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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