Checks and balances: what are they, and why do they matter?

Checks and balances are fundamental elements of constitutional democracy that prevent the unconstrained exercise of power, improve the quality of decision-making and ensure that mechanisms exist for preventing or penalising unethical behaviour. Lisa James, Alan Renwick and Meg Russell argue that they therefore play a vital role in maintaining public confidence in the political system and the government has a particular responsibility to uphold them.

Background

The importance of checks and balances is often cited in debates about the health of democracy, and their erosion is widely considered a sign of democratic backsliding. But what are they, and why are they important?

Checks and balances are the mechanisms which distribute power throughout a political system – preventing any one institution or individual from exercising total control. The words ‘checks’ and ‘balances’ are typically used together, but can be thought of as referring to subtly different (though overlapping) things. Checks are the mechanisms which allow political institutions to limit one another’s power – for example by blocking, delaying or simply criticising decisions. Balances, meanwhile, ensure that a wide variety of views and interests are represented in the democratic process. This includes structures like federalism, or broader features of democratic functioning such as the existence of multiple political parties.

The term ‘checks and balances’ is given more prominence in some countries than others, and is often particularly associated with the United States. But the principle is core to all modern democracies.

Checks and balances operate between and within most political institutions. However, the risks of unconstrained power are often considered particularly high with respect to the executive. This briefing hence focuses on the key institutions which check and balance executive power at UK level:

  1. parliament
  2. the courts
  3. impartial officials, and
  4. media and civil society.

Why do checks and balances matter?

Checks and balances play two key roles. First, they limit the power of the majority to act without regard to the views or interests of others. They ensure that the perspectives of those who are in the minority on a given issue are represented – for example, by guaranteeing that opposition voices are heard in the process of law-making. Second, at a more practical level, they ensure that policy is tested and behaviour supervised. This helps to improve the quality of decision-making, and prevent behaviour which might threaten the integrity or reputation of the political system.

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Why Rishi Sunak should take the initiative on standards reform

Rishi Sunak has appointed a new Independent Adviser on Ministers’ Interests, but there is still a need for the role to be strengthened to ensure the new Adviser has genuine independence and freedom to act. Concerns have also been raised about the standard of recent appointments to the House of Lords. Peter Riddell argues that Sunak should follow the example of John Major and take the initiative on standards reform.

Rishi Sunak has so far been stronger on aspirations to improve standards in public life than on his actions, which have largely continued the approach of his predecessors. Ministers have reaffirmed limits to the role of independent regulators and scrutiny by reasserting executive prerogatives.

On the positive side, in his first comments on entering 10 Downing Street, Sunak promised that his government would have ‘integrity, professionalism and accountability at every level’. Trust, he said, is earned. And in his personal foreword to the Ministerial Code issued just before Christmas, he referred to upholding the Principles of Public Life (commonly known as the Nolan principles), which Boris Johnson had omitted from the May 2022 version. At the same time, Sunak appointed Laurie Magnus as the new Independent Adviser on Ministers’ Interests, six months after the resignation of predecessor Lord (Christopher) Geidt.

The role of the Independent Adviser

The remit of the Adviser has not, however, been strengthened since the compromise changes of last May, which attracted criticism at the time. The government adopted some of the package proposed by the Committee on Standards in Public Life (CSPL) in its Upholding Standards in Public Life report of November 2021, which recommended a graduated system of sanctions solely in the hands of the Prime Minister, combined with greater independence for the Adviser in launching inquiries and determining breaches of the Code. As Lord (Jonathan) Evans of Weardale, the committee’s chair, commented in June 2022, the government accepted the former but not the latter in the form proposed.

The Adviser will now be able initiate their own investigations but only after ‘having consulted the Prime Minister and obtained his consent’. The requirement for prime ministerial consent is justified on the grounds that the Prime Minister is constitutionally responsible for appointing and dismissing ministers. As Boris Johnson said in a letter to Lord Evans in April 2021, this meant that, ‘I cannot and would not wish to abrogate the ultimate responsibility for deciding on an investigation into allegations concerning ministerial misconduct’. Moreover, the Prime Minister will also continue to have the right to decide when any report by the Adviser is published – risking lengthy delays, as has happened in the past – and on the significance of any breach of the Code, as well as on the form of any sanctions. Parliament is still left with no role in approving the Code or its implementation.

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The Constitution Unit blog in 2022: a guide to the last 12 months of constitutional news

The four years preceding 2022 were a fascinating time to be writing about the UK constitution, its institutions and those involved in working within them. It had got to a point where it didn’t seem life could get any more interesting. And then 2022 gave us two prime ministerial resignations and an end to the longest monarchical reign in British history. As the year comes to an end, blog editor Dave Busfield-Birch offers a roundup of the 12 months just gone, as well as a look at the reach of the blog through the lens of its readership statistics. 

