Parliament matters more than ever after Brexit

My contention in this speech is that it is our constitution that makes us prosperous and that returning powers to Westminster from Europe will boost our economic growth. But explaining why our nation has been so successful over the centuries relies first on recognising the existence, and then identifying the nature, of an unseen dark matter which lies at the heart of British governance.

I fear this missing link, this secret ingredient, has not received sufficient acknowledgement - despite its presence being detected by many members of the Study of Parliament Group over the years.

It will certainly help rebut Lord Hailsham’s assertion that governments in Britain tend towards undermining Parliament to the benefit of the executive through what he called an ‘elective dictatorship’.

Many commentators have come to use the phrase ‘elective dictatorship’ as shorthand for an overbearing administration and the inevitable criticisms of Standing Order 14 which follow.

In this speech, I aim to demonstrate that the fundamentals which underpin our system of governance and have developed over many centuries both explain our success as a nation and provide reassurance that the right balance continues to be struck between the executive and the legislature today.

WHY NATIONS PROSPER

Ours is an uncodified constitution supported by four pillars: freedom of speech, rights of property, the rule of law and democracy.

Together they have created the stable conditions necessary for economic growth and, ultimately, prosperity over a prolonged period.

In the 1960s many wondered if the Soviet Union could successfully take a viable alternative path after three decades of seemingly remarkable economic growth.

But their achievements proved illusory and other countries which are dismissive of the four pillars are likely to encounter a similar fate.

This is because economies ultimately suffer when they become dominated by the extractive institutions described so well by Daron Acemoglu and James A. Robinson.

Their influential book Why Nations Fail is recognised as a seminal text on modern governance theory and it is no surprise they cite the United Kingdom as an example of a place where inclusive political institutions helped promote growth.

Acemoglu and Robinson describe a virtuous circle of positive reinforcement, in which broadening democratic rights pave the way for a more equal distribution of income, and vice versa.

Their narrative is punctuated by the Glorious Revolution, the Black Act and the Great Reform Act, but I am inclined to go back much further to the medieval parliament and a moment in the 13th century when the crown was forced to turn its back on an extractive approach for good.

I refer not to Magna Carta, which merely saw King John bow to the barons, but rather to the 1297 Statute Concerning Tallage.

Sparing you the original version, the Act in full reads as follows:

'No Tallage or Aid shall be taken or levied by Us or our Heirs in our Realm, without the good will and Assent of Archbishops, Bishops, Earls, Barons, Knights, Burgesses, and other Freemen of the Land.'

The United Kingdom’s 21st century constitution can directly trace its commitment to the concept of consent from the people back to 1297.

It represents recognition by the executive that measures cannot be imposed on the people without their assent through Parliament.

During the Wars of the Roses this idea was brilliantly articulated by Sir John Fortescue.

He argued that England was more prosperous than France because France was governed by a dominium regale, in which the French king had the power to simply take the produce of the poor French farmers.

By contrast if the King of England were to attempt a similar manoeuvre against an English farmer, that English farmer would have recourse to the courts - including the high court of parliament.

As Sir John explained, the English king is under the law just like everyone else and must, as he puts it in his ‘In Commendation Of The Laws Of England’, 'take away none of his subject’s goods without due satisfaction for the same'.

He continues: 

'Neither does the king there either by himself or by his servants and officers levy upon his subjects tallages, subsidies, or any other burdens or alter their laws, or make new laws without the express consent and agreement of his whole realm in his parliament.

'Wherefore every inhabiter of that realm bless and enjoyeth at his pleasure all the fruits that his land or cattle beareth; with all the profits and commodities which by his own travail, or by the labour of others be gaineth by water; not hindered by the injury or wrong detainment of any man but that he shall be allowed a reasonable recompense.'

England, he concluded, is governed as a dominium politicum et regale.

Unlike the absolute monarchy of the French, undoubtedly an extractive institution, the limited monarchy Sir John described in the 15th century - an inclusive institution - created the space for a bottom-up approach also seen in our legal traditions.

We can see the same divergence between English legal systems and those on the continent.

The difference between the common law, and its underlying assumption that everything not expressly forbidden is allowed and the emphasis on civil law so often seen on the continent, which more often than not tended towards the prescriptive.

