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13 Nov 2020

Constitution

England recently entered a new Covid-19 ‘lockdown’. The pandemic continues to dominate politics in the UK and globally, with a return to politics-as-usual appearing distant.

Both the handling of the crisis and the Government’s latest actions on Brexit have been key factors driving serious concerns about the maintenance of constitutional norms in the UK.

The roots of those concerns – about declining respect for conventions and deliberate or accidental erosion of ‘checks and balances’ – are now spread across many fields, as chronicled in the latest edition of the Constitution Unit’s Monitor.

There was tolerance in the early stages of the pandemic for quick decision-making, and partial bypassing of Parliament. But that has increasingly grown thin.

The UK is one of many countries where concerns have been expressed about Covid-19 facilitating an executive ‘power grab’; around the world, experts have warned that ‘democracy, human rights and the rule of law cannot be allowed to become the collateral damage of the pandemic’.

In the UK, most key decisions have come via secondary legislation, often published at short notice with little or no opportunity for parliamentary scrutiny.

Increasing protests from MPs, parliamentary committees and the Commons Speaker extracted concessions from ministers that parliamentary oversight would increase – hence the difficult vote on the new lockdown arrangements on 4 November.

A total of 34 Conservative MPs voted against the new regulations – which represents almost half of the Government’s working majority – and others abstained, but the measure passed comfortably with Labour support.

A concerted cross-party approach from the start might have been sensible, but can be uncomfortable for ministers, particularly when accompanied by internal party dissent.

Even Covid-19 controversies have been somewhat eclipsed in recent weeks among UK constitutional experts by concerns about the Government’s UK Internal Market Bill, which expressly empowers ministers to breach international law and set aside domestic law, whilst attempting to limit judicial oversight.

The Bill has disquieted civil servants (prompting the resignation of the head of the Government Legal Department), MPs, former Conservative Party leaders, senior lawyers, senior religious figures, and many others.

It destabilised the UK–EU trade negotiations for a time, and threatened chances of a US trade deal. The offending clauses have triggered the three largest defeats in the House of Lords for over 20 years, and the arguments continue.

These high-profile clashes were not isolated events. Indeed, the extent to which a review of recent months demonstrates the erosion of, or threats to erode, constitutional checks and balances is sobering.

The new Independent Review of Administrative Law represents the first stage in ministers’ ambitions (expressed on page 48 of the Conservative manifesto) to rein back judicial review.

The Prime Minister appointed 36 new peers, contrary to the constraints proposed by the Lord Speaker’s Committee, and made veiled threats against the House of Lords Appointments Commission; meanwhile, threats against the Electoral Commission were more explicit.

Retribution was swift when Parliament’s Intelligence and Security Committee ignored Downing Street’s favoured candidate and elected the ‘wrong’ chair, while pleas from the Commons Procedure Committee, and senior MPs, to allow return to full participation via virtual Commons working have been ignored.

Relations with the devolved governments and city region mayors have frequently been difficult, while there have been a string of senior departures from the civil service – up to and including the Cabinet Secretary himself.

The challenging of conventions by the Johnson administration is of course not new – previously including imposition of a chair of the Liaison Committee, an end to the ‘hybrid’ House of Commons and, most famously, an attempted parliamentary prorogation.

Further unrealised suggestions last year that ministers might advise the Queen to withhold royal assent from bills passed by Parliament are explored in the Constitution Unit’s latest report, by former Commons clerk Paul Evans.

In October, over 800 legal figures wrote to the Prime Minister and Home Secretary to demand an end to verbal assaults on human rights lawyers, implicated in actual, physical, attacks. Many senior lawyers have expressed disquiet about the direction of travel, sometimes in strong terms.

Former President of the Supreme Court Lord Neuberger warned of a ‘very slippery slope’ towards ‘tyranny’. The most recent retiree from the court, Lord Kerr, warned of ‘unbridled power’, while Lord Sumption suggested that the Government’s exclusion of Parliament over Covid-19 indicated a drift towards authoritarianism.

Another uncomfortable intervention came in October, when credit ratings agency Moody’s downgraded the UK, largely on economic grounds linked to Brexit and Covid-19, but also noting that the ‘quality of the UK’s legislative and executive institutions has diminished in recent years’.

Risks of ‘democratic backsliding’ are heightened if the governing party itself is quiescent. But dissent on Johnson’s backbenches is extremely high, challenging Government stability to a degree few would have predicted after December’s landslide victory.

Many senior Conservatives in both chambers (and beyond) have decried the erosion of constitutional norms and parliamentary accountability.

They include not only the chair of the backbench 1922 Committee, Graham Brady, but also its two vice-chairs, Cheryl Gillan and Charles Walker, and the (hand-picked) chair of the Liaison Committee, Bernard Jenkin.

The principles being challenged run deep in the Conservative Party: with Covid-19 policy provoking libertarians who instinctively oppose the ‘big state’, and threats to the rule of law concerning both those on the party’s left and admirers of Margaret Thatcher.

The future of the constitutional reform programme set out on page 48 of the party’s December manifesto, and particularly the Constitution, Democracy and Rights Commission promised ‘in the first year’ of Johnson’s Government, remains uncertain.

Whether the Commission has been delayed, abandoned, or fragmented into smaller reviews, such as those on administrative law and human rights, remains unclear (as one of us discussed in evidence to the Commons Public Administration and Constitutional Affairs Committee in October).

Such an exercise could constructively review the balance of powers at the heart of our constitution, but there are also fears (as expressed by former Conservative Lord Chancellor David Gauke at a Constitution Unit seminar in early November), that the unifying objective behind these reforms is to reduce constraints on central executive power.

Approaching 11 months into the present Parliament, Johnson and his allies have experimented with this model over both Brexit and Covid-19, and it is not clear that members of his party like what they see.

By Meg Russell, senior fellow at The UK in a Changing Europe and Alan Renwick, Deputy Director of the Constitution Unit. 

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