Select Committee on Modernisation of the House of Commons Written Evidence


Memorandum from Professor Dawn Oliver, University College London (M36)

THE ROLE OF THE BACKBENCHER

  An important, indeed perhaps the most basic, aspect of the role of the backbencher is to give consent to legislation, and to government generally, on behalf of constituents. Another aspect is to maintain public confidence in the parliamentary system itself. These break down into a number of categories of function.

1.   The representative function

  The classic statement of the role of MPs—and particularly backbenchers—is set out in Edmund Burke's Speech to the Electors of Bristol, 3 November 1774. To quote:

    Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament.

  Clearly acting as a voice for interests in his or her constituency and seeking to resolve grievances on behalf of either individual constituents or groups of constituents are important aspects of the role of MPs. Actually, they can be performed by others, eg ombudsmen, but MPs choose to take responsibility for them. In any system such roles have to be performed by someone somewhere. Perhaps MPs' commitment to this role is due to the absence of a clear idea of other roles, which ought not to be eclipsed by the constituency role.

2.   Promoting the public good—how important is it? Does it exist?

  Burke's assumptions that there are such things as "the interest of the whole" and "the general good" are fundamental to our parliamentary system. It is of course true that there are conflicts of interest between groups, classes etc in the population, but the assumption is that the interests of some might have to give way to those of others in the name of the general good. This approach is challenged by Marxist theory which assumes that those in power—capitalists—will promote their interests, and that there is too much conflict of interest in society for there to be such a thing as the public interest. Be that as it may, I can see no other way in which government or Parliament can claim legitimacy in the UK. As the history of Northern Ireland shows, legitimacy cannot flow from the blunt assertion that a majority in Parliament or in the population (and the two are not the same) in itself justifies subordinating the interests of the rest to those of that majority.

  A claim—and a substantiated one—that policies or laws that have negative impacts on certain classes or groups are justified on the basis that they will promote the interest of the whole and/or the general good will, in the British culture and tradition, be accepted as legitimating even policies that some object to. Providing that the claim is substantiated—for instance after debate and inquiry in Parliament—this legitimating function is a vital role of backbenchers (and of front benchers, but the conditions under which they operate can subvert their judgment in practice). This must involve participation by backbenchers in the process of identification of the interest of the whole and/or the general good, to which not only they but the government are dedicated. This cannot but involve the ability to exercise a substantial degree of independent conscientious judgment on the part of each MP. And without it the very legitimacy of the system is at risk. On the face of it this must involve backbenchers being ready to articulate their own views, and their own reservations in favour of or against the policies of their parties or of government.

  MPs have to exercise this role in a system of what might be called a "web" of pressures, some of them in tension with others. For instance, they have to be concerned about whether they will retain their seats in the next election—both for the sake of their constituents who are judges in part of their performance as advocates and voices for interests in the constituency, and for the sake of their own livelihoods (though selflessness is one of the Seven Principles of Public Life, and selfish interest ought not to dominate). They are concerned for the future of their own parties, both because they may consider their own party to be best suited to promote the general good, and because they aspire to hold ministerial office in it. Burke's principle would not allow for MPs to permit their own interests to prevail over their judgment of the public interest.

  How does this fit with the other pressures to which MPs are subject and their other roles? First, the constituency role. Essentially this is an advocacy role, and a vital one. The MP should convey to Parliament and to government the concerns of their constituents. This is part of the traditional role of MPs in seeking redress of grievance before the grant of supply to the Government by Parliament, and a role that has developed in importance since the second half of the 20th century.

  What about the role of backbench MPs in maintaining the position of their parties—especially when their party is in government? Again, backbenchers have to maintain a balance between (i) exercising their own judgements, particularly on issues on which they have little expertise; (ii) nursing their constituencies; (iii) accepting the judgments of their parties as to what is in the public interest or general good, even taking the view that whatever their parties decide, it is in the general interest that their party should be in government. But blind compliance with the party whip will not necessarily endear MPs to the public or enhance the status of parliament. Nor will it be compatible with their basic constitutional role.

3.   Some legal principles

  It may be helpful here to summarise some of the principles that the courts have applied, in relation to the public good/general interest and how elected representatives—whether MPs, ministers or local government members, or parties—should conduct themselves.

    —    MPs and ministers must exercise their powers in the general interest, on their own responsibility and it is unlawful for them to allow themselves to be mandated by their party: Bromley v GLC (1982); AEU v Osborne (1910). But they may "take into account" their party's manifesto as relevant in a decision: Secretary of State for Education v Tameside Metropolitan Borough Council (1977).

