As part of the attempt to justify the Speaker’s rewriting of the parliamentary rulebook, or at least to discredit his critics, David Allen Green (henceforth ‘DAG’) yesterday presented a list of alleged “constitutional outrages” by the May Government.
The effect of this is to paint a portrait of a reckless, even lawless executive which left the beleaguered Speaker no choice but to do what he did (which in any event DAG, unlike experts both sympathetic and otherwise, doesn’t think is a big deal).
Since at the time of writing the top tweet of that thread has received over 8,600 likes, and he has this morning repackaged it as an article in the Financial Times, it’s worth taking the time to point out that many (although by no means all) of the items he presents don’t stand up to scrutiny as charges of constitutional wrongdoing.
I already did this on Twitter, but will follow DAG is setting it out more clearly in writing. Let’s take a look at the more dubious claims. Quotes are from the FT.
“The government packed the standing committees (which scrutinise legislation) with Conservative majorities by procedural sleight of hand, despite there being a hung parliament.”
Not for the last time, DAG conflates things which usually happen with things which ought to happen. The reason that minority governments don’t usually manage to secure majorities on standing committees is because they don’t usually have the votes to do so.
Thanks to its alliance with the Democratic Unionist Party this Government did have those votes. The “procedural sleight of hand” was building alliances and winning votes in the Commons, which is exactly what minority governments are supposed to do. Nothing in the constitution obliges a minority government to lose votes it can win.
Anybody who’d like to know more about this particular dispute can read this piece I wrote for ConHome at the time.
“The government deliberately broke the Commons’ “pairing” convention when an opposition MP was on maternity leave so that the government could win a vote.”
We called for Julian Smith to consider his position as Chief Whip when the story broke about Brandon Lewis breaking his pair with Jo Swinson, so no disagreement here that doing so was very bad form.
However, anybody familiar with parliamentary history will know that pairing is an arrangement which has broken down in the past, often to the detriment of the government of the day. James Graham’s play, This House, captures its soul-crushing effect on the Callaghan administration particularly well.
Pairing is an arrangement struck between MPs, and as we explained in our piece on Smith MPs are both responsible and quite capable of exacting a heavy price from any government, let alone a minority government, which disregards it. George Thomas didn’t need to change the rules to punish ministers for breaking pairing, and nor did Bercow.
“The government repeatedly ignored and does not even participate in votes on opposition motions.”
As I wrote at the time Opposition Day is theatre, pure and simple. You might count it poor sportsmanship for the Government to sit out opposition motions – indeed, it probably is – but it does helpfully illustrate their nature as meaningless gestures. Moreover, sources more familiar with this than me suggest that such an approach by the sitting government isn’t even without precedent.
Most importantly, and this is a theme which runs through a lot of these points, sitting out opposition day motions is not a breach of the rules.
“The government committed itself to billions of pounds of public expenditure in a blatant bribe to the Democratic Unionist party for support in a supply and confidence arrangement.”
Of all of them, this point is probably the most ridiculous – it actually manages the feat of being a sillier objection to the DUP’s relationship with the Government than the idea that it breaches the Belfast Agreement, which to his credit DAG does not advance.
However one feels about pork-barrel politics, there’s no doubting that such horse-trading is a well-established and perfectly constitutional part of parliamentary life when minority governments are concerned. Again, the dying days of the Callaghan Government illustrate this very well.
“The government repeatedly seeks to circumvent or abuse the Sewell [sic] convention in its dealings with the devolved administrations.”
The Sewel Convention provides that the British Government will “not normally” legislate on matters which have been devolved to the Scottish Parliament, Welsh Assembly, or Northern Ireland Assembly. It emphatically does not – contrary to some rather strained interpretations – say that Westminster will not legislate for devolved competences under any circumstances whatsoever.
Furthermore, in strict constitutional terms parliamentary supremacy means that Westminster can quite properly legislate on anything whatsoever it wishes.
So on the letter of the law the Government has committed no impropriety. What about the spirit? Well, if the clear provision for legislating in abnormal circumstances baked into the Sewel Convention doesn’t cover Brexit, it’s difficult to see what circumstances could possibly qualify.
“The government seeks to legislate for staggeringly wider “Henry VIII powers” so that it can legislate and even repeal Acts without any recourse to parliament.”
Whatever you think about ‘Henry VIII powers’, the crucial wording which renders this point a nonsense is “seeks to legislate”. That means that the Government is going through the normal legislative method to seek approval from the House of Commons for these powers. MPs are quite able to defeat this effort in the normal way.
“The government even sought to make the Article 50 notification without any parliamentary approval and forced the litigation to go all the way to the Supreme Court (where it lost). The government employed three QCs to oppose the litigation on whether Article 50 could be revoked unilaterally (which it also lost).”
Another surreal one. The outcome of the Miller case was far from a foregone conclusion, and the Government was entirely within its legal rights both to fight the case and to appeal. When it lost the case it proceeded to seek (and obtain) parliamentary authorisation for triggering Article 50 as then required by law.
For DAG’s allegation of impropriety to have any weight, one of two things would need to be true. First, the idea of triggering A50 using the royal prerogative would need to have been obviously unconstitutional. Lord Reed’s very cogent dissent in the Miller case puts paid to that idea. Second, the Government exercising its legal right to appeal an adverse judgement – and employing QCs to do it! – would need to somehow constitute a “constitutional trespass” itself. Nowhere is a case for that very strange notion made.
Here endeth the fisking.
As I said above, not every example cited by DAG is incorrect. But spraying out a lot of inappropriate examples of constitutional impropriety paints a false and flattering picture of the context in which the Speaker made his decision.
Moreover, we should not forget that MPs have proved more than capable of holding the Government to account on several occasions when it has crossed the line. The Commons successfully forced it to publish the impact assessments, and held it in contempt of Parliament when it tried to hide its legal advice. It also retains the right to no-confidence the executive which remains the actual source of the supremacy of the legislature in our system.
But DAG does, in my view, get one other big thing wrong, which cuts to the very heart of his analysis. He advocates for a constitution of ends, rather than of means, and fails to account for the need to check the power of the Commons as well as the Government.
At root, a constitution is a matter of process: institutions and conventions, rules and procedures. The constitution is not about what is done – that is the business of politics – but how things are done.
Yet in his analysis, DAG consistently elevates the ends over the means. He attacks as “constitutional outrages” Government actions of which he disapproves, despite their being within the rules, and defends Bercow’s shattering precedents in pursuit of a cause which he supports as fine constitutional conduct.
Not only is this no way to run an actual system of checks and balances, which requires all the parties it governs to have faith in the clarity and even-handed application of the agreed rules, but it also fails to acknowledge that the executive has legitimate prerogatives of its own and that the Commons is as much in need of being checked and balanced as any other part of the constitution.
Morever, once you’re so divorced from the rulebook it renders the whole idea of constitutional impropriety essentially meaningless.
In sum, therefore, DAG’s list of “constitutional outrages” suggests no greater understanding of parliamentary arcana than he ascribes to those critics whose “unhappiness and screaming” he doubts and derides.