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

Posted on 29 October 2021

Barrister, Writer and Broadcaster Robert Rinder recently chaired a discussion on the Expansion of the Executive Power and its impact on Parliamentary Sovereignty and the Rule of Law with Professor Meg Russell FBA, Director of the Constitution Unit and Professor of British and Comparative Politics at UCL; David Gauke, British Political Commentator, Solicitor and Former Lord Chancellor and Emily Nicholson, Legal Director at Mishcon de Reya.

The discussion focused on the recent constitutional changes and whether the shift towards centralising power in the Executive should give us cause for concern, and whether or not changes we have seen in the UK are reflected across the world more generally.

This event is part of our Politics and Law series headed by our Managing Associate Katy Colton. If you would like to be part of the group to receive invitations to events and news alerts, please sign up here.

Katy Colton

Good evening everyone, I'm Katy Colton, I’m the Head of the Politics and Law Group here in Mishcon de Reya and I am delighted to welcome you all here.

The Politics and Law Group was founded last year to bring together the firm's long-standing experience advising on legal issues with a political context. During the last year we have also been tracking the Government's, what you could say, constitutional reform agenda.

We submitted detailed and data-led responses to Government consultations on reforming the judicial review process and also on reforming the Human Rights Act. In those responses we raised concerns about the Government's approach and since then our concerns have not abated. Just two days ago the Attorney General defended plan to review judicial review stating that it is vital that judicial review does not become a vehicle of choice for failed political campaigners. We don't think that's a fair representation of judicial review. This event is an opportunity to discuss this and wider concerns with an extremely learned panel who each approach the issues from a different perspective.  And we're delighted that Rob Rinder has kindly agreed to chair the panel.

Rob Rinder

good evening everybody.  First of all thank you so much for inviting me it's real privilege to be here.  Now I’m going to be talking to you but you have to imagine that we are also beaming live out to a much broader audience at home so be speaking directly into the cameras. I always used to think I was doing anyway when I was a jury advocate so always came second. 

tonight's topic is a very important one, perhaps the most critical, the expansion of executive power and its impact on parliamentary sovereignty and the rule of law. It is perhaps in its essence the critical intersection between law and politics, it's often said that the golden thread that runs itself and weaves itself into the tapestry of our democracy and cloaks and protects us all is the rule of law and at the heart of our discussion tonight is the extent to which that fabric may be eroded and perhaps even broken.

Firstly I'm going to introduce Professor Meg Russell, FBA, Director of the Constitutional Unit and Professor of British and Comparative Politics at UCL. She is also currently a senior fellow at the ESRC Founded UK in a changing Europe program working on - and I think this is the right title I hope haven't got it wrong –Brexit Parliament and the Constitution. She has also worked closely and critically with policy makers throughout her career including advising several parliamentary committees.

It's often said that people don't need an introduction but I think it's very important that we remember the privilege of having David Gauke here. Who's set out here as a British Political Commentator but much more critically of course, the first law chancellor to come from the solicitor’s profession and served in the cabinet under Theresa May. 

And Emily Nicholson, one of our own here at Mishcon de Reya as a Legal Director in Mishcon's Private and has a long-standing reputation for acting in complex disputes often in the glare of the media and we heard earlier and people will perhaps know most importantly of the work that Emily did acting for Gina Miller in both of her successful landmark constitutional review cases against the Government.

Without further ado I'm going to first call upon you if I may Meg, to set out your position in where we are in this very challenging moment in history.

Meg Russell 

I warn you my assessment is quite sombre, I first started working in parliament nearly 30 years ago and I've been researching parliament and our wider constitution for the last 20 years. But these last few years I've grown increasingly concerned about our direction of travel. This week with the murder of another parliamentarian we've hit a new low.

The current Government seeks to pursue a radical programme of constitutional reform as set out in the conservative manifesto including reviewing and I quote, the relationship between Government, parliament and the courts. But it hasn't been wholly explicit about what motivates this and where it's trying to get us. In 1997 Tony Blair's Government also pursued a radical program of reform and was widely criticised for its piecemeal nature and not articulating the overall purpose of his programme. Those are valid criticisms, and a better statement of purpose would have been wise but the various reforms of that time introducing the Human Rights Act, Freedom of Information, Devolution in Scotland, Wales and Northern Ireland, the Supreme Court and partial reform of the House of Lords had the general effect of dispersing power and enhancing checks and balances on the central political executive.

