Revision Update: Parliament: Is Executive Power Checked?

The recent government defeat over the issue of the EU budget was a rare occurrence. For the most part the executive dominates the legislature. Indeed Lord Hailsham described the relationship between the two branches of government as an “elective dictatorship". However, whilst the separation of powers may be less obvious than in the USA, the UK parliament can still actively check the executive.Parliament is unable to effectively check the executive due to the Westminster model of parliamentary government. This ensures that the executive has an inbuilt majority in the House of Commons and when this is allied to the exercise of strict party discipline and the limited powers of the House of Lords, it ensures that parliament can do little to check a government. This is especially the case when there has been a creation of a large majority after an election such as 1997 and 2001 with Labour majorities of 179 and 167 respectively. Majorities of 66 in 2005 and 83 with the coalition in 2010 mean that all the other parties united cannot defeat the government thus rendering Parliament relatively powerless.The work of parliament illustrates how the legislature cannot check the government effectively. This is clearly evidenced by the work of Public Bill Committees. With an inbuilt majority for the government as composition reflects the outcome of the general election on the floor of the Commons and pressure from the whips over selection and voting, opposition amendments to bills are very rarely adopted. The notion of line by line, clause by clause scrutiny of a bill is called into question when the government, through the use of the guillotine can end discussion before every clause has been considered. Butler described the process as “futile marathon" and Tony Wright as a “shocking state of affairs".

The same analysis applies to Prime Minister's Questions (PMQs). This provides an opportunity for backbench MPs from both parties and the leader of the HM Opposition to hold the government to account. As a form of scrutiny however it can be argued it is an ineffective check. Miliband has 6 questions that he can use to challenge the PM. The PM though can avoid answering the question and more often than not, the session is reduced to petty point scoring and yah-boo politics. The leaders are more concerned with coming up with a sound bite that can be used on the news and government MPs ask planted questions designed to make the PM and the government look good. High entertainment it may be an effective check on government it is not.

The ability of Parliament to check the executive then does face some real constraints however there are opportunities for the legislature to rein in government.

Departmental Select Committees allow the legislature to hold the government to account. Created in 1979 in recognition of the fact that the executive has too much power and that existing scrutiny was ineffective. There is a DSC to shadow each government department and a liaison committee of the chairs of the DSCs that can question the PM. Unlike question time there are no time constraints and the DSCs have the power to call for papers, civil servants ministers and outside experts in order to develop sustained scrutiny of a government department. They have shown their independence with the likes of Andrew Tyrie, chair of the Treasury committee questioning the present austerity programme. The Culture Media and Sport Select Committee questioned ministers such as Hunt about their close relations with the Murdochs and News International during the phone hacking scandal.

MPs do not always toe the party line and this allows the HOC to act as a check upon the executive. Cowley and Stuart argue “Rebellion has become the norm, cohesion the exeception" since the start of the coalition government. Backbench Conservatives particular have shown that they are more than mere “lobby fodder" with significant revolts over the issue of a referendum on continued membership of the EU and House of Lords reform. The government even suffered a defeat over its approach to the EU budget. Consequently the executive can be said to face very real constraints in parliament.

The Speaker has also played his part in improving parliament's ability to check the government. Speaker Bercow has allowed more emergency debates. When this is coupled to written questions and other mechanisms such as the ten minute rule bill and early day motions, parliament does have the ability to challenge the government. The most recent innovation of e-petitions and a backbench committee further bolster parliament as a check on the executive.

In conclusion, there can be little escape from the preeminent position that the executive enjoy given the Westminster model of government however parliament can still inflict some telling blows.

DOES THE EXECUTIVE HAVE TOO MUCH POWER?

Lord Hailsham stated that the UK has an “elective dictatorship" in the sense that the executive is able to dominate the legislature. It could be said that the UK has a fusion of powers rather than a separation of powers. Whilst it could be argued that the UK system is markedly different from that of the US which is based upon the separation of powers, it should be recognised that there are limits upon the power of the executive.

The executive could be said to have too much power principally because parliament is unable to serve as an effective check. The government controls the parliamentary timetable which restricts the function of both houses. Private members bills are unlikely to be successful which caused jack Straw to demand that the backbenchers be given more powers.

The influence of the whips ensures that the government wields great power and is able to avoid any significant defeats. The use of a three line whip means that MPs must toe the party line of face sanctions. This might be through the use of the “carrot" with the possibility of promotion to cabinet rank or the use of the “stick" with the withdrawal of the parliamentary whip as has recently happened with Nadine Dorries. MPs could face deselction if they do not obey the commands of the executive.

Parliamentary sovereignty is also a key factor in the unchecked power of the executive. Not only do the government have the use of strict party discipline via the whips but they have an inbuilt majority in the House of Commons. Labour had enormous majorities of 179 and 169 after their landslide election victories of 1997 and 2001 respectively. As there is no power of judicial review due to the absence of a written constitution, the government has a virtual blank cheque to legislate how it chooses when in office. Government defeats are exceedingly rare as the House of Lords only has the power of delay after the Parliament Acts of 1911 and 1949. In this sense Parliament is nothing more than a “rubber stamp" endorsing the decisions and policies made by the executive and MPs no more than lobby fodder which reduces parliament as a whole to nothing more than a “talking shop."

