As Britain moves into a new decade with promises of prosperity and far reaching trade agreements with newly found friends across the globe, what will be the price that its people will have to pay when it comes to democracy, freedom of press, human rights and civil liberty? John Gloster-Smith investigates.
As people shake off some of the post-Christmas lethargy and blearily contemplate the new year and even, God forbid, the new decade, Britons may be variously still celebrating their decisive victory over “Remoaners”, reeling from the drubbing they received at the hands of a brilliantly organized and delivered Johnson campaign, or a certain relief from interminable Brexit news. At one level, Johnson can now “get Brexit done”, with all the flaws in that promise still to be revealed, and Europeans heave a sigh of relief that at last the troublesome British have finally agreed with themselves and can go away and leave them in peace. It might be that simply getting “Brexit done” will restore peace and harmony and enable people to live better together, and yet the thoughtful observer might wonder about that notion, if they pause to reflect on the central notion in the European and British projects of the viability of democracy as an organising principle and wonder how safe democracy is in Johnson’s hands. Given the global trend to weaken central elements of democracy and the growth of “strongman” power, the signs in the wind of the new right-wing Conservative hegemony in Britain could be a cause for concern. At the very least, people will need to be very vigilant in the next few months and years as to the direction of travel of this regime and the influence it could exert on others of a potentially similar disposition.
The ebb and flow of power in the British system of government
At one level, one might say that after the hiatus of minority government between 2017 and 2019, Johnson’s new 80-seat majority means that normal business can be resumed, as far as the conduct of government under the British system is concerned. In this situation, the power of the Prime Minister (PM) who leads a strong majority in Parliament is greatly strengthened and is well placed to implement manifesto promises. The British system is characterized by the “concentration of power” in the PM of the day. Lord Hailsham famously described it in 1976 as an “elective dictatorship”. In a sense it is a development away from the old monarchical power structure that took place in the 17th and 18th centuries while retaining many of those old powers. Provided that his majority holds, and votes through his legislation, he can do what he wants, Parliament being sovereign in this system.
At another level however, there is the old maxim of “politics is the art of the possible”. This is still a pluralistic system and many forces can still exert influence. Thus, the PM has still to win support for what he wants and there are many and varied entities who could insist otherwise. Thus, for example, people speak in constitutional terms of the “practical separation of powers”. In the current situation, as regards how Johnson plans to govern, it is important to look at both what is being suggested in government and the challenges that lie in waiting. We so far have three clues to work from, the Conservative Manifesto and particularly in this context page 47 under “Protect our democracy”, secondly the “Queen’s Speech”, that is the government’s programme for the next year, written by the PM, and finally that Johnson lies habitually and thus what is said may not be what happens.
Weakening Parliamentary scrutiny of the executive and general scope for oversight
Some might suggest that one of the most promising developments of the 2017-19 minority government was the assertion of the power of Parliament and that it proved able to influence what government did in ways not normally possible. Arguably British government has suffered from over-centralisation, and that a bit more democracy could be beneficial. This applies both to PM power, the influence of Parliament, the lack of devolved and regional/local democracy, and the lack of constraints that could otherwise flow from a written constitution. We have been treated to two years where serious weaknesses in the British system came under the microscope, and many will have derived the lesson that more fundamental reform is needed.
What is however now happening is seemingly a reversion, in true Conservative terms, to the old order. But it is not going to be the old order, because the Brexit crisis, the rise of populism and the polarisations that resulted mean that it cannot be so. Too much water has gone under the bridge. In particular the regime now in power are arguably contemplating not just Brexit but a right-wing revolution.
To begin with, the new Withdrawal Bill about to be passed in January so that Britain leaves on 31st no longer contains clauses that permit Parliamentary consent to the trade deals to be negotiated, it is assumed, between the UK and the EU. This could in effect reverse the trend seen since the Miller Case of 2017 by which, following a Supreme Court judgement, Parliament asserted a right to consent to a Foreign Treaty. Traditionally this has been a royal prerogative right and if the trade deal goes through without Parliamentary involvement, the status quo ante will have been asserted. More broadly Parliament has fought hard to have a say in foreign affairs matters, most notably winning the right to consent to the commitment of troops in the Iraq conflict of 2003. All this influence could now be weakened.
