How effective is Parliament at scrutinising the Executive?

Parliament is composed of the House of Commons, House of Lords and the Crown-in-Parliament.

Scrutiny of the Executive is one of the key roles of the legislature. However, Britain is a parliamentary democracy rather than a presidential system. This means that the Government is formed from the legislature. it is not separate from it. This fusion of powers (rather than the separation of powers that exists for example in the USA) means that the legislature is almost always dominated by the Executive. This can lead to problems in holding the Executive to account for its actions.

Is there an Elective Dictatorship in the UK?

In 1976 Lord Hailsham coined the term ‘elective dictatorship’ to describe the fact that in the British system the Executive could usually dominate the Executive and avoid effective scrutiny.

Lord Hailsham coined the term ‘elective dictatorship’ to describe the limited ability of Parliament to scrutinise the Executive.

There are some facts that indicate the existence of the elective dictatorship including:

  • Since 1945 the average government majority has been 57.4 seats.
  • Some governments have majorities that leave them in a largely unassailable political position: Blair (179 – 1997, 166 – 2001), Attlee (147 – 1945), Thatcher (144 – 1983).
  • Standing Order 14 gives precedence to all Government Business in the House of Commons.
  • The House of Commons dominates the House of Lords through both Statute and Convention.
  • Party Leaders hold huge power of patronage over their MPs.
  • The Royal Prerogative Powers are extensive and cannot be scrutinised by Parliament.

In what areas is Parliament simply unable to effectively scrutinise the government due to the us of Royal Prerogative?

There are a number of powers possessed by the Executive that Parliament cannot scrutinise because they are beyond their purview. These are the Royal Prerogative powers held by the Government. These include:

  • Powers over military action
British military action is ordered by the PM.

The use of military force is one of the Prime Minister’s Royal Prerogative powers. Whilst governments have been seen to be increasingly willing to allow Parliament a say on the use of military force (beginning with Blair over Iraq in 2003) they are not constitutionally mandated to do so. For example, in April 2018 Theresa May ordered British forces to join in Air Strikes against the Syrian Regime of Bashar Al-Assad in response to use of chemical weapons by the dictator during the Syrian Civil War. In response Jeremy Corbyn, then the Labour leader, called the decision “legally questionable” and called for Parliament to pass a War Powers Act to prevent the government from using military force without parliamentary approval.

  • Power over Appointments

The ability of the Prime Minister to make appointments to their Cabinet and to the House of Lords are also carried out under the Royal Prerogative and these powers are therefore beyond direct scrutiny by Parliament. This is in stark contrast to the US where Presidential Appointments to the Cabinet must be ratified by the Senate under Article II, Section 2 of the Constitution.

Despite a report finding that she had been a bully, Priti Patel remained in office.

In the UK the Prime Minister has the sole power over who to appoint and remove from the Cabinet. For example, in November 2020 an independent report found that Home Secretary Priti Patel was guilty of bullying members of her staff. However, despite this finding, the Prime Minister decided not to remove her under the ministerial code. There was nothing that Parliament could do about this.

Peter Cruddas was appointed to the House of Lords despite the Appointments Commission explicitly recommending that he should not be.

In addition, in recent months there have been some extremely controversial appointments to the House of Lords. In February 2021 Boris Johnson appointed Peter Cruddas to the House of Lords. This was despite the House of Lords Appointments Commission explicitly recommending against this action. Further, Johnson appointed Lord Lebedev to sit in the House of Lords despite security concerns.

  • Prorogation of Parliament

A recent example where a Royal Prerogative Power has left Parliament impotent is in the right of the government to prorogue Parliament. In August 2019 Boris Johnson declared that he had advised the Queen to prorogue Parliament. He publicly argued that he was doing this because the session of Parliament had been particularly long, however, in reality, most people believed he was doing this to limit Parliament’s ability to legislate to prevent a No-Deal Brexit. Despite the widespread anger at the decision, there was nothing that Parliament could do to prevent it – leading to wild scenes in the chamber of the House of Commons.

@politicsteaching.com

Pandemonium in the chamber over the prorogation of Parliament – this was later ruled unlawful by the Supreme Court (2019) #politcs #houseofcommons

♬ original sound – politicsteaching.com

These powers are extremely important and make the Prime Minister exceptionally powerful. Importantly, all are realistically beyond effective parliamentary scrutiny which is one of the reasons that the Executive holds such significant power over the Executive.

What are the different types of Question Time?

Question Time in Parliament is a topic that is often misunderstood. It can be too easy to limit Question Time to Prime Minister’s Questions. Whilst PMQs is clearly the most visible and prominent example of Question Time, these sessions take place most days in Parliament and most are very different in character to the theatrics of PMQs. In addition, the growth of Urgent Questions in recent years has become increasingly important in holding the Government to account too.

How effective is PMQs at ensuring scrutiny of the Executive?

During packed PMQs, there is nowhere near enough space for all 650 MPs to take a seat. Many will stand a the Bar, behind Speaker’s Chair or sitting in the aisles.

PMQs on Wednesday afternoon is one of the only times that the chamber of the House is packed full by MPs in an ordinary week. Except for special Ministerial Statements or important divisions, it is also the only time that Parliament is shown live on television (except BBC Parliament). This itself gives an indication of the importance of PMQs.

The key part of Prime Minister’s Questions is the verbal battle between the PM and the Leader of the Opposition. It is clear that some members of the House of Commons are better suited to this battle than others. In recent years some of the best Commons performers include Tony Blair, David Cameron and William Hague.