We have of course entered a new chapter of renewed cooperation with our European friends and neighbours, so I want to emphasise that the continental model has itself been successful.

It could be argued that Louis XIV was laying the foundation for France’s status as a fashion powerhouse by mandating that new textiles appear every six months.

Like Bertie Wooster, I appreciate the importance of being snappily dressed and so will not dispute the importance of a 3,000-livre fine for anyone daring to wear Venetian or Flemish lace in 17th century France.

Louis’ finance minister Jean-Baptiste Colbert certainly valued fashion as a serious business, declaring in 1665 that it was to France as the gold mines of Peru were to Spain.

It says so much about the European approach to regulation that two-thirds of the roughly 200 directives he introduced concerned the textile industry.

Such a highly regimented approach did have its downsides, however, with many finding ways around those trying to enforce the rules.

This outlook did not provide for the English model of innovation because innovation comes from doing things you are not allowed to do.

When the government does wish to take powers through statute, it can only do so in accordance with the Statute Concerning Tallage - that is, with the consent of the 'freemen of the land', these days in the form of the elected House of Commons and the appointed House of Lords.

I can provide no better example of the enduring value of this modus operandi than the extraordinary regulations currently in force responding to the coronavirus pandemic.

Public acceptance of the great restrictions imposed on their liberty has, to my mind, undoubtedly been helped by parliament’s acceptance of them.

This political consent within a dominium politicum et regale makes government possible.

The alternative is Chairman Mao’s dictum that 'every Communist must grasp the truth that ‘Political power grows out of the barrel of a gun'.

Not in the United Kingdom. Not in a parliamentary democracy, where political power grows out of the ability to first represent and then deliver on behalf of broad sections of society.

DELIVERING FOR THE PEOPLE

Delivering for the people was as important to those attending parliament in the early 14th century as it is today.

During the reign of Edward I the occasion of a parliament had become a great opportunity for those seeking favour, justice or redress through petitioning.

And by 1311 the right of private individuals to seek redress had become such an intrinsic part of what it was to be a parliament that petitions found their way into the New Ordinances imposed on Edward II.

Since then the modes of seeking redress of grievance have steadily evolved -

From the increasingly obsequious language used to address the king from the late 14th century. All the way through to the present-day use of e-petitions which has seen millions help influence parliamentary business at the click of a mouse and, through it, government policy.

Our modern framework preserves the work of representation through constituency casework, a vital tool for building confidence in our democracy.

Before I was first elected to Parliament I did not anticipate just how effective the platform of being an MP would prove in tackling the many and varied difficult circumstances faced by constituents.

Whether what is at stake is a licence to drive buses or a life-saving drug, a bogus educational course or a constituent’s access to benefits, every successfully resolved case shows that the system continues to work.

And as with the individual, so also with the collective.

By Edward II’s reign the Commons was petitioning on what we might today call policies of national, rather than local, significance - through common, rather than private, petitions.

As the king’s responses became the basis of new law the legislative and the representational were becoming increasingly intertwined.

In the 14th century, thinkers were already recognising the importance of consent for the good governance of the nation as a whole.

At the same time notions of kingship were developing into the 15th century which required the monarch to present himself as a beneficent actor dedicated to improving the common weal.

One does not need to sign up to Whiggish determinism to trace a path from the collective petitioning on national issues of the late medieval period to the modern party manifesto.

Today we prepare for a new parliament by offering voters an integrated and rounded package of policy proposals.

We then use parliament to deliver for the electorate by implementing the policies they voted for, including through legislation.

The 2019 general election, for example, was fought largely on whether or not we needed to get Brexit done.

Voters spoke and we have duly left the European Union.

With that out of the way, attention now turns to a second session in which the government aims to help the economy build back better.

This matters because the parliament begins after a general election but also concludes just before the next one.

As Paul says in 1 Corinthians 9:19, 'though I am free from all, I have made myself a servant to all, that I might win more of them'.

To be blunt:

Boosting businesses through build-back-better bills will bring blessings from the burghers in their boroughs, blissfully buttressing backbenchers to boot.

THE ART OF THE POSSIBLE IN GOVERNMENT

But what if, as we have seen in two of the last four general elections, no party wins an overall majority in the Commons?

