Exploding the myth of Parliament's power

All nations, all political systems, need theatre. Unless the rituals and contests of power are at times acted out openly where people can see them, democracy must fail. Unless the state's principles are embodied in well-known places and events, and unless the struggle between competing groups and rival ideas is made flesh in known individuals, whether loved or hated, then the whole business of government becomes too abstract to engage the attention and commitment of the people.

Our theatre is the House of Commons and it is a finer theatre than almost any other. During the Eighties and Nineties, as in many previous periods, it has provided a tumultuous cascade of spectacle, from the emotional debates on the Falklands War, to the Westland crisis, the Howe and Lawson resignations, the fall of Thatcher, the knife-edge votes over Maastricht, the stripping of the Tory whip from dissident MPs, the confrontations between Blair and Major. It has seen political assassinations, dramatic expositions of belief, gentle accusations of betrayal and sour declarations of support. On key issues, such as the single currency, it has seen excellent probing and challenging of quite difficult arguments and the teasing-out of nuances and subtleties in a refined and wholly serious way.

But the most worrying single truth about the Westminster way is that this turbulent national drama has lost its capacity to engage many millions of us. The public seem less interested than before, recording huge depths of cynicism and indifference about the views and actions of politicians. The parliamentary events are dramatic enough, in their own terms, and sometimes make good television. But they don't seem to connect strongly to other events. And as the surface activity has grown ever-more frenetic, with sexual and financial "sleaze" and inter-party rows bubbling and erupting frequently, so our remaining interest in Parliament is becoming tinged by distaste.

And, despite its dramatic qualities, Parliament has become incompetent and irrelevant across many of its central functions. MPs rage at the loss of power to Brussels. But what is truly staggering is their own complacency and ineffectiveness when it comes to defending and servicing their central institution in its day-to-day existence.

It was a fanatical invalid Victorian writer, Albert Venn Dicey, who raised the doctrine of parliamentary sovereignty to its greatest height: "Under all the formality, the antiquarianism, the shams of the British constitution, there lies an element of power which has been the true source of its life and growth. This secret source of strength is the absolute omnipotence, the sovereignty of Parliament."

Dicey, though, was confusing the institution which represented and justified power with that interesting substance itself. Parliamentary sovereignty, or legal authority, was once the cloak behind which land-owning and business power operated its deal with the crown. In our century it has been the cloak behind which the modern state has swollen and grown without overly alarming or shocking the people. It has delivered the assent of whatever portion of the nation needed to be kept on board - a portion which grew and grew until the final extension of the franchise. It has been a vital pressure valve as one regime was replaced by another. But it has not therefore been the source of the power that the various forms of British government possessed.

In our age, those who competed to run the state organised themselves on the basis of mass parties, which effectively became part of the real constitution. The true power-dealers, the party leaderships, like the old ones, could conveniently slip below the old, glittering surface of "parliamentary sovereignty". Agreements based on handshakes between Liberal intellectuals and union bosses, legislation based on the convictions of half a dozen key Tory leaders and then implemented by party power, rigorously enforced, have been presented to the outside world as "the will of Parliament", conjuring up confused but reassuring images of Cromwell, Pitt and Runnymede. The Commons has been a constitutional wand, able to transform the private party deal into something inclusive, "the people's will".

But now we are left with a yellow palace on a mudbank which is many things - legislative factory, television backdrop, collection of offices - but whose democratic parentage is at best doubtful and whose true significance is increasingly a matter for debate. What happens if and when the sources of power, the key interests, are no longer represented by politicians in the Commons? If, for instance, power moves to the European Union, or the global market? What does "parliamentary sovereignty" add up to then? It represents, at best, the right to say no, to withdraw, to justify a confrontation with whatever source of new power exists outside Parliament. This seems an increasingly abstract and even unreal power.

For certain people, parliamentary sovereignty is becoming something reassuring to suck when things look bad, the mental equivalent of a boiled sweet. If Parliament is powerful at a particular time, well then it is; if it no longer controls or connects to the sources of power, and is unwilling to shake the economic system by asserting its political authority, then to murmur happily that "our Parliament is sovereign" is sloppy to the point of being meaningless.

What are its basic functions? Parliament supports the government and supplies its small army of ministers. That latter function can be discharged as quickly as it takes to make a few dozen telephone calls once a year. More substantially, it is the legislature - it approves the legal form of the political promises made to voters by the governing party and it is the place where the actions and words of the executive are meant to be scrutinised.

In both central roles it fails, and fails badly. The low esteem in which politicians are held derives, no doubt, from a clutch of popular perceptions: dirty newspaper stories, the real loss of power the state suffers from and a general feeling that Westminster's promises of national renewal have rarely produced anything much. But the prosecution case need go no further than the basic, humdrum job of getting laws made. If the Commons cannot do that, parliamentarians can hardly be surprised that they are not much listened or deferred to.