Despite taking place each week it is rare to see a moment in PMQs which captures the imagination of the wider public. It normally happens when either one side completely dominates the other, someone is embarrassed or someone makes a major mistake. However, there are times where PMQs has played a role in fundamentally altering public mindsets towards leaders:

Cameron v ‘Bottler Brown’: In 2007 Gordon Brown had taken over from Tony Blair as Prime Minister. At the time (it was before the Fixed Term Parliaments Act) Prime Ministers could call a Snap Election whenever they wanted. With Labour ahead in the polls it was widely expected that he would call and election, but didn’t. Cameron jumped on this opportunity to portray the PM as weak and indecisive:

Blair vs ‘weak, weak, weak’ Major: Tony Blair became Labour Leader in 1994 and was up against a Conservative Prime Minister who was struggling to keep his own party onside – particularly over the issue of the European Union. Tony Blair was able to characterise John Major as weak in this classic moment from January 1997, just a few months before the General Election:

‘Stalin to Mr Bean’: In 2007 the Lib Dem Leader Vince Cable produced a characterisation of Gordon Brown that had the House of Commons roaring with laughter:

Starmer v Johnson after the Grey Report was published: Following Boris Johnson’s apology for attending a potentially unlawful gathering in Downing Street during COVID-19, Keir Starmer utterly dominated Boris Johnson during PMQs:

Sometimes, PMQs can be used to put something on the news agenda. This was done extremely well by Ed Miliband on an occasion in March 2013. The Conservatives under David Cameron had made a made a U-turn on the issue of minimum alcohol pricing. This was a minor issue in the grand scheme of politics that week. However, a well-deployed joke by Miliband placed it on the news agenda in the following days:

One of the important aspects of PMQs is that any Backbench can potentially ask the PM a question. They can apply via a ballot to ensure they are able to ask a question or can try to ‘catch the speaker’s eye’ by bobbing up and down. Asking a question of the PM is a big deal for backbenchers as it sends a strong signal to their constituents that they are standing up for their interests in parliament.

Punch and Judy Politics is an excellent book to read on PMQs.

Often, however, backbench questions are orchestrated by the party whips. On the PM’s side, they are engineered to give the PM questions that they can answer easily or questions that reinforce a key message. For example, during the five years of Coalition Government backbench questions often referred to the government’s ‘long-term economic plan’. Indeed, between the 2010 and 2015 election the term was used 1349 in the House of Commons! Meanwhile, backbench opposition questions are often planned to complement the line of attack taken by the Leader of the Opposition.

More often than not, PMQs is a seen as a poor advert for Politics:

It is easy to make the case against PMQs. It’s rowdy, childish and badly behaved. Too many of the questions from the government side are pointless and sycophantic, and the difficult questions are too often dodged. MPs on all sides seem more interested in making terrible jokes, or shouting each other down, than in holding the government to properly to account.

Punch and Judy Politics: An Insiders’ Guide to Prime Minister’s Questions

Yet, as the book above delves into, PMQs has a number of extremely important functions:

  1. It makes the Prime Minister directly accountable to Parliament
The PM’s ring binder helps him to navigate the huge range of topics he could be asked about.

A key role of Parliament is to provide scrutiny of the Executive. PMQs allows the PM to be held directly accountable to MPs. There are no limits on what can be asked at PMQs and the PM has to be able to account for their government’s policy over a broad range of issues. The PM has to account not just for national policy, but for how it might be effecting people’s lives on a constituency level.

2. It makes the Government accountable to the Prime Minister

The PM has to be able to account for all of their policies and the actions of their government. To do this they rely on Government Ministers to keep them fully briefed on what is happening within government. Minister and Civil Servants need to be conscious that any of their decisions might be questioned in the public forum of PMQs. As such, it is an important mechanism for allowing the Prime Minister to have not just the ability but the reason to involve themselves in as much of the government as possible.

3. It forces the development of policy

PMQs prevents the government from becoming complacent. They cannot rely on their current policies and must look to progress. If they don’t, they will be consistently shown up in PMQs by the opposition.

4. It allows the PM and Leader of the Opposition to manage their party

PMQs is a chance to show that you have the support of your party. The strength of the cheering for you and the heckling of your opponent is a clear indication of the morale of the party. After PMQs, MPs will be challenged by ‘The Lobby’ (the term for Parliament’s journalists) and their strength which they support their leader will be taken as a clear indicator of how much support they have.

5. It allows both the PM and Leader of the Opposition to advertise themselves to the electorate

PMQs each week is essentially an audition for the job of Prime Minister. The current PM is auditioning to keep their job, while the Leader is aiming to show the PM is not up to the task and that they would be better suited to it. This is particularly important for the Leader of the Opposition. The PM has plenty of opportunities to play the part of spokesman and advertise themselves to the electorate. The Leader of the Opposition does not have the same platform, making strong performances at PMQs an important driver in people’s perceptions of their ability.

Ultimately, PMQs is more important than it might seem. Whilst it is theatrical and in that sense might sometimes show politics at its worst, beneath the surface there are a number of important functions going on that are easily overlooked. However, even with this said, the ability of the Prime Minister to escape questions with a political response is one of the biggest limits of the format.

How effective are Daily Questions in the House of Commons?

On each sitting day apart from Fridays a Government Department answers questions in the House of Commons. MPs can table questions in advance and ask a follow-up question. In addition, MPs can ask an unlimited number of written questions to Ministers. These questions and the response are published by Hansard and are now available on the internet. Some of the strengths of daily question time are:

  • The existence of Question Time each day ensures that the government is kept up to date with the workings of their department.
  • In normal question time MPs can ask a question in advance and then a supplementary question. This allows them to established a line of questioning.
  • MPs can also table a question for a written response which may extract more detail from the department in question.

