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Practices and reforms in the Westminster Parliament

Dilemmas of democracy: challenges to parliamentary practices from the UK public and parliamentarians

Enjeux et défis des pratiques parlementaires au Royaume-Uni
Elizabeth Gibson-Morgan

Résumés

L’absence de constitution rigide au Royaume-Uni associée à une série de conventions parlementaires, souvent perçues comme impénétrables, rendit plus impérieux encore le besoin de décryptage de la procédure parlementaire. Aussi au xixe siècle, des auteurs extérieurs au Parlement mais qui aspiraient à le rejoindre, comme A. V. Dicey avec son ouvrage Introduction to the Study of the Law of the Constitution ou W. Bagehot et son English Constitution – deux œuvres qui font autorité sur le sujet – ont contribué à éclairer la procédure parlementaire. Mais l’initiative a également été prise par des auteurs qui travaillaient pour le Parlement, comme T. Erskine May, dans son inestimable Treatise upon the Law, Proceedings and Usage of Parliament. De même, le Guide de la Procédure à destination des membres de la Chambre des Communes oriente les nouveaux membres du Parlement dans les méandres de la procédure parlementaire. En effet, le Parlement est un microcosme doté de ses propres règles et rituels. Ces derniers tendent à creuser encore davantage le fossé entre le Parlement et le Peuple qu’il représente. Des crises sans précèdent – d’abord le Brexit, puis la crise sanitaire de la Covid – ont testé les limites des pratiques parlementaires rendant plus difficile le contrôle du Parlement sur l’action du gouvernement. Cependant, ce pourrait être l’occasion de repenser les pratiques parlementaires, afin de les moderniser tout en les rendant plus accessibles aux citoyens, contribuant ainsi à rétablir la confiance entre le Peuple et le Parlement sans laquelle la démocratie ne peut fonctionner de manière efficace.

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  • 1 “Brief encounter”, Prospect, May 2021, Issue 297, 88.

1In May 2021, interviewed about his role as Speaker of the House of Commons, Lindsay Hoyle pointed out: “It’s the people that make Parliament for me – our parliamentary village.”1

  • 2 An expression used by a Liberal-Democrat Member of Parliament interviewed by BBC journalists during (...)
  • 3 “House of Commons Governance”, House of Commons Governance Committee, Report Session 2014-15, Londo (...)
  • 4 Walter Bagehot, The English Constitution, introduction by Richard Crossman, London: Fontana Press, (...)

2Expressing himself in traditional parliamentary journalistic rhetoric, he spoke of “our parliamentary village”, also called “the Westminster village.” This metaphor can, at first sight, suggest a welcoming place with which people can identify easily, characterised by a community spirit, a sense of “togetherness”2 or belonging. It might be the case for parliamentarians themselves and those who work for Parliament, but it still does not reflect the sense of alienation shown in many opinion poll findings that many people feel. This sentiment of being excluded from the parliamentary world is partly based on long-established traditions such as referring to non-parliamentarians, visitors, the general public, as “strangers” epitomized by the words shouted by the police inspector on duty in the Central Lobby at the State opening of Parliament “Hats off strangers!” and by the existence of a “Strangers’ Room” in the Palace of Westminster for parliamentarians’ guests. Yet, the former House of Commons Governance Committee chaired by Jack Straw, a prominent Labour MP, clearly stated that “Parliament belongs to the people”3 since “Members of Parliament are the people’s elected representatives”, at least in the House of Commons. Long before such a report, Walter Bagehot, the eminent constitutionalist talked about the Commons as “the people’s House.”4

  • 5 In 2009, the Appellate Committee of the House of Lords acting as the Highest Court of Appeal of the (...)
  • 6 The building is considered so unsafe due to the high risk of fire that parliamentary archives are (...)

3Yet the people’s right of access to their Parliament is de facto denied to citizens in different ways. Members of the public can find it difficult to have access to the building itself as even under normal circumstances. Parliament, being a highly strategic place at the heart of the country’s political and institutional life, they are faced with very strict security measures.5 Currently people cannot have access to the building because it has become a dangerous place for more reasons than one. The structure of the building has become unsafe because of its advanced derelict state;6 it is covered in scaffolding to the point that is has almost disappeared from sight. In addition, Westminster became a hotspot for Covid-19 before the three consecutive lockdowns introduced by the British government in 2020 to fight the Coronavirus pandemic. Thus, except for a minority of MPs and Peers as well as key parliamentary workers, parliamentary business in 2020 was mainly done remotely including debates and also committee meetings.

  • 7 The Westminster Parliament is at the very origin of bicameralism in the world.
  • 8 “House of Commons Governance”, House of Commons Governance Committee, Report Session 2014-15, Londo (...)
  • 9 A.V. Dicey, An Introduction to the Study of the Law of the Constitution, [1885], 10th ed. (introduc (...)

4In a more fundamental way, people can feel they are deprived of their right of access to Parliament because of their lack of understanding of how this key institution works. This tends to be particularly true of the House of Lords which, as a non-elected House, is considered as even more remote from people’s preoccupations. In the report mentioned above, the Straw committee argued that part of the problem is “the inherent complexity of this bicameral7 Parliament.”8 Indeed, far from being codified, the relations between the Commons and the Lords are mainly based on conventions which are not always easy to grasp for those who are not familiar with parliamentary practices. They are part of the many conventions of the UK constitution regulating the relationships not only between the two Houses of Parliament but also between the legislature and the executive as well as the use of Crown prerogatives. The Oxford Vinerian professor in law, Albert Venn Dicey, defined them in 1885 as: “customs, practices, maxims, or precepts which are not enforced or recognised by the courts and make up a body not of laws, but of constitutional and political ethics”9 so the refusal to abide by them cannot be sanctioned by courts. The lack of a codified constitution reinforces this dilemma.

  • 10 “Members Only? Parliament in the Public Eye, the Report of the Hansard Society Commission on the Co (...)
  • 11 Walter Bagehot, The English Constitution, op. cit., 68.

5This absence of a codified constitution for the United Kingdom, combined with numerous parliamentary conventions often perceived as arcane unwritten rules, made the need for guidelines on parliamentary proceedings particularly acute. Thus, in the XIXth century, the initiative came from outside Parliament with two authoritative works: A.V. Dicey in his Introduction to the Study of the Law of the Constitution mentioned above and the constitutionalist and journalist Walter Bagehot in his English Constitution. In addition, people can have access to the minutes of parliamentary debates in Hansard, “the official transcript of Parliament”,10 now also accessible online on the parliamentary website. In The English Constitution, Bagehot praised the “efficient secret” or “secret machinery”11 of the English constitutional settlement when he described the relationship between the executive and the legislative. Yet in contemporary Britain such “secrecy” is no longer considered as an asset but rather as potential misuse by unacceptable decision-makers.

  • 12 It is now also available on line on the website of the UK Parliament.

6Key guidance also came from within Parliament with Erskine May, a former clerk of the House of Commons, the author of the invaluable Treatise upon the Law, Proceedings and Usage of Parliament,12 enlightening parliamentary procedure. It is kept at hand by clerks of Parliament when the latter is in session. It was frantically consulted by the Clerk of the House of Commons during the heated debates over Brexit bills. MPs guide(s) to procedure together with the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords have also brought clarification and guidance to (new) members of both Houses. Today, in addition, there are a whole series of codes regulating the individual conduct of members of the Lords introduced in the wake of scandals as part of a major effort to better check their behaviour in Parliament notably towards interns and members of staff. In order to guarantee more transparency, peers are now subject to the Code of Conduct for Members introduced in 2009, the Guide to the Code of Conduct in 2010 – following the recommendations of the Committee for Privileges – and the Code of Conduct for House of Lords Members’ Staff in 2014. They are all under the supervision of the Conduct Committee and are amended on a regular basis. Yet one of the main problems with the current guides of parliamentary practice is that they are mainly directed not at the general public but at parliamentarians. Thus, they are very much inward-looking and their effectiveness relies heavily on MPs’ self-discipline and willingness to follow the rules. An additional complication has been the growth of plebiscites or referendums, widely regarded as a better guide to public opinion than parliamentary debates – a point heavily stressed by Brexit supporters after the Europe referendum of 2016.

