The judgement of MPs
In a much-quoted speech in 1774, Edmund Burke, newly elected Member of Parliament for Bristol, argued ‘Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion’. In short, while constituents’ “wishes ought to have great weight …; their opinions high respect; their business unremitted attention”, MPs are elected as individuals to use their judgement and reason in parliament, not delegates following the instructions of the people who voted them in. The electors of Bristol were clearly uncertain about their new MP’s judgement and threw him out at the next election.
Burke’s argument, that it was an MP’s individual judgement that should determine how they voted, reflected relatively common practice in the 18th century, when parties were loose alliances. Ministers at that time would largely have to build coalitions of votes to get specific measures through parliament, and the lack of well organised majorities often resulted in political instability and short-lived administrations. It was only by the mid-19th century that political parties became strong enough to discipline MPs to vote as instructed – eschewing Burke’s call for the use of individual reason and judgement. Despite this, Burke – a Whig politician who later came to be seen as one of the most important influences on conservative (and Conservative) thought – gave important expression to a particular ideal of representative democracy. Burke’s call for MPs to act on their own reason and judgement is still widely cited (particularly by MPs unhappy with the way in which they are being pressured to vote by party, constituency or interest group).
Party discipline and the whips
Burke’s belief that MPs should have freedom to vote as they saw fit was effectively ended by the emergence of modern political parties, and with them party discipline, enforced in parliament by the “whips”. The use of this term in parliament derives from hunting and dates back to the 18th century, when a “whipper-in” would be the assistant who kept hunting dogs from straying by forcing them back to the pack with a whip.
Today, the term “whip” refers to several aspects of party discipline. First, it’s the name of the confidential document circulated to MPs on a weekly basis by the party, listing the business of the next fortnight and setting out the expectation of how they will vote. The importance of upcoming votes was traditionally indicated by how many times a bill was underlined: a single line meant attendance at a vote was voluntary; two lines meant an instruction to attend, unless there was very good reason not to; and a three-line whip meant that voting as instructed was mandatory. Failure to act as instructed on the latter could lead to expulsion from the party (as we recently saw when Labour removed the whip from seven MPs who defied the Government in a vote over the two-child benefit cap). Second, in the Commons the term is also used to refer to those MPs who are appointed to enforce party discipline, with a chief whip and numerous senior whips and assistants. Finally, whipping is the process of controlling MPs. The methods used to enforce discipline are opaque but run from the mundane (whips can allocate the best offices or recommend ministerial promotion in reward for loyalty) to the ‘dark arts’ (including many documented cases of bullying and blackmail). This rigidity of party discipline has been blamed for turning many off politics, with MPs criticised for becoming mindless cyphers mouthing the latest government line. All this has led to criticism of the system of party discipline and important calls for reform.
For better or worse, contemporary parliamentary politics would be utterly different without the whips. Enoch Powell (apocryphally) commented that “the House of Commons without whips is like a city without sewers”. The implication is that whipping is a necessary process but one that is unpleasant and unseen. Similar whipping systems are used in various countries that have parliamentary systems based on the Westminster model – including Australia, New Zealand and Canada.
Free votes: a Burkean ideal restored?
There are, however, times when Burke’s ideal still seems relevant. Certain votes in parliament are unwhipped or ‘free’. No pressure is put on parliamentarians by the whips to vote a certain way. The most important of these free votes are on ‘issues of conscience’.
Free votes on issues of conscience, while uncommon, have defined our society. The late 1960s is often seen as a golden age of social reform, and free votes were instrumental to this: male homosexuality was legalised in England and Wales; capital punishment was (in effect) abolished; and laws relating to censorship, divorce and abortion were all liberalised. All these reforms occurred as a result of private members’ bills (public bills introduced by parliamentarians who are not ministers), with members given a free vote on the outcome. It is not always clear what constitutes an ‘issue of conscience’ and is therefore considered suitable for a free vote. They are often ‘social questions which have strong moral overtones’, as Peter Richards noted. This does not explain why some issues are excluded while others are not: whips were applied against the repeal of capital punishment in 1948 and 1956; on legislation banning the ‘promotion’ of homosexuality by local authorities (‘Section 28’) in 1988; and on deregulating Sunday trading in 1986. At other times free votes have been allowed on all these issues. Relatedly, general issues of animal welfare are whipped, but not hunting,where a free vote has been allowed. Nor is it always clear which votes are genuinely free. The weekly whip is not publicly available. However, parties often let it be known if they are giving members a free vote. There are also some votes where one party will give a free vote, and another will not – in the case of internal party division for example. The vote on Heathrow expansion in June 2018, which divided the Labour Party, is a recent example.
Free votes were in the news in November 2024 due to MPs voting in favour of a bill to legalise assisted dying/suicide in England and Wales. The decision came about after the backbench Labour MP Kim Leadbeater secured a Private Members Bill (through the ballot) and introduced The Terminally Ill Adults (End of Life) Bill. This gives people over the age of 18 who are terminally ill the right to end their lives under certain circumstances. The Bill passed its second reading by 330 to 275, with many MPs making passionate speeches for or against the proposed changes. The Bill is now making its way through parliament. On the face of it, it seems that free votes such as this mark “a moment for Burkean representation of the highest calibre”, with many MPs listening to the opinions of constituents and wrestling with their own consciences over which way to vote.
Conclusions: individual judgement or government strategy?
Two points are worth noting against the view that free votes mark a return to an ideal of democracy, uninhibited by the stifling effects of party discipline. First, the assumption that some issues rise above ‘party politics’ clearly does not hold. On nearly all the main conscience votes, not just in the UK but also in similar Westminster models, party affiliation remains the strongest indicator of how a representative will vote. Even where there are significant divides within parties, such as on the recent assisted dying bill, Labour MPs largely voted in favour while the Conservatives voted overwhelmingly against reform. Whatever may be claimed, as many academics have found, conscience issues are party issues.
Second, it could be claimed the use of free votes demonstrates not a respect for issues of conscience, but rather a strategic decision by governments to free themselves of accountability. In the 1960s, the argument was made that the government was giving time to private members’ bills to get – at the time controversial – liberal legislation onto the statute books without taking the blame or credit for doing so. From a liberal perspective, given what has been achieved by their use, that was a strategy worth pursuing. More recently, as Philip Cowley has argued, free votes are used by governments to absolve themselves of responsibility for decisions. They make life easier for party leaders and whips, allowing them to avoid confronting and adopting positions on issues that would be controversial (especially given the long-standing convention of free votes on many of them). Furthermore, government – through the whips – still has significant control over what backbench MPs choose to put forward as private members bills and the amount of parliamentary time later given to them. If free votes do ever become law, it is as much a demonstration of government acquiescence than a rediscovery of the Burkean ideal.
Simon Griffiths.
Simon is a Reader in British Politics at Goldsmiths, University of London where he was, until recently, Head of Department. His work is focused on the relationships between ideologies, party politics and public policy.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.