Let’s forget the B-word that has been on lips and in minds to be repeated and written for three and a half years. The Tories won the UK general election in a landslide, not in numbers of votes but seats, which also produced Labour’s worst result since 1935. There is an extraordinary bias in the electoral system, known as first past the post (FPTP), which gave the winning party 56.2% of seats by gaining 43.6% of the votes a majority of 80 seats in the 650 seat parliament. It is a system by which the candidate with the largest number of votes wins. There is no need to win at least 50% of the vote as there is in a proportional representation (PR) electoral system, but one in which votes for other candidates effectively entirely lost. In other words, to call this a true victory and legitimate government stretches the concept of democracy to a surrealistic limit.
Now the Tories have a sizeable majority in parliament, thus are planning radical changes to the UK constitution. They claim far reaching reforms are essential because of what they consider to be a destabilising and potentially extremely damaging rift between politicians and the people that developed under the last parliament. The reasons for the ‘rift’ are open to critical scrutiny and whether proposals for constitutional change are genuinely a democratic requirement or a cynical attempt by the Tories to boost their power.
However, that is all very well because for some time there have been proposed boundary changes that are now expected to be pushed through by the government would see the Tories increase that majority to 104 if the 2019 general election was repeated with identical numbers of votes under the FPTP system. The government has detailed plans for changing how the UK elects its MPs, beginning with redrawing constituency boundaries to reduce the number of MPs from 650 to 600 as initially proposed by the independent Boundary Commission in 2016. It has been noted that moving those boundaries would probably have a greater negative impact on Labour and SNP than the Tories, thus making clear why the plan features so highly on their agenda. It might also mean that smaller electoral regions, such as northwest England and Wales, lose disproportionately more MPs than other parts of the UK.
If based on the distribution of votes this election, analysis by the political forecasting web site Electoral Calculus, it predicts that the Tories would actually have less with 352 seats compared to the current 365 but Labour would see 202 reduced to 174 MPs, meaning that Tories would have twice the number Labour have based on the 43.6% of the vote they won compared to 32.1%. A PR system would give the Tories 283 seats to 209, still 74 more seats ahead but with 158 seats in other parties’ favour, either a coalition headed by one of the major parties or a confidence and supply arrangement between one of the two main and enough of the smaller parties to keep them, albeit it tenuously, in office. It looks far more likely that proposed boundary changes will be favoured and the existing electoral system maintained so that yet again democracy will be diminished.
The election being won, all manifesto pledges were put back on the shelf. The 80 seat clear majority gave the government carte blanche to forget the 14 October queen’s speech, the election campaign promises and even what might have been in the 19 December QS2 had they not been dropped from the speech to now govern a country constrained by bitter divisions over three and a half years since the referendum.
In the first week before the queen set out the ‘new’ legislative agenda in her speech at the official state opening of parliament the Tories had wasted absolutely no time in throwing off the restraints of the previous paralysed legislature, in which Johnson was frustrated at every turn, without a majority and no capacity to govern. They were already flexing their political muscle to show the UK plans for using their majority power.
During only the first week in office, up to the Christmas recess, they had made seven notable changes that began when Damien Green, MP since 1997 and a former secretary of state for work and pensions, spoke on LBC the day after the election results had been announced, advocating a US-style, insurance-based social care system. He said: “We all accept there has to be more money to go into the system… You can pay it just out of general taxation and say it’s all free, but that means that people who are currently taxpayers, 30, 40, 50-somethings now, will have to pay towards their own care at the end of life, but also they’ll instantly start paying for the older generation’s care as well … Which I think, to put it mildly, has fairness implications to it. Or, you can try some kind of insurance system, so that those who can afford to take out a policy should be encouraged to do so, which will buy them peace of mind, and if you have a big enough insurance system, you don’t need people selling their homes. You need them to use a bit of property wealth to do it, but it’ll be a controlled amount, they’ll know what they’re spending, they’ll know what they’ve got left… that’s the system I advocate.”
