Fighting old battles is the traditional occupation of fallen politicians. Theresa May’s new book, The Abuse of Power, is a classic of the kind. Top of her target list is John Bercow, the former Speaker of the House of Commons. She accuses him of abusing his power in order to frustrate her deal with the EU. He did this, she says, by “overriding the longstanding convention that the government determined the business of the house”. This is a striking claim, raising questions of real constitutional importance. Is there anything in it?
Between 2017 and 2019 May and Boris Johnson faced a situation unprecedented in British politics. The House of Commons had confidence in the Tory government, thanks to May’s deal with the Ulster Unionists. But it had no confidence in the government’s main (indeed only) policy. This meant that the government could not be ousted in a confidence vote, and yet it could not get its business through the Commons. Its plans were frustrated by opposition from an organised group of hard-Brexiters on one side and former Remainers trying to salvage something from the wreckage on the other.
In this situation May tried to get her way by exploiting the government’s control over the parliamentary agenda. Standing order No 14 provides that with limited exceptions “government business shall have precedence at every sitting”. May tried to use this to ensure that her own deal was the only one on the table. Nothing else could be put on the order paper, which sets out the parliamentary business of the day.
The idea was that MPs would have to support her deal in the end whether they liked it or not, because the alternative would be no deal at all, and nearly every one agreed that that would be the worst possible outcome. She would have kept on putting the deal to a vote until they succumbed. Johnson used the same tactics, except that he went further by proroguing parliament, something May had refused to do. The real abuse of power was the misuse of parliamentary procedure to close off the options open to MPs and force through measures that had insufficient parliamentary support.
Bercow is a divisive figure. As Speaker, he was loud, rude and far too full of himself. But he was the servant of the House of Commons, not of the government. It was not his job to help the prime minister dictate terms to the house. He perceived that there was a real problem and tried to find a solution.
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In a string of rulings he gave a voice to other sections of parliamentary opinion. They deserved to be heard, because they might just have commanded more support than the government’s plans. In the end it came to nothing because the parliamentary Labour Party was more interested in embarrassing the government than in playing a constructive role. But that was not Bercow’s fault. His rulings certainly played fast and loose with traditional procedures, but those procedures had failed in the face of a constitutional logjam. For all Bercow’s faults, he did a service to our democracy that has never been properly acknowledged.
For the moment the problem has gone away, as the present government has a working majority. But sooner or later there will be more hung parliaments. Nearly every other legislature in the democratic world has procedures by which it can determine its own agenda. In a parliamentary system the government is answerable to the elected representatives of the people. There is no reason it should be entitled to control their agenda when it does not command their support.
May is an honourable politician. But her spat with Bercow is an undignified piece of buck-passing, which shows that she has learnt little from her time in power. Her EU deal was a more intelligent solution than Johnson’s or even Rishi Sunak’s. But her attempts to force it through were disreputable, a constitutional anomaly that Bercow did well to expose. He fought his battles in a good constitutional cause. It is a pity that he was such a bad advertisement for it.
Lord Sumption is a former Supreme Court justice