This Government's direction of travel seems to be more or less the opposite. Strengthening the central executive at the cost of the courts, regulators, parliament and other checks. Confusingly with respect to parliament this is done partially in the name of restoring parliamentary sovereignty. At one level some rolling back might be argued to be justified. If we can move in one direction, then there might well be valid arguments for moving back in the other but the way we're doing this seems troubling to me in two respects.

First it isn't happening through open public debate about whether we previously somehow went too far. There's no real visible discussion of how centralised we want the executive to be. That's something that we at the Constitution Unit are trying in our small way to facilitate by conducting public polling and a citizens assembly on the balance of power in our constitution under the banner of Democracy in the UK after Brexit. But if the Government has noble democratic goals surely it should be facilitating that kind of public conversation not us. Instead, there's not even a white paper setting out the broad objectives for reform.

Second and more seriously the nature of these changes sits very uncomfortably with international trends.  All around the world there are current concerns about the rise of populism which seeks to set the people against an out-of-touch or self-serving establishment elite and connected concerns about democratic backsliding, a phenomenon whereby democracy isn't killed in one blow for example, through a coup d'etat but where elected leaders gradually dismantle the checks and balances that constrain them in the name of combating elites on behalf of the people. Notably experts observe that a key factor driving democratic backsliding is political polarisation. If people begin to see their political opponents as enemies or traitors, one side is prepared to back changes to the rules of the game in order to lock the other side out of power.

Polarisation was of course very present over Brexit. Referendums are by their nature divisive and drive people into different camps. The polarised mood after the referendum where surveys show people on one side of the divide believe that those on the other were not only wrong but also less honest and less intelligent perpetuated this while politicians struggled to deal with the result.  Rhetoric at that time echoed patterns noted well before the event in other countries of concern with language of enemies or traitors and claims from the Attorney General no less that parliament had no moral right to sit.

The Prime Minister also described as humbug, the claim that anti-parliamentary rhetoric could fuel violence against MP’s. I hope he's been reflecting on those words this week but I somehow doubt it.  The conservative night 2019 manifesto blamed parliament for quote, thwarting the will of the British people, notwithstanding the fact that the Prime Minister and several others in the cabinet had voted against Theresa May's Brexit deal and it was in that context that it called for a constitutional rebalancing.

Initiatives include not only some of the bills that have already been mentioned but threats to abolish regulators such as the Electoral Commission and the House of Lords Appointments Commission, overruling various regulators including the Prime Minister's own ethics advisor leading to his resignation and implicit threats to Channel 4 and the BBC.

The Government's program was some to some extent slowed down by Covid but Covid also facilitated a new level of side lining of parliament and centralised executive policy making.  If all this were happening in another country we'd be concerned about it and we'd be right.

David Gauke 

I want to say a little bit about some of the thinking that's within the Conservative party over the last 15 or so years and there are I think in particular two conflicting strands. The first is the traditional Conservative position which is about protecting institutions, it's certainly about the rule of law, it is about caution about constitutional change and it is a recognition of the need for checks and balances.

There is another trend or another strand that I think is worth focusing on in particular and I am not here to advocate that case, to endorse that case, I want to just explain it. I have considerable concerns about it but I just want to explain it and that is the view and I think it's worth going back to the mid 2000’s in particular, a time when the Conservative party rather unaccustomedly was out of office for an extended period, struggling to find a coherent critique of the new Labour Government and a sense that it wasn't just losing general elections but also there was, in the eyes of many Conservatives, a sort of marched through the institutions by the liberal left and that you know, never mind parliament but you also had a number of institutions whether they be regulators, whether they would be broadcasters, whether they be the judiciary and not forgetting of course you know,  if you're looking for an unaccountable elite in the eyes of these critics, the European Union as well and the European Commission and European Court of Justice. And all of this was sort of pulled together in the sense that the public are dissatisfied, that there is a lack of accountability, that whatever way they vote it doesn't make any difference, power is in the hands of these elites.

Now as I say, I don't endorse that analysis, I'm somewhat embarrassed to say that if you look at a, a pamphlet called ‘Direct Democracy’ that was published in 2005 you will find my name along with a number of other surprising names and perhaps some unsurprising names listed sort of setting out this argument. I think I was naïve and I think the evidence of what has happened over the subsequent 15/16 years reveals that. But that was the sort of thinking that started to permeate within the Conservative party. There was a sense that you know, you can't, you can't vote for change because however you vote nothing much ever changes and that's something you would hear on the doorstep all the time and I think that that, that critique has, has developed particularly in the context of Brexit and you know this was the argument, it was about take back control, it was about unaccountable elites and so on. You, you had this sort of building popular frustration and what this Government has sought to do is to take advantage of that and you know, this particularly came to a head with the second Miller case where you know, the Government wanted to do something and the, the judiciary got in the way.

