Written evidence from Dr Andrew Defty[1] (SRH 03)
Public Administration and Constitutional Affairs Committee
Status of Resolutions of the House of Commons inquiry
What has traditionally been the common understanding of the constitutional status of a resolution of the House expressing the opinions or purposes of the House?
Business in the House of Commons is dominated by the Executive. Most legislation originates in the Cabinet and parliamentary time is largely controlled by the government. There are relatively few, and consequently important, opportunities for opposition parties or backbench MPs to control the parliamentary agenda. These include 20 opposition days and 27 backbench business days in each parliamentary session.
Opposition and backbench days provide a rare opportunity for the opposition parties to scrutinise the government or to highlight their own policy positions. Opposition motions, in particular can be strongly critical of the government, and are usually contested by government. Government can contest opposition motions in a number of ways: through debate on the floor of the House; by tabling an amendment changing the meaning of an opposition motion; and by voting against them. A government with a majority in the House of Commons can generally be assured of defeating an opposition motion. Nevertheless, opposition motions are agreed in each Parliament, between five and seven opposition day motions were agreed in each session of the 2010 Parliament, although most of these were uncontentious and agreed without a division.
Even when agreed, opposition motions are not binding on the government. They are treated as resolutions of the House, which are deemed to reflect the opinions of the House, rather than orders of the House, which require action. Nevertheless, there has been a convention that opposition motions which have been agreed will be taken seriously by the government and this has on occasion led to changes in government policy. For example, in 2009 the Labour government announced a change in policy on the pensions rights of Ghurkas, following a successful Liberal Democrat motion, albeit coupled with a high-profile publicity campaign.
Following the 2017 general election, the current government adopted a policy of not contesting the vote on opposition motions. While ministers and other government MPs have spoken against opposition motions in debate, government MPs have been whipped not to vote. The government did not contest the vote on any opposition day motions between September 2017 and May 2018 (17 motions) and has contested the vote on only 4 of the 9 motions since then. This has created a situation in which instead of seeking to respond to a small number of opposition motions with cross-party support, the government has allowed the passage of a large number of contentious motions, with which it is unlikely to agree and to which it perhaps feels less obliged to respond. It has also been suggested, perhaps not entirely seriously, that by not contesting a vote on critical motions the government could not be said to have lost.
The government claims to have established a new convention whereby it will not seek to contest opposition motions in a vote in the chamber but, having allowed them to be agreed, will respond in writing at a later date. The Leader of the House of Commons set out the government’s approach to opposition motions in a written statement to the House on 26 October 2017:
Where a motion tabled by an Opposition party has been approved by the House, the relevant Minister will respond to the resolution of the House by making a statement no more than 12 weeks after the debate. This is to allow thoughtful consideration of the points that have been raised, facilitate collective discussion across Government, especially on cross-cutting issues, and to outline any actions that have been taken. (HCWS199)
On 1 November 2017 in answer to a written question, the Leader of the House described the government’s approach to opposition day debates as ‘the new convention’. (HCWQ110093)
The government’s approach reflects a worrying attitude towards parliamentary convention and establishes a potentially unwelcome precedent.
Conventions are an important feature of the work of Parliament, however, the making and unmaking of convention is not the exclusive preserve of the government. Conventions should, by definition, reflect existing practice and where this changes, these changes should reflect a broad consensus of opinion. According to Erskine May, parliamentary conventions, ‘exist to supplement the rules of procedure, mainly for the purpose of securing fair play between the majority and the minority, and due consideration of the rights of individual Members’ (p.208). They are enforced not by the Chair but by ‘public opinion of the House’ (p.208).
There has been considerable opposition on both sides of the House to the government’s decision not to vote on opposition motions. The government’s apparent refusal to contest the vote on the opposition day debate on universal credit on 18 October 2017, attracted criticism from both sides of the House. The SNP’s Pete Wishart argued that ‘the Government’s behaviour is bringing the working arrangements of the House into disrepute’ (col.956), while the Conservative MP, Peter Bone, suggested that ‘it would be helpful if there was a convention in the House that where a substantive motion is passed the Government should come to the House, within a reasonable time, and make a statement about what they intend to do about it’ (col.956). The Labour MP, Chris Bryant worried about the implications of creating a precedent whereby government effectively boycotts votes in the House of Commons. Sir Edward Leigh was also concerned about the precedent being set:
For 34 years, I have been trooping through hundreds of Divisions on Wednesdays under successive Labour and Conservative Governments. When I was required to be here for those Divisions, I was under the impression that it served some purpose. What worries me is that surely there is some precedent here. You mentioned precedent a moment ago, Mr Speaker. This is not, and should not be, a university debating society. What is the point of the House of Commons if we just express opinions for the sake of it? Surely, when we vote, it should have some effect. (Hansard, 18 October 2017, col.957)
While it is not in the Government’s power to declare something to be a convention, the Government’s power to establish precedent is significant. Moreover, precedent can, if it is followed by subsequent governments, become convention. Governments should be wary about adopting approaches to established parliamentary convention that they would not wish to see followed by subsequent governments. Despite cross-party concern about the current government’s approach to opposition motions, when the current opposition find themselves in government they may find it difficult to resist the temptation to follow the same policy, particularly now that a precedent has been established. Under the UK’s unwritten constitution, for good or ill, this is route to the establishment of conventions.
