The suspension of the member of parliament Dawn Butler from the house of commons is a significant example of the function-failure of the constitution of the United Kingdom.
Butler’s suspension was because she called the prime minister a liar on the floor of the house of commons.
But as the current prime minister casually and freely lies in the house of commons (and elsewhere) this suspension creates a constitutional mismatch.
In essence: there is no real sanction for a prime minister (or other member of parliament) for lying to the house of commons, while there is a real sanction for those members of parliament who point it out.
It is an extraordinary – and counter-intuitive – constitutional predicament.
There is something very wrong here.
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How did we get into this mess?
First, it must be understood and accepted that there is a problem with prime ministerial dishonesty.
Perhaps there always has been – and our current prime minister is no worse than his predecessors – but even if this shruggy view is accepted, there is no doubt the current prime minister lies and lies.
That Hamlet’s father and Jacob Marley were both dead to begin with, and that Boris Johnson lies, are fundaments in English culture.
One source for the prime minister’s ongoing dishonesty is this particularised, non-sensational list put forward by leaders of six parties in the house of commons to the speaker:
There are similar examples in almost every session of prime minister’s questions.
A more sensational compendium is in this widely viewed video from Peter Stefanovic:
27 MILLION VIEWS! 27 MILLION!!!
Working TOGETHER we have sent a powerful message to UK News shows if they won’t hold this Prime Minister to account for his rampant lying in Parliament we will do it ourselves!
How long can you ignore it now @BBCNews? pic.twitter.com/PlvEkEij1V
— Peter Stefanovic (@PeterStefanovi2) July 20, 2021
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The reason to emphasise the prime minister’s actual dishonesty as a real concern is that the supposedly pragmatic constitution of the United Kingdom is supposedly good at practical (if inelegant) solutions to actual problems.
This, we are told by constitutional fogeys, is why our constitution is cuts above the formal codified constitutions of foreigners with their ‘rigid’ rules.
Well.
Here is an actual constitutional problem in need of a practical ‘flexible’ solution – and we ain’t got one.
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The second aspect of the problem is that the rules of parliament (which are distinct from the law of the land) in effect prohibit members of parliament from accusing other members of parliament of dishonesty – regardless of whether there is any dishonesty.
It would even be against parliamentary rules to say of a member of parliament that they are a liar even if the lies have been admitted.
The formal guide to the rules of parliament is known as Erskine May, and the relevant passage about accusations of dishonesty is:
‘Expressions when used in respect of other Members which are regarded with particular seriousness, generally leading to prompt intervention from the Chair and often a requirement on the Member to withdraw the words, include the imputation of false or unavowed motives; the misrepresentation of the language of another and the accusation of misrepresentation; and charges of uttering a deliberate falsehood.’
This is not an absolute bar to making accusations of dishonesty against other members of parliament – there is a formal but ineffective way:
‘If a Member wishes to pursue accusations of a kind not permitted because of these principles, the proper course is to table a distinct motion about the conduct of the other Member.’
The issue with such a motion is that – even if passed: so what?
Erskine May also does have a section on misleading the house, which provides:
‘The Commons may treat the making of a deliberately misleading statement as a contempt.’
To which the issue again is: so what?
One may as well cast a line into the Thames, catch an improbable and unpolluted fish, and slap that unfortunate fish on the dispatch box.
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The wider predicament is that the constitution of the United Kingdom is premised on what the historian Peter Hennessy has long characterised as the ‘good chap’ theory of government.
Here is Hennessy’s phrase being used back in the innocent days of 2005 where the concern was merely memoirs by former officials.
More recently, in 2019, here is Hennessy and another author explaining in detail the failures of the ‘good chap’ theory – a report which should be read by anyone with an interest in constitutional affairs.
In essence: the constitutional arrangements of the United Kingdom work as an honour-based system based on those with power exercising self-restraint.
All it takes is a knave to disrupt and undermine the system – and there is nothing within the system to check and balance such knavery.
This complacency is why there are more ready sanctions against those who accuse ministers of dishonesty than there is against the dishonesty of ministers – for the latter, according to constitutional fiction would not (or should not) happen.
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There is merit in having a general rule against lightly making serious accusations in the houses of parliament.
But the counterpoint to such a rule is that there should be a practical means of addressing the problem of ministerial dishonesty.
Otherwise we have the current situation: wonky, lop-sided and discrediting.
That Butler should face a serious a sanction while Johnson does not defies common sense and it should should defy our constitutional arrangements too.
Some may say all this shows that there is a need for a ‘written’ (or codified) constitution.
But the solution to this problem does even not need such a drastic (and unlikely) change – and the problem of executive dishonesty happens in states with written constitutions too.
The solution would be for constitutionalism to (again) be taken seriously by politicians generally.
