The UK Governance Project: proposals for reform

Posted on February 21, 2024 by The Constitution Unit

A commission chaired by former Attorney General Dominic Grieve recently published a report on the current state of UK governance, which has identified substantial problems and made recommendations to improve matters. Here, Dominic outlines the report’s key conclusions and recommendations, ahead of an online Constitution Unit event at which he and fellow commissioner Helen MacNamara will discuss the report in greater detail and answer audience questions.

Introduction

The origin of this project was a shared concern amongst the Commissioners who came together to produce it, that the institutions which underpin our parliamentary democracy are losing credibility. This is certainly the view of the public. A 2023 Constitution Unit survey has shown that only 38% of respondents were ‘very satisfied’ or ‘fairly satisfied’ with the way UK democracy operates. In contrast 52% were dissatisfied. The same percentage agreed with the statement that ‘politicians tend to follow lower ethical standards than ordinary citizens’. Yet the same politicians are the lawmakers and governors who expect others to respect the rules they create.

It should therefore come as little surprise that 78% of respondents also considered that ‘healthy democracy requires that politicians always act within the rules’. Yet in recent years there is plenty of evidence that this has not been happening. Government ministers have been found to be ignoring the ministerial code of conduct under which they are supposed to operate. When they have, nothing has been done about it. We have had a Prime Minister, Boris Johnson, who was found by the Commons Privileges Committee to have deliberately misled parliament. The principle that appointees for life to the House of Lords as legislators in a revising chamber should be of conspicuous integrity, has been shown to be capable of being flouted at Prime Ministerial will. The Electoral Commission, which was created to ensure that elections should be free from improper interference by the government or other interests, has had its powers and independence reduced. It has become more obvious than ever, particularly during the Covid-19 pandemic, that the powerful degree of control that a government exercises over parliament is not conducive to the enactment of properly scrutinised primary laws and secondary legislation.

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After an unsuccessful legal challenge by All the Citizens and the Good Law Project, where next on WhatsApp use in government?

Posted on July 3, 2022 by The Constitution Unit

Cassandra Somers-Joce and Joe Tomlinson discuss the use of instant messaging technologies within government, arguing that good government does not mean the eradication of such technology from government practice, but that it must be used in a way that is sensitive to the state’s duties to maintain a record.

The last few years have seen several prominent examples of instant messaging technologies – some with the capacity to auto-delete messages – being used within the UK government. Examples ranging from the articulation of the rationale behind the controversial prorogation of parliament to the securing of government medical device contracts during the COVID-19 pandemic have arisen in the press. Instant messaging technologies clearly play an important role in government communication and decision-making. These technologies are seemingly utilised daily across all levels; for instance, the BBC has reported that since November 2020, Prime Minister Boris Johnson has been sent a summary of his ‘red box’, containing prime ministerial business to attend to, via WhatsApp. These reports of high-profile usage have been followed by the emergence of a Cabinet Office policy that arguably encourages the use of self-deleting instant messaging, and research from the Institute for Government that shows divergent policies on this issue across government.

What should we make of these quickly evolving practices? Instant messaging technologies such as WhatsApp undoubtedly have their benefits for public officials, and the effective functioning of government overall. Perhaps most notably, they can enable officials to exchange messages and share information more easily than other systems. However, they create a range of complexities as regards the preservation of the public record, particularly where these technologies are used in place of documented meetings or official email communications. Not least amongst these complexities is that the use of these technologies engages a variety of public law norms related to governmental record-keeping and the disclosure of information. As practices have emerged, it has become increasingly clear that the use of WhatsApp by the UK government may be at risk of being in violation of these public law norms.

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Monitor 76: Democratic lockdown?

Posted on November 12, 2020 by The Constitution Unit

The latest edition of Monitor, the Unit’s regular news update on constitutional issues, was published today. In this lead article from Monitor 76, Meg Russell and Alan Renwick discuss the key events and themes of the past four months. They include tensions between devolved and central govermnent related to Brexit and COVID-19; concern about parliamentary scrutiny of the pandemic; criticism of the government’s commitment to the rule of law (called into question by the UK Internal Market Bill, the Faulks review and criticism of the legal profession); the Russia report and other concerns about the country’s electoral framework; and the reshaping of government and civil service operations by Number 10.

England entered a new COVID-19 ‘lockdown’ just before Monitor went to press. The pandemic continues to dominate politics in the UK and globally, with a return to politics-as-usual appearing distant. Both the handling of the crisis and the government’s latest actions on Brexit have been key factors driving serious concerns about the maintenance of constitutional norms in the UK. But as this latest Monitor catalogues, the roots of those concerns – about declining respect for conventions and deliberate or accidental erosion of ‘checks and balances’ – are now spread across many fields.

