<<

. 112
( 155 .)



>>

In 1993“94 the Labour Opposition, a¬ronted by the drastic guillotining of two
social security bills, withheld cooperation with the Government for four
months. As a last resort, opposition may be carried to the point of deliberate
obstruction: ¬libustering, contrived points of order, repeated interventions in
speeches and other time-wasting devices can be used by an Opposition which
considers its rights to have been violated. (See eg, HC Deb vol 990, cols 522“50,
6 August 1980). But the confrontation between the parties is seldom taken to
these lengths, and in general the government remains in e¬ective control of the
proceedings of the House.
The Opposition is unable to match the government in information and
resources. An attempt to redress the balance was made on 20 March 1975 when
the House of Commons resolved (HC Deb vol 888, cols 1933“4) that provision
should be made ˜for ¬nancial assistance to any Opposition party in this House to
assist that party in carrying out its Parliamentary business™. In accordance with a
formula then laid down, and revised in subsequent resolutions, opposition
597 Parliament and the responsibility of government


parties have been able to claim payments towards expenditure on their parlia-
mentary work, the amounts being related to a party™s numerical strength in
the House and its electoral support. The money may be used, for example, for the
employment of research assistants to frontbenchers and for expenses of the party
leader™s and Whips™ o¬ces. (An additional sum is made available for the travel-
ling expenses of opposition spokespersons.) The original scheme was proposed
by the then Leader of the House, Mr Edward Short, and the ¬nance provided
became known as ˜Short money™. A scheme known as ˜Cranborne money™ (from
Viscount Cranborne, then leader of the House of Lords) was introduced in 1996
to provide funding for the ¬rst and second opposition parties in the House
of Lords.
The Short and Cranborne money schemes were considered by the Committee
on Standards in Public Life (Fifth Report, Cm 4057-I/1998) which declared its
belief that:

the Short money scheme is founded on the sound principle that, in a parliamentary democ-
racy, the party in government should be held to account and kept in check by a vigorous and
well-prepared opposition.

The Committee proposed that the levels of Short and Cranborne funding should
be reviewed by the political parties in the respective Houses of Parliament with a
view to increasing them and that a portion of Short money should be earmarked
for funding the o¬ce of the Leader of the Opposition in the House of Commons.
The Government having approved these recommendations, resolutions of both
Houses provided for substantial increases respectively in Short and Cranborne
money, the former including a sum speci¬cally identi¬ed for the o¬ce of
the Leader of the Opposition (HC Deb vol 332, cols 427 et seq, 26 May 1999). The
House of Lords resolution provides also for ¬nancial assistance for the parlia-
mentary work of cross-bench peers (HL Deb vol 638, cols 817 et seq, 30 July
2002). The party forming the government does not qualify for ¬nancial assistance
under the Short and Cranborne schemes. (See further chapter 8 as to funding of
non-parliamentary activities of political parties.)
The Opposition performs a dual role: it both opposes the government,
functioning as ˜an orchestration of all discontents™ (Bernard Crick, New
Statesman, 18 June 1960, p 883), and presents itself to the electorate as an alter-
native government. It is the latter role which is said to make for ˜responsible
Opposition™, meaning an Opposition which accepts the basic political structure
and obeys the rules of the parliamentary game. Acceptance of parliamentary
democracy is not, however, incompatible with radical policies for institutional
change.
A ˜responsible™ Opposition, aspiring to power, will criticise the government
and expose its weaknesses. It will use whatever strength it has to exact conces-
sions from the government. Continuous scrutiny by opposition parties in a
public arena compels governments to defend, to explain and sometimes to
moderate their policies.
598 British Government and the Constitution