Constitutionalism (a theme of this blog) is the notion that there are political rules and principle that are above partisanship.
The reason why the prime minister can get away with such dishonesty is that a majority of the house of commons let him.
If a majority of the house averred that such conduct was unacceptable, regardless of party or faction, then the speaker would have the powers to address the issue.
As it stands, the speaker is given the powers to deal with accusations of dishonesty, but not the dishonesty itself.
It would not need a written constitution to solve this problem.
It would instead take resolution – and, literally, resolutions.
It would need members of parliament to take constitutionalism seriously.
And until members of parliament take constitutionalism seriously again, we are going to have the now-familiar sight of our dishonest prime minister sitting safely at the dispatch box, dismissively shaking his head – while those who point out his lies are ejected.
And that is because the constitution is dismissively shaking its head too.
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Thank you for this.
As a layman it does indeed seem to me that most of the time at the dispatch box for a Prime Minister (or senior minister) they are indeed playing to the crowd.
So it follows that, as you state, should the expectations of the crowd change, then the behaviour of the Prime Minister (or senior ministers) would change to suit.
David, I’m really out of my depth here but I venture nonetheless. Shouldn’t the issue of what can or cannot be said in the Commons fall under procedural rules rather than constitutional matters? Whatever is said does not really constitute any form of check and balance. It may be “impolite” but it’s irrelevant, as you point out.
There clearly is merit in not being able to call your opponents a liar. If there wasn’t this rule, then politicians would resort to name calling rather than argument. However, Johnson is a liar.
Entirely apocryphal I think but Dennis Skinner is alleged to have had a conversation thus:
DS: Mr Speaker, 50% of the front bench opposite are liars and crooks.
Speaker: the Hon Member must withdraw that statement.
DS: Very good, Mr Speaker. 50% of the front bench opposite are not liars and crooks.
Dawn Butler did the right thing. I was appalled that the BBC failed to report her speech in their summary of the day in parliament.
I would suggest that one opposition MP a day agrees to be expelled for the day and tells the truth.
If only my Right Honourable Friend, the Member of Parliament for Brent Central had accused the Prime Minister of being tired and emotional as well as prone to the expression of terminological inexactitudes and being economical with the actualité.
David, this article is unarguable as well as important. I’m struck by the fact it follows the structure of the Mings tweet almost exactly – points out two unarguable facts which really can’t live together, and meets your own test (thanks) “no sensible person could disagree with that”. Maybe need to add “right-minded” to “sensible” in this case, but you always do that in specific ways anyway. I’d be interested to know whether you see Mings’ tweet as a new advance in rhetoric ?
Isn’t the problem here tied up with parliamentary privilege? Given their immunity from actions for slander, MPs would be free to sound off about one another ad lib, if it wasn’t for rules like the one Butler broke.
The Speaker can find someone in Contempt of Parliament. You ask so what. It would be recorded in Hansard. The Speakervcan levy a fine on the person concerned – this has not been done for hundreds of years but that doesn’t mean it can’t be used and the fact it hasn’t been used would send a strong message. I believe a number of the opposition parties wrote to the Speaker requesting this but it seems nothing happened. After what happened to John Bercow it should not be that the power to elevate the Speaker to the HoL lies with the PM as it may be an incentive to serve the PM rather than the people leaving us with a Parliament not fit for purpose.
The problem with accusing someone of lying is how does one know for certain whether or not it is a genuine lie (stating a falsehood with the deliberate intention of deceiving)? How can one be sure that the person in question did not simply misremember something, or was just recalling unknowingly untruthful information and genuinely believed what they were saying to be true at the time they said it? The bar for accusations of lying is a high one. Establishing that a statement is false is a far easier threshold to get over and does not risk wrongfully accusing someone of dishonesty, when the proof of dishonesty in question cannot be reliably established even though it may indeed be there.
The answer to that lies in the remedy available to those who have made false statements to the House. They can correct the record.
If they will not correct the record (as the PM will not), they must be happy for the incorrect statement to stand. And stand it will in Hansard.
So while we cannot know if there is dishonesty in commission, we can know they are happy for the falsehood to stand. Making of it a lie, whether or not it was such to begin with.
I don’t think it does become a lie at a later point. And I think it is a mistake to focus on the accusation of lying rather than insisting that the PM corrects the record. If he doesn’t, then (assuming the point is unarguably and demonstrably wrong) one can indeed say they are content to let the falsehood stand. At that point, an imaginative MP can still drill down on the failure to correct the record without falling foul of the rules of the House. There are more cutting ways to shame a PM in those circumstances without resorting to the debasing use of the word ‘liar’.
