Parliament as Electoral College?

NB; this is not a normal post – more just an exploration of some of my views on a very broad and complex issue. Normal service will be resumed shortly.

I recently read Andrew Coyne’s article Decency alone can’t save Parliament and was rather concerned to read that in Canada apparently there is an attitude to Parliament which sees it as an electoral college rather than a scrutinising and legislating institution. This has echoes in the private members’ bills proposed by Mathieu Ravignat in Canada and Chris Skidmore in the UK which aim to force a by-election when an MP changes parties – emphasising the importance of the party of the member who is elected over the member him or herself. While this in itself isn’t likely to be massively effective as a measure, it’s the general attitude towards parties over individual MPs that concerns me.

Parties hold huge power over MPs. They can give them jobs, foreign ‘fact-finding’ trips, provide funds for their reelection and (in Canada) the opportunity to speak at Question Period and committee seats. Even their membership of the party is the gift of the party leader. More importantly, these things can be taken away. On the other hand, the leaders of the party (should be) hired and fired by the parliamentary party at least in part to give them some equalisation of power, though this isn’t the case in Canada. This all feeds into a self-reinforcing culture of obedience and submission to the party whip in exchange for the comfort of being a ‘team player’. The more MPs obey their party, the less socially acceptable it becomes in parliament to rebel. The less socially acceptable it becomes, the less likely it will happen. It’s a spiral that isn’t broken easily.

To take an example, Canada has a comprehensive committee system with relatively extensive powers but committee members tend to see their role as defender of their party rather than scrutiniser of government. This means that committees are unlikely to ever scrutinise government effectively since on partisan issues the government majority on the committee will most likely simply follow the party line rather than look at anything that could reflect badly on their minister. A committee inquiry can become an endorsement of the party line rather than an actual space for policy evaluation. This is perfectly justifiable under the parliament-as-electoral-college theory, but less so if parliament is to be an effective scrutineer of policy or legislation.

This, in my view, is a bad thing. The more we increase the power of party machinery, the less opportunity parliament has to actually scrutinise government and its legislation and the more it becomes a stitch-up between the party leaders. It is too tempting for politicians, once elected, to simply spout the party line however many times it twists and turns throughout the years and vote accordingly. Certainly for the governing party it means that the party manifesto will almost certainly be enacted (and that’s a good thing – it was endorsed by the voters after all)*.

But remember that a party’s manifesto gives broad-brush policies, not technical implementations. It is entirely possible to support a new consumer protection organisation, for example, without supporting the way it is structured, its budget, the way its chair is appointed, etc. Also, members of the public, I’m sure, don’t vote for a party because they agree with every single one of their policies in all its detail – personally, I vote based on the few issues that are important to me and even then its often a case of the least worst option.

Not only that but a party’s manifesto usually only accounts for the first year or two of a parliament’s legislation. What about the other three years? Are MPs expected to blindly follow their party’s policy even when it has never been in a manifesto?

When faced with a policy proposal by the government I want my MP to look at the polls, look at what their constituents say, look at the evidence, and then test their ideas in debate. If they find that they are clearly on the wrong side of the argument, I want them to be able to admit it and vote accordingly even if their party leadership is against that. Of course my ideal homo politicus is mythical. Human nature trains us to trust our own arguments even when they’ve been debunked. But that doesn’t mean we can’t have more independent minded MPs, even if they’re not a perfectly rational decision-maker.

I couldn’t take a look at the legislation passed, at least in the UK, and say in all honesty that it’s of fantastic quality. I’m not simply talking about the broad policy questions (though they’re often an issue too), I’m talking about the details. Safeguards that government rejects as unnecessary administrative burdens suddenly appear to have been incredibly prescient when the inevitable scandal erupts.

Similarly, in the UK the first six years of the last Labour government saw five Criminal Justice Acts and the next six saw an additional four Terrorism Acts. Much of this legislation was spent amending the failed or faulty provisions of previous Acts. This is surely not healthy. Much legislative time and effort, not to mention the effects of the failed provisions, could have been prevented if legislation was better scrutinised. This is what happens when parliament simply becomes an institution to ratify the decisions of governments who won’t listen to criticism, even if it’s constructive.

