Current polls for the general election predict a new Labour Government will come to power on 4th July 2024. What might be the constitutional legacy of a future PM Starmer? The Labour Party Manifesto promises the establishment of a new independent Ethics and Integrity Commission. Whatever else a Starmer premiership might achieve, a constitutional ‘deep clean’ of the British Constitution would be a good start and a fitting legacy for a former Director of Public Prosecutions.
Post-Brexit Conservative Governments have presided over sustained constitutional rule and law-breaking, especially under PM Johnson. Among the most egregious examples would be the attempted unlawful prorogation of Parliament and repeated undermining of the rule of law; the Owen Paterson scandal; the resignation of two Independent Advisers on Ministers’ Interests, Sir Alex Allan and Lord Geidt, Partygate and the Christopher Pincher scandal which ended Johnson’s premiership. At the time of writing yet another scandal involving alleged betting by Conservative Party candidates on the election date threatens to derail the Conservative Party’s election campaign.
Voter distrust and disillusionment
Little wonder that the report, The Future of Democracy in the UK, finds many voters ‘feel deeply disillusioned with the state of politics today’. The Post Office scandal and the Infected Blood Inquiry, adds to the impression that dishonesty is endemic in British public life. Another report, Trust in Public Life: Restoring the role of constitutional watchdogs, notes that:
“The World Values Survey published in March 2023 showed that the UK had low levels of public confidence in our political institutions by comparison with 23 other countries. Confidence in the UK parliament has halved in the last three decades, falling from 46% in 1990 to 23% in 2022.”
Opinion polls predict low turnout and indicate high levels of distrust among voters, vindicating the findings of the reports. While scepticism of politicians might sometimes be healthy, deep cynicism is corrosive for democracy and low turnout at elections undermines the legitimacy of politicians.
Rule of law, standards in public life and good governance
The principle of the rule of law and high standards in public life are essential for good governance: they are interconnected. Post-Brexit Conservative governments and their repeated undermining of the rule of law coupled with breaches of constitutional norms have caused genuine alarm. The unprecedented drop in standards of parliamentary behaviour has resulted in the above reports advocating substantial constitutional reform to strengthen existing mechanisms to prevent and punish politicians for rule breaking.
The ‘good chap’ system of governance, whereby ministers and MPs exercise self-restraint and abide by constitutional rules without the need for external oversight and enforcement, appears outdated, obsolete and naïve in the face of repeated breaches. Of course, it could be questioned whether the ‘good chap’ system of governance ever really existed. However, the severity of the drop in standards has illustrated the urgent need to restore integrity and to ‘deep clean’ the British Constitution.
Disregard for standards in public life
PM Major’s premiership and the scandal of MPs and their fraudulent expenses claims saw the establishment of the Committee on Standards in Public Life in 1994 and the Nolan principles, which set down ethical standards expected of those in public life. But we might ask why, after 30 years of their existence, the Brown Report, which is the genesis of Labour’s proposed Integrity and Ethics Commission, states that:
“we need new, tougher rules and more rigorous enforcement of them if we are to ensure both the absence of corrupt behaviour and the adherence to high standards in public life”.
Has the quality and integrity of today’s politicians declined over the last 30 years? Has the Committee or the Nolan Principles had any meaningful impact on the behaviour of politicians? The Future of Democracy in the UK report noted that “the widespread feeling that the political world treats members of the public with contempt ran deep”. The gravity and urgency of the need to restore integrity is underscored by the authors asserting that:
“If the problem isn’t dealt with, however, it creates a risk: that untrustworthy politicians actively seek to profit from the public’s existing distrust, concluding that they can behave dishonestly, and consequently eroding trust further. Some fear that this has already happened in the UK.”
In light of such findings, the ‘good chap’ theory of governance looks risible. Indeed, such is the epidemic of dishonesty among politicians, that the Senedd in Wales is considering the introduction of a ‘truth law’ with criminal penalties for politicians who lie.
Failure of constitutional watchdogs
Lack of consensus exists over the precise details of mechanisms required to improve constitutional behaviour. However, the reports agree that there is a pressing need for reform of existing watchdogs and highlight failures in the present system.