Ronald Butt, The Power of Parliament (2nd edn 1969), pp 317“18
Just as a Government must anticipate the reactions of its backbenchers and prepare to meet
them, so it must do the same in relation to the Opposition. Of course, an Opposition attack
is much less menacing than a widespread tide of rebellion within the governing party.
Nevertheless, although a Cabinet, to satisfy a particular demand inside its own party, may
be prepared to brave the Opposition storm, in many other cases it will modify its policies in
the light of what it expects the Opposition case to be. If it suspects that the Opposition will
have an attractive case, it will do its best, within broad limits, to make that case less
attractive “ or to steal and adapt the Opposition™s clothes. In this broad sense, therefore, the
voice of Opposition contributes to the policy-making of Government in any given Parliament
and is not simply a factor in deciding what the composition of the next Parliament should
be. For example, although Conservative Party opinion prompted the production of the
Commonwealth Immigrants Act which became law in 1962, an assessment of Opposition
feeling was an important factor in preventing the Government from going further. As it was,
the Bill was fought bitterly by the Labour Opposition. This was a generally popular measure
but had the Government taken it so far as to have appeared to ordinary people to be unrea-
sonable . . . then many more people might have been swung against it and the Opposition
would have been presented with a very much stronger case. To see this point, one has only
to try to envisage what shape the measure might have taken had the Labour Opposition not
expressed such uncompromising hostility, in advance. Indeed, leaving aside the question of
the Opposition™s part in determining the issues and outcome of any next election, one has
only to try to imagine the silence of the Opposition during any Parliament to comprehend
what difference it would make to the current conduct of politics.
Apart from the real if indirect effect it has on the evolution of Government policy, the
Opposition can also, by a carefully fought and reasoned campaign, get the details of legis-
lation amended. Many, perhaps most, crucial amendments to Bills are in the name of the
Minister concerned, yet they may well have arisen from the activity of the Opposition. Thus
the capital gains provisions of the 1964 Labour Government were heavily amended by the
Chancellor. Yet the detailed pressure for amendment and the exposure of weak elements
in the Government™s original proposal came from the Conservative Opposition. The
Government™s acceptance of some of them cannot be explained in terms of its small major-
ity but rather reflected the Chancellor™s understanding that he had to meet a powerful
Opposition case.
In British politics, everything depends on the convention that the power of the majority
should not be used to steamroller into silence the protests of the minority. If numbers were
all that counted, a Government majority could any day silence the minority Opposition, and
it is owing less to the formal rules of Parliament than to an acceptance of the spirit of
common procedures that it does not do so.

It is a principal virtue of ministerial responsibility that it provides a justi¬cation
and opportunities for opposition parties to ˜harry and embarrass ministers™: see
Kam, ˜Not just parliamentary “cowboys and indians”: ministerial responsibility
and bureaucratic drift™ (2000) 13 Governance 365.
599 Parliament and the responsibility of government


The two-party system acknowledges only a modest role for minor parties in
the proceedings of Parliament. As the third party, the Liberal Democrats, have
increased their share of the vote they have urged their claim to greater recogni-
tion and weight in the business of the House of Commons.

Nevil Johnson, ˜Opposition in the British Political System™ (1997) 32
Government and Opposition 487, 508“10
The British political system clearly belongs to the still relatively small group of mature demo-
cratic regimes. All such regimes necessarily acknowledge opposition, both as an entailment
of their basic political values and as an expression of the social pluralism which sustains
democratic government. But in such societies opposition can be and is embodied in differ-
ent political habits and procedures. Both formal institutions and the patterns of parties may
diffuse opposition so that it finds expression more in the multiplicity of points of opposition
within a society and its political system than in the presence of a single focal point for oppo-
sition. But in some liberal democracies opposition is highly focused and institutionalised, and
of these Britain is the pre-eminent example.
Perhaps the British view of opposition retains its fascination precisely because it is unusual
in its clarity of definition as the institutionalisation of an alternative government and, there-
fore, as a necessary component of a system of democratic government worthy of that name.
It is still seen as the means of enabling the electorate to change its government and to punish
those office-holders in whom it has lost faith. The failings of the principle are the encour-
agement it offers to the over-simplification of the issues arising in political life, the exagger-
ation of adversarial relationships in the public sphere, and a certain kind of brutal disregard
for those parties which are not players in the big league. And after all there can only be two
in any big league. The virtues of this approach are to be found in the protection it offers
against the domination of public life by in-bred and often introverted party oligarchies. It does
in a certain sense open the doors to the people and there is underlying it a coherent norma-
tive theory of popular government and democratic control. Despite the fact that it has not
actually been widely exported and when it has, has often failed, there are still grounds for
believing that ˜loyal Opposition™ remains one of the great political inventions of the British.