Reform of the unelected House of Lords is arguably very long overdue and has now been raised again, this time by the Conservatives. An almost-entirely nominated body, now very large and very costly, it is able to delay and amend government legislation due to the latter’s lack of a majority there. Various reform ideas have in the past come to naught. What the Tories plan to do isn’t clear, nor whether it will prove to have the legislative time to deal with what is a very controversial issue.
Another reinforcement of executive power could come with civil service reform. The chief advisor at No. 10, Dominic Cummings, is a well-known critic of the civil service. He believes that senior civil servants should be easily fired, that the chief civil servant in each department, the Permanent Secretary, should be abolished and that “outside experts” be brought in to help run government departments. The issue here is that, since the Northcote-Trevelyan report (1854), civil servants have been appointed on merit and not due to purchase or political influence and that they are non-party-political and serve each government of whatever political persuasion with equal enthusiasm.
A further check on the actions of government traditionally is a “free press”. Since the end of licensing in 1695, the press and media generally have operated under this broad principle, subject to certain limitations such as the law of libel. One issue here has been the preponderance of ownership of a majority of outlets by wealthy “media barons”, generally Tory-supporting. However, TV and radio have been obliged to be impartial and recently this obligation has been policed by the regulator Ofcom. The BBC and Channel 4 are public service bodies subject through a Charter to periodic government review. Due to what it perceived as unfavourable and “biased” coverage in the 2019 election, Johnson has threatened to reduce the BBC’s income by making the licence fee non-payment a non-criminal matter, subject to costly civil proceedings, and also to review the charter of Channel 4. Such threats have been resisted but it underlines the apparent fact that the traditional media operate in an atmosphere approaching some form of censorship. Meanwhile, there are big questions over social media’s ability to enable “fake news” and targeted political advertising without regulatory oversight, often third party, with opaque funding, pushing it in favour of a political party. In particular there is concern over foreign influence, especially from Russian disinformation activities, and from right wing US sources.
The threat to judicial review of the actions of government
When the conflict between Johnson and his Parliamentary critics reached its height this last autumn, he attempted to reduce the scope for Parliament to frustrate his plans for Brexit and to force the pace by using the royal prerogative and proroguing it for an extended period. This was defeated by a unanimous judgement in the Supreme Court that the prorogation was unlawful. Subsequently the Conservative Manifesto promised to look at “the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people” and ensure that “judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.” They promised to set up a “Constitution, Rights and Democracy Commission”. It is not clear yet what this body will be, who will appoint it, who the members will be or what its scope will be.
The right of the courts to review the actions of government, judicial review, are long-standing, dating back to the 17th conflict between Crown and Parliament. The underpinning principle is the rule of law and the role of the courts to enforce it. By extensively proroguing Parliament, Johnson was held to have broken this fundamental principle. Now it is payback time.
Not surprisingly, critics and defenders of the system have already come out in force. The Conservative position has been supported very recently by a Tory-backing think tank, Policy Exchange, with backing from a former Tory leader, Michael Howard, in a paper called “Protecting the Constitution”. He suggested that it was the judiciary who were becoming politicised, that they “increasingly substituted their own view of what is right for the view of parliament and of ministers”. The head of the judiciary has pushed back, arguing that it was acting within its role to apply the law and that Parliament always has the final say. Howard said that the judges are “unelected and unaccountable”. The fear in the background is that the Tories will try to limit judicial review, which would go against centuries of progress in making government subject to the rule of law, or even could make judges into political appointments, such as in the USA. The issues with political appointment are well known. This used to exist up until the “Glorious Revolution” of 1688, before which judges held office “during His Majesty’s Pleasure”. After the “Revolution”, they came to hold office “during good behaviour”. The US supreme court is a political body and justices are political appointments. We have recently seen how this can work over Kavanagh’s appointment by Trump, tipping the balance in the Court in a conservative direction, such that the right to an abortion, ruled “constitutional” under the Roe v Wade judgement (1973), could be overturned by the conservative majority on the Court. It is not surprising that this mooted change to the role of the courts is attracting criticism.