7One difficulty and potential source of uncertainty is that existing rules very much depend on the interpretation of parliamentary procedure and practice given by key Parliament officers like the Speaker of the House of Commons. As the former Clerk of the House of Commons, Sir David Natzler, explained in his preface to the now on-line 25th edition of Erskine May, “parliamentary practice and procedure does not exist in a vacuum: it is intimately bound up with the political environment of Parliament.”13 One of the main purposes of this paper, therefore, will be to examine parliament practices as part of a wider parliamentary culture characterised by secrecy and confidentiality.

8Secondly, the objective will be not so much to focus on MPs themselves – on their individual behaviour – but rather on Parliament as a political institution even if the two are intertwined. It will examine how Parliament responded to new challenges in the aftermath of Brexit and Covid-19. The latter has indeed seriously restricted de facto the number of members who attend sessions in both Chambers. This might act as a catalyst for a long-planned yet never implemented reform of Parliament aiming at limiting members of both Houses – especially the over-sized House of Lords – to make them more effective and thus better serve the people.

Opaque, at times unpredictable, parliamentary practices

  • 14 Lord Falconer held the office of Lord Chancellor – and Secretary for Constitutional Affairs – from (...)
  • 15 Frances Gibb, “Elitist culture of secrecy must end, says Lord Falconer”, The Times, 2 June 2009.

9Far from being an idyllic place, or “village”, Parliament forms a microcosm, a world apart – which is highly codified with its own rules, rituals, language, and etiquette which leads to it sometimes being described as the most select of clubs. Ordinary citizens who already struggle to find their way into the Palace of Westminster also tend to find them very opaque, archaic, sometimes even puzzling practices. They contribute to widening the gap between Parliament and the people it represents. In the wake of the 2009 MPs’ expenses scandal, the legal editor of The Times reported Lord Falconer’s critical statement14 conveying public discontent towards ministers and legislators: “the public will demand that policy-making and public life was conducted in the open and no longer in dark corners.”15 Hence, the first part of the current analysis will aim at lifting part of the veil over some “dark corners” of parliamentary life. It addresses the call for transparency from distinguished architects such as Richard Rogers and Norman Foster in designing the Welsh Senedd and the German Reichstag respectively.

The “usual channels”16: a House under the control of the Whips

  • 16 In the glossary provided on the UK Parliament website, “usual channels are defined as arrangements (...)
  • 17 Walter Bagehot, The English Constitution, op. cit., 61.

10The secrecy that characterises parliamentary practices via the use of the so-called “usual channels” no longer naturally chimes with “efficiency” unlike what Bagehot suggested when he wrote about the “efficient secret of the English constitution”17. The deference towards Members of Parliament that prevailed in Bagehot’s time has given way to a culture of suspicion fuelled by the misbehaviour of a minority of MPs and Lords either financially or sexually – yet enough to undermine the reputation of the whole institution.

  • 18 Michael Rush and Clare Ettinghausen, “Opening-up the Usual Channels”, London: Hansard Society, Dece (...)
  • 19 Companion to the Standing Orders and Guide to the Proceedings of the House of Lords – Laid on the t (...)

11In his foreword to the report of the Hansard Society entitled “Opening-up the Usual Channels”, Peter Riddell observes: “the world of the usual channels is one of the most secretive and little discussed features of Westminster life.”18 The phrase “usual channels” is a common expression in Parliament which refers to the relationships between the Whips of the Government and those of the Opposition regarding the organisation of parliamentary work such as the amount of time allocated to each MP who wants to speak as well as the nature of debates. The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords states that “They [the Whips] agree the arrangement of business through the usual channels” which are then defined as “the Leaders and Whips of the three main political parties” acting together to secure “the smooth running of the House.”19

  • 20 “Life in Westminster. Cracking the whips”, The Economist, 11 November 2017, 31.
  • 21 Ibid.
  • 22 Ibid.

12The Whips embody the dominating influence of parties over parliamentary life in both Houses, maintaining party discipline, sending voting instructions to the MPs or Lords belonging to their political group except when there is a free vote, making sure that they turn up to vote and that they vote along party lines. In an article devoted to the Westminster Whips, defined as “backroom fixers with the task of restoring order” – or, as “keeping the show on the road”20 – the columnist of The Economist pointed out that “to get the votes Whips apply pressure in various ways.”21 A persistent rebellion against the official instructions of the party conveyed by the Whips might lead to the ultimate sanction, which is for an MP to have the whip removed, in other words to be excluded from their own party. This is what happened to some rebels of the Conservative party during the Brexit highly divisive debates and votes, including the then “Father of the House” (of Commons), Kenneth Clarke. Interestingly, the explanation provided by The Economist for the growing rebellion among essentially backbenchers – whose votes have become highly volatile – is “MPs’ greater fear of their constituents.”22 This was particularly true over the votes on Brexit.

  • 23 <https://publicwhip.org.uk/>, accessed May 15, 2021.
  • 24 This piece of legislation was part of a whole array of measures and new laws introduced in the wake (...)
  • 25 There is one Member of Parliament per constituency under the First-Past-The-Post voting system.
  • 26 Neil Johnston and Richard Kelly, “Recall elections”, Briefing Paper, number 5089, 6 April 2021, 3.
  • 27 Ibid, 6.

13Whips are therefore part of the secrecy that characterises Westminster’s parliamentary practices. Naming a website “the Public Whip” to improve the public’s access to MPs is not necessarily the best way of reconnecting Parliament with the people as it might fuel a certain misunderstanding about the nature of parliamentary mandates, itself a contentious idea. In his famous 1774 (victory) speech to the electors of Bristol, Edmund Burke warned his constituents against the temptation to give mandatory instructions to MPs denying them the independence and freedom that are part of their rights and privileges as parliamentarians. The expression used on the online “Public Whip” which reads “the Public Whip lets you see all the votes so you can hold them [MPs] to account”23 might be interpreted as the power to dictate how MPs should vote. The idea of a “public Whip” – or maybe a “people’s Whip” – is therefore more likely to exacerbate tensions and mistrust between MPs and voters rather than to encourage constructive dialogue and rebuild confidence. Besides, voters have already gained a new power under the Recall of MPs Act 201524 – the ability to “whip” or sanction their MP25 if they have committed a serious offence, through the use of recall petitions which can, if successful, “remove an elected representative before the end of their term”26 and trigger a by-election to replace their thus vacant seat, as explained by Neil Johnston and Richard Kelly in their briefing paper. Under section 5 of the 2015 Act, the Speaker of the House of Commons is the one who notifies the petition officer in order to start the whole process. If voters play a significant role, “constituents cannot initiate a recall petition.”27 This is one aspect of the Speaker’s office which is not the best known, yet which features in efforts recently made to give people more effective power to hold their MP to account.

The Commons Speaker and Clerk: a pairing strategy of a different kind

14The two Houses of the Westminster Parliament are based on a key principle to which their members are strongly attached: the principle of self-regulation. Therefore, any attempt to better regulate parliamentary practices while protecting this key principle can be highly challenging.

  • 28 As Sebastian Whale recalled in his book devoted to the former Speaker of the House of Commons, John (...)
  • 29 The new Lord Speaker, Lord McFall, a former Labour MP, was elected just before the May 2021 State (...)
  • 30 Thomas Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, London: M (...)
  • 31 As it is stated in the Companion to the Standing Orders and Guide to the Proceedings of the House o (...)
  • 32 Alice Lilly, “The New Speaker of the House of Commons. Key challenges”, London: Institute for Gover (...)
  • 33 “Members Only? Parliament in the Public Eye, the Report of the Hansard Society Commission on the Co (...)

