This article was orginally written to draw attention to the range of ways in which government is seeking to disable any and all checks and balances on its action, in particular to the dangers of the Internal Market Bill.

Now the Police, Crime, Sentencing and Courts Bill aims to take away our ability to undertake peaceful protest, the government plans to reduce the power of the courts to hold ministers to account and to make voting more difficult for poorer voters, so we have updated the article.

 

Democracy is the worst form of Government

except for all those other forms that have been tried from time to time

– Winston Churchill

The UK, of course, is a democracy, but it is not guaranteed to remain a functioning democracy especially if the the Police, Crime, Sentencing and Courts Bill passes:

  • our democratic system contains checks and balances to keep it working well;
  • those checks and balances are being dismantled with remarkable speed; so
  • we need a democratic reset as a foundation for sound government in the future.

Our democratic system contains checks and balances

The fundamental idea of democracy is itself a check on the power of government.

The basic idea is that a government sets out a manifesto which it hopes the voting population will find attractive.

If voters do find it attractive, the government will be (re-)elected and introduce further legislation in order to fulfil the ‘contract’ implied by the manifesto. If these new laws are well-judged, they will indeed deliver the outcomes promised in the ‘contract’ and the cycle will repeat.

If they do not, voters can always replace the government with one which either offers a better deal or seems more capable of delivering it. This is the principal reason why Winston Churchill’s comment seems as valid today as it did in 1947.

But that possibility alone is not sufficient to ensure the continuity of a well-functioning democracy, and so our system has built into it checks and balances which are designed to ensure that a government can neither do too much damage during its term nor subvert the democratic process so as to prolong it:

  • the government is advised by a professional and impartial civil service on the drafting of all legislation;
  • government legislation is scrutinised by both Houses of Parliament before being passed into law;
  • the courts are able to scrutinise the legality of any government decisions – making sure that the government is itself abiding by the laws of the land;
  • there are regulators monitoring the outcome of many important pieces of legislation to ensure that they deliver as promised;
  • a free press can ensure that voters will be aware of the facts at the time they vote – i.e. that they can make an informed choice;
  • a right of peaceful protest can enable voters to make their strength of feeling on important issues known to MPs and the government;
  • whistle-blowers are protected so that those in powerful positions who seek to break the law run a real risk of being exposed.

 

Taken together, the picture looks something like this:

Even with all of these safeguards, of course, no government will be perfect: they will all make mistakes, and sometimes fail to deliver the promised outcomes. But the chances of success are far higher when the safeguards are in place; and, more importantly, the risks of a slide into some form of ‘managed democracy’ or even dictatorship are far lower.

Those checks and balances are being dismantled

In practice, even in the best of times, those checks and balances were never perfect. But even if, individually, they were imperfect, collectively, they have been effective.

Most obviously, we have had several changes of government during the last 40 years.

And the other checks and balances have also had important effects: many pieces of legislation have been effectively amended by Parliamentary scrutiny either in the Commons or the Lords or both; judicial review has, for example, overturned the illegal proroguing of parliament; press outcry over use of medical cannabis caused the ban to be reviewed; the poll tax riots, though not entirely peaceful, forced a change in policy; and the Electoral Commission was able to highlight illegality during the Brexit referendum and impose (admittedly inadequate) fines.

But if we take a look at the current state of the checks and balances, we see that they are increasingly unlikely to be effective in the future.

Voters

Voters have been able to act as a check on government. Whether they will be able to do so as readily in the future is less clear: the government has a number of plans to make it harder to vote them out. They are planning boundary changes which, according to Electoral Calculus will mean 15 more seats for the Conservatives and 9 fewer for Labour. The government is also following the US Republican practice of introducing voter-id as a requirement to vote. The excuse for this is voter fraud, but in the UK as in the US, such fraud is extremely rare. The more likely reason is that many younger and poorer people (who are less likely to vote Conservative) do not have photographic id such as driving licenses and passports, and they risk being disenfranchised.

Civil service

Since the Northcote Trevelyan reforms of 1854, which set out the “core values of integrity, propriety, objectivity and appointment on merit, able to transfer its loyalty and expertise from one elected government to the next,” we have prided ourselves on the calibre and independence of our civil service. A new government – until now – works with the civil service, rather than bringing in political appointees. This guarantees continuity of expertise in all the major departments.

Over the last few months, however, there has been an unprecedented churn across the major departments of state. The government has forced out top civil servants including:

  • Mark Sedwill, the Cabinet Secretary and the UK’s most senior civil servant;
  • Simon McDonald from the Foreign Office;
  • Philip Rutnam from the Home Office;
  • Jonathan Jones, Director-General at the Attorney General’s office;
  • Richard Heaton from the Ministry of Justice; and
  • Jonathan Slater from the DfE.

This kind of purging produces a culture of fear and a reluctance to speak out – and it strips out huge amounts of expertise from the top of the organisation.

Parliamentary scrutiny

The sovereignty of the UK Parliament is almost universally held as a vital principle. And yet, as Wikipedia explains:

“On 28 August 2019, the Parliament of the United Kingdom was ordered to be prorogued by Queen Elizabeth II upon the advice of the Conservative prime minister, Boris Johnson, advice later ruled to be unlawful.”