2022 included a seven-week period in which we transitioned from one monarch to another and had three Prime Ministers. Two of those Prime Ministers – Boris Johnson and Rishi Sunak – were fined for breaking COVID-19 lockdown regulations earlier this year and the third, Liz Truss, now has the dubious distinction of being the Prime Minister to have held office for the shortest time in modern history. In addition, we lost the longest-reigning monarch in British history and welcomed the first monarch to have the benefit of a seven-decade apprenticeship and a new Prince and Princess of Wales. The state of the Union also appears less stable, with Scotland found to be unable to legislate for an independence referendum and May’s elections in Northern Ireland leading to political deadlock that has no immediate end in sight. Below are our most popular blogs from the past year, preceded by a personal selection by me, at the end of my fifth year as blog editor.

Editor’s pick

How far did parliament influence Brexit legislation? by Tom Fleming and Lisa James.

As good as this blog is, the real meat is in the excellent journal article that it summarises. In this post, my colleagues Tom and Lisa analyse to what extent parliament and its members influenced the outcome of the Brexit process. The answer might surprise you.

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What does the new Prime Minister mean for the constitution?

The Constitution Unit held an event in November at which three expert panellists discussed the potential constitutional impact of newly appointed Prime Minister Rishi Sunak, discussing the problems posed by concerns about ministerial standards, the government’s decision to proceed with several bills that pose worrying constitutional questions, and the future of the devolution settlement. Alice Hart and Hashmath Hassan summarise the contributions.

On the day that the UK Supreme Court ruled that the Scottish Parliament cannot legally hold another independence referendum without Westminster’s approval, the Constitution Unit held an event to discuss the potential constitutional impact of the new Prime Minister, Rishi Sunak. The event was chaired by Professor Meg Russell, Director of the Constitution Unit, and brought together three expert panellists: Jill Rutter (a Senior Research Fellow at UK in a Changing Europe and a Senior Fellow at the Institute for Government); Dr Ruth Fox (Director of the Hansard Society); and Professor Colm O’Cinneide (Professor of Constitutional and Human Rights Law at University College London). The summaries below are presented in order of the speakers’ contributions. 

Jill Rutter 

Jill Rutter discussed the need to repair the damage done to the perception of standards in public life during Boris Johnson’s time as Prime Minister. Johnson suffered the resignation of two Independent Advisers on Ministers’ Interests in as many years, tolerated misbehaviour from his MPs and was ‘fast and loose with the facts’ in parliament. Sunak’s commitment to the integrity agenda is unclear, Rutter stated. He has made assurances that he will appoint an Independent Adviser (unlike his predecessor, Liz Truss, who indicated that she did not need one) and has appointed a barrister to lead an independent inquiry into bullying allegations against Deputy Prime Minister Dominic Raab. However, questions remain about Sunak’s approach to his new Independent Adviser, such as whether he will provide the postholder with sufficient resources (as promised by Johnson to former Independent Adviser Lord (Christopher) Geidt) and whether he will make any effort to ensure their independence in terms of both the publication of reports and initiation of investigations without the approval of the Prime Minister.  

Other than these immediate actions, little is known about Sunak’s plans to restore integrity and trust in government. Clamping down on lobbying may be a good place to start, Rutter suggested: she noted that the Gordon Brown review of the constitution commissioned by the Labour Party is planning to propose limitations on MPs’ second jobs. She provided some examples of big ideas that Sunak could adopt, such as Labour’s proposal to establish an Integrity and Ethics Commission and the Australian government’s introduction of an anti-corruption commission. A key challenge for Sunak, Rutter suggested, is dealing with Johnson’s and Truss’ lists of nominations to the House of Lords – especially with regard to how they may affect trust in politics.  

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Reforming the royal prerogative  

The Brexit process raised questions about how – and in what areas – the royal prerogative should operate. Following a lengthy project, which has resulted in a new book on the subject and a Unit report – published today – on options for reform, Robert Hazell explains why the prerogative matters, and how it might be reformed to strike a better balance between parliament and the executive.

The royal prerogative has long been a mystery to most observers. I have now produced a book Executive Power: The Prerogative, Past, Present and Future to help demystify it. It was written with my former researcher (now a barrister) Tim Foot, and covers the whole range of prerogative powers, from going to war and ratifying treaties, appointing and dismissing ministers, regulating the civil service and public appointments, to the grant of honours and pardons and the issue of passports. The book’s 19 chapters provide a comprehensive guide to the operation of the prerogative – past, present, and future – together with suggestions for reform.

Working with us was another researcher, Charlotte Sayers-Carter, and Charlotte and I have distilled the key findings of our book into a much shorter report, Reforming the Prerogative. It selects just five powers, to illustrate the scope for reform through codification in statute, soft law, or by clearer and stronger conventions. This blog offers edited highlights from the book and the report, to explain why the prerogative matters; to illustrate this with a few prerogative powers; and to suggest ways in which it might be reformed.

What is the prerogative?

The prerogative derives from the original executive powers of the Crown. Over the years these have been overlain and superseded by statute, and most powers have transferred to ministers. The monarch retains the power to summon, dissolve and prorogue parliament; to grant royal assent to bills passed by parliament; to appoint and dismiss ministers. The main prerogative powers in the hands of ministers are the power to make war and deploy the armed forces; to make and ratify treaties; to conduct diplomacy and foreign relations; to grant peerages and honours; to grant pardons; to issue and revoke passports.

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