15If parliamentary business seems opaque and sometimes difficult to understand for external observers, it is in fact carefully orchestrated as each parliamentary official has a precise role to perform. One parliament officer with a strategic role is the Speaker of the House of Commons who is elected by the whole House28 which is now also the case for his counterpart in the House of Lords, the Lord Speaker.29 Erskine May defines his office as: “the Speaker of the House of Commons is the representative of the House itself in its powers, proceedings and dignity” adding that “he presides over the debates of the House of Commons and enforces the observance of all rules for preserving order and its proceedings.”30 One of the key responsibilities of the Speaker of the House of Commons – who is much more powerful than the Lord Speaker31 – is “ensuring the House’s rules and procedures are followed including by interpreting those procedures where necessary” as Alice Lilly pointed out.32 Indeed, in case of doubt regarding either the implementation or the interpretation of rules, in other words for all procedural matters, the Speaker is expected not only to consult the clerk – as the leading expert of parliamentary procedure (the most famous one being Erskine May) – but also to follow the advice of the latter. In the Lords, even if the Lord Speaker is only expected to “assist” the House on matters of order, he can rely on the Clerk of the Parliaments, who, “as senior official of the House of Lords, acts as the chief adviser on House practice and procedure.”33

  • 34 The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, London: Th (...)
  • 35 Thomas Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, op. cit., (...)
  • 36 Lord Lisvane (formerly Robert Rogers), “Rebuilding Parliament”, Political Committee, Reform Club, L (...)
  • 37 This is an extract of the conference that he gave to the members of the political Committee of the (...)
  • 38 Lord Lisvane, “Rebuilding Parliament”, op. cit.

16In normal circumstances, the Speaker and the Clerk of the House of Commons act jointly to guarantee the respect of parliamentary procedure to ensure the smooth functioning of parliamentary work. This is the case when the Speaker does not follow his own personal interpretation of the rules including sometimes against the advice of the clerk, as John Bercow famously did over the votes of the Withdrawal Agreement negotiated by Theresa May with the European Union as the UK Prime Minister.34 Even if the Speaker of the House of Commons has to be impartial,35 as it is clearly stated in Erskine May’s, it is not always the case in practice. Parliament being “a living organism”,36 parliamentary business is not limited to a series of rules; it also involves people with different, sometimes very strong, personalities. The former Clerk of the House of Commons, Robert Rogers, now Lord Lisvane, an authority on constitutional and parliamentary procedure, pointed out that “Parliament is not an organisation; it is an organism reactive and unpredictable.”37 He added that “when there is no personal chemistry between the Speaker and the Clerk, procedures are hard to implement and parliamentary business becomes even more unpredictable than usual.”38 Robert Rogers when he wrote this had probably in mind the difficult relationship that he experienced himself with the former Speaker of the Commons, John Bercow.

  • 39 Compiled from J. Selden’s private conversations then published posthumously in 1689. For more infor (...)
  • 40 Sebastian Whale, John Bercow. Call to Order, op. cit., 217.

17Thus changing parliamentary practices in order to make them more transparent is only one aspect of the question. What really matters is the way they are used, given that key officers of Parliament such as the Speaker of the House of Commons benefit from a significant leeway in their usage as it was seen under the Speakership of John Bercow, during the heated Brexit debates and votes in the Chamber. He was generally seen as less respectful of parliamentary practices than Lindsay Hoyle, the current Speaker. John Selden, a lawyer, politician, and historian of the Common Law said in the XVIIth century that “equity varies with the length of the Chancellor’s foot”39 a phrase which became famous especially among those working on the sources of the uncodified Common Law. This metaphor could very well apply to the way the Speaker of the House of Commons sometimes uses procedural rules. Indeed, the Speaker being given a significant margin of interpretation of parliamentary procedure benefits from much discretion. Sebastian Whale, for his part, prefers to speak of “procedural creativities in deciding whether to grant an urgent question or an emergency debate.”40 This is a way for Parliament to take back control over the parliamentary order of business. It can be used notably to facilitate bills tabled in by backbenchers whose cause John Bercow, a keen reformer of Parliament, had always been eager to promote since they often did not – and still do not – have much of a voice on the floor of the House.

  • 41 Alice Lilly, “The New Speaker of the House of Commons. Key challenges”, op. cit., 3.
  • 42 John Bercow stepped down under much pressure on 31 October 2019 following bullying and harassment a (...)
  • 43 Sebastian Whale, John Bercow. Call to Order, op. cit., 320.

18Following one’s instincts or one’s own interpretation of the law rather than the law itself can be dangerous. As Alice Lilly wrote, alluding to the 2017-2019 Parliament, “John Bercow’s novel interpretations of some Commons procedures have generated uncertainty about how they may be used in the future.”41 Thus, eager to put an end to his predecessor’s controversial – even provocative – use of parliamentary practices, Sir Lindsay Hoyle who was elected as the new Speaker of the House of Commons on 4 November 201942 “announced that any break with existing parliamentary conventions by a Speaker would be accompanied by a statement from the Clerk of the House outlining why they disagree.”43

  • 44 Anthony Mangnall, “This is a hollowed-out parliament. As we unlock Covid restrictions, we must make (...)
  • 45 For more information see “Guidance on Hybrid House and Hybrid Grand Committee from the procedure an (...)
  • 46 Anthony Mangnall, “This is a hollowed-out parliament. As we unlock Covid restrictions, we must make (...)

19In spite of the progress made to regulate parliamentary procedures better, the Coronavirus pandemic has made parliamentary business even more difficult and unpredictable. As Anthony Mangnall, the Conservative MP for Totnes explained in the House Magazine,44 “the move to remote parliamentary proceedings as a result of Covid restrictions has affected parliamentary activity, especially backbench activity”45 adding that “it has become more difficult for MPs to bring forward debates, ask questions and generally scrutinise the business of government.”46 This applies more strongly to backbench peers in the Lords. In normal circumstances – in spite of the setting-up of a Backbench Business Committee in the wake of the Wright Report on parliamentary committees on 12 November 2009 – backbenchers already tend to be marginalized. This has been further aggravated by the new hybrid Parliament, all the more as those few members physically present in the chamber are frontbenchers.

  • 47 Joint Committee on Conventions, “Conventions of the UK Parliament”, Report of Session 2005-6, HL Pa (...)

20It is therefore even more necessary to regulate parliamentary practices better in order to limit potential abuses and uncertainty. It is, however, also important not to end up having an over-rigid legal framework in the United Kingdom, where the constitution is in essence a flexible one, a characteristic that contributed to its longevity and adaptability to new circumstances. Too much codification could therefore be counter-productive as the findings of the Joint Commission on Conventions showed in 2006 when it considered the possibility of codifying the relations and procedures between the two Houses of Parliament.47 Parliamentary reform until now, at least in the House of Commons, has mainly focused on procedure while the main concern regarding the House of Lords has been about – and still is – its undemocratic character in spite of the House of Lords Act 1999 which officially abolished the hereditary principle as the main means of joining the Upper Chamber.

21The situation due to Covid-19 could be an opportunity to rethink the whole functioning of Parliament, including parliamentary practices, in order to modernize and democratize them while making them more visible and accessible. So reforms like increasing the powers of parliamentary committees to compel reluctant witnesses to give evidence and thus limit the risk of contempt of Parliament or reviewing the power of the Speaker could improve parliamentary practices and restore trust without which there could not be an effective democracy.

“Unlocking Parliament”48 without demystifying Westminster: a daunting challenge

  • 48 <https://www.coe.int/>, accessed May 10, 2021.
  • 49 A sentence still often (wrongly) applied to the Westminster Parliament itself.
  • 50 Walter Bagehot, The English Constitution, op. cit., 61.

