THE Government’s decision-making is motivated more often by the desire to produce popular sound-bites than by well-evidenced moral or economic principles. For example, an Afghan fighter pilot who made his way to the UK is threatened with deportation to Rwanda because he arrived via the Channel, and the Government refuses to recognise that there are no longer effective legal routes to enter the country.
Ministers attack the European Convention on Human Rights, with the intention of carving dividing lines into the population. Politicians float policies with populist appeal, such as detaining asylum-seekers on prison hulks.
Things could be even worse, as we were reminded when Boris Johnson appeared last month before the House of Commons Privileges Committee. He was questioned about what he had told Parliament about his conduct, and the conduct of his ministers and staff, during the pandemic. He obfuscated and blustered, and denied that he had deliberately misled the House of Commons. If the Committee finds that he did so, he will have violated one of the few absolute principles of British politics.
Mr Johnson may be gone from high office; but, in its recent report, the Constitution Society, an independent group of constitutional experts, identifies continuing concerns about the extent to which the Government is accountable. While Rishi Sunak’s conduct might be less remarkable than Mr Johnson’s, the fact that his government is not degrading constitutional principles further does not mean that it is restoring them. Instead, the “evidence to date fails to suggest that . . . [a] much needed [reversal] of course has come about,” the report says.
POSITIVE action is needed to “to bolster standards”, the report says, so that the Government is held to account. Mr Johnson’s premiership exposed the flaws in the UK’s Constitution. He took advantage of norms and principles that depended on the “constraint and good judgement of the prime minister”.
As Lord Geidt and Sir Alex Allan, the two consecutive independent advisers on ministerial interests for Mr Johnson’s government, discovered, their advice and conclusions were irrelevant if the Prime Minister did not want to take them forward. Mr Sunak has done nothing to change this. Even as he appointed Sir Laurie Magnus to the post, Mr Sunak placed limitations on him, such as forbidding him to investigate Suella Braverman’s reappointment as the Home Secretary.
Restrictions such as these on the Government’s Independent Adviser show that the post is independent in name only. As the Constitution Society recommends, both the Independent Adviser on Ministerial Interests and the Commissioner for Public Appointments should exist on a statutory footing. Their function in holding the Government to account should be supported by Parliament rather than depend on attitudes in Downing Street.
In its report, the Constitution Society criticises the tendency of successive governments to hand power to the Executive, such as bypassing laws to delegate power to the Government. The report says that ministers are comfortable making “questionable assertions to Parliament, whether on asylum or migration”, and that the Executive is creating and deploying “extensive delegated law-making powers”.
Such an attitude might have been necessary during the pandemic, but the exigencies of that emergency have faded away. As the Bishop of St Albans, Dr Alan Smith, observed recently in the House of Lords: “What is concerning . . . is that the Government’s widening use of delegated legislation is not limited to emergencies, but is now being used routinely” (News, 20 January).
WHEN there are “good chaps” in government, the latitude given to the ministers by the British Constitution might cause only limited harm. But we cannot rely on parties to select moral leaders, or on the people to elect good prime ministers. There are few obvious solutions; many of the Constitution Society’s proposals hinge on the Government’s unilaterally deciding to impose solutions on itself. It puts the Constitution in a catch-22.
The courts are one option; but, so far, judges have been reluctant to step forward. As the report observes, even though the Sewel Convention, which regulates the relationship between the British and Scottish governments, exists in statute, the courts have declined to enforce it.
Unless MPs finally tire of being dominated by the Executive, the only solution might be a General Election. Assuming that Labour returns to power, it would then be up to Sir Keir Starmer’s government to construct the constitutional architecture that insulates key values within the heart of the UK’s constitution.
Nicholas Reed Langen is a writer on legal and constitutional affairs, a former Re:Constitution Fellow (2021-22), and editor of the LSE Public Policy Review.
Read the Constitution Society’s report at: consoc.org.uk/publications