On Friday 22 April, The Constitution Society held a conference looking at the power of the UK executive within the political system. Speakers at the conference considered the nature the government’s power and its relationship with the institutions responsible for reviewing and checking its actions – in particular, the UK Parliament and the judiciary. The question was posed as to whether the power of the executive has been enhanced in worrying ways under the present government.
The choice of subject matter was motivated by recent developments. The most recent report from the UK Constitution Monitoring Group concluded that the various constitutional reforms being seen through by the current Conservative government – whilst perhaps appearing relatively inconsequential in isolation – would cumulatively weaken accountability mechanisms and increase the scope for arbitrary executive action.
As Professor Alison Young observed in her remarks, it would be a mistake to impose too much coherence on this reform programme. Nevertheless, insomuch as there is an intellectual underpinning to the government’s constitutional approach, it has come from Policy Exchange’s Judicial Power Project (JPP). Constitution Society Research Fellow Daniel Skeffington has written recently of Professor Richard Ekins – one of the JPP’s key figures – that ‘by placing primacy on the sovereignty of Parliament over Britain’s international obligations, human rights, and the independence of the judiciary, his monolithic view of the political constitution exalts the executive over the other major institutions of the state.’ Sentiments of this kind have led several to refer instead to an ‘Executive Power Project’.
Clearly the subject is a contentious and central one within contemporary constitutional debate, and it is with this in mind that The Constitution Society convened the conference. What follows is a summary of the discussion.
Executive power and the law
Colm O’Cinneide
The first panel of the day was tasked with examining the relationship between the executive and the judiciary. First up, to set the scene, was Colm O’Cinneide, Professor of Constitutional and Human Rights Law at University College London. He reminded the audience that the relationship between the executive and the judiciary has always been a tense one. Nevertheless, it has become increasingly fraught and confrontational in recent years. Professor O’Cinneide identified three themes that characterise the government’s constitutional thinking, as articulated in particular by the former Lord Chancellor, Robert Buckland.
- An assertion of a strong doctrine of parliamentary sovereignty.
- An emphasis on the role of the executive, supported by the notion that the executive needs considerable latitude in order to govern effectively.
- A robust attitude towards international agreements that is confrontational and involves reading them against the grain.
It was argued that an emphasis on political decision-making unified these three themes. In Buckland’s view, this marks a return to a traditional conservative vision of the constitution – one where parliamentary sovereignty is supreme and there is no space for judges to develop free-standing principles.
Professor O’Cinneide observed that this emphasis on the role of the executive has led to some heterodox constitutional claims, such as the suggestion that the government has a free-standing mandate from the people – independent of its majority in the Commons – to deliver its manifesto.
Furthermore, he argued that the idea that the execution of this constitutional vision would return us to a ‘golden age’ before things went constitutionally awry is problematic. The 1960s and 1970s are looked back on as the high point of this kind of constitutionalism, but this was also the period during which modern judicial review developed and the Anisminic case was decided.[1] Additionally, the constitutional landscape has diversified significantly since this period, especially with the advent of devolution.
Alison Young
Alison Young, Sir David Williams Professor of Public Law at Cambridge University, was up next, to go over some of the more specific ways in which it can be argued that the Johnson government has side-lined the judiciary since 2019.
She began by highlighting that whilst an emphasis on the political dimension of the constitution is defensible, this should be accompanied by effective mechanisms of political accountability. These accompanying political checks are, however, frequently lacking. She also expressed a worry that the although the government often uses the rhetoric of popular consent, in reality its approach is less about ensuring policies are in line with the wishes of the electorate and more about signalling to particular constituencies in order to maintain power (what she referred to as ‘pragmatic populism’).
She went on to examine in more detail two areas in which the ability of the judiciary to act as a check on executive power is being reduced – ouster clauses and the increasing use of policies, guidance and advice rather than primary or secondary legislation.
On the former, she identified the ouster clauses in the Dissolution and Calling of Parliaments Act and the Judicial Review and Courts Act as giving cause for concern. In particular, the clauses are worded so as to get around the Anisminic judgement; in other words, the courts can’t claim that a decision is reviewable because it is in fact only a purported decision. The clauses are therefore more restrictive of judicial review than previous ouster clauses and the worry is that the language will be used as a blueprint in the future.
The second worrying tendency identified by Professor Young is the government’s increasing use of policies, guidelines and advice which are much harder to legally challenge. For example, issuing what is in practice a decision through ‘advice’ can avoid judicial review as technically advice has no legal effect.
Conor Gearty
Conor Gearty, Professor of Human Rights at the London School of Economics, gave his remarks last. He drew attention to instances in which the executive has essentially attempted to ignore the law – what he referred to as ‘executive banditry’. The Majera case of October 2021 represents one such instance, in which the Supreme Court had to inform the Home Secretary that a Court Order must be followed. Furthermore, in Craig the Home Secretary attempted to establish a principle that declarations of unlawfulness do not have to be abided by, which was again rejected by the Supreme Court.