22In the country defined in the XIXth century as the “mother of parliaments”49 – or pioneer country of representative parliamentary democracy – by the radical politician John Bright, mutual cooperation and interdependence of government and parliament, what Bagehot described as a “close union”,50 still characterizes institutional practices. Under the key principle of parliamentary accountability, the government depends on securing a majority in the elected House, to rule the country. The government of Boris Johnson won a comfortable majority of eighty seats in the Commons in the snap 2019 General Election, enabling them to claim a strong mandate from the people and thus democratic legitimacy, making them less vulnerable to a vote of no-confidence than previous governments. It claimed that this view was confirmed by obedience to the verdict of the 2016 Brexit referendum.

The need to restore trust in Parliament

  • 51 Yet, the current Conservative government clearly expressed their attachment to the First-Past-The-P (...)
  • 52 <https://www.gov.uk/>, accessed May 12, 2021.

23If parliamentary sovereignty – as defined by Dicey and Bagehot – is still a key pillar of the British constitution, the government depends on parliamentarians’ trust, which, in turn, depends on their voters’ trust. The public’s perception of Parliament has been seriously undermined by a series of financial and sexual scandals including allegations of harassment and bullying. These involved some of the key players of parliamentary life starting with the former Speaker of the House of Commons. Beyond specific controversial issues, today it is common to question the legitimacy of the institution of Parliament, denouncing a form of democratic deficit at both the national and the European levels. At the national level, they criticise the allegedly unfair, outdated First-Past-The-Post voting system which diminishes representation to small parties.51 Even if the government does not intend to change the voting system the Prime Minister has however promised to “ensure the integrity of elections”52 in the 2021 Queen’s Speech in a forthcoming Electoral Integrity Bill. The official objective is to require voters to produce some identification documents at polling stations to prevent electoral fraud. Some concerns have already been voiced regarding the potential negative impact on franchise as such a reform might deter the most vulnerable and less educated from voting and this factor is not prevalent in British elections. Long established democracies like the United Kingdom and France have experienced the same crisis of the principle of representation – some voters no longer seeing their MPs as their legitimate representatives, since they no longer trust them. Instead, they ask for a form of self-representation or more participatory democracy. Thus, the vote for Brexit, although sustained by different motives, was partly fuelled by the lack of trust in both national and European institutions and their established elites. Elections alone no longer seem enough – to many voters – to give MPs legitimacy. Parliamentarians once elected are no longer taken for granted; they are under the scrutiny of vigilant constituents better informed and more aware of their own rights than in the past.

  • 53 Sebastian Whale, John Bercow. Call to order, op. cit., 170.
  • 54 Haroon Siddique, “Covid Laws. Rights expert urges MPs to regain control”, The Guardian, 17 May 2021
  • 55 This is what he was reported saying by the journalist of The Guardian Harron Siddique on 17 May 202 (...)

24In spite of still being a parliamentary regime, the United Kingdom, just like France, has experienced over the years a drift towards a more powerful and more assertive government to the detriment of Parliament. The political editor of Parliament’s House Magazine, Sebastian Whale, describes it as “the overwhelming executive power”53 thanks to its control of the parliamentary agenda and the concentration of power in the hands of government’s frontbench MPs and Whips. This long-established trend towards an increasingly powerful executive, the growth of the so-called Henry VIII prerogative powers, has been recently aggravated by the additional exceptional authority granted to the executive in order to deal with the unprecedented Coronavirus pandemic. The Human Rights Barrister, Adam Wagner, who also acts as an expert for the parliamentary Joint Committee on Human Rights, helping them with their inquiry into the government’s response to Covid-19 – has raised concern about the “side-lining”54 of Parliament in the handling of the public health emergency. He wrote in an interview for The Guardian that “law-making during the Coronavirus pandemic has been anti-democratic.”55 If this statement might appear excessive, the combined effects of Brexit and the Covid-19 health crisis have further disrupted parliamentary practices testing their limits.

  • 56 For more information, see the article written by Jenny Jones in The Guardian “Peer pressure Lords e (...)
  • 57 As it is explained on the website of Parliament, “Televising debates – House of Lords Leads the way (...)
  • 58 James Graham, “30 years of televised Parliament: How Westminster became mainstream entertainment”, (...)

25Yet, Parliament has adapted fairly swiftly to the new challenges. Surprisingly to external observers, the House which has adjusted more quickly to remote proceedings due to Covid-1956 restrictions has been the House of Lords. It had already been the case when televised debates were introduced in the Upper Chamber in 1985 – 1989 in the Commons – “to make Parliament more relevant to ordinary voters.”57 James Graham writing for The Guardian in 2019 at the time of the celebrations of “the thirty years of televised Parliament” described the House of Lords with a touch of irony as “that bastion of forward-looking modernity.”58

26Parliament today has to face multiple challenges including new technical ones raised by the Covid-19 pandemic and the need for social distancing between MPs within Parliament. Both Houses of Parliament have introduced new parliamentary practices such as virtual proceedings including remote voting, the question remaining whether they are only temporary measures or more permanent ones. This has revived the controversy about the need to introduce electronic voting in the Houses of Parliament. Electronic voting is already common practice in devolved parliaments which are both located in modern buildings. Thus, the Scottish and Welsh legislatures which have introduced more modern parliamentary practices and usages could in turn serve as a source of inspiration for adapting the Westminster Parliament to a new challenging environment. In Westminster, parliamentary select committees have led the way as they were the first to hold remote sessions displaying much flexibility and creativity. They have accelerated the much-needed change of Westminster’s parliamentary practices.

  • 59 <https://www.parliament.uk/>, accessed May 14, 2021.
  • 60 “A new Magna Carta?” House of Commons Political and Constitutional Reform Committee, 2nd report of (...)

27If Parliament is usually identified as a law-making body and as a forum where key issues can be discussed, one of its critical roles is to hold the government in power to account. It is all the more important as Parliament has been progressively marginalized in its legislative capacity as people like Adam Wagner pointed out, having lost both the initiative of the majority of bills to the benefit of the government and the power to scrutinize texts via the growing use of secondary legislation by ministers and the tendency to treat them as primary legislation. Parliamentary practices however could be improved by both increasing the power of committees and by “engaging more with the public”59 as part of the critical role of the Parliamentary Outreach Service set up in 2012. The latter was defined in the 2014 report of the House of Commons Political and Constitutional Reform Committee on a possible new Magna Carta for the UK – as part of an attempt at codifying the UK constitution. “This Westminster unit aims to spread awareness of the work, processes and relevance of the institution of Parliament, encouraging greater engagement between the public and the House of Commons and House of Lords.”60

Increasing the powers of parliamentary committees

  • 61 Chris Bryant, “Select Committees need enforceable powers and treating witnesses fairly”, The House (...)
  • 62 Andrew Rawnsley, “Why sleaze investigations are becoming more menacing for Boris Johnson”, The Obse (...)
  • 63 For further reading see Rajeev Syal’s article “PM’s decision to back Patel to be challenged in cour (...)