However, despite these strengths, Ministers can still often avoid answering the question if posed orally.

How effective are Urgent Questions at allowing scrutiny of the Executive?

The clerks may advise the Speaker, but it is entirely at his discretion whether to grant an Urgent Question or not.

Any Opposition or Backbench MP can request that the Speaker grant an Urgent Question. If the request is granted, the Speaker can require a responsible minister to attend the House of Commons to answer questions from Members of Parliament. The decisions as to whether to grant an Urgent Question is entirely at the discretion of the Speaker of the House of Commons, although they may take advice on the issue from the Commons Clerks. If an Urgent Question is granted, the Speaker can require a Member of the Government to answer questions immediately in the House of Commons. Not only will the Minister have to answer questions from the proposer of the Urgent Question, they will also have to field supplementary questions from other interested MPs. 

In recent years the amount of Urgent Questions granted has grown significantly:

Linday Hoyle has carried on from John Bercow in allowing more Urgent Questions that were traditionally granted.

During the 2007-08 parliamentary session under Speaker Martin just four Urgent Questions were asked, equivalent to just 0.02 per sitting day. In contrast, under Speaker Bercow, MPs asked 307 Urgent Questions during the 2017–19 session, almost 0.88 per sitting day. Lindsay Hoyle has kept up this impressive record after taking over as Speaker. In his first 317 sitting days Hoyle granted 195 Urgent Questions. That is one every 1.62 days, a considerable number.

This increase is likely for two reasons:

  1. Much of the credit for the increase in Urgent Questions belongs to recent speakers, particularly John Bercow. Whereas previous Speaker’s may have found themselves in the thrall of the government (Michael Martin is perhaps an example), if there was any doubt over an issue he would always prioritise the rights of backbenchers and the rights of Parliament to have further debate on an issue. As he put it in his autobiography:
John Bercow’ autobiography is a interesting read, but is unfortunately is filled with numerous and unnecessary character assassinations.

I was determined to restore the basic and inviolable principle that government ministers – members of what we call the executive branch of our political system – must be accountable to the legislative branch, namely Parliament. By granting an Urgent Question, I was not saying that the government was Wong on an issue, though in some cases there was an implicitly criticism of them for not volunteering to account to the House by offering an oral statement. It is not for the Speaker to pronounce whether the government or Opposition is right or wrong on a policy issue. Rather I was simply ruling that the issue warranted the presence of a minister and the attention of the House that day.”

Unspeakable by John Bercow, Page 168

2. Recent years have seen a significant polarisation in the make-up of the House of Commons. It has also seen a rise in divisive issues of enormous national importance, with Brexit the most notable example. The sheer scope of the impact that Brexit has over UK Politics and the great many issues with passing the Withdrawal Act meant that Brexit itself helped to dramatically increase the number of Urgent Questions for consideration, as the graph above illustrates.

Recent Examples of Urgent Questions include:

25/01/2022 – Labour Deputy Leader tabled an Urgent Question following the announcement that the Metropolitan Police would be investigating allegations that parties had taken place at Downing Street that might be contrary to the COVID-19 regulations. The question called for an update from the Government. It was answered by Michael Ellis, the Paymaster General.

10/02/2022 – Labour Shadow Cabinet Member David Lammy tabled an Urgent Question on the potential sanctions that might be placed on the Russian Government in the case that Russia did not step down its armed forces surrounding Ukraine and if Russia invaded Ukraine.

The provision of Urgent Questions, and their recent proliferation, transfers significant power of scrutiny to the Opposition and to backbench MPs. Importantly:

  • Urgent Questions are a mechanism to try to ensure that Ministers make important public statements to the House of Commons first and not directly to the media. For example, in May 2020 the Chancellor Rishi Sunak planned to make his announcement extending the COVID-19 furlough scheme to the media. However, after the granting of an Urgent Question to Annelise Dodds (Shadow Chancellor) he was instead forced to do it in the House of Commons.
  • Urgent Questions ensure that a government minister can always be held directly accountable if an urgent issue arises. This increases Parliament’s ability to carry out its fundamental role of executive scrutiny.
  • Urgent Questions make sure that Parliament has some control over the political agenda. Without Urgent Questions, ministers may be able to avoid direct scrutiny over an issue until the next Departmental Question Time or Prime Minister’s Questions session. The provision or Urgent Questions ensure that the government cannot escape parliamentary scrutiny over controversial issues.
  • Urgent Questions give power to individual backbenchers. Anyone backbench MP can table an Urgent Question request and, if it meets the criteria, it can be granted.

However, there are also a number of limits to Urgent Questions:

  • They are entirely at the discretion of the Speaker. The Speaker is unlikely to grant an Urgent Question if there is another reasonable way that the issue could be raised.
  • The Speaker cannot force a particular Minister to respond, only that a Government Minister responds. Often, a more junior minister will be sent if there is an issue that might be damaging to the Government. For example, in the Urgent Questions relating to ‘partygate’ it was Michael Ellis who answered on behalf of the Government, not the Prime Minister.
  • Like PMQs, Ministers can often get away with a political response that does not fully answer the question that is asked.

Overall, the provision and growth of Urgent Questions has seen a growth in the ability of the Government to scrutinise the Government on issues in a timely fashion.

How effective are Select Committees at scrutinising the Executive?

Select Committees have existed since 1979 but have become more significant since the Wright Reforms.

