Constitution Unit Monitor 76 / November 2020
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1 Constitution Unit Monitor 76 / November 2020 There was tolerance in the early stages of the pandemic Democratic lockdown? for quick decision-making, and partial bypassing of parliament. But that has increasingly grown thin. The England entered a new COVID-19 ‘lockdown’ just UK is one of many countries where concerns have been before Monitor went to press. The pandemic continues expressed about COVID facilitating an executive ‘power to dominate politics in the UK and globally, with a return grab’. Worldwide, experts have warned that ‘democracy, to politics-as-usual appearing distant. Both the handling human rights and the rule of law cannot be allowed to of the crisis and the government’s latest actions on become the collateral damage of the pandemic’. Most Brexit have been key factors driving serious concerns key decisions at UK level have come via secondary about the maintenance of constitutional norms in the UK. legislation, often published at short notice with little or But as this latest Monitor catalogues, the roots of those no opportunity for parliamentary scrutiny. Increasing concerns – about declining respect for conventions and protests from MPs, parliamentary committees and the deliberate or accidental erosion of ‘checks and balances’ Commons Speaker (see page 5) extracted concessions – are now spread across many fields. from ministers that parliamentary oversight would Image above: Boris Johnson putting on a mask as he leaves increase – hence the difficult vote on the new lockdown Downing Street (CC BY-NC-ND 2.0) by UK Prime Minister arrangements on 4 November. A total of 34 Conservative MPs voted against the new regulations – which In this edition represents almost half of the government’s working majority – and others abstained; though the measure Brexit 3–5 Parties and politicians 14–15 passed comfortably with Labour support. A concerted Parliament 5–8 Nations and regions 15–18 Elections, referendums and International 18–19 cross-party approach from the start might have been democratic engagement 8–11 People on the move 20 sensible, but can be uncomfortable for ministers, Executive 11–12 Constitution Unit news 21–22 particularly when accompanied by internal party dissent. Courts and the judiciary 12–14 Bulletin Board 23–25 Even COVID controversies have been somewhat eclipsed in recent weeks among UK constitutional experts by concerns about the government’s UK Internal Market Bill, which expressly empowers ministers to breach international law and set aside domestic law, whilst attempting to limit judicial oversight. The Constitution Unit is 25 this year! Click here – to find out more about how we’re celebrating on page 21. 2 | Monitor 76 | Constitution Unit | ISSN 1465–4377 As discussed throughout this issue, the bill has warned of a ‘very slippery slope’ towards ‘tyranny’. disquieted civil servants (prompting the resignation of The most recent retiree from the court, Lord Kerr, warned the head of the Government Legal Department), MPs, of ‘unbridled power’, while Lord Sumption (see page 5) former Conservative Party leaders, senior lawyers, senior suggested that the government’s exclusion of parliament religious figures, and many others. It destabilised the over COVID indicated a drift towards authoritarianism. UK–EU trade negotiations for a time, and threatened Another uncomfortable intervention came in October, chances of a US trade deal. The offending clauses when credit ratings agency Moody’s downgraded the triggered the largest defeat in the House of Lords for UK, largely on economic grounds linked to Brexit and over 20 years, and the argument continues. COVID, but also noting that the ‘quality of the UK’s These high-profile clashes were not isolated events. legislative and executive institutions has diminished in Indeed, the extent to which recent months have seen recent years’. the erosion of, or threats to erode, constitutional checks Risks of ‘democratic backsliding’ are heightened if and balances is sobering. The new Independent Review the governing party itself is quiescent. But dissent on of Administrative Law (see page 13) represents the first Johnson’s backbenches is extremely high, challenging stage in ministers’ ambitions (expressed on page 48 of government stability to a degree few would have the Conservative manifesto) to rein back judicial review. predicted after December’s landslide victory. Many The Prime Minister appointed 36 new peers, contrary senior Conservatives in both chambers (and beyond) to the constraints proposed by the Lord Speaker’s have decried the erosion of constitutional norms and Committee, and made veiled threats against the House parliamentary accountability. They include not only of Lords Appointments Commission (see page 7). Threats the chair of the backbench 1922 Committee, Graham against the Electoral Commission were more explicit Brady, but also its two vice-chairs, Cheryl Gillan and (see page 9). Retribution was swift when parliament’s Charles Walker, and the (hand-picked) chair of the Intelligence and Security