The failure of Parliament to produce effective and sensible legislation may seem a dry, "dull government" thing, but it affects the lives of millions, year after year. Let us be conservative and acknowledge entirely the right of the government to propose and push through the legislation it wants, irrespective of whether the ministerial wheezes are brilliant or batty. Accept that and you are still left with the duty of Parliament to ensure that laws are legally and practically effective. What else is a legislature for? If it cannot or will not achieve that minimal requirement, we would be as well building a replica of Westminster in balsa wood, ceremonially stuffing legislation through a slot in the roof, pulling it out through another in the bottom, and declaring it passed.

For instance, it is perfectly possible to have been either for or against the poll tax, and still to feel that basic flaws in the legislation were regrettable and a failure of Parliament. Its flaws, like those in the 1991 Child Support Act - again, pointed out by the relevant committee before the legislation was passed, and ignored - were taken seriously by ministers only after there had been riots in the streets and threats of violence against public servants. The fullest account of the poll tax has this to say about its passage through Parliament at committee stage:

"As with most controversial government Bills, the standing committee was a futile marathon. Between mid-January and mid-March 1988, the committee held 35 sessions, sitting for a total of 120 hours ... The committee's proceedings went almost entirely unnoticed by the press. A colossal amount of committee time was spent on the first few clauses ... after which the government resorted to a guillotine so that most of the later clauses went through with virtually no debate ... it was scrutiny by slogan and soundbite." (Failure in British Government, by David Butler, Andrew Adonis and Tony Travers, OUP 1994)

The results of this are well known. We have been brought up to think that one of the advantages of a parliamentary democracy, as opposed to an autocracy, is that bad laws are caught and prevented before bricks start whizzing and cars are overturned. It seems that in this matter, as in others, the British educational system has been deficient.

More examples: the Dangerous Dogs Act and the Football Spectators Act were two measures in the past few years which proved so badly flawed as to be, in part, unworkable. (They were both examples of Parliament acting quickly and responsively to national panics, which shows that a more responsive, fast-moving legislature wouldn't necessarily be a better one.) As the Liberal Democrat MP Paul Tyler told the Commons in June 1994:

"On the Railways Bill, the government produced a huge number of amendments on the day that they were due to be debated. Once those amendments had been pulled apart, they were withdrawn, but further amendments were tabled at the eleventh hour. Therefore, once that Bill had received Royal Assent, a supplementary Bill had to be introduced to tidy up the mistakes. The Criminal Justice Bill of 1993 required about 100 government amendments and some parts of it were not even capable of being enacted."

Most of the key criticisms were made, in temperate and careful language, by the cross-party and no-party Hansard Society commission on legislation which reported in February 1993. At its head it quoted a few lawyers and other public figures about the state of some of the 3,000 Acts currently in force in Britain. James Goudie QC believed that "legislation is becoming increasingly inaccessible ... and ... impossible to understand. Unintelligible legislation is the negation of the rule of law and of parliamentary democracy." And Jane Hern of the Law Society was even blunter. Lawyers, she said, were constantly "trying to find out what [statute law] is in force, when it came into force ... and when they have found out, what the hell it means". Almost any lawyer working can come up with smaller examples of badly drafted legislation: when I recently moved house, I had to pay several hundred pounds of indemnity insurance because of a minor parliamentary mistake - literally, a piece of poor drafting. Our daily lives are affected more often than we know by Parliament's incompetence at performing its central role.

If it is not proving truly effective at passing legislation that works and if it is only a second-rate scrutineer of the executive, then it is failing at its central tasks. It lacks information about Brussels and Whitehall. It is made a fool of by ministers and senior civil servants every other day. It is the butt of public abuse and media yobbery and it has little hold over either the actions of the executive or the affections of the public. It fails to legislate properly or scrutinise effectively.

And yet, sitting surrounded by these failures and humiliations, it still insists that it is sovereign, a constitutionally and democratically special place. Here is the crucial conundrum for the British Parliament, which it alone can answer: if it is sovereign, indeed absolute, then why is it so weak? An absolute sovereign has no one else to blame. So why cannot the House of Commons - whingeing on about its lowly status, the contemptuous, bullying executive, the pushy lobbyists, the sneering hacks - reform itself? Physician, what's wrong?

It could, if it had the will, wrest some practical power back from the European Union. It could wade in and start ordering the bosses of unelected quangos about. It could demand that ministers do this, and then change its mind and require them to do that, instead. In practice, in the real constitution, it has given away so much power to party managers, and been so pusillanimous for so long about the executive, that its power has become the constitutional equivalent of the Loch Ness monster - asserted to be there by quirky researchers and occasionally claimed to have been seen by lonely men in beige anoraks, but never established to the satisfaction of the wider world. It is another bad business, this. It is about the failure of the parliamentary culture to survive in the modern world.

Wednesday: The new role of the Fourth Estate. Friday: The rise of communitarianism.

'Ruling Britannia' is published by Michael Joseph on Thursday, price pounds 16.99.