The reason for this prorogation of Parliament was to avoid Parliamentary scrutiny of Johnson’s plan to leave the EU without an agreed deal on October 31, 2019.

Without the option of judicial review, there would have been no Parliamentary scrutiny of this plan despite the fact that it was clearly a contentious issue of vital importance to the future of the UK.

Judicial review

The case went all the way to the Supreme Court, which found that the prorogation was both justiciable and unlawful, and therefore null and of no effect.

The court cited the Case of Proclamations (1611), in which the High Court of Justice asserted its power to test the existence of limits of prerogative powers, in answering the question of justiciability; in the case of prorogation, use of the Royal Prerogative must have respect for the conventions of parliamentary sovereignty and democratic accountability. The court ruled that any prorogation would be unlawful “if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature.”

This is a clear demonstration of the value of judicial review.

Unfortunately, the government did not see it that way and the Conservative manifesto made clear – as have several subsequent pronouncements from the government – that they would like to restrict the ability of courts to review government decisions:

“We will 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.”

As constitutional experts from Blackstone Chambers recently pointed out, the United Kingdom Internal Market Bill would (in addition to breaching international law and risking the good Friday agreement) have the effect of denying the courts the power of scrutiny:

“Clause 45 purports to entrench against any form of legal challenge the provisions of what will become sections 42 and 43 of the Act.”

They conclude that,

“Parliament, if it enacts this clause, will be seeking to give the Secretary of State a free hand to enact irrational Regulations, if he wishes to do so. The usual Wednesbury constraint on the exercise of a power to make legislation only for a proper and rational purpose would be removed at a stroke.”

More generally, the government is now planning to curtail the power of the courts to review decisions made by the executive. The supposed grounds are that there is “a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made. The reasoning of decision makers has been replaced, in essence, with that of the court. We should strive to create and uphold a system which avoids drawing the courts into deciding on merit or moral values issues which lie more appropriately with the executive or Parliament.”

In reality, the government has been frustrated by a series of judicial reviews on issues from the illegal proroguing of Parliament to the refusal to publish information on potentially corrupt deals in relation to PPE which have gone against the government. They would like to prevent such interference in the future. The ‘interference’ in these cases is however a fundamentally important safeguard for UK democracy.

Regulatory review

From the point of protecting democracy, perhaps the most important regulator is the Electoral Commission. The Commission has found itself in the government’s sights because it concluded that there were irregularities in the Brexit referendum, and this finding is hugely embarrassing to the government.

Although the Vote Leave campaign has always protested its innocence, the courts did not agree, and the campaign paid its fine. As the Commission said,

“Vote Leave has today withdrawn its appeal and related proceedings against the Electoral Commission’s finding of multiple offences under electoral law, committed during the 2016 EU referendum campaign.

We have been advised that Vote Leave has paid its £61,000 fine and look forward to receiving the sum in full.”

The government has made it clear that it is considering options up to and including abolition of the Electoral Commission. As Cat Smith, Labour’s shadow Cabinet Office minister, commented,

“[this is] a harmful and worrying step for the integrity of our democracy. Removing the Electoral Commission is just one part of a concerted strategy by the Tories to remove scrutiny and proper accountability. Without the Electoral Commission, no one could prevent the Tories from introducing policies that fundamentally make it harder for people to vote, such as mandatory Voter ID.”

Free press

The issue with the UK press is not so much that they are under the control of government, but that they are under the control of a handful of non-UK resident market fundamentalists whose personal objectives bear no relationship to those of 99% of the UK population.

Measured by readership, almost three quarters of the UK’s press is controlled by Rupert Murdoch, Lord Rothermere, or the Barclay family. All of these newspaper groups present a consistently right-wing view of almost all public events and issues.

Right to peaceful protest

In the UK, we currently enjoy the right of peaceful protest, which is enshrined in the Human Rights Act. The government, however, has made it clear that it is considering declaring Extinction Rebellion an organised crime group. This would circumvent the principle of the Act that a government cannot simply outlaw protest against its policies – in this case environmental policies.

The recently published Police, Crime, Sentencing and Courts Bill which is now in the House of Commons would go still further. It would essentially remove the right to protest. As Ian Dunt wrote in politics.co.uk,

“Priti Patel has been extremely clear about what she thinks of Black Lives Matter. ‘Those protests were dreadful,’ she said last month. She’s also been clear about what she thinks of Extinction Rebellion. At a police conference last year she branded its activists ‘eco-crusaders turned criminals.’  Now we see what she plans to do about it.”

In essence the Bill adds to the reasons under which a protest can be banned a new ground: noise. If the Police believe that any individual or organisation nearby might be disturbed or feel threatened by the noise of the protest, they can ban it. Presumably, the anti-Brexit marches in which over 1 million people took peacefully to the streets (but which were admittedly noisy), might have disrupted those in Parliament, and could be banned under the new legislation.