28Today, a significant amount of parliamentary work takes place not in the Chamber itself but within committees. This is not, as such, a new phenomenon, as the current Chair of the Privileges Committee of the House of Commons observes: “committees have been a vital part of how Parliament operates for centuries.”61 However, the novelty is that the momentum for change in terms of the modernization of parliamentary practices could very well come from those select and ad hoc committees which carry out their parliamentary work in a more transparent way than the rest of Parliament and in closer contact with the people. They have indeed established strong links with the public inviting non parliamentarians to give both oral and written evidence and express their opinions through the extensive consultation processes preceding their reports. Academics, legal practitioners, professionals from different walks of life are regularly called to bring in their expertise. Select committee work therefore helps bridge the gap between Parliament and the people. In this way they break away with the culture of secrecy that characterises parliamentary processes and Parliament itself. Besides, investigations launched by ad hoc committees on a specific issue can potentially have a dramatic impact for those, including Cabinet ministers and former ministers, who have a loose interpretation of existing codes of ethics like the ministerial code. In May 2021 the Commissioner for parliamentary standards launched an investigation about the opaque funding of the revamping of the 10 Downing Street Flat by Boris Johnson as part of a series of inquiries into the entourage of the current Prime Minister, as Andrew Rawnsley reported in The Guardian.62 A few months earlier the Home Secretary, Priti Patel’s alleged bullying practices had been found in breach of the ministerial code of conduct. Although this might have led to her resignation, she stayed in office upon the decision of the Prime Minister. The latter might now be challenged in court through a judicial review process in the name of the rule of law.63

  • 64 Select Committee on Procedure, First Report, 17 July 1978, HC 588-I, <https://parliament.uk/, acces (...)
  • 65 Philip Norton, Parliament in British Politics. London: Palgrave Macmillan, 2nd ed. 2013, 30.
  • 66 Reform of the House of Commons Select Committee, “Rebuilding the House”, Session 2008-09, 12 Novemb (...)
  • 67 The term secrecy here is to be interpreted in a positive way for all democratic elections are expec (...)
  • 68 Government Response to the House of Commons Political and Constitutional Reform Committee’s Third R (...)
  • 69 Ibid.

29In the history of parliamentary practices, two reforms proved to be decisive. One was setting up departmental select committees in 1979 in the wake of the report of the Select Committee on Procedure64 in order systematically to scrutinise the measures and policies of governmental departments. This was described by (Lord) Philip Norton, a former chairman of the Lords Committee on the Constitution, as “the most important reform of the latter half of the twentieth century.”65 Then, in 2009, select committees were significantly restructured following the recommendations of the Report of the House of Commons Select Committee “Rebuilding the House” under the chairmanship of Dr Tony Wright (the Wright Report).66 A key objective was to strengthen the independence of committees, especially their chairs, from the government in order to perform their primary role – holding the government to account – in a more effective way. One of the main recommendations of the Wright Committee was to enable party groups to elect directly the chairs of committees by secret ballot,67 their election having consequently to be approved by all MPs. Therefore, to put an end to the disproportionate power of the Whips – and indirectly the government – over the nomination process of members of select committees, the Wright report proposed instead a new transparent, more independent elective process. On 5 December 2013, the government responded at first sight positively to this key recommendation of the Wright report, officially acknowledging “the clear advances in the effectiveness of Commons Committees” in terms of “their increased profile under elected chairs.”68 Yet, it firmly opposed any idea of setting-up a House business committee for fear of losing its control over the parliamentary agenda. This would enable Parliament itself to manage its own affairs arguing that: “the government is attached to the right of governments to put their legislation before the House at a time of their choosing.”69 However, unlike Westminster, the Scottish and Welsh devolved parliaments do have their own business committees.

  • 70 Philip Norton, Parliament in British Politics, op. cit., 30.

30Nevertheless, the setting-up, then restructuring of Westminster’s parliamentary committees over the last forty years or so has turned the House of Commons into “a more specialized, less chamber-orientated body”70 as Philip Norton pointed out. This is particularly the case of the House of Lords, which is more a House of experts rather than of politicians. These fundamental reforms could profoundly change parliamentary culture through removing the veil of secrecy.

  • 71 Chris Bryant, “Select committees need enforceable powers and to treat witnesses fairly”, op. cit., (...)
  • 72 Dominic Cummings was again due to give evidence as a former senior adviser of the Prime Minister be (...)
  • 73 This episode was extensively covered by the British press including by The Guardian in an article e (...)
  • 74 The House Magazine – Select Committee Guide 2021, DODS.
  • 75 Chris Bryant, “Select committees need enforceable powers and to treat witnesses fairly”, op. cit., (...)

31The year 2021 could well mark a third significant step in the reform of parliamentary practices. New proposals have recently been made by the House of Commons Select Committee of Privileges to give select committees “clear and enforceable powers to summon witnesses, including Cabinet ministers, papers and records”,71 as its chairman, the Labour MP Chris Bryant explained. One of the main objectives is to fight contempt of Parliament. Dominic Cummings,72 the former Director of the Leave Campaign in the Brexit referendum then senior adviser of the Prime Minister, was himself found in contempt of Parliament for having refused to give evidence before the House of Commons Committee of Privileges in 2019.73 One of the key missions of the Committee of Privileges is indeed to “investigate allegations of contempt of parliament or infringement of parliamentary privilege.”74 Hence, to prevent summoned witnesses from acting in contempt of Parliament, the Committee of Privileges has put forward in its latest report some key recommendations to enable committees to hold the government into account more effectively by making it a criminal offence to ignore their summons to give evidence before them “without a valid cause.” In order to introduce such a significant change, Chris Bryant believes that “merely amending standing order to reassert historic powers is no longer viable”75 and that a new law would be the best way to give committees effective means. However, this form of criminalization of witnesses’ behaviour would be difficult to reconcile with a key constitutional principle which is that courts must not interfere with Parliament business and practices in the name of the principle of separation of powers. What is more, even if the recommendations of committees are not binding, they can be very persuasive and might even lead the government to back down if governmental policies are too unpopular with voters.

  • 76 The House Magazine – The House Select Committee Guide 2021, DODS, 7.

32Committees have played a particularly important role during the Covid-19 pandemic being faced with restrictions of Human Rights and Civil Liberties in the name of health emergency and people’s safety. Ian Mearns, the Chair of the backbench business committee praises their capacity of “holding the government to account on its response to the virus.”76 To do so, they have benefitted from more leeway and independence, especially from the Whips, than other parliamentary bodies and given momentum to a lively debate on human rights.

  • 77 The Independent Expert Panel (exclusively composed of lawyers) was appointed by the House of Common (...)
  • 78 The House Magazine – The House Select Committee Guide 2021, DODS, op. cit., 12-13.

33They have also played a prominent role in better holding members of Parliament themselves to account through internal investigations within Parliament towards its members. In this way, the House of Commons Committee of Standards – which used to be merged with the Committee of Privileges but now a committee of its own right – has gained much visibility lately in the wake of Dame Laura Cox’s “Independent Inquiry Report” on “The Bullying and Harassment of House of Commons staff” published on 15 October 2018. The chairman of the Committee of Standards, Chris Bryant – who also presides over the Committee for Privileges as mentioned above – points out that “increasingly strong independent elements have been introduced” such as the Commissioner for standards, the introduction of Standards Committee lay members, and the setting up of an Independent Expert Panel77 in charge of “dealing with cases of bullying, harassment and sexual misconduct.”78 Successive scandals starting with the MPs’ expenses abuses revealed in 2009, or more recently involving bullying and harassment have tainted the whole institution beyond individual cases, mainly in the House of Commons. In the wake of those scandals, some progress has been made towards more transparency and accountability regarding parliamentary practices with the setting-up of the Independent Parliamentary Standards Authority as early as 2009 then more recently the Independent Complaints and Grievance Scheme (ICGS) set up in July 2018.

  • 79 The Cox report unveiled a culture of widespread bullying practices within Parliament.