Select Committees were established in 1979 and have become an important mechanism of parliamentary scrutiny in the UK. There are two types of Select Committees:

​Departmental Select Committees​ e.g. Home Affairs Select Committee, Foreign Affairs Committee​

Non-Departmental Select Committees​ e.g. Public Account Committee, Environmental Audit Committee

Select Committees have grown in power since the Wright Reforms of 2009 which changed the way members and Chairs of Select Committees were elected:

  • Chairs of Select Committees should be elected by Secret Ballot of the Whole House.​
  • Members of Select Committees should be elected within party groups by Secret Ballot.

These changes have helped to make Select Committees more independent minded and reduce the power of whips over them.

Select Committees are made up of 11 Backbench MPs. The composition is in proportion to the party balance in the chamber of the House of Commons. For example, below are two examples of such Committees:

 

Home Affairs Select Committee
Foreign Affairs Select Committee

Select Committees have a number of strengths:

  • They can investigate issues in much more depth than possible in the chamber of the House of Commons. They produce detailed reports for consideration by the Government. For example, the Health and Social Care Committee recently published a detailed report on how the NHS might recover from the backlog caused by COVID-19.
  • They work across party lines and often in a bi-partisan manner. This gives Select Committees more legitimacy than the partisan politics that normally takes place in the chamber. 
  • They are increasingly becoming involved in pre-legislative scrutiny to help develop bills before they get to the House of Commons. For example, the Digital, Culture, Media and Sport Select Committee have published a detailed report on the Government’s Draft Online Safety Bill (here) where. In this, for example, they recommended the creation of a specific offence of cyberflashing within the bill. Following this, the Government responded (here) by confirming they would include this provision in the bill.
  • They can get input from people beyond Politics that can help inform them. ​For example, Select Committees have heard evidence from a number of significant people:

– Rio Ferdinand appeared at a Joint Committee on the Draft Online Safety Bill where he talked about online racism and his experience as a prominent black footballer:

– Gary Neville was invited to appear in front of the Digital, Culture, Media and Sport Select Committee about football governance and warned the FA against selling Wembley Stadium:

– Media mogul Rupert Murdoch appeared in front of the Commons, Culture, Media and Sport Select Committee after some of his companies were found to have been involved in phone hacking. He called his appearance was “the most humble day of my life”:

  • They allow MPs to move from being generalists to being specialists through their work on a Committee. For example, after years as Chair on the Home Affairs Select Committee Yvette Cooper is now Shadow Home Secretary​.
  • They allow for far more detailed questioning on Ministers than is possible in the Chamber of the House of Commons. For example, Amber Rudd was forced to resign in 2018 after a consolidated line of questioning by Yvette Cooper in the Home Affairs Select Committee revealed that Rudd had been unaware of removal targets within her own department for migrants:
  • Since the Wright Reforms of 2010, Select Committees have been able to become more independent due to the way they are selected. ​
  • The Commons Liaison Committee is headed by the chairs of the other Select Committees and questions the Prime Minister directly up to three times per year. These sessions are much more intense for the Prime Minister than other question time and can lead to more detailed scrutiny:
Theresa May in front of the Liaison Committee in 2016.
Theresa May in front of the Liaison Committee in 2022.

However, there are also a number of limits to Select Committee scrutiny:

  • They cannot force the Government to adopt a motion and many of their reports are largely ignored. For example, in 2021 the Work and Pensions Select Committee wrote a detailed report on universal credit highlighting a number of flaws and problems with its role out. The government made very little change to the Universal Credit based on this report.
  • They have no power to force (subpoena) witnesses to attend. Witnesses also do not give evidence under Oath (as they would do in the US Congress). For example, Mark Zuckerberg refused to appear in front of the Culture, Media and Sport Committee to discuss Facebook’s role in elections, despite appearing in front of a Committee in the US Congress. Another example is that of Mike Ashley, the owner of Sports Direct and Newcastle Football Club. He continually refused to appear in front of the Business, Industry and Skills Committee for almost two years before finally relenting. When he finally did appear in front of the Committee in 2018 he was extremely robust with the Committee:
  • Whilst they are more bipartisan than the Chamber, Committees are still made up in proportion to the size of the parties in the House.
  • Committees are often not very well resourced. Whereas government ministers have any army of advisors and researchers, Committee budgets do not match this.

How significant are Debates in the House of Commons?

Mark Spencer is the current Leader of the House of Commons.

Debates take place regularly in the House of Commons. They take place both in the chamber of the House of Commons and in Westminster Hall. Debates are usually organised the by Government and the Leader of the House of Commons is in charge of the Business of the House. There a number of strengths of debates in scrutinising the Executive:

  • MPs can propose debate about any issues and a wide variety of issues is discussed.
  • The adjournment debates held each day are a popular way for MPs to discuss something they are passionate about. For example, in the one week a wide variety of adjournment debates took place:

Monday 28th March – Lateral flow tests in health care settings (Mr Virendra Sharma)

Wednesday 30th March – Maintenance of electric vehicle charging infrastructure (Sir Bill Wiggin)

Thursday 31st March – Ambulance response times in Shropshire (Helen Morgan)

Friday 1st April – Southampton’s bid to be the UK’s city of culture 2025 (Caroline Nokes)

  • Any E-Petition that reaches 100,000 public signatures may now be chosen by the Petitions Committee for debate in Parliament. This gives the public a greater link over what is being debated.
  • Emergency Debates have been used a lot more since 2010. As Speaker, John Bercow was keen to allow more Emergency Debates than previous speakers.

Noticeably, however, since John Bercow left the chair there have been far less Emergency Debates after Lindsay Hoyle took the Chair. However, there have been some, for example an Emergency Debate on the Owen Paterson lobbying scandal and in the situation in Afghanistan in August 2020.

