A leading group of constitutional experts have expressed ‘profound concerns’ about the growing arbitrary power of UK ministers in a new report published this week. The issues in the report are largely associated with the current Government. But the recent scandals in Government highlight deeper flaws in the UK’s constitutional system that should be urgently addressed, regardless of the Government in office.
By Joanna George
Research Associate, University of Cambridge
A new report by the UK Constitution Monitoring Group (UKCMG), a group of leading constitutional experts and practitioners, has warned that the existing checks and balances on ministerial power in the UK is proving inadequate. Following their assessment of the events and trends taking place across several constitutional areas between 1 July to 31 December 2021, the report criticises the standard of effectiveness of the system for ensuring the Government adheres to certain standards, highlighting the ‘willingness’ of individuals within Government to ‘exploit’ the flexibility of largely self-regulating rules.
During the six-month period which the report assessed, confidence in Government reached crisis point as scandals became incessant. These scandals include former Secretary of State for Health and Social Care, Matt Hancock MP, breaking Covid-19 social distancing rules, the Owen Paterson lobbying controversy and the current investigation by the Metropolitan Police into alleged gatherings in Downing Street and Whitehall during Covid-19 restrictions. Unsurprisingly, such events contributed to the findings in an IPPR poll which revealed that trust in politicians is at the lowest level on record. Considering this, what constitutional developments are covered in the UKCMG report and why is it important for the Government to take note?
Emphasis on integrity in public life threads throughout the report, highlighting that acceptance of the ‘rules on the part of those in positions of responsibility is vital to any system’ but especially to those abiding by the UK constitution’s ‘tradition of self-regulation’. In response to the Metropolitan Police investigation, the Prime Minister has committed to reforming the office of Adviser and the Ministerial Code. But if this commitment fails to recognise the ‘degree of seriousness and urgency they demand’, the Government risks further media criticism and loss of public trust – factors which could prove politically damaging in the upcoming local elections – in both itself and the constitutional system of governance of the UK.
The report refers to the 2019 Conservative Party manifesto and its extensive constitutional legislative programme. Instead of adhering to certain standards, the Government’s approach falls ‘short of the ideal’. This approach links to the pattern of ‘establishing an expert, independent panel to consider an area for reform, before then announcing its own consultation on a series of proposals that ignore or substantially diverge from the recommendations of the independent review it set up’. The consequence of this is constitutional confusion. To paraphrase Lord Carnwath, who applied this to the Government’s approach to reforming the Human Rights Act, such a method is ‘almost like ships that pass in the night’. If the Government is sincere – and less reactive – about its constitutional reform agenda, more logical and consensus-orientated approaches would be worth exploring which would improve the likelihood of such reform withstanding the test of time.
The progression of the Elections Bill currently going through Parliament was condemned for its reduction of autonomy and powers to the Electoral Commission, in turn creating potential ‘grounds for suspicion of the present government for it to manipulate electoral and other processes’. With a nod to the concurrent reports published by two House of Lords committees in November, legislation as a constitutional theme was also analysed with concern for the reliance on delegated law-making powers in response to Brexit and Covid-19. This approach not only reduces ministerial accountability to Parliament but also has the potential to create problems for millions of people across the UK who will be confronted with the consequences of legislation that has not been properly democratically scrutinised. How this benefits the Government (whose popularity is currently in decline) in the long-term deserves serious reflection.
Devolution and the Union, particularly the post-Brexit status of Northern Ireland and ‘the repeated threat by the UK government to invoke Article 16 of the Protocol’, was noted as ‘a major source of concern’. The language used to communicate on ‘such an important and sensitive matter’ was described as ‘unnecessarily combative, and is possibly calculated as such’. This, along with the behaviour of the Government towards the devolved administrations, has also been observed in other reports such as the House of Lords Constitution Committee’s recent report on Building a Strong Union which advocates for more respect and co-operation on matters relating to the Union.
Whether the Government will take note of this report alongside similar ones which urgently call for the UK’s constitutional system of conventions and rules to be strengthened is yet to be seen. But for a government that appears to be politically and culturally adrift from the people it seeks to govern, are there actually any pitfalls to the Government not taking action? Would the Government actually prevent further political difficulties from arising if it was fully invested in a major change of culture? Addressing the matter from a more appeasing perspective has the potential to cultivate a political culture that is proud of the UK’s unique constitutional system and the government who serves to protect it.