34As part of the ICGS scheme and efforts made to introduce more transparency, propriety, and dignity in Parliament as a work environment, following the Cox report,79 the Conduct Committee of the House of Lords, proposed in a report approved by the House, to introduce a mandatory “Valuing Everyone Training” for its members. Failure to complete the training session will be considered as a breach of conduct with, if necessary, disciplinary sanctions such as the restriction of access to certain services under paragraph 144 of the Guide to the Code of Conduct. The process is supervised by the House of Lords Commissioner for Standards (currently Lucy Scott-Moncrieff) with Kathryn Stone for the House of Commons. It is independent. The compulsory training in interactive sessions based on real case evidence are led by an independent consultant whose objective is to contribute to long-term cultural change in Parliament as a working place to guarantee everyone dignity and respect. The main objectives are to raise awareness and prevent bullying, harassment, and sexual misconduct – by helping MPs and Peers to better identify misbehaviour and react appropriately along the guidelines of the Behaviour Code of Parliament. This is already a significant step in the right direction, Parliament and parliamentarians evolving with the rest of society. Yet more has to be done to profoundly transform parliamentary culture and mentalities. Identifying the problem at an early stage should also be encouraged as happens in other professions, such as academia. Maybe this would be easier for members of the House of Lords as they are appointed not elected by an independent Appointments Commission which was introduced in 2000 by Prime Minister Tony Blair, at least for those not affiliated to a political party like cross-benchers. They could be vetted then perhaps even more than is currently the case on their moral standards and values while being warned of potential disciplinary sanctions in case of breaches of the Code of Conduct. Improving the recruitment process of future members of the House of Lords – as it has been done for the appointment of judges with the setting-up of the Judicial Appointments Commission (JAC) – including making available to the general public the criteria used by the House of Lords Appointments Commission could guarantee more transparency. Part of the problem with the existing commission is the fact that it is only an advisory body. Better regulating the powers of the Prime Minister who is able de facto to bypass the recommendations of the Appointments Commission – officially only “under exceptional circumstances” – could help set higher standards and at the same time perhaps reduce cronyism though this would call for a Prime Minister’s acquiescence. More severe disciplinary sanctions including ultimately the permanent exclusion from the House could be another option yet not necessarily the most popular.

Conclusion

  • 80 For more information see W. M. Elofson, John A. Woods and and Paul Langford (ed.), The Writings and (...)
  • 81 Jesse Norman, Edmund Burke. The Visionary Who Invented Modern Politics, London: William Collins, 20 (...)
  • 82 “House of Commons Governance”, House of Commons Governance Committee, Report Session 2014-15, Londo (...)
  • 83 There is today one Member of Parliament for each of the 650 constituencies across the United Kingdo (...)
  • 84 The UK Parliament website – in its glossary accessible to all – defines MPs’ surgeries as giving pe (...)
  • 85 Philip Norton, Parliament in British Politics, op. cit., 230.
  • 86 They tend to do so more and more on line via MPs’ parliamentary e-mails.
  • 87 Philip Norton, Parliament in British Politics, op. cit., 230.

35“Valuing everyone” should not only include people who work for and with MPs and Lords – that is to say those within the parliamentary community. It should also be extended to the general public. In other words, the idea would be to put even more emphasis on the importance of public service for the benefit of the people. “It is the people that make Parliament” as Lindsay Hoyle rightly said. Long before him, Edmund Burke, in his celebrated speech to the Electors of Bristol in 1774 just after having been elected as one of their two MPs, mentioned what he believed were the respective rights and duties of representatives and their constituents, stressing the importance of mutual trust and respect as well as the need for “frank communication.”80 He gave members of Parliament the following advice: “It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents.”81 In his speech he strongly insisted on the notion of service – or public service – as a driving force for MPs. In the same line of thought, in contemporary Britain, members of the Commons Governance Committee previously stressed the importance of the “constituents’ constitutional right of access to their representatives.”82 If constituents do have access to their local member of Parliament in their constituency83 where they can directly talk with them in their “local surgery”,84 it is however difficult for people to have access to MPs in their “collective Westminster role”85 at the national level.86 Today, MPs tend to devote considerable time to “their individual constituency role”87 sometimes to the detriment of their parliamentary responsibilities, hence the need for them to constantly readjust their priorities. Some proposals were made to take the opportunity of the revamping of the Palace of Westminster to transfer Parliament out of London, preferably to the Northern part of England, for its sessions to be held closer to the people but, for the moment, without success.

  • 88 <https://www.coe.int>, accessed May 10, 2021.
  • 89 Walter Bagehot, The English Constitution and Other Political Essays, rev. ed., New York: D. Appleto (...)

36If it is essential to “unlock Parliament”,88 citizens should have all the necessary tools to better understand how it works and why its practices matter. This should however be done without completely demystifying and diminishing this historic and unique institution which embodies not simply the democratic sovereignty of the people but the force of the rule of law. This was strongly emphasised by Lady Hale, (former) president of the Supreme Court, in arguing against an arbitrary attempt by the Prime Minister to override Parliament by proroguing its proceedings in the second Gina Miller case in 2019. What Walter Bagehot wrote on the monarchy in 1884 could very well apply to Parliament now: “Its mystery is its life.”89

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Bibliographie

BAGEHOT Walter, The English Constitution, introduction by Richard Crossman, London: Fontana Press, 1963.

BRYANT Chris, “Select Committees need enforceable powers and treating witnesses fairly”, The House Magazine, 3 May 2021.

Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, London: The Stationery Office, 2010.

DICEY Albert Venn, An Introduction to the Study of the Law of the Constitution, [1885], 10th ed. (introduction by E.C.S. Wade), London: Palgrave Macmillan, 1985.

ELOFSON W.M. and Paul LANGFORD (eds.), The Writings and Speeches of Edmund Burke, Volume III: Party, Parliament and the American War, 1774-1780, Oxford: Clarendon Press, 1996.

ERSKINE MAY Thomas, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, London: Malcom Jack (ed) Lexis Nexis, 24th edition, 2011.

FRY Edward, “Life of John Selden” in Table Talk of John Selden, London: Quaritch, 1927.

GIBB Frances, “Elitist culture of secrecy must end, says Lord Falconer”, The Times, 2 June 2009.

Government Response to the House of Commons Political and Constitutional Reform Committee’s third report (“Revisiting Rebuilding the House: The Impact of the Wright Reforms”) of Session 2013-14, 5 December 2013, HC 910, <https://parliament.uk/>, accessed May 21, 2021.

GRAHAM James, “30 years of televised Parliament: How Westminster became mainstream entertainment”, The Guardian, 9 November 2019.

HANSARD SOCIETY COMMISSION ON THE COMMUNICATION OF PARLIAMENTARY DEMOCRACY, “Members Only?”, Hansard Society, 2005.

HOUSE OF COMMONS GOVERNANCE COMMITTEE, “House of Commons Governance”, Report Session 2014-15, London: The Stationery Office, 17 December 2014, HC 692.

HOUSE OF COMMONS POLITICAL AND CONSTITUTIONAL REFORM COMMITTEE, “A new Magna Carta?”, 2nd report of session 2014-5, HC 463, 10 July 2014.

JOHNSTON Neil and Richard KELLY, “Recall elections”, Briefing Paper, number 5089, 6 April 2021.

JOINT COMMITTEE ON CONVENTIONS, “Conventions of the UK Parliament”, Report of Session 2005-6, HL Paper 265-II, HC 1212-II, 6 November 2006.

LILLY Alice, “The New Speaker of the House of Commons. Key challenges”, London: Institute for Government, October 2019.

MANGNALL Anthony, “This is a hollowed-out parliament. As we unlock Covid restrictions, we must make haste to bring proper democracy back”, The House Magazine, vol. 44, no 160722, February 2021.

NORMAN Jesse, Edmund Burke. The Visionary Who Invented Modern Politics, London: William Collins, 2014.

NORTON Philip, Parliament in British Politics, London: Palgrave Macmillan, 2nd ed., 2013.

PROSPECT, “Brief encounter”, May 2021, Issue 297.

PROSPECT, “Taking liberties Covid-19 and the anatomy of a constitutional catastrophe”, <https://prospectmagazine.co.uk/>, accessed March 26, 2021.

RAWNSLEY Andrew, “Why sleaze investigations are becoming more menacing for Boris Johnson”, The Observer, 2 May 2021.