However, there are also a number of limits of debates as a form of scrutiny:

  • Apart from rare Emergency Debates, or Opposition Days, debates are scheduled by the Government.
  • Many debates take place outside of the Chamber and are instead in Westminster Hall meaning they get much less focus.
  • Whilst Debates allow MPs to voice their opinion more, any division may still be whipped.
  • Motions from such Debates are not binding (although in 2019 John Bercow controversially ruled that they could be thereby allowing MPs to take control of the order paper and thereby pass a bill preventing a no-deal Brexit).

One of the more complex areas is when it comes to military intervention. Since 2003 it has increasingly become the convention in Parliament that Prime Ministers hold a debate and division when contemplating military action. This is even though constitutionally they do not have to because it is one of their Royal Prerogative powers. This has led to some of the most powerful Commons interventions from figures like Tony Benn, his son Hillary Benn and Tony Blair over the war in Iraq:

However, this is only a convention and does not have to be followed. For example, Theresa May did not seek Parliament’s consent before launching military action on the regime of President Assad in Syria. This led to criticism from Labour Leader Jeremy Corbyn who called for the passing of a War Powers Act.

How effective are the Opposition at scrutinising the Government?

The Opposition scrutinise the government through all of the methods previously mentioned. However, they are given a number of mechanisms to increase their ability to scrutinise the Executive:

– They are given Short Money including special allowances for the LOTO’s Office. In 2021/22 the Labour Party received £6.6 million in Short Money.

– The Leader of the Opposition and Government Chief Whip are paid a salary equivalent to that of a Cabinet Minister.

– The Leader of the Opposition is given 6 questions at PMQs and the first chance to respond to Ministerial Statements such as the Budget.

– They have a Shadow Cabinet to support their scrutiny of the Government by each Minister being directly scrutinised by a Shadow Minister.

– The Opposition are given control of the parliamentary agenda for 17 days in each Parliamentary Session (3 days are given to the 3rd Largest Party). They use this to host Opposition Day debates. For example:

-02.03.22: A Labour Debate on tackling Violence against Women and Girls.

-08.02.22: A Labour debate on the Cost of Living Increases and Food Insecurity.

-24.01.22: An SNP debate of Cost of Living Increases.

There are some clear strengths of the role of the Opposition in providing scrutiny:

  • The media presence that the Opposition have, particularly through the Leader of the Opposition, allow them to bring significant media attention to an issue. For example, whilst the issue of Free School Meals was bought to public prominence by campaigners such as Marcus Rashford, the Opposition made sure the Government was put under political pressure and change was achieved.
  • An effective Government can show itself to be a ‘Government-in-Waiting’. An example of this is Blair’s Shadow Cabinet between 1994 and 1997. This increases the seeming legitimacy of the scrutiny of the Government.

However, there are some clear weaknesses that might undermine the ability of the Opposition to be fully effective.

Ed Miliband and Ed Balls could never escape the legacy of being deeply involved in New Labour’s economic policy which the Conservatives blamed for needing to implement austerity.
  • The Opposition have often just lost an election and are a disunited and trying to find their feet again. They can often be blamed for what went before as a deflection from scrutiny. A good example occurred with this and economic issues under Ed Miliband. During the period of austerity between 2010 and 2015 Ed Miliband as Leader of the Opposition and Ed Balls as Chancellor of the Exchequer could not escape the line of attack that they were responsible for the financial mess the Conservatives argued that they were left it.
  • Opposition Debates are often attended just by the party in Opposition with the Government just abstaining from any vote. The last time time a Government lost a contested Opposition Day Vote was in 2009 and before that it was 1978!
  • A Government with a large majority can largely ignore the Opposition. When Blair had majority of 179 in 1997 he faced William Hague as Leader of the Opposition. Hague was undoubtedly capable and a hugely impressive House of Commons operator. However, the arithmetic of the House of Commons severely limited the scrutiny he could offer.
  • The strength of the Opposition often relies significantly on its Leader and a poor leader can undermine its credibility. This was notably the case under Jeremy Corbyn who had a disunited party and a mainstream media that were hostile to this agenda.

How effective is legislative scrutiny in the House of Commons?

The legislative process in the UK is dominated by the Government. This can sometimes have its benefits in that it allows for emergency legislation to be passed very quickly. For example, the Coronavirus Act (2020), the primary law that allowed for all the following restrictions to be in place. In addition, many MPs have expertise in certain areas and public bill committees can here evidence from witnesses.

However, the legislative scrutiny put in place by the House of Commons is weak in a number of areas:

  • Often Government to push through laws without much scrutiny. For example, the EU Future Relationships Act (2020), one of the most important pieces of legislation for a generation, was debated for just five ours in the House Commons.
  • Time is always a significant factor. Even for bills that are not rushed through in the House of Commons not much time is spent scrutinising them. For example, the Agriculture Act (2020) was debated and scrutinised for 32 Hours in the House of Commons compared to 96 hours in the House of Lords.
A practising Doctor would seem like an ideal candidate for a Public Bill on Health and Social Care!

Unlike Select Committees, Public Bill Committees are still chosen by the party whips. Often the Government will choose people to sit on such committees to limit effective scrutiny, not increase it. For example, in 2011 Sarah Woolaston, a practising Doctor, wanted to sit on the committee for the Health ands Social Care Committee. The Government rejected her for this.

Very little time is given to backbench bills and they very rarely get the chance to become law. Between 2015 and 2021, only 36 out of 221 bills passed were Private Members Bills. (and 15 were in 2017-2019 during the unusual Brexit dominated Parliament). Most backbench MPs put forward bills knowing they will never get passed but so they will get some attention for the issue. For example, Between 2015 and 2021 Christopher Chope introduced 119 PMBs, none of which became law.