There was tolerance in the early stages of the pandemic for quick decision-making, and partial bypassing of parliament. But that has increasingly grown thin. The UK is one of many countries where concerns have been expressed about COVID facilitating an executive ‘power grab’. Worldwide, experts have warned that ‘democracy, human rights and the rule of law cannot be allowed to become the collateral damage of the pandemic’. Most key decisions at UK level have come via secondary legislation, often published at short notice with little or no opportunity for parliamentary scrutiny. Increasing protests from MPs, parliamentary committees and the Commons Speaker (see page 5) extracted concessions from ministers that parliamentary oversight would increase – hence the difficult vote on the new lockdown arrangements on 4 November. A total of 34 Conservative MPs voted against the new regulations – which represents almost half of the government’s working majority – and others abstained; though the measure passed comfortably with Labour support. A concerted cross-party approach from the start might have been sensible, but can be uncomfortable for ministers, particularly when accompanied by internal party dissent.

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The Constitution Unit turns 25!

Posted on June 15, 2020 by The Constitution Unit

This year, 2020, marks a full 25 years since the foundation of the Constitution Unit. It has been a hugely eventful period, both in terms of real-world constitutional change and controversies, and in terms of the Unit’s own work. To mark our silver anniversary, we are celebrating some of the key ways in which the Unit has contributed to public debates, and helped to inform policy change, over this period. What better way to celebrate 25 years than with 25 of our most notable achievements?

Note that this post reproduces the text from a new page on our website celebrating our 25 years. That contains a full set of 25 images, so some readers may prefer to access the website version.

1. Hitting the ground running

Robert Hazell founded the Constitution Unit in 1995, with funding from six charitable trusts, to help with detailed planning for big constitutional reforms following a possible change of government. The initial research team included Graham Leicester (from the Foreign Office), Nicole Smith (Home Office) and Katy Donnelly. The Unit published seven book-length reports the following year: the first on how to prepare and deliver a big constitutional reform programme, and others on devolution to Scotland, Wales and the English regions, reform of the House of Lords, human rights legislation, and the conduct of referendums (the latter recommending the establishment of an Electoral Commission). From 1997, the new Labour government began to implement its constitutional reform programme, which often reflected Unit recommendations. Responding to the intense reform activity in government, the Unit published 17 further reports in 1998 and 20 more in 1999.

2. Monitor goes to print

In September 1997 the Unit published the first issue of Monitor, its regular bulletin of constitutional news. Monitor continues today to provide an essential digest of political and constitutional changes three times a year, valued by over 4800 subscribers – if you are not among them, you can sign up here.

3. Reform of the House of Lords

From its earliest years, the Unit has fed in regularly to debates about reform of the House of Lords. It published ten briefings for the Royal Commission on the Reform of the House of Lords in 1999, several of them authored by the Unit’s future Director Meg Russell and drawing on analysis of overseas experience. In 2000, she published the book Reforming the House of Lords: Lessons from Overseas. This body of comparative research has influenced debates on second chamber reform in various other countries as well as the UK – including Canada, Italy and Japan. Meanwhile Meg’s 2013 book The Contemporary House of Lords is today’s definitive work on the chamber, underpinned by research funded by the ESRC.

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What the RHI Inquiry tells us about the ‘chilling effect’ of freedom of information laws

Posted on April 23, 2020 by The Constitution Unit

The report into the Renewable Heat Incentive scheme provided an insight into the functioning of government in Northern Ireland. Ben Worthy examines the extent to which it revealed that freedom of information laws have produced a ‘chilling effect’ and affected the completeness of the public record when it comes to ministerial discussions and decisions.

One of the biggest fears for transparency campaigners is that Freedom of Information (FOI) laws could create an incentive to hide instead of open up. Could the presence of such laws lead to officials and politicians trying to hide from them, or even fight them? The particular concern is that laws designed to increase transparency might instead empty out the official record, so that meetings go un-minuted, conversations go unrecorded and that important audit trails simply disappear. Even where it goes on, this so-called ‘chilling effect’ is notoriously hard to prove.

This was one of the many concerns raised as a consequence of scrutiny of the Renewable Heat Incentive (RHI) scheme in Northern Ireland. The alleged mishandling of the scheme partially led to the collapse of the Northern Ireland Executive in January 2017 and prompted an official inquiry, which reported last month. Back in March 2018, giving evidence to the RHI Inquiry, the Head of Northern Ireland’s Civil Service, David Sterling, admitted that ‘the practice of taking minutes had “lapsed” after devolution’ and mentioned FOI specifically as a factor. Continue reading →

The Constitution Unit Blog

Category Archives: Freedom of information

The UK Governance Project: proposals for reform

After an unsuccessful legal challenge by All the Citizens and the Good Law Project, where next on WhatsApp use in government?

Monitor 76: Democratic lockdown?

The Constitution Unit turns 25!

What the RHI Inquiry tells us about the ‘chilling effect’ of freedom of information laws

The Constitution Unit Blog

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