Governments in a hung parliament scenario were actually the real target of Lord Hailsham’s ‘elective dictatorship’ complaint.

Lord Hailsham was speaking, as a Conservative of course, in 1976 at a time when the ability to manoeuvre of the Labour government in power was severely restricted by its dwindling majority.

So he was understandably unhappy with the proposition that a struggling administration with an uncertain hold over the Commons could nonetheless control the business of the House and deploy the various prerogatives of the executive.

Nevertheless, Lord Hailsham seemed to have forgotten the Statute Concerning Tallage and everything that flowed henceforth.

That this a nation governed with the consent of the people through parliament.

And that the art of governing is conducted not through the barrel of a gun but through political discussion and debate. In a dominium politicum et regale.

What is possible in a hung parliament is patently different to what is possible with a majority of 80.

And if governing is the art of the possible, then it is in parliament where the possible is divined.

Through the continuous interplay between executive and legislature.

Ministers, engaging in an open, constructive, fashion with parliamentarians, and MPs and peers, drawing on the views of their constituents and their accumulated expertise to determine what they are, and are not, prepared to support.

Some of this interaction happens on the floor of the House and through Parliament’s formal channels: written questions, correspondence, select committee appearances.

And if that were really all there was to our parliamentary democracy, some of Lord Hailsham’s cavils might be valid.

But there is something else missing which happens long before votes take place in the Commons.

Our equations calculating why the UK constitution is such a success will only add up if we include that mysterious dark matter mentioned earlier.

THE VISIBLE AND INVISIBLE IN WESTMINSTER

Before I give the game away I might observe that the Palace of Westminster itself offers a clue.

Like a theatre or a television studio, it is divided into parts intended to be visible and the parts intended to remain invisible. Its principal floor is designed to be seen and admired. From its splendid depictions of Magna Carta, the Armada, the Civil War, Trafalgar and Waterloo. To its Minton encaustic tiles and marble busts. This is the Palace of Westminster as seen on tours and as seen on TV.

What a contrast with the ground floor. Its network of rather prosaic courtyards and corridors is somewhat more utilitarian. You might say that one floor is dignified and the other efficient, to paraphrase Walter Bagehot.

But the Commons chamber could not function without the engine room below. The doorkeepers need their bacon and eggs. Members need their haircuts. The peers need their shooting range - or at least, it is still signposted. And what of the people walking about the corridors of the Palace?

Members of Parliament, lobby journalists, ministers who appear on our television screens to argue their points in the nation’s living rooms, they walk the same corridors as those whose silent, unseen function is to support their work: House staff, civil servants, Members’ staff.

Everyone who works in Parliament helps make it work as an institution, but the contributions of those out of the public eye risk being overlooked.

The clerks whose scholarly advice helps guide Members’ procedural peccadilloes in the right direction. The Office of the Parliamentary Counsel whose lawyers craft government bills. The civil servants across Whitehall who work on parliamentary business. And no doubt Sir Michael Wheeler-Booth would have told us a thing or two about the backroom work involved in keeping the Lords up and running.

Still, this work does not fully account for the dark matter I have been alluding to.

The toil of officials is important only because of what it enables: namely, the hidden considerations of government about how to handle parliament. This is the dark matter of British governance. It is less measurable than the visible and harder for observers to discern. It never gets talked about and so its importance is undervalued.

But without it government could never identify what is possible and what is not. Which of its desired policies the Parliament will support and which it must quietly shelved. When to concede a policy during the delicate choreography of a bill’s passage through parliament, what political battles to stand and fight on, and which are best left to another day.

For much of the 18 months I have chaired the Cabinet’s Parliamentary Business and Legislation Committee what has surprised me most is the amount of time devoted to parliamentary handling.

The idea that the Prime Minister might wake up in the morning, think ‘I should like a bill’ and then Downing Street tells the Commons to get on with it is simply wrong.

There is a careful process discussing how government policy can be implemented with maximum support. By its very nature, this democratic and consensual work is hidden. If the measures under consideration are not judged to be sufficiently supported in Parliament, they will not see the light of the day.

Although a bill once introduced will not be amended too many times without the blessing of the government, that bill will not be introduced by ministers until the business managers think it will be a passable piece of legislation.