Committee ignored Downing Liaison Committee, Bernard Jenkin. The principles being Street’s favoured candidate and elected the ‘wrong’ challenged run deep in the Conservative Party: with chair (see page 6), while pleas from the Commons COVID policy provoking libertarians who instinctively Procedure Committee, and senior MPs, to allow return oppose the ‘big state’, and threats to the rule of law to full participation via virtual Commons working have concerning both those on the party’s left and admirers been ignored (see page 6). Relations with the devolved of Margaret Thatcher. administrations (see page 15) and city region mayors (see The future of the constitutional reform programme set page 16) have frequently been difficult, while there have out on page 48 of the party’s December manifesto, been a string of senior departures from the civil service and particularly the Constitution, Democracy and – up to and including the Cabinet Secretary himself (see Rights Commission promised ‘in the first year’ of page 11). The challenging of conventions by the Johnson Johnson’s government, remains uncertain. Whether administration is of course not new – previously including the Commission has been delayed, abandoned, or imposition of a chair of the Liaison Committee (Monitor fragmented into smaller reviews, such as those on 75, page 6), an end to the ‘hybrid’ House of Commons administrative law and human rights, remains unclear and, most famously, an attempted parliamentary (as Unit Director Meg Russell discussed in evidence to prorogation. Further unrealised suggestions last year that the Commons Public Administration and Constitutional ministers might advise the Queen to withhold royal assent Affairs Committee in October – see page 21). Such from bills passed by parliament are explored in the Unit’s an exercise could constructively review the balance latest report, by former Commons clerk Paul Evans of powers at the heart of our constitution, but there (see page 21). are also fears (as expressed by former Conservative In October, over 800 legal figures wrote to the Prime Lord Chancellor David Gauke at a Unit seminar in early Minister and Home Secretary to demand an end to November), that the unifying objective behind these verbal assaults on human rights lawyers, implicated in reforms is to reduce constraints on central executive actual, physical, attacks (see page 12). Many senior power. Approaching 11 months into the present lawyers have expressed disquiet about the direction parliament, Johnson and his allies have experimented of travel (see page 12), sometimes in strong terms. with this model over both Brexit and COVID, and it is not Former President of the Supreme Court Lord Neuberger clear that members of his party like what they see. 3 removal of a reference to ‘intensifying’ the talks: London Brexit had wanted the negotiations to enter the phase known as the ‘tunnel’ (intense, round-the-clock discussions with no external communication until agreement is reached). Instead, lead EU negotiator Michel Barnier was EU–UK negotiations instructed only to ‘continue negotiations’ and the UK told to ‘make the necessary moves to make an agreement With less than two months to go before the end of the possible’. Boris Johnson announced the following day post-Brexit transition period, there was still no sign of a that trade negotiations were effectively over. While the trade deal between the UK and the EU as Monitor went UK said the door to an agreement remained ‘ajar’, an to press. invitation to Barnier to come to London for discussions Progress over the summer was painfully slow, with the the following week was withdrawn. Without ‘fundamental key stumbling blocks remaining the same as before: change’ by the EU there was no basis for continued ‘level playing field’ conditions, notably around state aid; negotiations. Both sides were left once again staring governance, including robust dispute resolution; and down the barrel of a ‘no deal’ outcome. fishing, particularly post-transition access to UK waters. While the potential landing zones for a final agreement became clearer, both sides increasingly dug in behind their existing lines. The UK government ratcheted up the pressure in early September. First, Boris Johnson set 15 October – the date of the European Council meeting – as the deadline for securing a deal, saying that, in the absence of agreement by then, both sides should ‘accept that and move on’. Then, in an extraordinary move that caused widespread consternation, the government published its UK Internal Market Bill (see page 4), including clauses that would enable ministers to unilaterally override key aspects of the Withdrawal Agreement, especially the Northern Ireland Protocol. Brandon Lewis, the Northern David Frost meets with Michel Barnier (CC BY-NC-ND Ireland Secretary, admitted in the Commons that the 2.0) by UK Prime Minister government was willing to breach the terms of the A compromise was found over the following days that agreement – and therefore break international law – enabled the negotiations to recommence – and intensify albeit in a ‘specific and limited way’.