(On the ways in which the Scottish Parliament has “ and has not “ moved
beyond the two-party model of government and opposition still dominant
at Westminster, see J McFadden and M Lazarowicz, The Scottish Parliament
(3rd edn 2003), ch 4 and Page in R Hazell and R Rawlings (eds), Devolution,
Law-making and the Constitution (2005), ch 1; on Wales, see R Rawlings,
Delineating Wales (2003), chs 6“9.)


(b) Backbenchers
Backbenchers on both sides of the House of Commons have a role in the
checking of government. Although they generally give their primary loyalty to
party they have also other interests and loyalties, and will often speak in the
600 British Government and the Constitution


House for their constituencies, or on behalf of outside groups with which they
are associated, or to argue the cases of individuals who complain of unfair
treatment by government departments. This pleading of special interests, or
checking of the detail of administration, is rather a function of backbenchers
than of organised parties. The procedure and practice of the House provide for
it in a number of ways.
Backbench members can raise issues of concern to them or their constituents
in a daily half-hour adjournment debate and other adjournment debates in the
Chamber of the House and also in the ˜parallel Chamber™ in Westminster Hall.
The Westminster Hall sittings, providing an additional forum for the scrutiny
and accountability of government in politically non-contentious matters, have
substantially increased the amount of time available for backbench members™
debates. Standing Order 24 (emergency debates) provides an opportunity for
backbenchers (as well as opposition frontbench MPs) to raise urgent issues on
the ¬‚oor of the House, even though a subsequent debate is only rarely allowed.
Backbenchers make frequent use of Question Time in the House (see below)
and write to ministers (many thousands of letters each year) about the griev-
ances of constituents. Even if much of this backbench activity has no obvious
impact on the government, an administration that did not have to submit to it
could a¬ord to be less careful and more high-handed.
Important reforms have been brought about by private members™ bills “ for
example, the liberalisation of the laws on abortion, homosexual behaviour
and divorce, the abolition of capital punishment, the ending of theatre censor-
ship and, more recently, the Public Interest Disclosure Act 1998 (giving protec-
tion to ˜whistleblowers™ who disclose malpractices of their employers), the
Female Genital Mutilation Act 2003 and the Gangmasters (Licensing) Act 2004.
Standing Orders give precedence to private members™ bills on thirteen Fridays
in each session, and there is a further (rather remote) chance for a private
member™s bill to reach the statute book by way of the ˜10-minute rule™ proce-
dure (SO 23), by which a backbencher may move for leave to bring in a bill,
allowing a brief speech to be made in favour of the proposed bill. (Mr Tam
Dalyell used this procedure in 1999 to present a bill requiring prior Commons
approval for military action against Iraq, but leave was not given for its intro-
duction.) Although a private member™s bill has no prospect of being enacted in
the teeth of government opposition, if the bill has support on both sides of
the House the government may stay its hand, help the bill on its way, or
promise to introduce a bill of its own. For example, the strength of the support
for bills on Crown immunity in National Health Service hospitals and on
o¬cial secrecy introduced by a backbencher, Mr Richard Shepherd, helped to
persuade the government to bring forward legislation of its own (the National
Health Service (Amendment) Act 1986 and the O¬cial Secrets Act 1989).
Again, the Government was induced by backbench pressure and a series of
private members™ bills to introduce its own bill which became the Disability
Discrimination Act 1995.
601 Parliament and the responsibility of government