Most votes in Parliament are very heavily whipped and there are very few free votes in Parliament. Votes are even whipped inside Public Bill Committees.

How has the Humble Address procedure been used to hold the Government to account?

A rare but effective method to scrutinise the Government is the presentation of a humble address motion to the Monarch. A humble address is a direct message to the Monarch, skipping out the Government as Parliament’s messenger. If a vote is held on a Humble Address the result is binding on the House. In recent years the Humble Address procedure has been used to force the Government to disclose documents they otherwise haven’t wanted to disclose to the Parliament.

Some recent examples of the Humble Address being used for this purpose are:

2019 – A Humble Address calling for the publication of Operation Yellowhammer documents was passed by 311-302.

2021 – A Humble Address calling for the publication of minutes and notes relating to meetings between the the Government and MP Owen Paterson regarding a company called Randox that he was lobbying for.

2022 – A Humble Address motion was passed which called the publication of documentation relating to the advice given by the House of Lords Appointment Commission on the awarding of a peerage to Lord Lebedev.

It is clear that whilst still rare, a motion for a Humble Address has become an increasingly useful mechanism through which to access documents that allow a fuller scrutiny of the Government to take place.

How effectively can backbenchers hold the Government to account?

Backbenchers are limited in the extent to which they can individually hold the Government to account. This is because they are very heavily whipped and are reliant on the support of their party to be re-elected. However, there have been an increase in the mechanisms in recent years that have seen an increase in the power of backbenchers:

– The formation of the Backbench Business Committee

-They to be elected to sit on Select Committees

In addition, the willingness of backbenchers to rebel has increased in recent years – particularly over the issue of Brexit. During the Brexit crisis Theresa May lost her first vote on her Withdrawal Agreement by a record 230 votes. This figure included a rebellion of 118 Conservative MPs. This shows that backbench MPs can have a significant impact when they stand together.

In addition, many individual MPs have specialist interests on which they are able to scrutinise the government closely.

However, overall, backbenchers are extremely limited in their ability to scrutinise the Government because of the dominance of parties in Parliament.

How important are Motions of No Confidence in scrutinising the Executive?

Britain is a parliamentary system. This means that the Government only holds power whilst it retains the support of the House of Commons. Therefore, the ultimate way that Parliament can scrutinise the Government is by testing that support through a Motion of No Confidence. If a Government loses a motion of no confidence they are forced to resign and call a new general election.

James Callaghan was the last PM to lose a motion of no confidence.

Explicit motions of no confidence are very rare. The last was called in Theresa May’s Government in 2019 following the failure of her Withdrawal Agreement to Parliament. She survived this vote by 325-306. The last successful motion of no confidence took place against James Callaghan in 1979 which he lost by 311-310, resulting in the 1979 General Election and 18 years of Conservative Government.

Motions of no confidence are an essential mechanism for ensuring that the Government has a clear mandate from the elected representatives and therefore has the legitimacy to govern. However, there are some clear points of weakness as regards them:

  • They are extremely rare. The last was in 2019 and before that 1995.
  • The votes almost always go straight down party lines because MPs are unlikely to be willing to bring down their own government and face an election from a position of weakness. For example in the last three motions:

In 2019 not a single Conservative voted against Theresa May

In 1993 not a single Conservative MP voted against John Major (although one was absent as they had conveniently left the country).

In 1979 not a single Labour MP voted against James Callaghan.

How effective is the House of Lords at scrutinising the Executive?

The formal mechanisms via which the House of Lords scrutinises the Executive a similar to the House of Commons:

Debates – Debates are regularly held in the House of Lords. In fact, there are usually more debates in the Chamber of the House of Lords than the chamber of the House of Commons.

Question Time – Questions are tabled every day in the House of Lords. rather than a set time for each Department. Where a Minister can respond they will do so, otherwise a Government spokesperson will respond. In addition, Urgent Questions exist in the Lords but these are called Private Notice Questions.

Select Committees – The House of Lords does not have departmental Select Committees, but instead have a number of Committees that look at a particularly issue, for example the Lords Constitution Committee.

Legislation – Bills go through the same process in both houses. However, the only significant difference is that when a bill reaches Committee stage the House of Lords sits as a Committee of the Whole House.

Bill (law) - Wikipedia

Despite formal mechanisms being similar, the political climate makes scrutiny different in the House of Lord

No majority – There is no in-built majority in the House of Lords. This means that the government cannot just drive through its agenda as it can in the House of Commons.

More bipartisan – The House of Lords is far less partisan than the House of Commons and the whips have far less control. One of the reasons for this is that Lords have tenure and cannot lose their seat at the next election.

There are a number of reasons why it might be argued that the House of Lords provides better scrutiny than the House of Commons. These can be summarised by remembering the acronym T.I.E for Time, Independence and Expertise.

