Tag Archives: Human Rights Act

What is democratic backsliding and is the UK at risk?

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This is the first edition of this briefing. It has since been updated. Read the most up-to-date version and other briefings on the Constitution Unit’s website.

Concerns about the health of UK democracy and the risk of democratic backsliding are rising. Meg Russell, Alan Renwick and Lisa James warn that MPs, who are the ultimate democratic safeguard, cannot afford to be complacent if we wish to prevent backsliding and safeguard our democracy.

Commentators, civil society groups, think tanks and academics are increasingly warning about the health of UK democracy. Such warnings often draw on the concept of ‘democratic backsliding’.

But what is democratic backsliding? And is there good reason to worry about a risk of it in the UK?

What is democratic backsliding?

Democratic backsliding is, in its simplest form, the process by which a state becomes gradually less democratic over time. Scholars emphasise that no cataclysmic state collapse or overthrow is required for backsliding to take place; instead, it is a gradual process, coming about through actions of democratically elected leaders.

Democratic backsliding has been observed internationally, and extensively catalogued by scholars including Stephan Haggard and Robert Kaufman (Backsliding: Democratic Regress in the Contemporary World, 2021) and Steven Levitsky and Daniel Ziblatt (How Democracies Die, 2019). Such accounts generally define backsliding as involving the reduction of checks and balances on the executive. This might include:

  1. breakdown in the norms of political behaviour and standards;
  2. disempowerment of the legislature, the courts, and independent regulators;
  3. the reduction of civil liberties and press freedoms; and/or
  4. harm to the integrity of the electoral system.

Backsliding has been identified in multiple countries, with frequently cited cases including Poland, Hungary and the United States. Poland’s ruling Law and Justice Party has significantly reduced judicial independence, and put pressure on the independent media. In Hungary, Viktor Orbán has repeatedly assumed emergency powers allowing him effectively to bypass the legislature, undermined press freedom, and – as in Poland – curbed judicial independence. Donald Trump’s attempts to delegitimise the 2020 presidential election, as well as longer-term patterns of voter suppression, have shown how backsliding can affect even very well-established democracies.

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The 1997 Labour government’s constitutional reform programme: 25 years on

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25 years have passed since the Labour election win of 1997, which preceded a plethora of constitutional changes, including partial reform of the House of Lords, devolution to Scotland, Wales and Northern Ireland, and the Human Rights Act. Tom Leeman summarises the contributions of three expert speakers (Professor Robert Hazell, Baroness (Shami) Chakrabarti and Lord (Charlie) Falconer of Thoroton) at a recent Unit event to mark the anniversary.

This year marked a quarter of a century since the victory of Tony Blair’s New Labour in the 1997 General Election on 1 May. Blair’s first government embarked upon a programme of constitutional reform, many elements of which, such as devolution, the Human Rights Act (HRA), and the status of hereditary peers in the Lords, still spark debate in the UK today.

To mark the anniversary and discuss the Blair government’s constitutional legacy the Unit convened an event with three expert panellists: Professor Robert Hazell, founding Director of the Constitution Unit, who supported the Cook-Maclennan talks on constitutional reform between Labour and the Liberal Democrats in 1996; Lord (Charlie) Falconer of Thoroton, who served as Lord Chancellor in the second and third Blair ministries from 2003 until 2007; and Baroness (Shami) Chakrabarti, who was Director of Liberty from 2003 until 2016. The event was chaired by Professor Meg Russell, Director of the Constitution Unit. The summaries below are presented in order of the speakers’ contributions.

Robert Hazell

Robert Hazell presented slides to summarise New Labour’s constitutional reform programme from their first election victory in 1997 until Gordon Brown’s resignation as prime minister in 2010. The reforms in Blair’s first term (1997-2001) were the biggest package of constitutional reforms in the twentieth century. They included devolution of power to assemblies in Edinburgh, Cardiff and Belfast in 1998; incorporation of the European Convention on Human Rights into domestic law in the Human Rights Act; and the removal of hereditary peers from the House of Lords.

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Sir John Laws and The Constitutional Balance

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The Constitutional Balance, a new work by the former judge John Laws, was published posthumously in January. Here, David Feldman discusses the key themes of the book, and pays tribute to the author, a long-serving judge, who served as a Lord Justice of Appeal and was one of the most well-respected public law judges of the last 50 years.

The late Sir John Laws stood out as one of the greatest English public law judges of the last 50 years. Throughout his distinguished and creative career as Treasury Devil – First Junior Treasury Counsel (Common Law), responsible for advising and representing the government in a large range of public law matters – and judge, he was uniquely willing to argue publicly for and apply in his judgments a systematic philosophy of the liberal, democratic state and of the respective roles within it of the people, their representatives, the government and the judiciary. After retiring from the Bench he spent the 2016-17 academic year as A. L. Goodhart Visiting Professor of Legal Science at Cambridge. There he gave a course of 16 lectures, primarily for final-year undergraduates, entitled ‘Judicial Review and the Constitution’. In them he distilled his latest thinking on matters to which, as writer and judge, he had made distinctive contributions to our public law. These included parliamentary sovereignty and the interpretation of statutes, the importance of the common law in constitutional development, the place of human rights in the constitution, the role of judicial review, how government and judiciary should understand and give appropriate respect to each other’s different, equally legitimate roles in the governance of the country, and the proper relationship between religion and the law.

Sir John used his lectures as the basis for a book, The Constitutional Balance. Unfortunately his zest for life was severely dented by the death in 2017 of Sophie, his wife, and his physical health deteriorated. Nevertheless, greatly helped by Nigel Pleming QC, his long-standing colleague and friend, Sir John finished the text before he, too, died in 2020.

At the heart of the book lies a connection between his view of the constitution and his understanding of the human condition. Ideally, he thought, people are rational, enjoy free will (and so are responsible for their actions), are social, communing with others of their kind (pages 6-7) and have to find ways to coexist fairly with them. These characteristics demand freedom of thought and expression, and rigorous rejection of ideology (‘a preconception or preconceptions, an assumption or assumptions, not tested by reason, by argument, by practice or by results; an a priori belief, given or imposed in advance, assumed to be true’: page 2) that forecloses debate about the good and the bad, and reliance on reason and fair process to conduct and resolve disagreement (pages. 2-6 and 134-138). Sir John saw reason, fairness and a presumption in favour of liberty as key values of the common law, that unique system whereby principles and precedents are continuously tested through rigorous argument and gradually developed over centuries, and of a democratic constitution respecting the rule of law.

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