In Good Chaps No More? Safeguarding the Constitution in Stressful Times, weaknesses in the regulation of the Ministerial Code are exposed. The PM writes the Code and decides whether to refer ministers to the Independent Advisor for possible violations. The PM ultimately decides whether the Code has been broken or not, a clear conflict of interests. The dismissive attitude of the Johnson administration towards constitutional constraints is noted in Trust in Public Life:
“The Johnson government repeatedly undermined constitutional watchdogs by belittling them, failing to fill vacancies, ignoring their advice, threatening their abolition.”
Glaring inadequacies of watchdogs were fully exemplified in the high-profile resignations of two Independent Advisors. Sir Alex Allan found that Home Secretary Priti Patel had breached the Code in relation to bullying but PM Johnson refused to act on his report and dismiss Patel, prompting Allan’s resignation. His successor, Lord Geidt, also subsequently resigned over Johnson’s intention to consider a deliberate breach of the Ministerial Code.
The ineffectiveness of another watchdog is demonstrated by the Advisory Committee on Business Appointments (ACOBA). ACOBA exists to advise ministers about taking up offers of employment within two years of leaving office. Ministers should not exploit access to government or information and should consult ACOBA before accepting offers. However, Johnson failed to seek guidance from ACOBA before taking up his role as a columnist with the Daily Mail. ACOBA concluded that it was “a clear and unambiguous breach of the government’s Rules and requirements of the Ministerial Code”. But ACOBA cannot enforce its guidance and no penalties exist for failure to follow or consult with it.
Disregard for the rule of law
A similar, dismissive attitude to the rule of law was evidenced in post-Brexit Conservative governments with Partygate and the unlawful prorogation of Parliament being the most notorious examples of the Johnson government. In their report, Blick and Hennessy observe that the language and tone of politicians revealed a disdain for law-making procedures as evidenced by PM May’s dismissal of Parliament’s role in starting the Brexit process. Truss’s failure to defend judges and uphold the independence of the judiciary in the face of the Daily Mail’s ‘Enemies of the People’ headline, which stirred up public antipathy towards the judiciary, was heavily criticised by the Lord Chief Justice.
Disrespect for the rule of law was reflected in Johnson’s repeated threats not to comply with the requirements of the European Union (Withdrawal) (No.2) Act 2019 and led to calls for his impeachment if he disobeyed the Act. The Secretary of State for Northern Ireland admitted that the Internal Market Bill would break “international law in a very specific and limited way” in failing to uphold the Northern Ireland Protocol. The Safety of Rwanda (Immigration and Asylum) Act 2024, all but reversing the decision of the UKSC in declaring PM Sunak’s Rwanda policy unlawful, displayed further undermining of the rule of law.
Need for independent, external oversight of the executive
Compelling arguments exist for a written constitution with judicial oversight to ensure constitutional propriety. At the very least, far more robust mechanisms and independent watchdogs with teeth are now urgently required to restore integrity to the parliamentary process.
Some might argue the resilience of the British constitution has been demonstrated in the face of challenges posed by the behaviour of post Brexit governments. Others might say that Johnson was an outlier and the Constitution is unlikely to face the same destabilising challenges. But ministers and MPs supported him, and he continues to retain some support. Without robust enforcement against constitutional rule breaking, the degrading of constitutional norms will persist.
Politicians by their behaviour have forfeited the right to self-regulation and parliamentary privilege should be reformed. There may be concern at the prospect of allowing independent, external, unelected bodies the right to interpret constitutional rules and apply sanctions but why should election to Parliament be deemed to confer legitimacy and the ability to apply rules without bias? The role of making laws and rules is not the same as interpreting and applying them. In a ‘political constitution’ with few legal constraints and an executive largely in control of the legislature, an obvious conflict of interest exists in allowing those who make constitutional rules to apply them. Moreover, unelected judges already decide judicial review cases involving constitutional disputes. An independent Ethics and Integrity Commission would be a step in the right direction. The political mood may be downbeat, but as the song goes, things can only get better…
