The Palace of Westminster is a symbol of British democracy, and it is falling apart. It is a serious danger to those who work within it: a recent news report suggested the Palace could be the next ‘Notre Dame inferno’. For years parliamentarians have repeatedly argued over what to do about this grim state of affairs, because fixing the Palace involves a very serious and painful investment of money—billions of pounds; and because it potentially means parliamentarians will have to leave the Palace—for decades. Observers watch this dire state of affairs with increasing dread. Thinking about the Restoration and Renewal (‘R&R’) of the Palace, therefore, raises questions of responsibility, both legal and moral, but it also prompts us to ask more metaphysical questions: what—and who—is Parliament?

The Parliamentary Corporate Bodies Act 1992 and the Waddington Question

Thirty years ago, the House of Lords debated the Parliamentary Corporate Bodies Bill, later the Parliamentary Corporate Bodies Act 1992 (‘Corporate Bodies Act’). The bill dealt with the transfer of control and ownership over the Palace of Westminster from the then Department of the Environment. The problem was: to whom would control be transferred?

Neither House had a legal persona; let alone the two Houses together. Formulas such as ‘the King in Parliament’ were fine for the enactment of legislation, but they offered little for the day-to-day running of the parliamentary estate. It could not be the mass of parliamentarians: they are only ever in office temporarily. It would not make sense for members to be personally liable for issues of the estate.

Another option was the statutory House of Commons Commission, composed entirely of parliamentarians, and responsible for the House of Commons’ budget, employment of Commons staff and administration generally. The Commission’s establishing statute even provided for the continuity of the Commission and the Speaker during dissolution. But there were problems with this option. For a start, Parliament consists of two Houses. The Lords had (and has) the House Committee, the equivalent of the Commons Commission, but composed entirely of peers. However, the Committee was non-statutory, constituted under the Lords’ Standing Orders. Moreover, there was no Lord Speaker (a post only established in 2005): the key figures in Lords governance were the Lord Chancellor and the Leader of the Lords, both government ministers. It would be awkward to have them involved, if part of the purpose of the bill was to ensure Parliament had greater control over its own affairs.

The workaround chosen for the bill was to constitute the Clerk of each House (the most senior parliamentary officials) as corporate officers for their respective Houses. Property, leases and contracts concerning the parliamentary estate could be transferred to them. Making a senior official a corporate sole to provide for continuity was a time-tested mechanism (the Treasury Solicitor, for instance, is a corporate sole under the Treasury Solicitor Act 1876). It answers the problem of continuity by providing for a corporation of one: a sole person named as owner of property for their time in office. And apparently (according to the Leader of the House of Lords, Lord Waddington) the Clerks had been acting in that role for some time anyway. It was a convenient solution.

However, in the course of the debates on the bill, Lord Waddington commented:

what a bizarre situation it was that Clerks, when entering into computer contracts and the like, take the responsibility entirely on their own. Of course any sensible person would know that they were not standing on their own; somebody was standing behind them. But in law they were standing entirely on their own.

Let us call this ‘the Waddington question’: who is the ‘somebody’ standing behind the Clerks? It was not a question that worried many, because it appeared to have no practical implications. As one peer said at the time, the bill was but ‘a footnote in parliamentary history.’ But placing legal responsibility for the Palace in the hands of the Clerks divorced ownership of the Palace from those who used it and would in the public mind be thought to be responsible for it. To paraphrase David Runciman and Magnus Ryan (in another context), the Corporate Bodies Act ‘exemplified the English assumption that what works must make sense, rather than that something must make sense if it is to work’ (xix). The bill naturally became law.

The Waddington Question Returns: the Restoration and Renewal of the Palace of Westminster

We now return to R&R (a matter long chronicled by Alexandra Meakin—eg., here). The history of R&R is knotty, but it is necessary to discuss because it demonstrates that the Waddington question did not go away.

Members and the parliamentary authorities have known of the deteriorating state of the Palace for some time. In 2015, an Independent Options Appraisal (IOA) was published setting out the state of the Palace, with a number of options. There were broadly three: a rolling programme of works; a partial decant where members and staff would move out in phases; or a full decant. The IOA recommended a full decant: it was the cheapest and most efficient, taking six years and costing £3.5 billion.

In 2016, a Joint Committee of the Houses agreed a full decant was the best option. Both Houses also agreed to a full decant in 2018, and enacted the Parliamentary Buildings (Restoration and Renewal) Act 2019. This established a Delivery Body to carry out the actual works; and a Sponsor Body to oversee the Delivery Body’s work. However, in early 2022 the Sponsor Body published a new set of figures and timescales which differed significantly from the earlier 2015 IOA report. In particular, a full decant was now projected to cost £7-13 billion, and could potentially take 20-30 years.

