The EconomistNovember 21st 2020 Britain 512 for film festivals, bridges and other goo-
dies. In future London will distribute that
bounty. The pandemic has also left city
mayors feeling squeezed. Manchester’s
Andy Burnham, among others, com-
plained about the imposition of lockdown
in his city; Sadiq Khan, mayor of London,
accused the government of a power grab
after it threatened to take control of Tran-
sport for London, the Tube operator, dur-
ing bail-out negotiations.
The Internal Market Bill, published on
September 9th, is intended to create an
all-ukmarket after Britain drops out of the
eu’s single market. It contains wide “oust-
er” clauses, limiting judges’ scope to re-
view how ministers use their powers and
exempting them from their duty to act in
accordance with the Human Rights Act.
The government’s legal advice justified the
bill on the bald principle of parliamentary
sovereignty: if lawmakers vote for it, it is
constitutional.
“We are living through Hailsham’s
nightmare,” says Peter Hennessy, a consti-
tutional historian. The difference between
the 1970s and today, he says, is the degree to
which ministers restrain themselves to do
only what they regard as right and proper:
the so-called “good chaps” theory of gov-
ernment. “The problem with this govern-
ment is its alarm bells don’t ring,” he says.
The executive lacks internal checks and
balances. Mr Johnson’s cabinet is stuffed
with timid loyalists whose aides, since a re-
structuring by Mr Cummings, now answer
to Downing Street. The government’s top
lawyers—Mr Buckland, Suella Braverman,
the attorney-general, and Michael Ellis, the
solicitor-general—nodded through the In-
ternal Market Bill, which broke interna-
tional law, although the head of the civil
service’s legal department and the advo-
cate-general for Scotland quit over it. “If
you operate a command model, you can go
a long way foolishly before anyone raises a
flag,” says Lord Hennessy.
Raising flags is one of the two jobs of
Britain’s permanent civil service. The civil
service is not merely an instrument of min-
isterial will, bound to deliver the policies of
the elected government: it is also a soft
check on ministerial whim. Civil servants
are obliged to provide politically impartial
advice based on rigorous evidence. Job se-
curity, the logic runs, encourages honesty.
The tension between the civil service’s
two jobs is of long standing. Mr Cum-
mings’s complaint that mandarins smoth-
er innovation and defend the status quo
was the premise of “Yes, Minister”, a 1980s
tvcomedy. But the attacks on it now are
unusually fierce. Under Mr Johnson, a
string of top civil servants have been
shoved out. Mark Sedwill, who quit as cabi-
net secretary in June, told mps on Novem-
ber 17th that briefings to newspapers dis-
couraged civil servants from giving “blunt
and candid” advice.
The government wants to make the civil
service more skilled and to raise the pres-
tige of “operational” folk. But it also wants
to make it more responsive to ministerial
will. Mr Johnson has filled top jobs with po-
litical allies, including Dido Harding, the
head of Britain’s test-and-trace service, and
Lord Frost. The number of ministerial di-
rections has risen sharply this year (see
chart on previous page), largely because of
the need for speed during the pandemic.
Theodore Agnew, the minister in charge of
government reform, thinks ministers
should be more willing to override cau-
tious civil servants.
The main obstacle to the Internal Mar-
ket Bill is now the House of Lords, which
heavily amended the bill on November 9th.
“It would be extraordinary if a measure of
this kind, which whatever your view is a
controversial measure, had not been ques-tioned. They were carrying out their con-
stitutional duty,” says Lord Fowler, the
Lords’ speaker. Yet the upper house has lit-
tle power: it can only delay bills, and by
convention does not block the govern-
ment’s manifesto promises. Its credibility
is undermined by a bizarre appointments
system which combines tradition with pa-
tronage. Mr Johnson has shown disdain for
it, filling it with pals and suggesting it
move to York.Moody blues
For 200 years, the Conservative Party has
forestalled popular revolution by constitu-
tional evolution. Ministers say that is what
they are doing now, by channelling popu-
list anger at over-mighty judges and foot-
dragging mandarins. But there are worries
about the direction of travel, not least from
the government’s own side.
An overweening executive does not sit
comfortably with a taste for small govern-
ment. Immigrants may appeal to judges to
avoid deportation; so do Home Counties
Tories keen to block developments. Busi-
ness, too, dislikes government by ministe-
rial whim, for investors prize the security
that the rule of law offers. Those concerns
have already made themselves felt. On Oc-
tober 16th, Moody’s downgraded Britain’s
credit rating, blaming, in part, the coun-
try’s weakened institutions and its ap-
proach to rules and norms.
Mr Cummings’s goal was to deliver vast
“moonshot” projects faster and cheaper.
But government failures are often the con-
sequence of hasty ministers listening to
civil servants too little, not too much.
“There’s a real problem with ministers that
overpromise and under-deliver. You need
checks and balances upfront,” says Gus
O’Donnell, a former cabinet secretary.
There are diplomatic costs, too. The
breach of international law embodied in
the Internal Market Bill was condemned
not just by the Labour Party and all living
former prime ministers, but also by Joe Bi-
den, whom Mr Johnson is now desperate to
impress. It also poisoned trade talks in
Brussels. And how, asked Sir John Major, a
former prime minister, could Britain wag
the finger at Russia and China again when
they flouted international norms?
Mr Johnson fought the 2019 election on
the basis that “getting Brexit done” would
heal the country’s divisions. Instead, it
opens new questions about where power
should lie and how it should be con-
strained. Sir Keir Starmer, the Labour
leader and a former human-rights barris-
ter, is a defender of the checks, balances
and mores of Mr Blair’s era. Mr Johnson
represents a new strain of majoritarian de-
mocracy, for whom statecraft is a simple
matter of serving voters what they ordered.
The battle for Brexit is over. The fight for
the constitution has just begun. 7