a precedent. As former
Lord Chief Justice, Lord Judge, noted, the Bill did set a precedent, before going
on to observe that ‘Lawyers use bad precedents constantly, but it does not mean
that it has to be followed’. (House of Lords Debates, 8 April 2019, col. 408) The
European Union (Withdrawal) Act 2019 sets a precedent and I would argue a
dangerous one.
What we are witnessing is at the very least some undermining of the relation-
ship confirmed by the Glorious Revolution. It raises fundamental issues of ac-
countability. Referendums raise issues of accountability. Electors cannot hold
themselves to account for the outcome of a referendum. Neither can they hold to
account a transient majority in the House of Commons. There is no one entity
that faces electors. We are in danger of seeing the constitutional glue that holds
together the political system coming somewhat unstuck.
But these are also the worst of times in the relationship between Parliament
and electors. The latest Hansard Society Audit of Political Engagement shows that
the proportion of respondents who feel that the system of governing needs ‘quite
a lot’ or ‘a great deal’ of improvement stands at 72 per cent, the highest level it
has been in the Audit series (Hansard Society, 2019, p. 8). Only 25 per cent had
confidence in the Members of the House of Commons in handling Brexit; 73 per
cent had not very much or no confidence.
However, perhaps the most telling finding for my purposes this evening is that
42 per cent of those questioned agreed with the statement ‘Many of the country’s
problems could be dealt with more effectively if the government didn’t have to
worry so much about votes in Parliament’ (Hansard Society, 2019, p. 18). We
don’t know how many would have answered affirmatively if the question had
been asked in earlier years, but it was not asked, presumably for the reason it
would seem a ridiculous question to ask.
The change in terms of public perceptions of MPs is not simply one of degree,
but of kind. Before, electors did not trust MPs. Now, they do not trust the House
of Commons. That, I think, is the essential shift.
Is the House of Commons more powerful than before? Clearly yes, and on a
scale and in a form that would be unrecognisable to observers from Bryce
 Is the House of Commons Too Powerful? 1011

onwards. Is the House of Commons too powerful? In terms of the Westminster

model, there is a case that it is, or at least teetering on the edge, and as I have tried
to show, that is not a healthy situation for our political system. It undermines ac-

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countability to electors—accountability that is at the heart of the Westminster
model—and undermines public trust in Parliament.
Will the situation be temporary? Clearly, resolving the issue of Brexit is core.
Here, the House of Commons is its own worst enemy. It cannot reach agreement,
but until it does it cannot begin the task of restoring public trust.
Reaching agreement is necessary, but it is not sufficient. Part of the solution is
beyond the reach of the House of Commons. Much will depend on the outcome
of the next and future elections and the cohesiveness of parties. Insofar as it rests
with the House of Commons, I reiterate what I said three years ago, namely that
MPs need to have the collective will to defend and promote the institution in
which they serve. Recognition of that very fact is a starting point. We are not even
there. The danger is that the bunker mentality will continue. Some politicians will
go for displacement activity, arguing for constitutional reform—a codified con-
stitution and the like—rather than acknowledging that they are part of the
problem.
In analyses of earlier reforms, I identified the necessary conditions of a clear
agenda, leadership and political will to achieve desired goals. We are lacking all
three. The institutional impediments remain. There is no one to speak for
Parliament. There is no collective will on the part of members to address issues of
trust.
The need is for MPs to stand back and recognise the challenge faced by the in-
stitution of which they are members. Only with that recognition, and what flows
from it for the health of our political system if nothing is done, can they begin to
tackle the crisis that is in danger of engulfing them if they continue to exercise
power from the confines of the bunker.

Conflict of Interest
The author has no conflicts of interest to report.

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