Under parliament-as-scrutiniser the opposition front bench can still oppose, as the Disraeli quote goes, and the government can still pass legislation, but that doesn’t mean they should have a free ride from their own backbenchers on either side. We can have improved law, better scrutiny, more transparency and still have parliamentary government. After all, the party/ies in government still have to be held to account for the legislation they have passed, it’s just that they would have to be held to account for their ability to persuade MPs and Lords/Senators to do so. It pushes the debates that go on behind closed doors in party caucus rooms into the open.

I hope I’ve made at least a half-decent case for parliament-as-scrutiniser. Now, how do we get there, and what are the pitfalls? Is there a ‘roadmap’, to use the clichéd jargon?

Well, academics have managed to create a graph of four quadrants to show the positions of parliaments based on party cohesion/independence (how much MPs rebel) as the x-axis and concentration/dispersal of power (how much power in parliament is concentrated in the governing party) as the y-axis. It was proposed in an article (page 6) for the Political Studies Association by Dr Meg Russell:

Old Westminster of high party cohesion and high concentration of power is typified by the UK in the 1950s, and is perhaps more apt for the Canada of today – single-party, majority government reigned, some sessions never saw a single government MP rebel and an upper chamber which was atrophying relative to its past. Opportunities for Parliament to scrutinise government and amend legislation largely came down to the government being kind (sensible?) and allowing parliament to do its job. Even in the 1950s, governments abided by conventions not to unnecessarily restrict debate on bills and the whips didn’t impose restrictions on what members could say in parliament.

Freedom Within Constraints of low party cohesion and high concentration of power is identified with the UK of today though it is at the very edge of the quadrant – single-party, majority governments are the norm, with much higher rates of rebellion and an upper chamber which is assertive but not dominant. Parliament can force the government to its will, but such occasions are still rare and government has the upper hand. MPs and peers often, though not always, pursue independent lines of questioning on policy.

The Party Carve Up of strong party cohesion and low concentration of power is identified with New Zealand** of today – coalition government is the norm, party cohesion is high and party whips actually give block votes rather than MPs actually making the effort themselves. Parliament is not so much scrutinising the government as the governing party leaders negotiate government behind closed doors while the opposition shouts from outside. Once again, it depends on government letting parliament do its job.

The Parliamentary Reformers’ Nirvana of low party cohesion and low concentration of power isn’t identified with any country in the analysis, and perhaps never will be (though I have some doubts on that front which I won’t speculate on here). Coalition governments combined with low party cohesion are two uneasy bedfellows. The incentives for parties in those situations are to control their members better because every vote counts, and some very significant safeguards would have to be put into place to ensure that members remained independent minded against the pressure of parties to fall into line.

This is a rather good little graph because it broadly shows us where we could go. So how can a country move itself towards this ‘nirvana’?

One of the main problems is the culture, and this is as much party culture as parliamentary culture. This only changed in the UK during the 1970s as the Conservative party became more internally divided on accession to the European Common Market which led to a large (for those days) rebellion of 18 MPs. Labour was increasingly divided on Europe and the economy during that time too, exacerbated by the the wafer-thin majorities/minorities of Wilson and Callaghan’s governments – at least five bills only passed second reading because of opposition support. It gradually became more acceptable to rebel as more and more MPs did it. By the 1980s, 82 Conservatives voted down their own governments Shops Bill at second reading. By the 1990s, 95 Conservatives voted against gun control proposals. In 2003, Labour suffered a revolt of 139 backbench MPs on the invasion of Iraq. I haven’t checked the data, but I suspect that the Liberal Democrats have only had their rebellion moment as a result of 2010’s coalition agreement. Perhaps the most striking part of this is how long it has taken – Philip Cowley and Mark Stuart have done some fine work on this.