REFORM OF THE HOUSE OF COMMONS SELECT COMMITTEE, “Rebuilding the House”, Session 2008-09, 12 November 2009, HC 117, <https://parliament.uk/>, accessed May 21, 2021.

ROGERS Robert and Rhodri WALTERS, How Parliament Works, London: Routledge, 6th ed., 2006.

RUSH Michael and Clare ETTINGHAUSEN, “Opening-up the Usual Channels”, London: Hansard Society, December 2002.

SELECT COMMITTEE ON PROCEDURE, “The effectiveness of the Select Committee System”, First Report, 17 July 1978, HC 588-I. <https://parliament.uk/>, accessed May 21, 2021.

SIDDIQUE Haroon, “Covid Laws. Rights expert urges MPs to regain control”, The Guardian, 17 May 2021.

SYAL Rajeev, “PM’s decision to back Patel to be challenged in court”, The Guardian, 28 April 2021.

The Conservative and Unionist Party Manifesto, 2019, <https://www.conservatives.com/>, accessed 24 May 2021.

The Economist, “Life in Westminster. Cracking the whips”, 11 November 2017.

The House Magazine, “64,000 pieces of centuries-old legislation to be moved from parliamentary archives”, 17 May 2021.

The House Magazine, The House Select Committee Guide 2021, DODS.

WHALE Sebastian, John Bercow. Call to Order, London: Biteback publishing, 2020.

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Notes

1 “Brief encounter”, Prospect, May 2021, Issue 297, 88.

2 An expression used by a Liberal-Democrat Member of Parliament interviewed by BBC journalists during the live coverage of the 2021 State opening of Parliament.

3 “House of Commons Governance”, House of Commons Governance Committee, Report Session 2014-15, London: The Stationery Office, 17 December 2014, HC 692, 39.

4 Walter Bagehot, The English Constitution, introduction by Richard Crossman, London: Fontana Press, 1963, 222.

5 In 2009, the Appellate Committee of the House of Lords acting as the Highest Court of Appeal of the country was officially abolished and replaced by the United Kingdom Supreme Court. The latter was moved from the Palace of Westminster to its own building across Parliament square partly to make it more visible and accessible to the public and to court-users. Similar objectives can be found in the programme of Renewal and Rehabilitation of Parliament itself.

6 The building is considered so unsafe due to the high risk of fire that parliamentary archives are about to be “moved out of Victoria Tower” before members of Parliament themselves temporarily vacate the main building. The objective is twofold: to protect them – one can think of the fire that partly destroyed another UNESCO world heritage site, Notre Dame Cathedral in France – but also to make them more accessible to the public. For more information see The House Magazine, “64,000 pieces of centuries-old legislation to be moved from parliamentary archives”, 17 May 2021, 5.

7 The Westminster Parliament is at the very origin of bicameralism in the world.

8 “House of Commons Governance”, House of Commons Governance Committee, Report Session 2014-15, London: The Stationery Office, 17 December 2014, HC 692, 35.

9 A.V. Dicey, An Introduction to the Study of the Law of the Constitution, [1885], 10th ed. (introduction by E.C.S. Wade), London: Palgrave Macmillan, 1985, 417.

10 “Members Only? Parliament in the Public Eye, the Report of the Hansard Society Commission on the Communication of Parliamentary Democracy”, Hansard Society, 2005, glossary, 113.

11 Walter Bagehot, The English Constitution, op. cit., 68.

12 It is now also available on line on the website of the UK Parliament.

13 <https://erskinemay.parliament.uk/>, accessed April 5, 2021.

14 Lord Falconer held the office of Lord Chancellor – and Secretary for Constitutional Affairs – from 2003 to 2007 in Tony Blair’s New Labour government. He is now Keir Starmer’s Shadow Attorney-General.

15 Frances Gibb, “Elitist culture of secrecy must end, says Lord Falconer”, The Times, 2 June 2009.

16 In the glossary provided on the UK Parliament website, “usual channels are defined as arrangements and compromises about the running of parliamentary business that are agreed behind the scenes” – applying more particularly to “the relationship between the whips of the Government and the Opposition and the leadership of the Government and Opposition parties”, <https://parliament.uk/site-information/glossary/usual-channels/>, accessed February 24, 2021.

17 Walter Bagehot, The English Constitution, op. cit., 61.

18 Michael Rush and Clare Ettinghausen, “Opening-up the Usual Channels”, London: Hansard Society, December 2002, 3.

19 Companion to the Standing Orders and Guide to the Proceedings of the House of Lords – Laid on the table by the Clerk of the Parliaments, London: The Stationery Office, 2010, 45.

20 “Life in Westminster. Cracking the whips”, The Economist, 11 November 2017, 31.

21 Ibid.

22 Ibid.

23 <https://publicwhip.org.uk/>, accessed May 15, 2021.

24 This piece of legislation was part of a whole array of measures and new laws introduced in the wake of the 2009 MPs’ expenses scandal.

25 There is one Member of Parliament per constituency under the First-Past-The-Post voting system.

26 Neil Johnston and Richard Kelly, “Recall elections”, Briefing Paper, number 5089, 6 April 2021, 3.

27 Ibid, 6.

28 As Sebastian Whale recalled in his book devoted to the former Speaker of the House of Commons, John Bercow, he was the “first Speaker to have been elected by secret ballot”, John Bercow. Call to Order, London: Biteback publishing, 2020, 171. It is also interesting to note that the first two Lord Speakers in the House of Lords were in fact two women, Baroness Hayman in 2006, succeeded by Baroness D’Souza in 2011.

29 The new Lord Speaker, Lord McFall, a former Labour MP, was elected just before the May 2021 State opening of Parliament. He succeeds Lord Fowler who decided to retire early from the Speakership of the House of Lords to resume his life-long commitment of fighting against HIV and protecting minorities’ rights – especially LGBTQ+.

30 Thomas Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, London: Malcom Jack (ed.) Lexis Nexis, 24th edition, 2011, 59.

31 As it is stated in the Companion to the Standing Orders and Guide to the Proceedings of the House of LordsLaid on the table by the Clerk of the Parliaments, op. cit., 60-61, “The House is self-regulating: the Lord Speaker has no power to rule on matters of order.”

32 Alice Lilly, “The New Speaker of the House of Commons. Key challenges”, London: Institute for Government, October 2019, 1.

33 “Members Only? Parliament in the Public Eye, the Report of the Hansard Society Commission on the Communication of Parliamentary Democracy”, op. cit., 113.

34 The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, London: The Stationery Office, 2010, 60, (chapter 4, 4.02) “If any member is in doubt about a point of procedure, the Clerk of the Parliaments and the other Clerks are available to give advice, and members of the House are recommended to consult them.”

35 Thomas Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, op. cit., 61.

36 Lord Lisvane (formerly Robert Rogers), “Rebuilding Parliament”, Political Committee, Reform Club, London, 20 April 2012. He is also the co-author with Rhodri Walters of Order, Order, How Parliament Works, London: Routledge, 6th ed., 2006.

37 This is an extract of the conference that he gave to the members of the political Committee of the Reform Club in London Pall Mall on 19 April 2021 – as the guest speaker.

38 Lord Lisvane, “Rebuilding Parliament”, op. cit.

39 Compiled from J. Selden’s private conversations then published posthumously in 1689. For more information see Edward Fry, “Life of John Selden” in Table Talk of John Selden, London: Frederick Pollock ed., 1927, 177.

40 Sebastian Whale, John Bercow. Call to Order, op. cit., 217.

41 Alice Lilly, “The New Speaker of the House of Commons. Key challenges”, op. cit., 3.

42 John Bercow stepped down under much pressure on 31 October 2019 following bullying and harassment allegations made against him including by the former Clerk of the House of Commons Robert Rogers. Breaking with another long-established tradition, he was not awarded a peerage as a former Speaker unlike his predecessors.