Statutory social care in the UK has been particularly put under financial stress by the demands of an ageing population and the policy of austerity introduced by former chancellor Osborne that led to numerous cuts to services. It is currently funded through general taxation to be applied either free at the point of use or subsidies that are means tested. With no end of austerity in sight, despite repeated promises and predictions it soon would be, UK fiscal policy almost certainly needs to change to accommodate needs. The present government is clearly looking toward a general clean sweep away from a supposedly universal social care programme to one that will be biased toward those who can afford to provide for themselves by paying into private company schemes. As we know, in the USA where the preferred model already ‘operates’, those who cannot afford to pay will have only minimal provision by the state and, in many cases, there will be total exclusions. The many people who deserted Labour under any illusion they would be better off under the Tories will be those most like to suffer.
Life after Brexit
Then almost too predictably they began to ditch workers’ rights and environmental protection in workplaces. A large part of UK employment law is derived from and grounded in EU law, including issues such as working time, holiday pay, maternity rights and discrimination. As a member of the EU, the UK cannot currently reduce these rights below the minimum level set by EU law although, like any other member state, they could choose to introduce greater rights. Given that Tories are known as the party of business, it comes as little surprise to many observers that pledges to maintain profit undermining workers’ rights and environmental protections are being dumped. The proposed draft law intended to bring the UK out of the EU, the so-called Brexit Bill that was proposed in October, there was a commitment to provide additional ‘procedural protections’ for workers’ rights that are currently guaranteed by EU law which could have been challenged by unprincipled employers in the UK after leaving the EU. They were contained in Clause 34 and Schedule 4 of the bill. In the amended bill brought to parliament on the Friday immediately after the election, those protections had been removed. On the Wednesday, the prime minister’s spokesman had already announced plans to empower lower order courts to overturn EU laws and rulings of the European Court of Justice after the UK leaves. Analysts immediately pointed out that this not only put workers’ rights and some environmental protection at risk, but also encroached on consumer rights, such as being able to get compensation for delayed flights that is at present enshrined in EU law. The spokesman said this was an exemplar of ‘taking back control of our laws’ that the government had promised. In reality, it hints at being the first step in a process of rolling back laws that have ensured working hours, paid holidays and such more recent concessions as paternity and even maternity leave.
A flagship policy launched at the Tory party conference in September was to raise the ‘living wage’ to £10.50 an hour that would have benefitted around four million people with a boost of approximately £4000 a year to some of the UK’s lowest wage earners. It is unclear whether or not many voters were won over by that policy, but the queen’s speech on the Thursday following the election specified it would only be implemented provided that economic conditions allow’. That, of course, is any time between now and never, with the latter economically far more likely at present. In other words, one can consider the pledge to raise the national living wage abandoned.
There were also proposals in that speech to bring in a voter ID law regardless of warnings it could disenfranchise voters, particularly those on low income, who are in any sense vulnerable or from minority communities. It is a proposal that would be disenfranchising for those who cannot afford as much the photograph for the ID card, let alone those who have no fixed address of their own in the many varied versions of homelessness.
Then, of course, there is the matter of the promised ‘extra’ nurses and ‘new’ hospitals that will not happen for at least 10 years, if not longer or even at all. The Tories were ridiculed during the election campaign when it was shown that around 19,000 of the 50,000 new nurses promised to the NHS were not new recruits, but existing nurses the government intended to retain. The newly re-appointed Secretary of State for Digital, Culture, Media and Sport, Nicky Morgan, who stood down ahead of the election but was then elevated to the House of Lords, thus kept her old job, said that those nurses would be in place if one looked in 10 years time. There was also the repeated pledge to build 40 new hospitals although when actually scrutinised, the plans only provide funding to pay for six existing hospitals to be refurbished within the five years of this parliament. The other 34 are not yet even on the drawing board.
The relationship with the EU
They effectively axed the pledge to allow MPs a vote on extending the Brexit transition that guaranteed that ministers would be allowed to extend the ‘transition period’ if a trade deal is not agreed between the UK and EU by the end of 2020. That announcement sent the pound plummeting although it has picked up again since but fluctuates with each new announcement. It has been described as raising the spectre of what most economists and other experts describe as an economically calamitous ‘no-deal’ Brexit.