The Tories have also long had their sights on repeal of the Human Rights Act (HRA – 1998) and withdrawal from the European Court of Human Rights (ECHR). The ECHR is separate from the EU and operates under the British-designed European Convention on Human Rights. The HRA’s aim was to incorporate into UK law the rights contained in the European Convention on Human Rights and has long been disliked by Tories, an example being the difficulties Theresa May had in extraditing terrorist suspects. They hope to replace it with a watered-down British Bill of Rights.
The Electoral System
The Tories have reaffirmed their wish to conserve the existing electoral system of single member constituencies with simple majority voting, known as the First Past the Post (FPTP) system. Thus their 80-seat majority, on which they can carry out the policies being discussed here, was obtained on a 43.6% share of the vote, the highest since 1979. Having already won the 2016 referendum on a tiny majority of 51.89%, they now claim a further mandate to complete Brexit.
However, they plan to make alterations to people’s right to vote by making voter photo ID compulsory, which is not thought to be necessary and which, it is believed, will discriminate against poor people and the young. Critics call this “voter suppression”. They also plan to implement electoral boundary redistribution and a reduction in the number of seats, which is thought likely to benefit the Tories. Boundary redistribution, to take account of population movement, happens every few years and is decided upon after a non-party political commission review. The last was in 2010. Labour has accused the Conservatives of “gerrymandering”.
Finally, the Tories plan to repeal the Fixed Term Parliaments Act (FTPA- 2011). This was introduced under the Cameron coalition to provide fixed 5-year Parliamentary terms, and to prevent the PM exercising the prerogative right to dissolve Parliament at a date of his choosing to influence the result of an election in his favour. The FTPA was used to considerable effect during the 2017-19 minority government to avoid an election and pressurise the government into taking more account of Parliament. Johnson of course wants to restore the old prerogative right and thus reinforce PM power.
Devolution, the demand for independence and the future of the Union
Finally, a brief mention should be made here of the pressure the Johnson government is coming under over the Scottish SNP’s demand for a second independence referendum in the light of the decision over Brexit, and moves in Ireland by Sinn Fein to obtain a reunification referendum in Ireland to reunite the North and the South. The pro-Remain SNP are claiming a mandate based on winning a 45% vote share and 48 out of 59 seats on a clear manifesto commitment to hold a referendum. In Northern Ireland, more MPs were returned who were pro-Remain than pro-Leave and for the first time Protestant pro-Union parties did not gain a majority. Thus, the future of the Union in the British Isles is up for grabs.
Johnson so far is refusing to agree to these referendums, although he has appeared sympathetic towards further devolution, including an English Devolution White Paper on devolution within England, further support for new infrastructure and strategic bodies like the Northern Powerhouse idea. although this is so far not clear.
However, this avoidance of referendums poses a delicate issue as regards democracy. As can seen throughout this article, it depends which version of democracy you are talking about and whose purposes it serves. It is hard to claim the democracy of the “will of the People” in the 2016 referendum while denying a similar right to self-determination particularly to significant populations that voted against it and feel ignored by Westminster. Johnson could get himself into a mess here, intending to preserve the Union and yet by doing so stirring up opposition to it.
Readers of this article in other European countries might see a few echoes of what is happening elsewhere in Europe, such as the rise of a charismatic leader, the strengthening of the executive, lessening of judicial oversight, reduction in press freedoms, a weakening of Parliament, or a resistance to separatism. This current very right-wing administration struggles with the old conservative principle of “reform that you may preserve”, and prefers more old-fashioned, reactionary and retrogressive measures to enlightened reform that could better and more constructively serve this rich mixture of peoples, cultures, ethnicities and traditions that is today’s British Isles.