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08 Nov 2021

Constitution

Policies

The parliamentary row over Owen Paterson’s lobbying work developed with extraordinary speed.

Within 24 hours the government lurched from a robust defence of Paterson – instructing Conservative MPs to vote through an overhaul of the standards regime in his defence – to a screeching U-turn, prompting Paterson’s resignation.

Ministers will hope that outrage caused by Number 10’s initial response will dissipate quickly. But the damage – both in the eyes of the public and Conservative MPs – may already have been done.

In particular, the episode has drawn attention to worrying broader trends in our politics.

The Paterson investigation began with the Parliamentary Commissioner for Standards, a nonpartisan public servant, tasked with investigating alleged breaches of the House of Commons Code of Conduct.

Her conclusions were passed to the House of Commons Committee on Standards: a cross-party body comprising seven MPs, and seven independent ‘lay members’.

The committee’s report proposing Paterson’s suspension was unanimous (though Conservative Bernard Jenkin, a friend of Paterson, recused himself). It was this independent process that the government sought to overturn.

This was a far from isolated incident. Challenges to independent regulation have become a hallmark of the Johnson administration, and the audacious attempt to fight this one out on the floor of the Commons has now exposed such tendencies to wider view.

Last November, the Prime Minister’s ethics adviser resigned, after Johnson dismissed his conclusions that Priti Patel had broken the Ministerial Code. Johnson failed even to authorise an investigation into the allegations against Robert Jenrick.

He has overridden recommendations from the House of Lords Appointments Commission over on the propriety of his nominees – the first such act in the body’s 21-year existence.

The Elections Bill, currently before Parliament, seeks to increase government control over the independent Electoral Commission – after the government had already taken an unprecedented majority on the committee overseeing its work.

Controversy continues over Johnson’s apparent determination to see former Daily Mail editor Paul Dacre made the Chair of Ofcom – despite an independent panel ruling him ‘unappointable’. The government’s handling of public appointments has prompted numerous other concerns.

This was the context in which Chair of the Committee on Standards in Public Life Lord Evans weighed into the row over Paterson, declaring the government’s behaviour ‘deeply at odds with the best traditions of British democracy’.

Only days earlier, his committee had issued a report urging tougher action over standards in public life, including greater protections for the independent regulators that keep government in check.

But concerns over regulators are just part of the story, which looks suspiciously like the ‘democratic backsliding’ currently witnessed in other states.

Various commentators are now making this connection. Backsliding involves elected leaders gradually dismantling the constitutional checks that stand between them and absolute power.

This action is often stealthy, and pursued by weaker or less capable leaders to cover up their flaws. Crucially, it can be fuelled by the kind of political polarisation generated by Brexit.

Some UK moves in this direction have been highly visible, including over Brexit itself. They include the unlawful prorogation of Parliament in 2019, and suggestions that Johnson would not comply with an Act of Parliament, and not resign if subject to a parliamentary no-confidence vote.

The extreme marginalisation of the House of Commons during Covid-19 has been widely noted. The Conservative manifesto pledged to review ‘the relationship between the Government, Parliament and the courts’ and ministers seem determined to rein in the judges, including through the current Judicial Review and Courts Bill.

Meanwhile the Dissolution and Calling of Parliament Bill would end Commons control over the timing of general elections.

Ministers’ proposals to legislate in breach of international law prompted another high-profile resignation, of Jonathan Jones, head of the government legal service.

Uniting all these moves is a drive to strengthen the central political executive against the constitutional checks and balances crucial to a functioning democracy, including Parliament itself.

In the UK, without a written constitution, many such constraints are relatively ‘soft’ and depend on conventions and norms of appropriate behaviour. Various key regulators are non-statutory, and the courts have only limited ability to intervene.

This means the UK’s last line of defence against tyranny is Parliament, and in particular the government’s own MPs – whose votes determine whether ministers get their way. This is a more solid defence than many recognise: normally, significant behind-the-scenes bargaining goes on with backbenchers over what they will accept.

And Conservative traditions have long favoured a balanced constitution and respect for the rule of law. When seeking constitutional protections, the Conservative parliamentary party should be a safe place to look.

But Johnson has been eroding these protections for some time. Over Paterson, he remarkably applied a three-line whip on a matter which would usually be unwhipped.

While 247 Conservatives trooped through the government lobby, one told the Times that ‘About a dozen wanted to be there, 240 wanted to be anywhere else’.

Thirteen Conservatives rebelled, and 97 did not vote. The strength of the whip was such that a PPS was sacked simply for abstaining (although the U-turn later saw her reinstated).

Such ruthless whipping by Johnson also isn’t new. He faced down fierce opposition, including from several former Conservative leaders, over proposals to break international law in the Internal Market Bill.

In 2019, when 21 Conservatives opposed him on Brexit, he immediately withdrew the whip – despite having himself rebelled against Theresa May’s deal just months before.

This kind of intolerant top-down attitude to Parliament, assuming that members must follow the leader, fundamentally misunderstands how Parliament works, and even what it is for.

Like other checks and balances, Parliament exists to ensure that governments don’t take reckless or unprincipled decisions: that policies are fair, and their consequences properly considered.

Number 10’s management of the Paterson issue has clearly been abysmal. Trampling regulators and diminishing constitutional checks is undesirable and unwise. But such bodies can find it difficult to fight back.

The same is not true of Parliament, and in particular the Prime Minister’s parliamentary party. Their support is necessary for him to stay in his job.

For a Prime Minister to trample on Parliament is therefore not only foolish, it is dangerous. Conservative MPs are angry, and many are now alert to Johnson’s worrying constitutional drift. They could and should bite back.

By Professor Meg Russell, senior fellow at UK in a Changing Europe.

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