18 months of COVID-19 legislation in England: a rule of law analysis

Eighteen months after the first COVID-19 lockdown began, the Bingham Centre for the Rule of Law has produced a report analysing the extent to which the government’s pandemic response has changed over the last year so as to address rule of law concerns that were brought to the government’s attention in the early stages of the pandemic. Katie Lines, author of the report, argues that the government has failed to enable proper parliamentary scrutiny, made it hard for public and politicians alike to know what the law actually is, and that its response to rule of law concerns has been lacking.

The initial crisis stage of the pandemic has now passed, and many are asking what lessons can be learnt from the government’s response. Last month the‘lessons learnt’inquiry held jointly by the Health and Social Care Committee and Science and Technology Committee published its first report, and an independent public inquiry into the pandemic is due to launch in spring 2022.

A central question is how far the existing legal framework and institutional arrangements for responding to public health emergencies adequately protect the rule of law. The rule of law is a foundational principle of any constitutional democracy, and should not be set aside during a national emergency: sustained compliance can actively assist an effective pandemic response by promoting transparency, equality, and accountability, among other principles. 

Our main rule of law concerns with the UK’s legislative response to the pandemic can be grouped into two categories:

1. Parliamentary scrutiny; and

2. The accessibility and clarity of coronavirus legislation.

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A woman’s place is in the House: reclaiming civility, tolerance and respect in political life

Dame Laura Cox, author of a 2018 report into the bullying and harassment of House of Commons staff, argues that the behaviour of too many parliamentarians is misogynistic and a cause of capable women MPs leaving parliament, or having to accept behaviour that would not be permitted in any other workplace. She says that this is in part an institutional problem, and calls for a more open, tolerant, respectful and conciliatory politics.

We are living currently in a very angry world. Our parliament, the central institution of our representative democracy, should be setting an example of tolerance and civility, but instead, civility and willingness to compromise seem to have faded. Political discourse generally has been impoverished by antagonism and extremism. Those more constructive qualities of reflection, cooperation, collaboration and consensus seem to have fallen by the wayside.

In addition to bitter, adversarial politics, there has been an upsurge in reports of abuse, intimidation and assault. In recent years, independent inquiries into events at Westminster – including my own report into the bullying and harassment of Commons staff – have recorded a disturbing number of acts of bullying, harassment and sexual harassment alleged by members of staff and MPs against other MPs, as well as among staff and members of the House of Lords.

The macho behaviour and posturing so frequently displayed in our political debates have disproportionately and adversely affected women in public life. The women affected are not only politicians. Women journalists, academics, campaigners and political activists have all reported instances of intimidation, abuse and even physical violence. In June 2016 a serving MP, Jo Cox, was brutally killed on the street in broad daylight.

Why has our politics become so misogynistic? There are, in my view, a number of contributing factors, including the still unacceptably low numbers of women politicians; the rules and customs of the parliament where they serve; and the resistance to change of parliament as an institution.

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The continuing constitutional pressures of Brexit

Ahead of the launch event for their new book on the continuing constitutional pressures of Brexit, Oran Doyle, Aileen McHarg and Jo Murkens summarise the book’s introductory essay. They conclude that, five years on from the seismic constitutional event that was the 2016 referendum, it is clear that Brexit is exerting pressure on various aspects of the constitution, but it remains too early to tell the full impact of Brexit on the UK constitution.

The United Kingdom’s withdrawal from the European Union was clearly a development of major significance that affected the UK constitution and its three legal systems, and brought about a series of political crises. But the prolonged process of negotiating the terms of withdrawal and the future UK-EU relationship also imposed and exposed a range of other constitutional tensions and pressures. This is true not only in respect of the UK itself, but also for the EU – which experienced a major recasting of its external borders, a recalibration of internal decision-making dynamics, and challenges to core features of its constitutional order – and in particular for Ireland – which, by virtue of its geographic position and constitutional history, has faced unique political and constitutional challenges as a consequence of Brexit.

In The Brexit Challenge for Ireland and the United Kingdom: Constitutions Under Pressure, recently published by Cambridge University Press, scholars based in the UK and Ireland explore a wide range of constitutional, legal, and political issues affecting both countries which have arisen out of Brexit. These include questions of territorial governance within the UK, the renewed prospect and implications of a united Ireland, the use of constitutional referendums, the impact of Brexit on political parties, executive-parliamentary relations, and the role of the courts and law officers in constitutional disputes.

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Reforming the mayoral voting system: do ministers’ arguments stack up?

This week, the Elections Bill was amended to replace the Supplementary Vote (SV) system used for electing mayors and police and crime commissioners (PCCs) in England and Wales with First Past the Post (FPTP). But, as Alan Renwick and Alejandro Castillo-Powell argue, the arguments put forth by ministers are not as convincing as they might at first appear.

Ministers plan to replace the Supplementary Vote (SV) system used for electing mayors and police and crime commissioners (PCCs) in England and Wales with First Past the Post (FPTP). The most detailed explanation for the change given so far appeared in a press release last month, which gave five arguments for the switch: (1) SV increases the number of spoilt ballots; (2) it allows ‘loser’ candidates to win; (3) FPTP improves accountability by ‘making it easier for voters to express a clear choice’; (4) FPTP ‘is the world’s most widely used electoral system’; and (5) SV is ‘an anomaly’ and ‘out of step with other elections in England’. In the written statement that first trailed the proposals, Home Secretary Priti Patel also said (6) that the change ‘reflects that transferable voting systems were rejected by the British people in the 2011 nationwide referendum’. Some of these arguments were repeated, though in less detail, when the matter was considered at the Committee Stage of the Commons bill’s scrutiny earlier this week.

This post assesses the government’s claims in turn. Some have merit, but important counterarguments are ignored. Voting systems should be treated with care: it is all too easy for those in power to manipulate them to their own advantage. Ministers have not adequately made the case that the change will be good for democracy.

1. Does Supplementary Vote lead to more spoilt ballots

Elections using SV in the UK typically see higher numbers of spoilt ballots than do those using FPTP. Electoral Commission data shows that 0.8% of ballots cast in local council elections in May – under FPTP – were rejected. That compares to over 2% in most elections under SV. In PCC elections, they stood at 2.9% this year, down from 3.4% in 2016. In London mayoral elections, they have ranged between 1.8% in 2012 and 4.3% this year. They have generally been around 2% in other combined authority mayoral elections, peaking at 2.2% in 2018.

That SV elections show higher rates of rejected ballots does not mean that SV itself is necessarily the culprit. The jump in such ballots in this year’s London mayoral election points to another factor: ballot paper design. The Electoral Commission notes the use in that contest of a new, untested design, split over two columns because of the large number of candidates, which voters described as ‘being confusing/complex’. Poor design similarly led to more spoilt ballots in the 2007 Scottish local and parliamentary elections. Another factor may be deliberate spoiling of ballot papers: the Electoral Commission noted anecdotal evidence of this in the 2012 PCC elections.

So SV elections do see more spoilt ballots than FPTP elections, but improved ballot paper design – and clearer guidance for voters – might ameliorate the problem.

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