The Bill widens the definition of protest to include even one-person protests, and it lowers the burden of proof on the state to show that demonstraors were knowingly non-compliant with restrictions that have been announced. It makes is possible to ban demonstrations because a person “is put at risk of suffering” any disruption – including noise – which means that no offence need even have occurred to ban the demonstration. And the maximum penalty for non-compliance is 10 years.

The UK is at grave risk of becoming a rare country in Europe without a right to peaceful protest.

Whistle-blower protection

Protection of whistle-blowers is a problem in almost all countries. And in the UK, the all-party Parliamentary group on whistleblowing concluded,

“… that it is time for a root and branch reform of the legislation setting out a 10-point plan including the introduction of a body capable of tackling and challenging wrong-doing.”

International law

A final check might be international law. But the government has recently made clear that it is prepared to break international law and its own treaty commitments.

On Tuesday, Northern Ireland Secretary Brandon Lewis said that the government proposed changes to the Withdrawal Agreement which will “break international law in a very specific and limited way“.

Unsurprisingly, this has been condemned on all sides, including by former PM Theresa May, who said,

“The United Kingdom Government signed the withdrawal agreement with the Northern Ireland protocol. This Parliament voted for the withdrawal agreement into UK legislation. The Government is now changing the operation of that agreement.

Given that, how can the Government reassure future international partners that the UK can be trusted to abide by the legal obligations of the agreements it signs?”

 

 

In summary, although we have in the past had a reasonably effective system of checks and balances, there are no grounds for complacency about the future: either these checks and balances have already been weakened or they are currently under threat.

If we are not careful, we shall end up with a situation like the diagram below in which there are no effective checks on the power of government, and nothing to prevent the UK turning into a ‘managed democracy.’

A democratic reset is a critical first step

99% argues that there are five steps we need to take as a society if we want to create a world which is fit for future generations to live in. And the first of these steps is a democratic reset.

We do not have a written constitution in this country – and recent weeks’ events have shown how precarious our rights are in the absence of such a protection. It is not illegal for a government in this country to pass legislation that it knows will harm the interests of 99% of the population. And we may be witnessing the early days of a government that is happy to take advantage of that freedom. Here are the key elements of that democratic reset as set out in the book, 99%. Note that the book was not concerned just with the UK, which is why some of the comments refer to other countries.

1.       An elected government should have an explicit duty to govern for the benefit of its entire population, not for that of a small and influential sub-segment:

 

o   economic policy must explicitly target the problem of mass impoverishment, and ensure that all sectors of society benefit fairly from economic growth – one of the tasks of the Office for Budget Responsibility (or equivalent organisation) should be to assess the impact of each proposed budget in terms of this explicit duty over the short, medium and long terms; where there is redistribution, it should be progressive, not regressive;

o   for each government, the Office for Budget Responsibility should publish its ‘impoverishment ratio’ each year – that percentage of the population which is poorer in real terms than it was the year before – and its ‘leave-behind ratio’ – i.e.  the percentage which has seen its income grow more slowly than the economy as a whole (i.e.  more slowly than per capita GDP): the percentage who are being left behind by government policies;

o   maintaining full employment for those able to work should be an explicit goal of government policies and central bank decision-making;

o   all proposed legislation should be assessed by the Office for Budget Responsibility to determine whether it tends to concentrate or to distribute income and wealth – regressive legislation which tends to concentrate income and wealth should require a two-thirds majority in both houses.

 

2.       There should be a written constitution in countries which do not have one, or constitutional amendment in those countries which already have one, to enshrine Point 1 above and to ensure that the distribution of political power does not become as concentrated as the distribution of wealth:

 

o   corporate political donations should be banned, as should political advertising by corporate bodies;

o   donations from individuals, their families and family trusts should be limited to an amount affordable by the median household;

o   there should be strict controls over lobbying and full transparency of all meetings, and of all funding of lobbying activities whether in-house or external;

o   suffrage should be universal – not dependent on property-owning or compliance with an onerous or costly process of registration.

 

3.       The constitution should safeguard separation of powers to prevent the risk that capture of one part of the elite facilitates capture of the remainder – the legislature should be separate from and have no control over appointments to the judiciary; regulators should have a high degree of independence also, both from the legislature and from those whom they are tasked with regulating; and the independence of academic research should be protected: academics should be free to conduct fact-based research and publish the results whether or not they support government policy, and private funding of academia should be carefully controlled to ensure that wealthy donors cannot shape the teaching and research agenda to suit their own political ends.

 

4.       Media ownership should not be concentrated – no single family, family trust or other organisation should be able to own or control media which reach an audience of more than 10% of the population – and as part of separation of powers, media owners should not also play a role as legislators, in the judiciary or in other key functions of society.

 

5.       The constitution should also protect against an elected government seeking to circumvent democratic safeguards – e.g.  by reducing the power of a second, or revising chamber, or by reshaping electoral boundaries for political ends, by seeking to limit the independence of the judiciary or otherwise weakening the separation of powers described in Point 3.

 

If this matters to you, please sign the petition against voter id, write to your MP and ask them to do everything in their power to support the rule of law and the freedom to demonstrate – this site makes it easy to do that.

And do sign-up  and join the 99% Organisation.