The permanent membership of the PBL committee - the Commons and Lords leaders, and the chief whips of both Houses - act as a safety valve in this regard. They are there to say ‘the Members won’t wear this’ if they are sceptical about the policy’s popularity in parliament.

The unseen is a protection. The unseen is more democratic than you think, not less. Among those who have appreciated the value of informal spaces within Westminster is Lord Norton of Louth, who as both academic and parliamentarian has a deep understanding of how parliament works.

Perhaps with his forbearance I might take the liberty of quoting a section of his remarks on the Why Parliament Works podcast - available now from all good podcast providers - when Lord Norton joined me for a very interesting and illuminating conversation.

He said: 

'You don’t always appreciate the influence that Members are having… all you see on the record [are] usually government amendments which are the ones that dominate at report stage.

'So you think it’s wholly executive driven and it’s not - it’s actually a symbol of parliamentary influence that ministers are responding to what members are saying.'

I could not agree more. Lord Norton goes on to point out that this process is strengthened still further by the fact that parliament is an open institution - in which Members are hearing from outside voices affected by the legislation.

Entirely in the tradition of Parliament throughout its history. And far from the monolithic blunt instrument of Lord Hailsham’s uncomfortable vision.

One problem with the virtual proceedings is that while the proceedings of the House are able to continue - indeed, in 2020 the House sat in more weeks than in any year throughout the preceding decade - the hidden aspects of Parliament’s work have become much more difficult.

Nevertheless, despite these temporary restrictions, Parliament matters today for the same reason it has ever since 1297. As a place for the executive to seek approval for its measures from the people’s representatives. For the first time in many years, it will be able to do so once again in 2021 across the full swathe of policy. This is good news for Parliament as an institution.

We will once again conform to the three principles of parliamentary sovereignty set out by A.V. Dicey, that great constitutional theorist. That Parliament is the supreme lawmaking body and can enact laws on any subject, that Parliament cannot bind its successor, and that no court or law, or other body for that matter, can question the validity of Parliament’s enactments.

During our membership of the EU its institutions were certainly able to question the validity of our enactments.

We had in practice restricted our ability to enact laws.

Power had flowed away from the British people, and with it the decision-making process became less visible.

Parliament’s light had become dimmed under the European bushel. But no more.

Regardless of your views on Brexit, it is clear that its central implication for Westminster is that Parliament now has the opportunity to shine more brightly than ever before.

This will not happen without the kind of unseen work which Westminster has always relied on.

So my new year’s resolution is to encourage MPs to raise their collective game in order to respond to the new, enhanced importance of their roles.

For at no time since 1973 have MPs had the prospect of legislating on large swathes of policy areas which had previously been determined in Brussels, some of which required no further legislation in our Parliament.

Nor has the writing of legislation been so important because so many more policy areas will now be subject to judicial review.

From sovereignty flows accountability. It will be Parliament, rather than the Council of Europe, which will give its voice on its policy wishes. Ministers will therefore naturally want to spend even more time in Westminster, and feed parliament more red meat. Parliamentary handling will become more important in every way.

This is entirely in the best interests of the British people and therefore of the government. Because better scrutiny always leads to better policy.

The Commons as an institution needs to recognise that it is through legislation that MPs can best deliver for the British people. On this basis all those who work in Parliament may wish to consider how they might rethink their activity to ensure it is as effective as it possibly can be.

To allow it to conduct scrutiny in ways fit for 2021, not 2001 or even 2011. Never has the Westminster Parliament been more visible. But never have we had an opportunity quite like this to show what we can do as lawmakers to improve the lives of those we represent. In a dominium politicum et regale, which, thanks to the unseen work of thousands of hard-working officials in Westminster and Whitehall gives the people’s elected representatives the chance to reinvigorate our Parliament, so that by the time of the 50th anniversary of the Study of Parliament Group, now just three years away, It will have become clear that the great benefits of our constitution, fully realised through parliamentary sovereignty restored once more, are enabling us to build back better towards a more prosperous, fairer, more just United Kingdom.

And hereby it cometh to pass', wrote Sir John Fortescue, 'that the men of that land are rich, having abundance of gold and silver and other things necessary for the maintenance of man's life… They eat plentifully of all kinds of flesh and fish. They wear fine woolen cloth in all their apparel.'