Time

  1. Time – Unlike the House of Commons, the House of Lords spend a significant amount of time going through bills in detail. They are often said to go through a bill ‘line by line’. As an example of this can be found in the Agriculture Act (2020):

House of Commons Time

1st Commons Reading – No Debate

2nd Commons Reading – 03.02.20: 18.02 until 21.59 = 3 hours 57 minutes

Commons Committee Stage – 11 meetings between 13.02.20 and 05.03.20: 22 hours and 42 minutes

Commons Report Stage – 13.05.20: 14.14 until 17.30 = 3 hours 50 minutes

3rd Commons Reading – 13.05.20: 18.32 until 18.51 = 19 minutes

Consideration of Lords Amendments – 12.10.20: 18.02 until 21.00 = 2 hours 58

minutes

Consideration of Lords Amendments – 04.11.20: 16.16 until 17.15 = 59 minutes

Total Commons Time: 32 hours and 45 minutes

Total Commons Chamber Time: 10 hours and 3 minutes

House of Lords Time

1st Lords Reading – No Debate

2nd Lord Reading – 10.06.20: 12.45-18.36 = 5 hours and 51 minutes

Lords Committee Stage – 14 meetings between 07.07.20 and 28.07.20 = 54 hours and 18 minutes

Lords Report Stage – 6 meetings between 15.09.20 and 22.09.20 = 27 hours and 27 minutes

3rd Lords Reading – 01.10.20: 14.01 until 14.42 = 3 hours and 35 minutes

Consideration of Commons Amendments – 20.10.20: 15.45 until 19.20 = 3 hours and 35 minutes

Consideration of Commons Amendments – 09.11.20: 15.33 until 16.47 = 1 hour 14 minutes

Total Lords Time: 96 hours and 0 minutes

Total Lords Chamber Time: 96 hours and 0 minutes

In addition, when it reaches the Committee Stage in the House of Lords the bill is considered by a ‘committee of the whole house’, rather than, as in the Commons, a group of MPs selected by the party whips.

2. Independence

Baroness Grey-Thompson is an example of a Crossbench Life Peer.

Members of the House of Lords are appointed for life. They therefore don’t need to please their party whips in order to keep their position. Although there is party whipping in the Lords, this is much weaker. In addition, there are currently 189 Crossbenchers in the Lords who have no party whips to control them. As a result of these factors, the Lords shows much more partisan independence than the Commons. This can be seen in the number of Government defeats suffered in the House of Lords compared to the House of Commons:

House/YearHouse of CommonsHouse of Lords
2019-213114
2019-19121
2017-193369
2016-17038
2015-16360
Total51282
As of October 2021

This means that since the between the 2015 General Election there were 452% more defeats in the House of Lords than in the House of Commons.

Indeed, there have been some very significant recent defeats imposed by the House of Lords on the Government:

04/02/22 – The Government suffered 12 defeats on the controversial Nationality and Borders Bill. These included on an amendment introduced by the Lords that would allow asylum seekers to work if their case had not been processed within six months and a right for an unaccompanied child asylum seeker to joining a family member who was already in the UK legally.

18/01/22 – The Government suffered 14 defeats on their Police, Crime and Sentencing Bill. This included the defeat of a clause that would give the police the authority to disperse noisy (but peaceful) protests.

26/10/21 – A defeat by a majority of 143 on a clause in the Environment Bill added by the Lords that insisted sewage companies reduce harms from the untreated dumping of sewage. In total the Government suffered 13 defeats on the Environment Bill.

02/02/21 – A defeat by a majority of 171 on a clause in the Trade Bill. This clause would
require that both houses debate government response to determinations by the High Court that a trading partner was engaging in genocide. In total the Government suffered 14 defeats.
on the Trade Bill.

3. Expertise

One of the benefits of the House of Lords is that it is full of people who are experts in their chosen field. For the most part, people are appointed to the House of Lords following significant achievements in their professional lives. This same level of expertise simply does not exist in the House of Commons.

Whilst Members of the House of Commons may build up political expertise, they are best characterised as generalists – they have to try to manage an interest in many different policy areas. Peers, however, on the most part can best be described as specialists. Many peers will only debate and contribute to issues they have some level of expertise in.

Lord West was First Sea Lord and then a Security Minister under Gordon Brown.

For example, Lord West became a peer in 2007. Prior to this he had been the First Sea Lord. As of October 20th 2021 and looking his last 10 contributions to the House of Lords, six had been directly related to military matters, two had been about manufacturing and particular points were raised about shipbuilding and one was about intelligence matters (between 2007 and 2010 West was an Intelligence Minister). Only one was about something in which he could not reasonably be considered an expert. This kind of pattern is not unusual for members of the House of Lords.


Conservative Backbencher Huw Merriman.

Alternatively, we can an look at an MP by way of comparison. Huw Merriman is a Backbench Conservative MP. As of the 18th February 2022, of his last ten contributions in the House of Commons chamber:

1 was about Dementia Research

1 was about the Tourism Industry

1 was about Autism in the Workforce

1 was about the Docklands Light Railway

1 was about the COVID Vaccination Programme

1 was about Food Labelling

1 was about Consumer Protection

1 was about International Travel

1 was about BBC Funding

1 was about Knife Crime

Because Merriman, like all other backbench MPs have to represent the huge range of views within his constituency he is contributing on a range of issues, not all of which he can realistically be considered an expert in.

There are a number of good examples of specialists in the House of Lords. However, just some are:

Crossbench Life Peer – Lord Lisvane.

Lord Lisvane – Lord Lisvane is a Crossbench peer. He joined the House of Lords in December 2014. Before entering the House of Lords he was Chief Clerk of the House of Commons. He has one of the country’s foremost expert in constitutional affairs and parliamentary procedure and contributes enormously to the work of the House of Lords on this issue. 

Baroness Grey-Thompson – Tanni Grey-Thomson is a former Paralympian who was born with spina bifida. She has used a wheelchair for her entire life. In March 2010 she was created a Life Peer. She sits a crossbencher. Thompson has used her peerage to challenge the government on disability rights. For instance, she was an outspoken critic of the government’s ‘bedroom tax’, which would have removed benefits from families using a spare bedroom to support a disabled person. 

The Time, Independence and Expertise of the House of Lords (TIE) arguably make it very strong at scrutinising legislation.