It wont happen under this Government, but if the Ministerial Code got put on a statuary footing with a fully independent body (not the PM himself as is currently the case) overseeing it, they could enforce the code via having available sanctions. Currently, the Ministerial Code states the following:
“b. Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies; c. It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.”
As can be seen, it does not currently address a refusal to correct the record. So as well as putting it on a statuary footing and making the process of enforcing it independent, it needs to be beefed up somewhat. The Labour Party should be actively considering such ideas.
And if a resolution to deal with this issue were to be placed before the house how would the vote fall?
Presumably those in favour, the opposition, would have to give up their right to lie should they become the executive.
Whilst those against, the executive, would wish to maintain their right to lie until they became the opposition.
In terms of a dynamic at the time of voting. Voting for maintenance of the right to lie by the executive would be an admission that they lie but we and they already know that.
I’ll leave you to analyse it.
Bob
It would be informative to see which members voted in favour of lying. Then it could be held against them at elections and every media appearance. ‘So Mr/Ms candidate if elected you have promised to… But you voted in favour of lying in parliament so how can we believe a word?
The American philosopher Harry Frankfurt distinguishes between the liar, who cares about the truth but wants to hide it and the ‘bullshitter’, who doesn’t care about the truth but seeks merely to persuade. I wonder if with Johnson we have reached a third level: the man who doesn’t even care about persuasion and is just playing at being a parliamentarian.
Johnson’s lack of seriousness includes himself (think zipwires). It’s called lack of dignity.
The fact that this pathology is accepted by those who should (and do) know better is deeply disturbing.
General requirements to tell the truth tend to be the instrument of authoritarian regimes, not democracies. But when on oath in front of a court, then lying is an offence and you can be prosecuted for perjury, and properly so.
Dawn Butler was expelled from Parliament for speaking a fact of common knowledge: that actually gave more attention to it. It is no longer news that Mr Johnson tells lies and makes up his facts. He has long done it frequently and blatantly. And are other politicians really sufficiently without sin to cast stones?
So it is far from clear that we should require our politicians to tell the truth at all times, even if Mr Johnson abuses that privilege. Only perhaps in some specific quasi-judicial situations where they are giving evidence, rather than handing out opinions. I see in the Erskine May page you referred, that when speaking to select committees, MPs should correct the transcript and apologise if there are errors. That is an evidential situation. Perhaps some tightening up of that kind of thing is needed, and clearer distinction as to what is an evidential situation. But general requirements to speak the truth in the house, that’s the kind of thing that goes on in dictatorships.
There are indeed good reasons for a democracy to allow politicians to lie, as the alternative is to have some centrally-defined “truth” which cannot be challenged, which would make life near-impossible for radical politicians such as Irish nationalists.
However a democracy which has decided to allow its politicians to lie must also allow other politicians to point out the lie, otherwise it creates a situation where there is an advantage to deliberately making statements which the speaker, as well as his/her opponents, believes to be untrue. And that way lies madness, or at the least that way lies a Johnson government.
Forgive the pun, but this is a true ‘tragedy of the commons’, Garrett Hardin style: members (and their constituents) benefit if everyone is a ‘good chap’ and plays by the rules, but there is an incentive for selfish ‘bounders’ and ‘cads’ to game the system, to cheat and exploit the good faith of others. Enforcement is needed to push selfish calculation towards good behaviour, but this ‘commons’ refuses to do it (I like the use of e e cummings lower case for ‘house of commons’ in this blog post – a house that tolerates such shameless lying does not merit being called the ‘House’, despite Dawn Butler’s principled stand).
And this is the house that provides the majority for the government that is asking the EU to replace the ‘legal purism’ (read: enforceability) of the Northern Ireland Protocol with trust-based arrangements. ‘In your dreams’, as they say. By all means live by lies, if you have so little self-respect or public spirit, but expect no trust or respect in return.
Is it not correct that comments made outside the HoC fall within the law of libel and slander? Therefore it is not open for the Prime Minister to sue Dawn Butler if she made the comment in a TV interview or in the press?
The real concern is that those of future generations, yet to enter politics, will believe lying is the only way to get on. There are some national security issues where it might be important for ‘incorrect’ information to be put in the public domain. However, what we see at noon every Wednesday parliament sits already percolates into other areas of administrative justice and for no good reason. Unless, of course, the reason is to protect those in public life responsible for their own actions and also to cover them up.
The Daniel Morgan case in your blog of 15th June has put the phrase ‘institutional corruption’ at the heart of the issue and it is this corruption which needs to be exposed at every available opportunity.
An interesting scenario might be an ‘Anyone but Boris’ candidate standing in Uxbridge at the next election with other parties giving the candidate a free ride. However that might come a bit soon for Marcus Rashford, but I am sure someone suitable is out there!