Alarmed, the Commissions (the Lords House Committee had been renamed the House of Lords Commission) called for a change in the governance of R&R. The Sponsor Body was abolished by statutory instrument in 2022, with its functions and responsibilities transferred to the Clerks as the corporate officers. In place of the Sponsor Body, a new R&R Client Board was established. This Board consists entirely of commission members from both Houses, and has responsibility for strategic decisions on and oversight of R&R. A vote in both Houses on what happens next with R&R should take place sometime this year. Meanwhile, House authorities currently spend almost one and a half million pounds per week maintaining the crumbling Palace.

The Waddington question, raised over thirty years ago and which the Corporate Bodies Act papered over, now bites. In law the Clerks stand on their own, but in practice they have little to no decision-making power when it comes to R&R. They are unelected; their masters are elected (at least in the Commons). In a 2022 Public Accounts Committee (PAC) hearing, the then Clerk of the Commons, Sir John Benger, explained the Clerks’ dilemma:

we are corporate officers and, ultimately, if there is a catastrophic failure and if life is jeopardised, it is our legal responsibility. It is no one else’s. It is not the Commissions’, the Leaders’, the PAC’s or the Government’s. It is ours…

Who stands behind the Clerks matters, then, because it answers the question of responsibility—moral and political responsibility, anyway. Who is ‘Parliament’, and who is in control, for the purposes of R&R?

Parliamentarians? They are only ever temporary. And which ones would be responsible? Many who have left in the past decade; not all MPs have been against full decant. If the government, which one? Legally, the government is certainly not responsible for R&R. They do have power through their Commons majorities, but no government has had a majority in the Lords; and some governments in the last decade did not even have a majority in the Commons.

There is the R&R Client Board, but its size is absurdly large and hopelessly unwieldy (25!) for a decision-making body. Anyway, its members come entirely from the two House Commissions. What, then, of the Commissions? They are chaired by the Speaker and the Lord Speaker respectively, and are broadly responsible for matters of parliamentary administration: staff, budgeting, and infrastructure. Both are primarily composed of parliamentarians; and are structured so that there is no government majority on either Commission. The Commissions see themselves as representing their respective Houses on parliamentary administration. They ‘speak’ for the Houses, but on major issues may put the matter to a vote of their respective Houses (eg., the policy to exclude members charged with serious offences from the parliamentary estate)—which returns us, full circle, to the mass of parliamentarians.

What is Parliament?

Why do we have this peculiar state of affairs where it is unclear who speaks for Parliament? One answer is that we do not understand what Parliament is. It may be easier to see the problem if we understand Parliament as a corporate entity—albeit a very odd one, since Parliament dies at every dissolution (and note I am not saying that Parliament is a corporation in law: there is authority stating that Parliament—or at least the House of Commons—is not).

It is the very nature of Parliament that allows for this state of affairs. It is an abstract corporate entity, like the state. It cannot speak: it exists only through representation. Put differently, Parliament’s corporate nature allows for considerable delegation, and multiple users—governments, the commissions, individual parliamentarians—can claim that they (and not others) best represent ‘Parliament’. And it is the job of these various representatives to somehow make sense of what Parliament requires, and make claims on Parliament’s behalf.

At best, all those mentioned—parliamentarians, commissions, governments—are like shareholders: they have a stake or share in Parliament, but this doesn’t mean they can take from its coffers or claim ownership over the estate. And while they can claim to represent Parliament’s best interests, therein lies the problem: the various representatives are many, and they differ. There are too many claims to represent Parliament’s best interests. As the former Clerk of the Commons stated, the challenge of R&R is ‘having multiple clients’. No one is in control. And therefore, no one appears responsible.

Where does the idea that Parliament is a corporate entity take us? Leaving aside the metaphysical implications, which take us into very deep waters (see Maitland and Runciman), practically—not very far. The Clerks remain legally responsible for what happens on the estate, and for R&R. Governments, the Commissions and parliamentarians, who have greater responsibility for R&R will continue to dither and prevaricate, until forced to act—probably by an entirely avoidable disaster in the Palace.

That Parliament is a corporate entity is a fiction we needs must feign. But as Maitland would say: ‘a fiction that we needs must feign is somehow or another very like the simple truth.’ If we understand Parliament as a corporation, it begins to explain some of the difficulties we have in thinking about the attribution of control and responsibility when it comes to Parliament. And that is a start.

I am very grateful to Alexandra Meakin, Patrick O’Brien and the UKCLA editors for their comments.

Ben Yong is Associate Professor of Public Law and Human Rights at Durham Law School.

(Suggested citation: B. Yong, ‘What—and Who—is Parliament?’, U.K. Const. L. Blog (13th February 2025) (available at https://ukconstitutionallaw.org/))