The Economist - USA (2020-11-21)

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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

18
15
12
9
6
3
0
20†1510052000951990
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