If Dawn, or anyone else repeats the comments outside of the House, then the Prime Minister is indeed open to sue for defamation, but the simple fact is that he would lose outright, since the truth is an absolute defence against the charge.
Perhaps the opposition should engage in a protracted campaign of truth telling outide of the House, and then question the PM on why he fails to take action on it.
The reputation of the PM reflects upon the house, so imagine how damaging it would be to the reputation of the Mother of Parliaments to have the PM called out as a liar (if it were not already common knowledge): on that basis alone, he would be obliged to give good reason for why he does nothing to stop it.
I am thinking about Article 3 of Protocol No. 1 to the European Convention on Human Rights, to which the UK is still a signatory, which says:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
If the elected MPs are not free to express their own opinions on behalf of their constituents, then we are surely in breach of this convention.
Even presuming they were elected fairly, their loyalty to the leader clearly overrides their free expression: we have even seen them argue clearly and emphatically in one direction and then vote in another.
It may be interesting to apply to the Court to see what happens.
I have done it as an individual, but I wouldn’t know where to start in doing it on behalf of the nation.
“If a majority of the house averred that such conduct was unacceptable, regardless of party or faction, then the speaker would have the powers to address the issue.”
Correct me if I’m wrong but in the last parliament a small minority of Conservative MP’s defied the whip and immediately had the whip removed and none stood for the party in the last election. This did kind of send a signal to all other Conservative MP’s regarding their future careers within the party should they have the temerity to take any sort of principled stand and I find it extremely difficult to believe that any of the present crop of yes men and women will follow the example set by some of their predecessors.
Wikipedia has a reasonable article on that episode: https://en.wikipedia.org/wiki/2019_suspension_of_rebel_Conservative_MPs
If that is correct, 21 had the whip withdrawn on 3 September 2019. The whip was restored to ten of them in October, and four stood as Conservatives in the December 2019 general election and were reelected (Steve Brine, Greg Clark, Stephen Hammond, and Caroline Nokes). Four others rejoined the party and now sit in the Lords (Richard Benyon, Ken Clarke, Phil Hammond, Ed Vaizey).
But several other quite prominent people either stood down (Justine Greening, Oliver Letwin, Nicholas Soames, Rory Stewart) or failed to be elected as independents (David Gauke, Dominic Grieve) or for other parties (Sam Gyimah)
On the substantive point, you are right: it is a career limiting move to move against your party in this way. But that is the point of morality: doing the right thing, even when it is not in your own personal self-interest.
“He will steal, sir, an egg out of a cloister: for
rapes and ravishments he parallels Nessus: he
professes not keeping of oaths; in breaking ’em he
is stronger than Hercules: he will lie, sir, with
such volubility, that you would think truth were a
fool: drunkenness is his best virtue, for he will
be swine-drunk; and in his sleep he does little
harm, save to his bed-clothes about him; but they
know his conditions and lay him in straw. I have but
little more to say, sir, of his honesty: he has
every thing that an honest man should not have; what
an honest man should have, he has nothing. ”
All’s Well That Ends Well
Let’s hope it does!
First of all thank you for the very infomative link to the 2019 report.
But the fact that the Prime-minister is the ethical and moral judge and the source of these rules regarding the Ministerial Code, is something I have to digest first, that his appointed Senior Ministers are his only checks and balances in the same matter is another thing to wrap my head around.
Sorry but I had to lol when I first read it.
You quote Erskine May:
‘If a Member wishes to pursue accusations of a kind not permitted because of these principles, the proper course is to table a distinct motion about the conduct of the other Member.’
And say: The issue with such a motion is that – even if passed: so what?
How about a motion: “This House notes that the PM has repeatedly made false statements to the House and subsequently failed to correct the record. Consequently, we find that he is in contempt and to be committed to the clock tower of the Palace of Westminster for the remainder of this Parliament”? That would focus the minds of the MPs a bit.
What amazes me is that many in the land are surprised Dawn Butler MP is sanctioned for telling the truth.
After all it’s not long ago that Justice Secretary Robert Buckland MP opined that it did not matter if the PM broke the law since he had a popular mandate for his actions.
This whole government runs on doing what they judge as being necessary to preserve power.
These are mere bagatelles, just unimportant exaggerations from the PM as far as they are concerned and in a perverse way they are quite correct – after all they are happily tearing up international agreements they signed and ratified and which are the law of the land.
There are, in the context of an MP suspended from the House & found by a commons committee to have sexually harassed staff & generally been a sleaze, but without being charged with any crime, moves afoot to make any MP suspended for more than 10 days subject to recall election. I think if you make failure to come to the house in timely fashion to correct a proven false statement subject to the same sanction as accusing another member of lying, you would either get to 10 days quite quickly & he’d be relying on Uxbridge not electing a Lib Dem to replace him, or Johnson would mend his ways.