In addition, the House of Lords as a significant expertise in scrutinising Statutory Instruments. Unlike the Commons, the Lords has a specific committee through which they scrutinise statutory instruments. This is called the Secondary Legislation Scrutiny Committee. Whilst the general public might not know about them, most legislation is delegated and this makes the Lords an essential part of the legislative process. Following the EU Referendum the Government were criticised for using so-called ‘Henry VIII Powers’ to push through the conversion of EU Law into UK Law. These powers would be exercised via Statutory Instrument, making the Lords essential in keeping a check on the Government. If either House rejects a statutory instrument it cannot become law. In addition, SIs cannot be amended. However, since 1950, only 16 statutory instrument have been rejected of which just five were rejected by the House of Lords – and a total of 0.01% since 1965.

However, just like the House of Commons, the Lords has its limits in scrutinising legislation:

  1. Lack of Engagement

Many Lords are simply not engaged with the legislative process. For example:

  • Between 2010 and 2015 62 peers claimed £360,000 in expenses despite not voting in a single division!
  • Between 2016 and 2017 115 peers did not speak even once in the House of Lords.
  • Between 2018 and 2019 Lord Bookman claimed £50,000 in expenses but did not speak once. 46 peers did not vote a single time.

A number of peers see their peerage as simply an honour, rather than as a chance to actively participate in the political and legislative process. These are known as ‘non-working peers’. For example:

Lord Sugar in reality is a Lord in name only.

Lord Sugar – Since joining the House of Lords in 2009 (as of 2021) Lord Sugar had voted in 26 out of 1103 divisions. This is just 2.36% of divisions. He has only spoken 63 times.

Lord Lloyd-Webber – Andrew Lloyd-Webber was a member of the House of Lords from 1997 to 2017. In 20 years he spoke just 20 times and voted just 42 times out of 2460 divisions (just 1.7%).

Lord Paul – Since 2010 Lord Paul (as of 2021) had voted in 24 out of 1025 divisions (2.3%).

Whilst there are many peers with excellent attendance and voting records (Lord Campbell has voted in 76.8% of divisions since 2015) the existence of non-working peers undermines the credibility of the house.

This can also be shown when considering the turnout of the Commons and Lords overall in divisions. Below are the six most recent divisions in each House:

Despite the Lords having over 150 more Members (and less of a payroll vote), turnouts are consistently lower.

2. Lack of Legitimacy

Peter Cruddas was appointed a Conservative Peer despite the Appointment Commission explicitly advising against it.

The fact that the House of Lords is unelected reduces its legitimacy. This lack of legitimacy is furthered by mistrust over the appointments process. The fact that the Lords is not seen as fully legitimate can lead members not to risk upsetting the public. This was a point made during the debate over Brexit.

3. Constrained by Convention and Statute

A number of conventions such as the Salisbury Convention and those
regarding Money Bills stop the Lords from fully scrutinising all aspects of Government policy. In addition, the Parliament Acts mean the House of Lords often give into the House of Commons when there is a conflict. The fact that the Parliament Act has only been used four times since 1949 should not be seen as evidence of its lack of importance. Instead, it is evidence of that fact that, more often than not, the Lords will back down in any conflict with the Commons.

Article Summary

The scrutiny of the legislature is an essential role of any Parliament. However, Britain’s fusion of powers weakens the ability of parliament to effectively scrutinise the Executive. Britain normally has an elective dictatorship that can mean the Government can escape effective scrutiny. However, there is no doubt that much of this depends on the parliamentary arithmetic, weaker governs can be scrutinised more fully. Despite these issues, in recent years it is undoubtedly the case that in recent years scrutiny has become more effective through the growth of Urgent Questions and growing power of Select Committees. Yet, scrutiny sill overall remains weak.

Key Terms

Parliamentary System – A political system in which
the Executive is formed from the legislature. This results in a fusion of powers.

Elective Dictatorship – A term coined by Lord
Hailsham to describe the situation in Britain in which when a government is
elected they can normally govern without much effective scrutiny.

Royal Prerogative – Powers that used to belong to
the monarch but are now exercised by the government. These powers are largely
beyond the scrutiny of Parliament.

Prime Minister’s Questions – The Questions session
that takes place at 12.00 each Wednesday. The PM is asked 6 questions by the
Leader of the Opposition and single questions by other MPs.

Question Time – Daily Questions sessions that
take place in the House of Commons.

Urgent Questions – Questions that require an immediate
response from a government minister. These questions can only be granted by the
Speaker and have grown in significance since John Bercow held that role.

Wright Reforms – A series of reforms made to the
House of Commons in 2009 which included the creation of a Backbench Business
Committee and elections to all Select Committee roles.

Select Committee – Committees that were set up in 1979 to scrutinise the
work of the Government. They include both Departmental Select Committees and
those that look at issues across the government, such as the Public Accounts
Committee.

Commons Liaison Committee – A committee made up of the Chairs of all the
other Select Committees. They question the Prime Minister up to three times a year.

Emergency Debates – A debate granted at short notice by the Speaker. These
are relatively rare.

Westminster Hall – An ancient chamber of the House of Commons an annexe of
which is now used to supplement debating space in the House of Commons.

Humble Address – A procedure used by the House of Commons to address the
monarch directly. Recently this has been used to force the government to
release documents they otherwise would not want to.

Public Bill Committee – An ad hoc Committee set up to consider a bill making
its way through Parliament. Unlike Select Committees membership is still chosen
by party whips.

Committee of the Whole House – When the whole chamber sits in on a Committee
Stage of a bill. This always happens in the House of Lords but only very occasionally
in the House of Commons.

Statutory Instrument – A piece of Secondary Legislation. Most statute law is
passed through statutory instruments and the House of Lords plays a key role in
examining them.  

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