Another part of this is always going to be the selection of candidates. For a start, people will always view their allegiance to the people who put them into office. Nominally that’s the people but more often the party is the main factor for a candidate being put into a safe constituency/riding. When the UK Conservative party experimented with open primaries before the last election, the trouble caused by some of those MPs elected by it led the Prime Minister to remark “I’ll tell you what; we’re not having any more open primaries!”

Another thing is to restrict the ways for whips to punish MPs. If both giving and taking committee seats are out of the hands of the whips, it is easier for Committees to ignore the whips. This was a struggle in the UK parliament and very nearly didn’t happen.

Assuming we’ve got sufficiently independent-minded MPs, we next need to look at giving them better tools to scrutinise government.

Committees need the power to make reports and have them debated in the House. Legislative committees are a particular sore point for the UK parliament especially when compared to the investigatory Select Committees, lacking power over their own timetable and being very partisan.

Questioning procedures are obviously important – MPs need opportunities (daily questioning sessions, perhaps devoted to different departments as in the British parliament) and power (ministers should be compelled to answer when they refuse). MPs can’t judge policy if they don’t have information on how current policies are doing. Most parliaments don’t have a way to coerce a minister to answer a question, but New Zealand’s speaker Lockwood Smith has been a pioneer in this area.

Power over the time of the House is also important, otherwise the government can simply block debates it doesn’t like. The UK’s House of Commons has a small number of ‘backbench business days’, but the vast majority of time is government time and is meant to have a House Business Committee in 2012/13 which is mostly going to be party placemen. New Zealand has a Business Committee (all party placemen of course) which decides the schedule of business. There are some European parliaments which do it differently and I want to write up a post on them soon.

It’s also interesting to note that the major post-war reforms of the House of Commons have all happened in times of economic difficulty – 1966, 1979 and 2009 – and when the public has been increasingly dismissive of the effectiveness of the institutions of government***. They have all also required a window of opportunity usually at the beginning of parliament when MPs and governments haven’t got down to the business of governance, a reform agenda for MPs to back, and leadership either by government or the backbenches as Philip Norton has observed.

The original paper producing this quadrant classification of parliaments did have a caveat:  because of the incentives involved it’s difficult to ensure that as a country is reformed towards this parliamentary reformers’ nirvana, they don’t slip into the party carve up – possibly the worst of all worlds, not least because a change in Standing Orders to empower backbenchers requires the agreement of more actors who are incentivised against change (multiple party leaders in a party carve-up) than where such changes require the agreement of only one real actor who is incentivised against change (the leader of the government in an old Westminster).

Either way, it’s still not a good position to be in. You can have a comprehensive and powerful committee system, lengthy and varied opportunities to question ministers, and the freedom to speak when and how you want but if you don’t have MPs who are willing to use them properly to scrutinise government then it will be to no avail. Parliament will simply be an electoral college rubber stamping the decisions of the cabinet rather than an institution which controls government through questioning, amending and legislating.

EDIT: Just after I posted this Kady O’Malley, a CBC journalist in Canada, wrote this gem. A timely and welcome example of how treating parliament as an electoral college can go badly wrong. Of course these amendments can be introduced in the Senate so the government can amend it to their will, but it’s a striking example.

*As an aside, it’s not unknown for MPs to campaign with differing views to their party’s manifesto. I seem to recall in the UK fourteen years ago – in the run-up to the 1997 general election – that large numbers of Conservative MPs were refusing to support their party’s manifesto on the Euro, as were some Labour MPs. This led to the infamous soundbite from Tony Blair that the then-prime minister John Major was “weak, weak, weak” though by that measure, Blair himself wasn’t exactly strong.
**And to a lesser degree arguably Australia too – while single-party majorities are routine, the fact that a strong Senate elected by PR means that majority governments usually need agreements with either independents or third parties to get their legislation through. Party discipline is very high in both chambers.
***Certainly it’s looking like the UK may well be in economic difficulty for some time, so perhaps we will see further reform. Keep an eye out for the influential Constitution Unit’s report on legislative committees (coming out before the end of the year), the government’s response to the proposals on Select Committees and public appointments (ditto), and the Goodlad reforms in the House of Lords.
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