    —    Councillors should act in the general interest, but they are entitled to take the view that would be in the general interest for their party to remain in power. R v Waltham Forrest LBC, ex parte Baxter (1988). [This is a dubious decision in my view and Porter v Magill (2002) below seems to suggest the opposite.]

    —    Councillors should have directly in mind when making decisions that they are supposed to be acting in the interest of their area as a whole, and they are not entitled to indulge their own moral values without linking them to that interest. Fewings v Somerset CC (1995).

    —    Councillors are not entitled to use their powers so as to promote the interest of their party in being reelected. That is not a purpose for which powers were granted to them and it is unlawful for statutory powers to be exercised in that way: Porter v Magill (2002).

  At this point it is worth noting that similar principles have been enunciated in Committee of Privileges Reports and House of Commons resolutions over the years (Case of W J Brown, 1948; National Union of Mineworkers, 1974). And the Seven Principles of Public Life reflect the same approach.

4.   Now to some specific issues

Questions

  Is the role of the backbencher diminished if ministers refuse to answer questions? It depends on the role of the MP. Do all MPs have the same role? If an MP's role is supposed to include eliciting information and justifications from ministers, yes of course it is diminished. If the role of a government backbencher is to support the government, then no. My own view is that the role should be the same for all backbenchers, and ministers should answer questions. But the House of Commons will not enforce that.

  A problem is that if ministers refuse to answer questions it will become increasingly important for other bodies, eg the Parliamentary ombudsman (note the pensions problem), public inquiries (Scott, Hutton and Butler all succeeded in extracting information from departments which the Commons could not possibly have extracted or dealt with because of the volume and complexity) and the courts (which recently upheld the findings of fact of the ombudsman on pensions), to perform these functions. In fact it is obvious that MPs lack the time and forensic skills to perform this function in complex matters.

Whips and partisanship

  Does the partisan role of MPs get in the way? What if whips do not allow them to speak?

  It seems that the partisan role gets less in the way when the Commons' committees are collaborating with the Lords' committees. And partisanship is less in select committees than in standing committees or on the floor of the House. Perhaps the floor of the House/Chamber is a less important aspect of the role than it once was. Perhaps it has become mere theatre. Perhaps Standing Committee work is also mere theatre, though lacking an audience.

  If whips prevent a Member from speaking they are in effect adopting the view that it is in the public interest that the party stands together willy nilly, or that the public interest should be subordinated to party interests, or it is in the public interest that the government gets its way or the opposition must give a (possibly misleading) impression of unity and that that itself is in the public interest.

What about redress of grievance?

  Redress of grievance can be largely handed to the Ombudsman—the MP filter could be removed and that would free up MPs time for other matters eg committee work at Westminster, and most importantly scrutiny of bills and draft bills, which is badly done in the Commons.

How much does parliamentary scrutiny of bills matter?

  Does scrutiny of legislation matter? Yes, it is absolutely vital that legislation be carefully and clearly drafted, that it fits with the existing law, that it does not override important constitutional principles and human rights without Parliament realising that it is doing so and doing so deliberately. These are not party political issues, they are to do with respect for and workability of the legal system, respect for constitutional values, international obligations, human rights and so on, which ought to be above party.

  If the House of Lords becomes fully elected it will no longer be possible for the Commons to rely on that House to complement the work of the Commons in the legislative process and to scrutinise bills etc as well as it does now. An elected second Chamber would not contain sufficient numbers of people with expertise and experience to do the non-political aspects of scrutiny. They would be working in a different and more party political atmosphere and set of working conditions, which will not be conducive to the scrutiny against objective standards. The whip system will be stronger. It is beyond the capacity of the Commons to do the scrutiny job as thoroughly and in the way the second Chamber does for lots of reasons—constituency commitments, lack of time, party political pressure undermining the exercise of independent judgment, lack of legal expertise, weak forensic skills etc.

  This is not an argument against an elected Second Chamber. It is an argument for establishing a separate independent body to scrutinise bills and draft bills and other legislation (EU, SIs etc) for their legal drafting and workability, compliance with international obligations, human rights and constitutional principles, leaving it to the two Houses to engage in purely party political or ideological argument. There are models from overseas that could be examined.

What if MPs drift away from the Chamber?

  This would be evidence that it was not clear to them that their contributions in the Chamber were a good use of their time or—adopting a public choice approach—evidence that it does not do good to any of their own interests, eg in their careers, nursing their constituencies etc, for the reasons implied above. Does that matter?

  Does it matter if the Chamber is now only theatre? Perhaps not, if MPs are doing the other aspects of their work.

  But if the view is taken that this does matter, wishful thinking will not solve it. There have to be incentives for MPs to take part in what happens in the Chamber and/or the present disincentives need to be removed.

April 2007





 
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