The new European commission president, Ursula von der Leyen, has said she has ‘serious concern’ about limited time available until the end of 2020 for negotiations, placing emphasis on the need to keep all options open. When the UK leaves the EU on 31 January it will still be in the customs union and single market until the end of the year with the option remaining within those arrangements for a further two years. The PM has said he will not agree to that extension, maintaining there is sufficient time to negotiate a comprehensive deal that would cover all aspects of the existing UK-EU relationship. The axing of the pledge that the decision on an extension would go to parliament puts that choice directly in the hands of the executive. This alone represents a reigning in of parliament to make decisions that have been considered an essential part of the democratic process.
The Tories have proposed a commission to study the nation’s so-called constitution, along with an examination of democracy and rights, which is raising fears of potential manipulation to reduce the independence of the judiciary along USA lines and several times threatened repeal of the Human Rights Act and replacing it with a ‘British’ bill of rights. The debate is about the belief that the UK needs to review the balance between individual rights such as freedom of expression and the wider public interest. It is not that they wish to rein in all rights to free speech but that they want greater power to manage cases in which people use a free speech argument to defend such things as hate speech on a basis that if human rights are universal to all, perhaps we have gone too far. However, that kind of argument is flawed. Human rights legislation recognises that rights are not unconditional, thus can be proportionately limited whenever necessary in a democratic society. Instead, their proposals appear to be more about giving government increased arbitrary power to deport individuals they consider to be a risk, for instance terrorist suspects, rather than fighting long-drawn-out human rights litigation in court.
The actual commitment to retaining the right to free speech is clearer in proposals to repeal section 40 of the 2013 Crime and Courts Act that was introduced following the Leveson Inquiry that reported in 2012 and phone hacking scandals, which forced publishers not signed up to the approved press regulator to pay all legal costs linked to libel claims, even when those claims were ultimately dismissed. Their concern is that if publishers are carrying these financial risks, it restricts the freedom of the press and legitimate investigative journalism. Nonetheless, given some investigative journalists have revealed things the government would prefer to hide, the question is open to how much freedom media would keep.
They also claim the justice system, including judicial review, the process through which people can challenge decisions made by public bodies, needs updating. This process was used in two high-profile Brexit cases in which the Supreme Court ruled against the government to their vexation. The question has arisen whether the PM’s annoyance with these rulings is the real incentive for ‘updating’ it. Their manifesto said the proposal is to ensure the process is not being abused ‘to conduct politics by another means’. There is also a legitimate case for updating it since, for instance, there has been a rise in the number of people wanting to challenge the state without the means of paying for legal advice. However, judicial review has already been significantly reformed in recent years, thus the apprehension is that this may be an attempt by the Tories to obfuscate matters by reformulating regulations following the turbulent time the government has had in the courts. There are also fears that the appointment and promotion of judges may become a political act, although the judiciary has already made it clear they would energetically oppose any government incursion into their impartiality.
The PM has already said he will abolish the 2011 Fixed-term Parliament Act (FTPA) that legislated a default fixed election date for a general election every five years whereas as since the Septennial Act 1716 were required to be held at least once every five years. The Tories claim FTPA is being used as a device by opposition parties for ‘delay and dither’ which has led to parliamentary ‘paralysis’. The 2015 election was the first after the law entered into effect, but followed by elections in 2017 and 2019, each two years, thus proving the FTPA to be futile. However, it has been alleged that documents have been seen that include mention of a ten year parliament rather than at least two over that period, raising some fears about what new legislation might bring. That is causing unease about repealing an act to hand the PM discretion to decide when to call an election. It has therefore been suggested that the most extreme interpretation could mean that this parliament lasts a full decade. The question, therefore, is what constitutional safeguards would be put in place to replace this act, thus counterbalance against use of arbitrary power by the government?
Challenge to the union
The most radical constitutional challenge for the Tories is the future of the UK as a union. The PM claims he wants to strengthen the union, except that Brexit has raised questions about Northern Ireland and Scotland that voted to remain in the EU that have now been invigorated by the 2019 election results. The Tories have been clear about opposition to holding a second independence referendum in Scotland. As it stands, legally it is for Westminster to make decisions, not Holyrood, but the First Minister, Nicola Sturgeon, has written to request the UK government to agree to transfer powers to the Scottish Parliament that would allow this to happen using a Section 30 order of the 1998 Scotland Act. If granted permanently, Scotland would then have the power to decide when a referendum, in the immediate future or on any other occasion, be decided in Holyrood. They have been used 16 times since the devolved Scottish Parliament opened in 1999, enabling MSPs to legislate on a range of matters including reducing the voting age in elections to 16.
