The Economist - USA (2020-11-21)

50 Britain The EconomistNovember 21st 2020

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gave them, failed to follow a fair process or

behaved irrationally.

In 1973, Britain joined the European

Economic Community. In the following

decades, control of many areas of policy

once dealt with in London went to Brus-

sels. In exercising their remaining powers,

ministers were constrained by European

laws on state aid, procurement and the en-

vironment. Margaret Thatcher was enthu-

siastic, for the process limited the scope for

them to mess with the economy. Brussels

required the courts to strike down domes-

tic laws and decisions that contradicted

European law.

Tony Blair, who took office in 1997,

thought Britain over-centralised and re-

mote from citizens. The revolution he led

looked a lot like the one Hailsham envis-

aged. He set up new devolved governments

in London, Scotland, Wales and Northern

Ireland. (An assembly later planned for

north-east England was rejected in a refer-

endum after a campaign on which Mr

Cummings worked. Its slogan was “More

doctors, not politicians”.) A Supreme Court

was created, independent of the legisla-

ture. A Human Rights Act, with which laws

and ministers’ decisions had to conform,

was passed. There was more oversight and

less secrecy. Thatcher had set up the Na-

tional Audit Office to scrutinise govern-

ment spending; Mr Blair’s Freedom of In-

formation Act created new rights of access

to official papers.

David Cameron, a small-state moder-

niser, abolished the prime minister’s pow-

er to trigger elections. He strengthened

Whitehall’s hand, recognising the civil-

service code, which asserts officials’ politi-

cal impartiality, in law. He bolstered the re-

gime of ministerial directions, under

which senior civil servants can publicly

caution ministers if they believe a project

is undeliverable or wasteful.

Vernon Bogdanor, a constitutional his-

torian, concluded in 2009 that Mr Blair’s

reforms were a classically liberal project in

limited government, “seeking to secure

liberty by cutting power into pieces.” Be-

fore proposing a law, ministers had to

check that it was compatible with Euro-

pean and human-rights legislation, as well

as the devolution settlement. Ministers

could expect their decisions to be scruti-

nised by judges, auditors and the public.

The elective dictatorship had been toppled.

The Conservatives miss the ancien ré-

gime. They blame judicial review for gum-

ming up decision-making, and human-

rights law for hobbling immigration policy.

The crude carve-up of policy areas between

London, Edinburgh and Cardiff has, they

think, left the British government too fee-

ble to tackle crises like covid-19. Devolu-

tion was meant to save the Union but, they

maintain, has only boosted separatists. On

November 16th, in a moment of candour,

Mr Johnson expressed this view, telling a

gathering of mps he thought Scottish devo-

lution a “disaster” and Mr Blair’s “biggest

mistake”.

What Hailsham saw as a dictatorship,

the Tories see as a bond between voters and

the government. Institutions and watch-

dogs created during Mr Blair’s tenure mas-

querade as independent, argues an official,

but instead form a parallel political class.

According to this view, Blairism weakened

rather than strengthened democracy: vot-

ers are disillusioned not because Westmin-

ster is too mighty but because those they

chose to run the country are constrained by

people who have not been elected.

The restoration

For many Tories the prorogation debacle of

2019 confirmed that things had gone badly

wrong. It was the culmination of a battle

around Brexit which, said the Conservative

Party manifesto in the subsequent elec-

tion, “opened up a destabilising and poten-

tially extremely damaging rift between

politicians and people”.

Mr Johnson had promised, “do or die”,

to deliver Brexit on October 31st, but with-

out a working majority, and unable to call

an election, he was blocked by Parliament.

He prorogued Parliament, but the Supreme

Court, which heard interventions from the

Scottish and Welsh governments, blocked

his move. The judges described their deci-

sion as a defence of Parliament, in keeping

with the courts’ role in settling constitu-

tional questions for more than 400 years.

Brexiteers saw it differently, and are deter-

mined to prevent the executive from losing

control again.

In most countries, changing the consti-

tution is hard. In Britain, it is easy. The new

checks and balances were passed by Parlia-

ment, and what Parliament has created, it

can take away. The reforms of the past 40

years will not be overthrown, but there will

be a course-correction to assert the pri-

macy of the politicians over judges and of-

ficials. Danny Kruger, a Tory mp, calls it “a

restoration of politics to its proper place at

the apex of our common life.”

Brexit, which comes into full effect on

January 1st, ends the supremacy of Euro-

pean law in Britain. As Mr Cummings’s

campaign slogan of “take back control”

promised, both the workload and the el-

bow-room of ministers will expand. They

will take charge of the sanctions imposed

on Russian kleptocrats, the allocation of

airport landing-slots and the chemical

composition of toilet unblocker. David

Frost, Mr Johnson’s negotiator, sees Brexit

as a zero-sum game in recovering lost

sovereignty. Ending Europe’s control over

state subsidies and emissions is “the point

of the whole project.”

Parliament has passed a stack of laws to

patch the hole left by Brussels in running

Britain. But whereas in Brussels powers are

distributed among the eu’s institutions, in

Britain they are concentrated in ministers’

hands. mps will have less freedom to block

future trade deals than their counterparts

in the European Parliament or America’s

Congress; ministers will have wide powers

to rewrite regulations on agriculture and

medicines. A new environmental regulator

has been set up, but campaigners think it

weedier than the European Commission.

While ministers get mightier, the courts

are being weakened. They will no longer be

able to strike down decisions and acts in-

compatible with eulaw. A review led by Ed-

ward Faulks, a critic of the prorogation rul-

ing, will ask whether judicial review is

being abused “to conduct politics by an-

other means”. It will look at placing some of

the prime minister’s prerogative powers,

such as deploying troops or appointing

ministers, beyond the reach of judges, and

at “streamlining” the burden placed on

government by disclosure rules.

Robert Buckland, the Lord Chancellor,

is considering changing the Supreme

Court’s name to downgrade its status. A

further review of how the courts apply the

Human Rights Act will be launched this

month. Mr Johnson wants to reclaim the

power to trigger elections by repealing Mr

Cameron’s Fixed-term Parliaments Act.

Critics argue that this will result in

worse, not better, government. If disclo-

sure is limited, the scope for bringing un-

lawful behaviour to light will be too. Judi-

cial-review cases are usually about

everyday matters in which officials have

administered lousily, rather than grand

constitutional questions. Judges enter po-

litical terrain rarely, reluctantly and only

with good reason—which, many would ar-

gue, they had in the case of the prorogation

of Parliament.

Devolution is being nudged back too.

Mr Johnson wants to end the impression

that he is a visitor in a foreign land when he

tours the United Kingdom, and to show

that being in the Union pays. Brussels used

to send money to Scotland and Wales to pay

Spend, spend, spend

Britain, number of ministerial directions*

Source: Institute for Government

*Ordersforspendingtogoaheadfollowinga formalwarning

fromcivilservantsongroundsofregularity,propriety,

value for money or feasibility †To July 23rd

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