Professor Gearty went on to criticise the Labour government’s decision to diminish the role of Lord Chancellor in 2005, arguing that there is now no independent legal constitutional guardian present in Cabinet to act a bulwark against the inclinations of the executive. Now we have to rely on the government’s independent barristers to fulfil this role – they have to decide whether the government’s case is arguable or not, and should be clearer about their legal red lines.
He concluded by saying that the primary sources of executive accountability are now government lawyers and parliamentarians, who must decide when the government has gone too far. It is essential that both parties are reminded of their responsibility in this respect.
Questions
In the question-and-answer session that followed the presentations, two main themes emerged: (1) the intent behind the government’s constitutional reform programme and (2) the process that might lead to constitutional changes such as electoral reform.
On the first question, it was agreed that whilst the 2019 Conservative manifesto did set out several proposed constitutional changes, these were not thoroughly and coherently worked out in a more overarching manner. As far as there is an intellectual driving force it is coming from the JPP, but their influence can sometimes be overstated. In general, the Johnson government’s approach has been ad hoc, reactionary, and opportunistic – as constitutional change in the UK often is. Or, as Professor Liz David-Barrett memorably put it in her conference keynote, ‘impulsive and reactionary moves… by a government stumbling and U-turning its way through life’.
The panellists also discussed how other constitutional reforms, such as a written constitution, might come about and whether they would be desirable. Professor Gearty advocated an electoral agreement between Labour, the Liberal Democrats, the Green party and the Scottish National Party coalescing around the promise of electoral reform and the instigation of a consultation process on a new constitution.[2] This would then be followed by a further election on a proportional representation basis. He argued that the UK is ready for a wider constitutional conversation and a process of more overarching reform.
However, Professor O’Cinneide expressed doubt that political agreement could in practice ever be reached on a written constitution. Furthermore, Professor Young said that a written constitution is not necessarily the answer to the UK’s constitutional woes – it would really depend on what went in such a document, who it gives what powers to and how they are overseen. Nevertheless, it might have the benefit of adding some clarity to the UK’s constitutional arrangements.
The Executive and Parliament
David Gauke
In the second session, the panellists considered the relationship between the government and the legislature. Former Secretary of State for Justice and Lord Chancellor, David Gauke, went first, noting that the prevailing sentiment outside of government is that the executive is overmighty and that more should be done to strengthen the position of Parliament. Whist in general largely agreeing, he first played devil’s advocate and set out some of the arguments in support of a powerful executive. His arguments were as follows.
- Ministers tend to be better informed than MPs – they specialise, have access to better information and outside stakeholders, whereas MPs are generalists.
- MPs tend to be more parochial than ministers (if MPs had their way, we’d have 650 general hospitals).
- The most talented MPs tend to progress on to the frontbench.
- The executive is better placed to make decisions, whereas Parliament often struggles to identify what it wants.
- Parliament can struggle to make decisions quickly.
- Parliament is prone to political game-playing.
- Most of the electorate vote based on party leadership – the government should be able to pursue its policies and then be judged on them by the electorate.
Gauke expressed sympathy for the government’s need to be able to deliver, but said that in general these arguments do not stack up. Parliament has more expertise in some areas than others, but it can undoubtedly be well-informed. If anything, we should be strengthening and promoting parliamentary expertise. The local focus of MPs is a democratic strength, not something to be derided, and there are many instances in which it does not seem that the most talented parliamentarians have made it onto the frontbench. Furthermore, whilst Parliament might struggle at times to be decisive, it provides a valuable check on executive group-think. It has also shown itself able to make decisions quickly in the past – although in general allowing plenty of time for scrutiny of legislation is a positive thing. Finally, whilst many do vote based primarily on party leadership, the ballot box should not be the only source of accountability – Parliament provides a vital check on executive power.
He concluded by agreeing that there is no golden age to return to – people have long been warning of ‘elective dictatorship’. We can take some comfort from the fact that MPs appear to be more independent than they once were. There is only so much they will put up with. But he finished by wishing that his former colleagues would take a firmer stance on integrity and standards issues.
Ruth Fox
Dr Ruth Fox, Director of the Hansard Society, focused primarily on the legislative dimension of the relationship between Parliament and government. The primary charge, which the Hansard Society and other organisations have long been making, is that Parliament has been reduced to a retrospective rubber stamp for executive decisions. Two House of Lords Committees have recently produced damning reports drawing attention to the constitutional implications of the government’s heavy reliance on delegated legislation, ‘skeleton’ bills lacking in sufficient detail, and ‘Henry VIII’ powers, which allow ministers to amend primary legislation with little oversight. This imbalance in legislative power is not new. However, Brexit and the Covid-19 pandemic have highlighted the problems with the current system and normalised bad practice.
