BROWN PAPER: Is the UK Really a Parliamentary Democracy?
musings on one of the pillars of our constitutional settlement
Introduction
If you google “united kingdom system of government” you will get a set of results which are largely variants of constitutional monarchy and parliamentary democracy. Both of these descriptions reflect the orthodox view of the system in the UK.
Bouncing around inside my head, however, is a question as to whether these are really an accurate portrayal of how the system works, and, crucially, how it could work. This brown paper sets out some very early, very high level, thinking on whether that is really a true characterisation of our system of government.
Disclaimer: this isn’t a piece of researched constitutional scholarship, it is my mangled musings on what I think is an interesting question to mull over a mince pie.
This question started bouncing around in my head when I was researching for my doctorate. I spent a very enjoyable few weeks looking at the mechanism and history of the shift from absolute monarchy to “parliamentary democracy” as part of my thinking about concepts of the rule of law.1 As my doctoral supervisors rightly pointed out, though, it was utterly tangential to my research and so it didn’t make the final cut.2
It then merrily bounced out again, until Labour published their idea for reforming the House of Lords, on which you can read my view here:
The reason why that report resurrected this issue for me is because of the repeated appeals to the supremacy of the House of Commons.
The “traditional” view
Parliamentary sovereignty is viewed as a cornerstone of the UK constitution, with parliament being the highest authority.3 Proceedings in parliament cannot be questioned elsewhere, there is no constraint on parliament’s ability to make and unmake laws and those laws can, if parliament wills it, bind the executive either to do or not do something.
Governments are formed from parliament, with convention telling us the Prime Minister will be the person who is most likely to be able to command the confidence of the House of Commons. In practice, this means the leader of the largest party in the House.
But even that statement gives a thread on which we can tug.
Tugging the threads
Thread one
The first thread to grab onto and tug is the convention that the Prime Minister is the leader of the largest party in the House of Commons. Not because it lacks an underpinning logic, but because a slightly closer analysis of the process shows parliament doesn’t really have any skin in the game at all.
The Prime Minister is appointed by the Crown. The convention about commanding the confidence of the House is, realistically, a pragmatic acceptance that a Prime Minister who does not have the confidence of the House will fail to push through any meaningful legislative agenda.
If our parliamentary system was a collection of independent, unaffiliated, members of parliament it is likely a vote in the Commons would be needed to show who would have that confidence. However, our system is one of parties and patronage, where MPs rely on keeping the party whip in order to progress through a career and, in an election year, maintaining a shot at being re-elected in the next general election.4
Of course, as recent history shows, the Prime Minister does still need to command the confidence of their own MPs because, without being certain that they have that loyalty, they cannot be certain to push through their agenda. Although threatening the removal of the party whip does provide for a significant amount of forced loyalty, there comes a point where a PM can’t expel enough rebels from the party and keep a working, whippable, majority in the House of Commons.
What that essentially means is, once the Crown has invited someone to become Prime Minister, a complex system of patronage, deals, discipline, loyalty and self-interest keeps them in post until such time as it cannot. Probably not a dissimilar position to a royal court of old.
One additional point remains. Under our system neither of the main two parties allow the leader of the party, and this de facto candidate for Prime Minister, to be elected wholly by MPs. Each party has a different set of rules, but, as we have seen over the last few years, party members can impose the de facto Prime Ministerial candidate on their MPs.
Suddenly, the Commons isn’t seeming as supreme as it claims to be.
Thread two
The second thread to tug is to think about the constitutional position of Ministers. Ministers exercise the powers of the Crown on a day-to-day basis, doing for the Crown whatever the law of the land allows them to do. They are not acting as party MPs, or, in fact as MPs at all, but as agents of the Crown.
So, Government is the Ministers as the Crown. In other words, Government is the Crown.
Thread three
The third thread to tug is who controls what business is put before the Commons. The simple answer is that it is the Government. Standing Order 14(1) gives precedence to Government business.5 This was wrestled away temporarily during the heady days of the Brexit debates, but to do so requires a majority vote of MPs - about which, see thread one.
So what we have is a parliament which is, by and large, only allowed to consider things which Government chooses to allow it to consider. Although there are private members bills, the vast majority of legislation which goes through the house is Government legislation - legislation which is likely to pass because of the power of whips and patronage.
That supremacy isn’t looking all too shiny at all - the Crown decides what business the Commons can deal with, and what legislation will be put to the vote.
Thread four
The fourth thread is the principle that an Act can only bind the Crown insofar as it expressly binds the Crown, or by necessary implication it needs to bind the Crown for it to work. As the Crown controls the legislation which is put before parliament, it is within the Crown’s gift to decide if statutes should be applied to it. Of course, an MP could table an amendment, to expressly bind the Crown, but the Crown has the numbers and the patronage to vote down the amendment if it so chooses.
Supremacy now looking very tarnished, isn’t it?
Thread five
Parliament is protected by the Bill of Rights, which requires it to be called and which prevents such things as the levying of taxes without the approval of parliament. The Bill of Rights is subject to amendment like any other statute, and, as such, could be amended by legislation to restrict or remove the calling of parliaments.
The main protection against this happening is the self-interest of MPs. If a Bill was brought forward effectively abolishing parliament, it is unlikely sufficient MPs would vote it through because they would no longer fear the loss of employment losing the whip would inevitably bring them at the next general election.
Perhaps, though, a promise of a seat in the House of Lords reconstituted as a privy council with an annual stipend for life might convince some of the waverers?
Supremacy, you say? Can’t see it any more…
So, is it a parliamentary democracy and a constitutional monarchy?
I think there is an argument that a proper description of the system is something along the lines of
An absolute monarchy which acts through the Crown and which, for the time-being, has assented to a version of parliamentary democracy where the Crown must seek consent from elected representatives to make statutes.
Why do I think that’s a more accurate description? Well, there is nothing obvious to prevent the Crown, through its Ministers, seeking to repeal all the parts of our legal system which require parliamentary consent to legislation or which have abrogated or put into abeyance the prerogative.
Someone may, of course, challenge the legislation in the courts but that would lead to an interesting paradox. The courts would have to be willing to say there is some form of constraint on what parliament can legislate and that the legislation in question goes beyond parliament’s power. If they do that, they are then denying parliament is sovereign because it does not have the unlimited competence it needs in order to make good a claim that it is.
In reality, though…
Monarchy suffering the need to act through Ministers and seek consent of elected representatives is a form of parliamentary democracy. It is just an incredibly weak one, which can be done away with by a mere stroke of a pen and enough promises to secure a majority vote. Unless, of course, that would cause a popular uprising as people insisted they wanted some democratic input into how they are governed.
Parliament is not sovereign, nor really is the Crown. Any system of government only remains viable whilst sufficient numbers of the governed are willing to accept it - at a point when too many are not, they will force change.
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As part of my thesis I developed some principles of the rule of law based on an anthropological account of law (the law jobs theory of Karl Llewellyn) and a rights based ethical framework which dovetailed with that anthropological account (the principle of generic consistency devised by Alan Gewirth). One of the questions that I got excited about was whether the “rule of law” is really just a fancy way of saying there are tramlines within which the general population will suffer a system to exist and at the point it is no longer suffered it will change. I never answered the question, though, because it had almost nothing to do with a question about whether or not powers of entry need to be reformed.
Such is the nature of doctoral research - as many a researcher will attest!
Though parliament weren’t so confident that they didn’t feel the need to assert they are sovereign in an Act of Parliament.
With some honourable exceptions, the UK does not have a particularly strong history of returning MPs who aren’t affiliated to one of the main political parties.