The Brexit vote happened more than five years ago, but many of the the worrying constitutional trends that characterised the years that immediately followed the referendum remain a part of public life. Here, in the lead article from Monitor 79, Constitution Unit Director Meg Russell and Deputy Director Alan Renwick express serious concerns about a repeated lack of parliamentary scrutiny, proposed changes to the way elections are overseen and conducted, standards in public life, the proper role of government, and the effect of all four on the perception of our public servants.
Each new issue of Monitor for the last three years has reported on torrid developments in UK constitutional politics.
Brexit, the 2019 general election and COVID-19 all raised new and difficult questions about democratic governance and the balance of power between our institutions. As the political dominance of the pandemic fades, and matters tentatively approach something closer to ‘normal’, constitutional controversy nonetheless remains centre stage.
A major question raised in the previous Monitor, and bubbling for some time before that, is whether the UK is witnessing a kind of ‘democratic backsliding’, whereby elected politicians gradually dismantle the checks and balances that constrain their power. The UK government’s legislative programme, and its wider activities as reported in this issue, have done little to soothe those fears. A valuable new online tracker, launched in October by the Public Law Project, allows for systematic exploration of constitutional developments throughout the period of the Johnson government.
The action that achieved greatest cut-through was the government’s extraordinarily ill-judged attempt to change how allegations of misconduct against MPs are dealt with, in response to dissatisfaction with the outcome of a given case – that of Conservative former cabinet minister Owen Paterson. The mechanism proposed for the review – a Commons committee with a government majority – was also entirely inappropriate. The ensuing controversy was still raging as Monitor went to press.
Electoral commission undone?
On the legislative front, meanwhile, the Elections Bill contains new controls over the Electoral Commission – ignoring the conclusion of a report from the Committee on Standards in Public Life (CSPL) that the regulator’s independence is vital. After the bill’s parliamentary passage had begun, the government proposed significant new provisions to change the electoral system for mayoral and police and crime commissioner elections. This tendency towards limiting parliamentary and wider scrutiny (already familiar under COVID-19), was also seen over the Dissolution and Calling of Parliament Bill. This proposes a major reversal, to reinstate prime ministerial control over the calling of elections, but was given just one day for its committee stage and remaining stages in the Commons. The Judicial Review and Courts Bill began its Commons passage in late October, and will have longer consideration. It would be troubling if the government tried similar tactics of introducing new provisions here, given its controversy. This cannot however be ruled out, following the change of Justice Secretary in September’s reshuffle, from the relatively emollient Robert Buckland to the seemingly more hardline Dominic Raab.
Additional changes may also be on the horizon. Brexit minister Lord (David) Frost has indicated that the government wants to create a fast-track process for amending retained EU law, and Raab has suggested a new legal ‘mechanism’ to allow ministers to overturn court rulings in the context of the Independent Human Rights Act Review. The Attorney General, Suella Braverman, has reiterated claims that the courts are meddling inappropriately in policy decisions. At the same time, continuing arguments about the Northern Ireland Protocol include new threats from Frost that the government might once again seek to enact legislation that is potentially in breach of international law.
Concerns also persist regarding the government’s draft Online Safety Bill. This has been shorn of its previous ambitions to protect against damage to democracy, and gives a worrying degree of discretion to the Secretary of State to direct the regulator, Ofcom. Following the reshuffle, that Secretary of State is now Nadine Dorries, who commented soon after her appointment that the BBC might not exist in 10 years’ time – raising concerns about the government’s attitude towards independent public broadcasting. It also sits alongside the government’s strongly-rumoured determination to install former Daily Mail editor Paul Dacre as chair of Ofcom, even after he was allegedly blocked as ‘unappointable’ by an initial appointment panel. This is only one of several controversies over public appointments. In early November, a new report from CSPL – which will be discussed at the Unit’s next public webinar – raised the alarm about the need to tighten up these rules, and the rules for ministerial conduct.
This all leads to a gloomy picture, and as Unit Director Meg Russell suggested at an event in October, ‘if all of this were happening in another country we’d be concerned about it, and we’d be right’. Such international resonances will be further explored at a Unit event on 1 December with Professor Tim Bale and Lord (Daniel) Finkelstein.
Democratic fragility
The sense of democratic fragility was further compounded in October by the awful and deeply troubling murder of the MP David Amess. Brutally killed while serving his constituents, Sir David was praised from all sides of politics as a decent, good-humoured and honourable man – including during the moving tributes in the House of Commons.
These responses offered a brief glimmer of hope. The events created a pause for reflection, on the value of public service, the crucial role of our elected representatives, and how there is more that unites those in politics than divides them. Cross-party calls for a culture of ‘kindness’ deserved to develop into a movement to rebuild civility and public trust. Amidst the Paterson controversy, such hopes looked very distant again – but perhaps the furore will in time spur recognition of the need for deeper cultural change.
Meanwhile, democratic developments elsewhere offer some positive messages for better connecting citizens and political institutions. The Scottish government is developing plans for standardising deliberative citizen input into key policy developments.
The Unit is itself currently exploring public attitudes to our democratic system through the Citizens’ Assembly on Democracy in the UK, which at time of writing had held three of its scheduled six weekends of meetings. The conclusions of the Citizens’ Assembly on many of the vexed questions above – including the power relationship between government, parliament, regulators and courts – will be published in early 2022. Initial polling for the project, also due for publication in the New Year, indicates public support for checks and balances and a robust rules-based system.
Monitor 79 is now available to download, free of charge.
First published by the Constitution Unit at UCL and further posts such as Continuing constitutional pressure of Brexit. See also: Open Democracy on £3m to get a peerage (if you’re a Tory treasurer)
Featured image of Johnson at G20 summit in Rome in October 2021 via 10 Downing Street CC BY-SA 2.0
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