43 Sebastian Whale, John Bercow. Call to Order, op. cit., 320.

44 Anthony Mangnall, “This is a hollowed-out parliament. As we unlock Covid restrictions, we must make haste to bring proper democracy back”, The House Magazine, no 1607, vol. 44, 22 February 2021, 6.

45 For more information see “Guidance on Hybrid House and Hybrid Grand Committee from the procedure and Privileges Committee”, 8th ed, 8 February 2021 (to take effect from 18 February).

46 Anthony Mangnall, “This is a hollowed-out parliament. As we unlock Covid restrictions, we must make haste to bring proper democracy back”, op. cit., 6.

47 Joint Committee on Conventions, “Conventions of the UK Parliament”, Report of Session 2005-6, HL Paper 265-II, HC 1212-II, 6 November 2006.

48 <https://www.coe.int/>, accessed May 10, 2021.

49 A sentence still often (wrongly) applied to the Westminster Parliament itself.

50 Walter Bagehot, The English Constitution, op. cit., 61.

51 Yet, the current Conservative government clearly expressed their attachment to the First-Past-The-Post voting system in their 2019 General Election Manifesto entitled “Get Brexit Done” saying that they would “continue to support the First-Past-The-Post-System, as it allows voters to kick out politicians who don’t deliver”, The Conservative and Unionist Party Manifesto, 2019, 50, <https://www.conservatives.com/>, accessed May 24, 2021.

52 <https://www.gov.uk/>, accessed May 12, 2021.

53 Sebastian Whale, John Bercow. Call to order, op. cit., 170.

54 Haroon Siddique, “Covid Laws. Rights expert urges MPs to regain control”, The Guardian, 17 May 2021.

55 This is what he was reported saying by the journalist of The Guardian Harron Siddique on 17 May 2021. He had previously expressed his fears regarding the future of Britain’s “liberal constitutional arrangements” and the UK democracy itself in an article published by Prospect Magazine on 26 March 2021 entitled “Taking liberties Covid-19 and the anatomy of a constitutional catastrophe”, <https://prospectmagazine.co.uk/>, accessed March 26, 2021.

56 For more information, see the article written by Jenny Jones in The Guardian “Peer pressure Lords embrace lockdown technology and set the pace for virtual reform”, 22 February 2021.

57 As it is explained on the website of Parliament, “Televising debates – House of Lords Leads the way”, <https://www.parliament.uk/>, accessed May 14, 2021.

58 James Graham, “30 years of televised Parliament: How Westminster became mainstream entertainment”, The Guardian, 9 November 2019.

59 <https://www.parliament.uk/>, accessed May 14, 2021.

60 “A new Magna Carta?” House of Commons Political and Constitutional Reform Committee, 2nd report of session 2014-5, HC 463, 10 July 2014, 409.

61 Chris Bryant, “Select Committees need enforceable powers and treating witnesses fairly”, The House Magazine, 3 May 2021, 9.

62 Andrew Rawnsley, “Why sleaze investigations are becoming more menacing for Boris Johnson”, The Observer, 2 May 2021, 45.

63 For further reading see Rajeev Syal’s article “PM’s decision to back Patel to be challenged in court”, published in The Guardian on 28 April 2021, 2.

64 Select Committee on Procedure, First Report, 17 July 1978, HC 588-I, <https://parliament.uk/>, accessed May 21, 2021.

65 Philip Norton, Parliament in British Politics. London: Palgrave Macmillan, 2nd ed. 2013, 30.

66 Reform of the House of Commons Select Committee, “Rebuilding the House”, Session 2008-09, 12 November 2009, HC 117, <https://parliament.uk/>, accessed May 21, 2021.

67 The term secrecy here is to be interpreted in a positive way for all democratic elections are expected to be multi-party, secret and fair.

68 Government Response to the House of Commons Political and Constitutional Reform Committee’s Third Report (“Revisiting Rebuilding the House: The Impact of the Wright Reforms”) of Session 2013-2014, 05 December 2013, HC 910, <https://parliament.uk/>, accessed May 21, 2021.

69 Ibid.

70 Philip Norton, Parliament in British Politics, op. cit., 30.

71 Chris Bryant, “Select committees need enforceable powers and to treat witnesses fairly”, op. cit., 9.

72 Dominic Cummings was again due to give evidence as a former senior adviser of the Prime Minister before the Health and Social Care Committee and the Science and Technology Committee of the House of Commons on 26 May 2021 as part of a joint investigation into the way the Coronavirus pandemic was handled by the government to consider “what lessons to be drawn”, <https://committees.parliament.uk/>, accessed May 24, 2021.

73 This episode was extensively covered by the British press including by The Guardian in an article entitled “Dominic Cummings found in contempt of Parliament”, written by Rajeev Syal on 27 March 2019.

74 The House Magazine – Select Committee Guide 2021, DODS.

75 Chris Bryant, “Select committees need enforceable powers and to treat witnesses fairly”, op. cit., 9.

76 The House Magazine – The House Select Committee Guide 2021, DODS, 7.

77 The Independent Expert Panel (exclusively composed of lawyers) was appointed by the House of Commons on 25 November 2020 acting de facto “as the final tribunal addressing allegations of bullying, harassment or sexual misconduct in the House of Commons.” For more information see Sir Stephen Irwin’s article in The House Magazine, 25 January 2021, 15.

78 The House Magazine – The House Select Committee Guide 2021, DODS, op. cit., 12-13.

79 The Cox report unveiled a culture of widespread bullying practices within Parliament.

80 For more information see W. M. Elofson, John A. Woods and and Paul Langford (ed.), The Writings and Speeches of Edmund Burke, Volume III: Party, Parliament and the American War, 1774-1780, Oxford: Clarendon Press, 1996.

81 Jesse Norman, Edmund Burke. The Visionary Who Invented Modern Politics, London: William Collins, 2013, 77.

82 “House of Commons Governance”, House of Commons Governance Committee, Report Session 2014-15, London: The Stationery Office, 17 December 2014, HC 692, 39.

83 There is today one Member of Parliament for each of the 650 constituencies across the United Kingdom.

84 The UK Parliament website – in its glossary accessible to all – defines MPs’ surgeries as giving people “an opportunity to meet them [MPs] and discuss matters of concern. MPs usually hold surgeries once a week and advertise them locally or online. An MP may take up an issue on a constituent’s behalf.” <https://www.parliament.uk/>, accessed April 6, 2021.

85 Philip Norton, Parliament in British Politics, op. cit., 230.

86 They tend to do so more and more on line via MPs’ parliamentary e-mails.

87 Philip Norton, Parliament in British Politics, op. cit., 230.

88 <https://www.coe.int>, accessed May 10, 2021.

89 Walter Bagehot, The English Constitution and Other Political Essays, rev. ed., New York: D. Appleton and Company, 1884, 127.

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Elizabeth Gibson-Morgan, « Dilemmas of democracy: challenges to parliamentary practices from the UK public and parliamentarians »Revue LISA/LISA e-journal [En ligne], vol. 20-n°54 | 2022, mis en ligne le 03 novembre 2022, consulté le 01 décembre 2022. URL : http://journals.openedition.org/lisa/14483 ; DOI : https://doi.org/10.4000/lisa.14483

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Elizabeth Gibson-Morgan

Elizabeth Gibson-Morgan is Professor of British studies and English Law at the University of Poitiers and is Visiting Senior Research Fellow in Constitutional Law at King’s College, London. Her current research is on Parliament – especially the House of Lords, devolution, the UK Supreme Court, and the codification of the British Constitution. She is the author of Constitutional Reform in Britain and France: From HumanRights to Brexit (Cardiff: University of Wales Press, 2017) and she also edited Fighting for Justice. Civil and Common Law Judges: Threats and Challenges (Cardiff: University of Wales Press, 2021).

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