openDemocracyUK: Opinion

Boris Johnson’s party is dismantling the ways to hold government to account

The Electoral Commission is only the latest target in the Tory party’s determination to destroy any semblance of scrutiny

Alex Walker
22 February 2022, 2.04pm
Boris Johnson’s government is weakening the institutions that are meant to hold the executive to account
Tayfun Salci/ZUMA Press Wire

The Electoral Commission this week tweeted an unprecedented riposte over the UK’s government’s latest attack on our democratic institutions – a plan to severely undermine the commission’s independence as the country’s election watchdog.

Writing for openDemocracy last year, one former electoral commissioner claimed that the Elections Bill, which is set to be debated in the House of Lords on Wednesday, includes measures that are “serious threats to the fairness of all future elections in Britain”.

So serious is the threat that yesterday the Electoral Commission announced it had written to UK ministers to warn that “enabling the government to guide the work of the commission – is inconsistent with the role that an independent electoral commission plays in a healthy democratic system”.

The Electoral Commission has been a long-standing target for the Conservative Party. Several backbenchers are unhappy with decisions made by the body in the wake of the Brexit campaign and have called for its reform. The new legislation will allow ministers to influence the commission’s work and its strategy and provide guidance on specific cases, as well as introducing mandatory voter ID.

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As former electoral commissioner David Howarth wrote last year, “Electoral Commissions, like the courts, do not exist to please elected politicians. They exist to protect free and fair elections, which they can’t do unless they are independent and free from the control of the ruling party.”

Since the ill-fated attempt to prevent disgraced former Tory MP Owen Paterson’s suspension for ‘egregious’ paid lobbying, tales of the UK government’s willingness to disregard the rules have barely been out of the headlines.

Much of the scandal has emanated from the prime minister himself, especially since‘partygate’ began to unfold. The actions of Boris Johnson and those around him have damaged the system for upholding standards of propriety and integrity in government, making strengthening the rules both necessary and urgent. But we should not lose sight of the fact that these scandals form part of a worrying bigger picture.

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I was an Electoral Commissioner. Boris Johnson’s bill will benefit the Conservative Party at the expense of British democracy

A report published last week by the UK Constitution Monitoring Group examines developments across the political system as a whole over the past six months. The group, which consists of constitutional experts and former senior officials, warns that the power of the UK executive is being enhanced. The report details various bills that would give ministers more power over citizens, whilst weakening the institutions that are meant to hold the government to account. Whether or not Johnson’s premiership survives, the train he has set in motion is likely to keep moving.

This should concern those on both sides of the political divide, as the reforms would enable future governments of any persuasion to act with relative impunity.

Which bills will hand more power to the government?

The Elections Bill would require individuals to show photo identification in order to vote. There is evidence this would have a negative impact on democratic participation, especially among groups that are already the least likely to turn out, such as ethnic minorities. But the bill would also see the government of the day gain great control over the Electoral Commission – the regulator charged with ensuring that elections are free and fair. The bill would enable the government to direct the commission through a ‘Strategy and Policy Statement’, which the regulator ‘must have regard to in the discharge of their functions’. This would reduce the independence and autonomy of a body fundamental to upholding the integrity of democracy in the UK.

Similar ministerial powers are contained in the draft Online Safety Bill – which, if introduced, would enable the secretary of state to direct Ofcom in its new role regulating the online world. The government would have an unprecedented means of determining what people are allowed to say and do online, which it could use to its own advantage.

The Nationality and Borders Bill would also give new powers to the government, such as the capacity to deprive individuals of their citizenship without notice. The United Nations High Commissioner for Refugees said that the bill is fundamentally at odds with the government’s avowed commitment to upholding the United Kingdom’s international obligations under the Refugee Convention.”

Westminster has used Brexit to shift power away from the devolved administrations in Scotland, Wales and Northern Ireland

The restrictions on the right to protest and on freedom of assembly contained in the Police, Crime, Sentencing and Courts Bill have been well-documented. Again, the legislation would give the secretary of state considerable latitude, in this instance to place conditions on these basic rights. The government introduced a raft of these measures to the bill once it had already passed through the House of Commons, limiting Parliament’s ability to properly consider them.

This reflects a wider tendency on the part of the government to avoid detailed parliamentary scrutiny, one of the primary ways in which ministers are held to account. Several committees have recently criticised the excessive use of ‘delegated legislation’ – that is, regulations made by ministers with limited scope for parliamentary oversight or input. The use of ‘skeleton bills’ – where only the most basic legislative framework is put before Parliament, with the details left to be decided on later by ministers – increases the discretion of the UK executive at Parliament’s expense.

The government has continued to make clear that it believes the role of the courts should be more limited. Its Judicial Review and Courts Bill uses an ‘ouster clause’ to prevent the High Court from reviewing certain decisions of the Upper Tribunal. This form of review is mostly used in social security and immigration cases, and its removal has been criticised for weakening rights protections. The government has indicated that it intends to use clauses of this nature more frequently in the future, to insulate government activity from judicial oversight. The justice secretary, Dominic Raab, has also made it clear that he wants to radically overhaul the UK’s human rights system by replacing the Human Rights Act with a ‘modern Bill of Rights’.

Finally, the UK government has used Brexit as an opportunity to shift power away from the devolved administrations in Scotland, Wales and Northern Ireland and towards Westminster. In 2020, the UK Internal Market Act was the source of particular controversy on this front. The more recent Subsidy Control Bill would have a similar effect. Typically, Westminster seeks the consent of the devolved parliaments when passing laws that impact on the areas under their power. But the UK government has shown itself willing to ignore this convention in recent years.

As the UK’s constitutional system becomes increasingly unbalanced, it may have detrimental consequences for the government of the day. Without sufficient checks and balances, those in office are more likely to make mistakes that come with an electoral price.

Johnson’s present political difficulties are a case in point. However, the current government is also being reckless with the future. The constitutional system should safeguard our democracy and rights from abuse – but the programme of reform being pursued would weaken these protections and leave us all more vulnerable.

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