The power of the executive however should not be exaggerated. The government does face several real constraints.

Parliament cannot be taken for granted. At the present time the coalition government faces a particularly rebellious House of Commons. It may have a majority of 83 but the Conservative backbenchers particularly have shown a tendency to revolt inflicting significant defeats on the government over House of Lords reforms and the issue of a referendum on the EU. The whips would seem powerless to keep Conservative eurosceptics in line and Cowley and Stuart have pointed out that MPs are more inclined to rebel today than in the past.

Recent legislation has also served to curb the power of the executive. The Human Rights Act has greatly empowered the judiciary to check the government. On issues such as the deportation of Abu Qatada and prisoners' right to vote, the government has agreed to abide by the spirit of the rulings and the HRA. This amounts to form of judicial review which limits executive power. Similarly, the Constitutional Reform Act of 2005 has ended the power of judicial appointment by the executive and handed it to an independent judicial appointments committee.

The power of the executive is also checked by the people at election time. Just as the people can give the government a mandate, they can remove a government from office. The system of first past the post is brutally efficient in not only creating a strong government but also in providing the means of holding the government to account. Consequently Labour were unceremoniously removed from office in 2010 which provides a graphic demonstration of the checks on executive power.

In a parliamentary system, the government will wield great power and the executive does have more power than in other systems. The British Prime Minister is more powerful domestically than a US president. The control over the legislative process means that public bill committees are unlikely to support opposition amendments and the power of Departmental Select Committees renders them as watchdogs without teeth. Governments can reject their findings. That power is however subject to a very real constraint at election time when the people exercise the ultimate power which does then ensure that the executive does not have too much power.

To what extent do MPs represent their constituents?

Since the election of “Blair's babes" in 1997, there has been an increased focus on the composition of the House of Commons (HoC) in terms of gender, age, race and class. More recently Osborne stated that “we are all in this together" but Miliband has been quick to draw attention to the privileged background of the Chancellor and the Prime Minister. Some argue that whilst the HoC does not mirror society, it cannot adequately represent it. Others would argue that MPs can still serve their constituents even if they come from a different background.

MPs cannot adequately represent their constituents due to the gender gap evident in the HoC. Labour's attempts to impose women only short lists and Cameron's A team list have only partially remedied the imbalance between the sexes. Although there is an upward trend with 22% of all MPs being women, this is a long way below the national average of over 50% for the population as a whole. This may mean that the issues debated in parliament may be less centred on family and child care issues.

MPs do not represent their constituents due to the educational background of MPs which can be linked to class. Cameron (MP for Whitney) went to some school near Slough, Clegg MP for Sheffield, to Westminster. In the Conservative party the number of Conservative MPs from private schools has fallen to 53% compared to the 6% who go to fee paying schools nationally. In the Labour party the figure was lower at 14%.

MPs are also unrepresentative of the racial composition of UK society. Notwithstanding the election of 3 Muslim women for the Labour party in 2010 with 16 MPs from black and ethnic minority groups and the Conservatives with 11, the numbers of clack and ethnic minority groups has doubled from 15 in 2005 to 27 in 2010.Those from a non-white background comprise 4% of the MPs compared to 8% in the population as a whole.

Whilst the HOC is not a microcosm of society that is not to say it cannot adequately represent constituents' views. An examination of the legislation reveals that the interests of women, racial minorities and others are adequately protected even if the HoC does have a predominance of middle aged, middle class men. Abortion was provided by a private members bill in 1967, Disability Acts, Equal Pay Acts, Race Relations Acts have all been passed by parliament. The Human Rights Act 1998 outlaws discrimination and the government has recently declared its intent to legalise gay marriage. All these examples reveal MPs can act as delegates – representing the views of their constituents rather than their own personal interests.

Similarly MPs represent their constituents' views as they follow the party line on which they were elected. Backbench rebellions are rare even if they are on the increase. The mandate model usually applies with MPs adhering to the party manifesto. It is rare for MPs to clash with their own party given the use of the whips in parliament. Indeed PMQs usually reveals MPs promoting the interests of constituents with requests for meetings with or visits from the Prime Minister to examine a matter of local concern such as the closure of a local hospital.

MPs also represent constituents' views because if they don't, they will not win the next election. Nadine Dorries runs the risk of de-selection due to her time in the “jungle". Websites such as Theyworkforyou.com reveal how MPs vote and the issues on which they speak in the HoC. This level of scrutiny ensures MPs who do not represent their constituencies are likely to lose their seat in the HOC. This serves as a powerful sanction to ensure MPs do not act too independently in accordance with Burke's trustee model. Regular local surgeries held most weekends bear testimony to the fact that MPs remain in touch with their constituents.

It would be fair to say that constituency views are not the only influence upon MPs – parties and conscience are also likely to be important in this regard. MPs may sacrifice constituency interests in the national interest by supporting cuts to local government due to the need for austerity in public spending. Each MP may also adopt a different approach. Philip Davies (Shipley) for example states he will always put constituency interests before those of his own on his website page.