No. The UK’s constitutional arrangements do not allow for the counting of abstentions in voting, either in the House of Commons or more widely. Voting in the House of Commons takes place by division. Members have a simple choice of whether to oppose or support a motion. Voting in both lobbies as a demonstration of a ‘third position’ is considered unparliamentary.
While Members may choose not to vote in either lobby, in such circumstances their vote will simply not be counted. Not voting in a division cannot be construed either as support or opposition to the question being considered. Only votes count.
Encouraging individuals not to vote, either in Parliament or beyond, is moreover, a worrying position to adopt in a number of respects. Indicators of declining political participation in the UK are of considerable concern. Efforts to encourage democratic participation, including by those involved in teaching about politics and parliament, may be undermined by a government’s reluctance to participate in the democratic process. There is a clear distinction here between individual MPs choosing not to participate in a division for particular reasons and parties instructing their MPs not to vote.
The opposition’s response to the current government’s refusal to participate in votes on opposition motions have involved the innovative use of a motion for a return in order to transform a non-binding resolution into a binding order of the House. Labour first used this tactic in an opposition day debate in November 2017 to secure the release of the so-called Brexit impact analyses. They have continued to use this tactic in a number of subsequent debates with the result that government defeats on opposition motions have led to the release of further documents in relation to Brexit and risk assessments in relation to the collapse of the construction company, Carillion. The tabling of a further such motion in May prompted the government, for the first time in this Parliament, to contest the vote in an opposition day debate, defeating the opposition motion by 316 votes to 221. The government has subsequently defeated three further opposition motions in a vote.
The use of procedures such as a motion for a return suggest that mechanisms already exist to ensure that opposition motions have constitutional force. Following the universal credit debate in October, the Speaker observed that ‘cleverness can be effective in this place’ and that ‘some motions instruct, and can therefore secure an outcome, and others do not.’ Following its frustration in the universal credit debate, Labour successfully deployed a motion which ultimately prompted the government to conclude that it could no longer afford to neglect the vote on opposition motions. That it was able to do so suggests that mechanisms already exist to ensure the constitutional force of opposition resolutions.
At the same time it may seem a little strange, particularly to those outside Parliament, that the opposition would have to rely on an obscure piece of parliamentary procedure in order to force the government to contest a vote on a resolution on which it clearly has a position. If it is the duty of the opposition to oppose the government, then it is surely the duty of the government to defend its position, not only on the floor of the House of Commons but also in the division lobby.
Moreover, the motion for a return is a very particular kind of motion designed to secure the release of documents. It would not be applicable to a motion which sought to criticise government policy or prompt other action on the part of government, such as the October 2017 opposition day motion which called for a pause in the roll-out of universal credit. There is no mechanism at present to compel Ministers to respond to such a resolution. As noted above, governments have in the past taken account of resolutions, and in some cases modified policy as a result. If the current government cannot be persuaded to treat resolutions of the House with the same status, then consideration might be given to changes to parliamentary procedures in order to enhance the standing of resolutions of the House.
b. Are any changes to the procedures or practices of the House needed to give effect to any renewed understanding of the constitutional status of its resolutions?
There is currently a clear distinction between orders and resolutions of the House. While orders give direction, resolutions are the means by which the House expresses its opinions. The nature of resolutions of the House varies greatly and may range from messages of condolence or congratulation to the Royal Family, which generally have the unanimous support of the House to opposition or backbench resolutions on highly contentious issues which may have been the result of a close vote on the floor of the House.
One obvious change to procedure would be give votes on motions on political issues the status of orders of the House, reserving resolutions for matters which have unanimous support – nemine contradicente. This would represent a potentially significant shift in the balance of power between Parliament and executive, forcing governments to pay close attention to opposition and backbench motions, and presumably, on occasion, to change policy as a result. Nevertheless, governments with a secure majority in Parliament would have little to fear from such a change. Moreover, if the current government is willing to issue a three-line whip to instruct Members not to vote on an opposition motion, there can be little objection to whipping a vote on the motion.
b. What implications does this have for our understanding of the Act, its effectiveness and how it works?
Opposition day motions have often been used to express a lack of confidence in the government and its policies, although these have not all been construed as confidence motions. The opposition has put explicitly-worded confidence motions on at least four occasions since 1945. While it has not always been clear what constitutes a confidence motion, one advantage of the Fixed Term Parliaments Act 2011 is that it provides for a precise wording of confidence motions. If a motion does not conform to the terms of the Fixed Term Parliaments Act, it will not have the status of a motion of no confidence. At the same time, there is no reason why a confidence motion could not be put during opposition time, as in the past. Censure motions, or motions of confidence, are always considered to be binding and it is unlikely that in those circumstances the government would not choose to contest the vote.
[1] Dr Andrew Defty, Reader in Politics, School of Social and Political Sciences, University of Lincoln