Significantly, a section 30 order was granted by Westminster to allow the independence referendum in 2014 when PM Cameron and FM Salmond signed the Edinburgh Agreement. FM Sturgeon wishes to follow the same process for indyref2 to ensure any referendum now or in the future and results are seen as legitimate. Politically speaking, it is difficult to imagine the PM government being able to arbitrarily force a country to stay in the UK against its will. At present the PM is giving the request full consideration, although a rebuttal is anticipated. It is probable that he will try to meet this challenge by offering to devolve more powers to the countries and regions and offering them more money.
The increased influence of the right
The newly elected majority government has found increased support among the far right. The far right Britain First has urged members to join the Tory party to make Johnson’s leadership securer in an email newsletter which also claimed thousands of supporters had already signed up as Tory party members. The spiteful pseudo journalist Katie Hopkins attacked former Conservative chair Baroness Sayeeda Warsi’s call for the Tories to start healing its relationship with British Muslims. Stephen Yaxley-Lennon, known as Tommy Robinson, former leader and co-founder of the English Defence League, declared “everyone should vote for Boris Johnson”. A Tory spokesperson told The Independent their party was vigilant against those seeking to join who do not share their intentions. Anti fascist activists have called for the PM to issue a strong denunciation of hard line rhetoric to which Harun Khan, secretary-general of the Muslim Council of Britain, told the paper “The prime minister says he does not condone the views of Tommy Robinson, but he has not condemned them either”. According to The Guardian, 28 December:
‘More than 5,000 supporters of a far-right extremist group have joined the Conservative party in recent weeks, attracted by what they describe as Boris Johnson’s negative attitude towards Islam.
About two-thirds of the 7,500 signed-up members of the openly anti-Islam Britain First have joined the Tories since the general election, the group says.’
A further move toward a hard right stance are plans to outlaw boycotts of Israeli goods and institutions that Eric Pickles, former Tory chairman dismissed by calling it a thin disguise for anti-Semitism that falls in line with an approach to demonise alleged anti-Semitic sentiments in the Labour party and thus knocks well known anti-Islamic sentiments back out of the limelight.
So, a constitution, democracy and rights commission is to be set up within a year, aimed at reviewing the UK constitution through the pretext of addressing trust in politics.
It is expected it will focus on the relationship between parliament and government. It is almost certainly going to be a review of mechanisms available to parliament to hold the government to account thus look at what the government can and cannot do without parliamentary approval such as decisions on deployment of the armed forces, entering into or leaving international treaties and granting honours. At present courts can review the limits of these prerogative powers to prevent the government trying to create new ones. This was tested in the Brexit case taken to the Supreme Court by Gina Miller when she argued that the government could not trigger Article 50 to begin the Brexit process in 2016 without parliamentary approval. It is highly probable this kind of action will be removed from courts and executive powers put in place by an act of parliament to give the PM full power to make such decisions without taking them to parliament. The Tories have also hinted at reforming the House of Lords, probably to reaffirm the supremacy of the Commons over the Lords in a new act of parliament, perhaps removing their powers of delay that happened when the Lords refused to pass PM May’s Brexit legislation immediately.
There is no mention of reform to the electoral system or anything along the lines of changing the two houses of parliament to a modern, fully elected two tier system. It is far more likely that political muscle will be used to appoint more Tories to the House of Lords and use reforms there to consolidate their power without as much dependence on a second tier as there has been in the past and is favoured in most other democratic countries.
All in all it points to a more executive dominated style of ‘Americanised’ politics that favour the Tories’ friends, thus in the longer term promises a more libertarian UK for those who can afford to buy democracy and a more restrictive, authoritarian regime for the rest. Time will tell, but the majority held promises that at the very least the next five years will be under the present regime. For many people that is already cause for great concern.