A government is more concerned to retain the loyalty and support of its own
backbenchers than to placate the Opposition. If disa¬ection should break out
among its backbenchers the government™s management of the House becomes
di¬cult, the signs of disunity a¬ect its reputation in the country, and it may
su¬er defeats in the House in circumstances of maximum publicity.
In recent decades government backbenchers have shown an increased will-
ingness to use their votes independently “ even on occasion to in¬‚ict defeats
on the government, knowing that such defeats do not normally put the
government™s survival in question (see above). Between 1970 and 1979 both
Conservative and Labour Governments su¬ered numerous defeats, on the ¬‚oor
of the House and in standing committees, as a result of backbench defection.
Between 1979 and 1992 Conservative Governments with comfortable majori-
ties were less vulnerable to defeat, but nevertheless saw new immigration rules
voted down by the House in 1982 and the loss of the Shops Bill in 1986, su¬ered
defeats in committee and repeatedly had their majorities reduced by backbench
revolts. After 1992 Conservative backbenchers showed a revived independence
and joined with opposition MPs to in¬‚ict signi¬cant defeats on the Major
Government, notably in votes on the Maastricht Treaty in July 1993, on VAT
on domestic fuel in December 1994 and on European ¬sheries policy in
December 1995.
The Labour Governments elected with commanding Commons majorities in
1997 and 2001 and a reduced but still substantial majority in 2005 have been
confronted by increasingly assertive Labour backbenchers. In Mr Blair™s ¬rst
term the Government experienced signi¬cant backbench rebellions in votes on
such matters as a reduction in lone-parent bene¬t (1997), restrictions on eligi-
bility for incapacity bene¬t (1999), the partial privatisation of National Air
Tra¬c Services (2000) and the Freedom of Information Bill (2000). In the
Parliament elected in 2001 substantial backbench rebellions were provoked by
provisions in a number of government bills, among them the Anti-terrorism,
Crime and Security Bill (2001), the Education Bill (2002), the Nationality,
Immigration and Asylum Bill (2002), the Criminal Justice Bill (2003) and the
Health and Social Care (Community Health and Standards) Bill (2003). In
January 2004, seventy-two Labour MPs voted against the Government at the
second reading of the Higher Education Bill (providing for top-up fees), and a
succession of revolts marked the passage of the Asylum and Immigration
(Treatment of Claimants etc) Bill (2004). On the question of Iraq, large cohorts
of Labour backbenchers, resisting pressure from ministers and the Whips, voted
against the Government on successive occasions, notably on 26 February
and (on a motion authorising military action) 18 March 2003. The latter, as
Philip Norton remarks, was ˜the largest parliamentary party rebellion of any
Prime Minister on a question of high policy™ (˜Governing alone™ (2003) 56
Parliamentary A¬airs 543, 550). In the 2005“06 session the Government
su¬ered notable rebellions by its backbenchers in votes on the Identity Cards
Bill and the Education and Inspections Bill, and was twice defeated in votes on
602 British Government and the Constitution


the Terrorism Bill and twice again on the Racial and Religious Hatred Bill. These
examples of backbench independence suggest that the commonly held view of
executive dominance of Parliament needs substantial quali¬cation. In the fol-
lowing extract Philip Cowley explains something of the tactics involved.

P Cowley, The Rebels: How Blair Mislaid his Majority (2005),
pp 146“7

The standard tactic of backbench rebels during the first Blair term (and, indeed, beforehand)
had been to use a Bill™s second reading debate as a chance to raise issues of concern, but
only very rarely to try to vote against or to defeat the entire Bill. The aim was to demon-
strate unhappiness, in the hope that the government would alter the Bill before any later
votes. For the most part, this was just sensible politics. Few pieces of legislation are entirely
without merit . . . and attempting to defeat an entire Bill was therefore difficult; would-be
rebels are always susceptible to arguments not to throw out the positive policy contained in
some obscure subclause of the Bill. The tactic therefore at second reading was to mutter,
moan and gripe . . ., and then to focus a rebellion on the Bill™s later stages, targeting par-
ticular pieces of a Bill. Eschewing the nuclear strike in favour of the scalpel was also sensi-

<<

. 112
( 155 .)



>>