Of course the irony of all of that is the judiciary was stepping in to protect parliament, to protect those who had been elected from ex… to enabling MP’s to do their job and I think that is one of the incoherence’s of the, of the Government's position that in, in, in reality tries to centralise power and let us you know, see an example of that, apparent example just in the past week or so when we hear my successor but one, Dominic Rabb talking about having some kind of mechanism to correct judgments that are wrong. Now it's not clear whether he is talking about that prospectively and you know, if parliament thinks the law is wrong, parliament is entitled to change the law but there's already a mechanism for that and it's called an Act of Parliament. If they're talking about doing it retrospectively then that is an even bigger issue, but even if it is prospectively what is this mechanism that is not an Act of Parliament, the fear is that it's about concentrating more power in the hands of the executive.

Democracies work best with checks and balances and we've got to find a way in which those checks and balances are respected and at the heart of that is the rule of law, is an independent judiciary and anything that threatens that is, is deeply detrimental to our constitution, to the way we do things and how this country can maintain liberties and maintain prosperity.

Emily Nicholson

Given the distinction and expertise of my fellow Panellists, I will not stray into politics or matters of the constitution. Meg has really clearly explained the concept of democratic backsliding and why we should be very aware of changes made to our constitution by stealth. In the context of that I thought it might be helpful to outline the legislative changes that we're looking at and I believe that individually and cumulatively should give us cause for concern.

So as part of the broad agenda of constitutional change or rebalancing of our constitution, we have so far seen the new Judicial Review Act which as David mentioned makes some changes to the remedies available in judicial review as well as to the path of appeal in what are called cart reviews. The bill doesn't go nearly as far as the Government Consultation indicated that it would and like David, I don't know whether that had anything to do with Mr Buckland being replaced by the more extreme Mr Raab.  We've got the review of the Human Rights Act. This has long been in the offing given the Conservative party has had real concerns about the Human Rights Act almost ever since it was enacted.  There was a consultation earlier this year, the report was due over the summer, it's been waylaid, I'm not sure by what. Dominic Raab, our new Lord Chancellor has wasted no time at all in making his views on this absolutely clear, saying that the Government intends to protect and preserve the prerogatives of the British parliament from being whittled away by judicial legislation abroad or indeed at home.

It had previously been thought that whilst the Conservatives had real plans with the Human Rights Act, they would not go so far as to withdraw the UK from the European Convention on Human Rights but perhaps this has now changed.  We also have the Police Crime Sentencing and Courts Bill, which introduces a new basis upon which the police can lawfully impose conditions on public processions and assemblies as well as on one person protests, including in relation to how noisy they are. It makes it easier to convict someone for not complying with conditions imposed by the police even where they're not aware of them, it expands the controlled area around parliament, it creates a broader statutory offence of public nuisance to replace the existing common law offence and also introduces a power for the Home Secretary to make regulations clarifying the meaning of serious disruption for the purpose of triggering the police's power to impose restrictions.

The right to protest is guaranteed by the Human Rights Act by our rights to of freedom expression and freedom of assembly but it is not unlimited, it can be restricted when necessary and proportionate.  These changes though would take the law much further than it currently stands and sits very uneasily with our basic rights to express ourselves.

The Government has also published the Elections Bill which includes proposals for changes to the governance of the Electoral Commission. Most notably, it includes a new strategy and policy statement which will be written by ministers which will set out the strategic and policy priorities of the Government relating to elections, referendums and the Commission's other functions, as well as the role and responsibility of the Commission in enabling Government to meet these priorities.

Whilst we all acknowledge the importance of Government being able to pursue its mandated policies, there are obvious and fundamental issues with that extending to the Electoral Commission, which is in the unique position of regulating the party of Government as a political party.  It's hard to see how it can maintain its independence when it is directed in strategy and policy issues by that same party.

Whilst I don't want to be alarmist I also, like Meg, don't think we should be complacent. Many democracies have fallen for a charismatic leader who dismisses the conventional respect for the institutions around them and has a knack for polarisation and nearly all modern democracies which have recently slid into more authoritarian rule started that process with incremental changes that did not feel too alarming initially. Even in the UK when changes are being made to Rights Acts the ability of the courts to hold Governments to account, the body that runs our elections and our ability to protest these changes, the very least we should do is make sure we are paying close attention.

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