In some instances, the government has essentially been using legislation as a form of extended press release. In others, it has used delegated legislation to bring in new criminal offences, or to make changes with substantial financial implications.
There are also substantial weaknesses in the process for scrutinising statutory instruments (SIs): it’s very difficult for MPs to secure a debate on an SI because of government control of the parliamentary timetable; they cannot be amended, so there is little incentive to properly engage with the process; and MPs often don’t have access to the information they would need to scrutinise regulations effectively.
Despite these significant issues, Dr Fox outlined why the system has proved so resistant to reform. First, there is no focal point for leadership on this issue – it’s not within the Speaker’s remit, and the Opposition frontbench are often as uninterested in reform as the government. There is also a knowledge issue. Many MPs have not been in Parliament that long – they do not understand the Byzantine processes, and so are not cognisant of the constitutional issues they raise.
Nevertheless, the Hansard Society has decided now is an opportune time to review the use of delegated legislation and make the case for reform. Brexit and Covid have raised the profile of the issue, and we will likely continue to see controversial statutory instruments. There is also a chance that the next election will return a hung parliament. Often minority governments are even more reliant on delegated legislation in order to avoid difficult votes in Parliament.
Their review will ask questions such as whether scrutiny needs to be better resourced and whether statutory instruments should be amendable, before putting forward a menu of options for reform.
Robert Hazell
Last up was Robert Hazell, Professor of Government and the Constitution at University College London, who focused on prerogative powers and Parliament’s various attempts to codify them over the last twenty years. Before 2000, the executive’s prerogative powers were not much questioned. However, this changed with the publication of the 2004 report ‘Taming the Prerogative’ by the Public Administration Committee led by Tony Wright. Tony Blair was not supportive of this agenda, but it was picked up to some extent by Gordon Brown when he became Prime Minister. However, other issues came to dominate Brown’s premiership – not least the global financial crisis – and most of the initial plans for prerogative codification were dropped. The Constitutional Reform and Governance Act 2010, placing the Civil Service Commission on a statutory footing and codifying the Ponsonby rule on the ratification of treaties, is all that was eventually passed.
There was movement towards further regulation of the prerogative under the coalition government. The codification of the power of dissolution in the Fixed-term Parliaments Act was primarily intended to serve a political purpose, but did also reflect the pre-existing debate on the principle of shifting power from the executive to Parliament. David Cameron also called four parliamentary votes on potential military action, leading many to conclude that a firm convention had been established that the government wouldn’t deploy British forces without parliamentary approval.
But Professor Hazell argued that under Theresa May and Boris Johnson the pendulum has swung back – May authorised military action in Syria without a vote, the EU (Withdrawal Agreement) Act 2020 repealed the requirement for a meaningful vote on treaty changes, and the Fixed-term Parliaments Act was repealed and the old prerogative of dissolution restored.
May’s military action in Syria without a vote has left the status of the war powers convention ambiguous, which highlights the weakness of relying on convention in this respect. There are also weaknesses in the codified process of treaty ratification. The CRAG Act heightened Parliament’s role, but Parliament has never used its power to delay ratification. Furthermore, Memorandums of Understanding – such as that signed recently with Rwanda regarding asylum seekers – fall into a scrutiny gap, as they are not covered by the CRAG provisions.
Why has Parliament struggled to get a handle on prerogative powers over the years? Professor Hazell outlined several factors. First, there is a lack of political will, institutional capacity and expertise on this issue. Second, there is considerable executive resistance – especially when the power in question is considered to be an important one. However, this doesn’t explain why Parliament hasn’t taken action to codify the prerogative to issue passports, for example, which currently resides with the Home Secretary. Professor Hazell put this down to a lack of institutional confidence – many MPs don’t see it as their role to make movements in this direction of their own accord.
Questions
The question of a written constitution, or some form of entrenched constitutional codification, again came up. David Gauke and Dr Ruth Fox both raised the point that to work effectively a codified constitution would need political consensus and public buy-in. The former seems extremely unlikely. Additionally, Gauke highlighted how a government might weaponize any movement towards a written constitution by claiming that it is an elite exercise intended to restrict the government from carrying out the will of the people.
On the second point, Dr Fox said that we should not take public support for granted. Focus groups and polling show that at present the public has a fairly limited understanding of the political system. We need to try and make sure that when we advocate for constitutional reform it does not seem like esoteric navel-gazing. It is important to make the arguments in accessible terms and to communicate widely why parliamentary democracy matters.
Recordings of all the panels and more can be found on the Constitution Society YouTube channel.
Alex Walker is The Constitution Society’s Communications Manager and Researcher. He edits and contributes to the blog.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] In Anisminic Ltd v Foreign Compensation Commission [1969] the Appellate Committee of the House of Lords determined that judicial review was not ousted if the decision-making body in question did not have jurisdiction.
[2] For more on this see Professor Andrew Blick’s recent paper Electoral pacts and the UK constitution: an update one year on (Constitution Society, 2022).