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Constitutional shifts, public scrutiny and "unrestrained power" – reflecting on the Expansion of Executive Power event

Posted on 11 November 2021

On 21 October 2021, the Politics and Law Group hosted its inaugural event and welcomed an eminent panel of speakers to discuss the apparent expansion of executive power by the current Government and whether it should give us cause for concern. 

The event was introduced by the Group's leader, Katy Colton, who explained that the firm has been tracking the Government's constitutional reform agenda and that we have submitted detailed and data led responses to both the Government's consultations on reforming judicial review and reforming the Human Rights Act. She went on to note the prescience of the event given the Lord Chancellor's comments two days before in relation to continuing to consider judicial review reforms, despite the relatively minor changes finally proposed by his predecessor and detailed in the draft Judicial Review and Courts Bill.

Dominic Raab expressed the view that "it is vital that judicial review does not become the vehicle of choice for failed political campaigners."  This opinion contradicts the findings of the Independent Review of Administrative Law (IRAL), led by Lord Faulks, after which he noted "there were one or two cases … where there was considerable tension between what was legitimate to be considered by the courts and what was really a matter of politics. But those were particular cases. [The IRAL panel] do not think that there was an overall trend you could extract from those cases." Mr Raab's comments suggest that the Government will continue to pursue its agenda for constitutional reform in any event.    

The event's panel was chaired by Robert Rinder QC, star of ITV's Judge Rinder, which seeks to educate the public about fragility of democracy and the role of law in our day to day lives.  The panellists were Professor Meg Russell, Professor of British and Comparative Politics at UCL and Director of the Constitution Unit, David Gauke, a former Conservative Party MP and Lord Chancellor from 2018- 2019 and Mishcon de Reya's own Emily Nicholson, who acted on both Miller 1 and Miller 2. 

The Discussion

It was common ground during the event that we are in a period of constitutional shift.  Professor Russell explained that the objective of the Government appears to be strengthening the central executive "at the cost of the courts, regulators, parliament and other checks" and she described the current outlook as "sombre."  Interestingly, she drew the audience's attention to the phenomenon of "democratic backsliding" which she described as "elected leaders dismantle[ing] checks and balances that restrain them in the name of protecting citizens from the elite."  This was a theme that was later picked up by David Gauke when he explained the rationale behind the current Government position.  Professor Russell noted that the phenomenon has been most notable to date in countries like Poland and Hungary (and arguably the United States), however, both she and Emily Nicholson queried whether current constitutional shifts –  and the foreshadowed changes –  are indicative of the UK moving in the same direction.

Helpfully, David Gauke sought to provide some insight into the current Government's rationale.  He explained that there are two conflicting strands of thought within the Conservative Party.  Traditional Conservative values include protecting institutions, the rule of law, caution in relation to constitutional change and recognition of the need for checks and balances.  However, there is a sense of frustration – that developed during the early 2000s when the Party was out of power –  that 'liberal elites' have been "marching through" our institutions, including the court and the European Union and wresting control from elected representatives.  This critique has developed particularly in the context of Brexit and the frustration of not 'getting Brexit done'.  David Gauke noted that the Miller 2 case is a prime example of the Government taking advantage of growing popular frustration: rhetoric focused on the Government wanting to do something (to fulfil its popular mandate) and the judiciary got in the way.  He noted the irony of this, given that the judiciary was stepping in to protect Parliament and affirmed the "incoherenc[y] of the Government position".

An important message to come out of the discussion was the role of the media. Robert Rinder was keen to draw discussion on this point.  He noted, in relation to Brexit, the "disproportionate capacity of social media to skew and curate the discourse" and queried the extent to which "we are lost?"  Professor Russell was more upbeat and explained that recent studies conducted by the Constitution Unit indicate that people do not like unrestrained power and instinctively believe in checks and balances.  This finding is supported by Emily Nicholson's experiences when asked to defend the Miller 2 judgment to someone who did not support the decision.  She explained that she asked that person how they would feel if a Prime Minister prorogued Parliament if they "suspected a motion of no confidence was coming down the line" or "if major tax decisions were being made?"  The common answer is that they would not be in favour of it and, as Emily explained, that must be the answer as to whether or not the decision was correct. 

Although each of the panellists expressed concerns regarding the current direction of travel, it was evident from the conversation that there is still room for optimism.  Professor Russell noted that there are "opportunities as well as threats" and, in particular, that the language of politicians having unrestrained power, and people reflecting on who those people are, presents an opportunity to enhance public scrutiny of constitutional changes and, perhaps, turn back the tide.
 

Related 

Expansion of Executive Power: Impact on Parliamentary Sovereignty and the Rule of Law Disscussion

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