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 Fixed-term Parliaments Act did not cause the Brexit impasse

Next week MPs debate the government’s bill to repeal the Fixed-term Parliaments Act 2011. One argument frequently deployed for scrapping the Act is that it generated gridlock over Brexit. But, Meg Russell argues, no clear counterfactual to support this claim has ever been presented. In fact, when considering the possible scenarios, it seems likely that the situation would have been made worse, not better, had the Prime Minister retained an untrammelled prerogative power to dissolve parliament in 2017–19.

Next week MPs debate the remaining stages of the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA). It proposes to reinstate the pre-FTPA position, whereby the Prime Minister would effectively control general election timing using prerogative power. A key argument deployed by those seeking repeal of the FTPA is that it helped to cause the Brexit deadlock of 2019: that the FTPA, as the Conservative manifesto put it, ‘led to paralysis at a time the country needed decisive action’. But to what extent is this really true?

While suggestions that the FTPA created the Brexit deadlock are commonplace, most experts who contributed to the three parliamentary committees that have considered FTPA repeal (the Commons Public Administration and Constitutional Affairs Committee, Lords Constitution Committee and Joint Committee on the Fixed-term Parliaments Act) argued that the deadlock resulted from other factors. Most obvious were the post-2017 combination of a minority government, the need to deliver on a contested referendum result, and deep divisions within the governing party. These problems were clearly serious, and it is very far from clear that the FTPA could have resolved them.

A careful reading of the evidence presented to the three parliamentary committees, and of the Commons second reading debate on the bill, finds that most claims against the FTPA over Brexit are distinctly vague. No clear counterfactual is offered. This particularly applies to events during Theresa May’s premiership, when the most intractable problems arose. The situation did change in the autumn of 2019 under Boris Johnson (as discussed below), but the FTPA’s targeting as a causal factor dates back far earlier than this. Likewise, during interviews with a series of senior figures for a current book project on parliament and the Brexit process, I have asked several critics of the FTPA how, if Theresa May had been able to trigger an early general election without parliament’s consent, things would have turned out differently. I have yet to receive a convincing reply.

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Another nail – but whose coffin? Redrawing Britain’s constituency map (again) and the future of the UK’s voting system

For the third time in just over a decade, a new map of parliamentary constituencies is being designed. This one will likely be implemented. Charles Pattie and David Rossiter argue that, despite the misconceptions of both Labour and the Conservatives, the review is neither a ‘gerrymander’ against one, nor redressing an imbalance that harmed the other. But these entrenched views could yet threaten the future of First Past the Post as the system for Westminster elections.

Here we go again. For the third time since 2010, a new map of Westminster parliamentary constituencies is being designed. The Boundary Commission for England released its preliminary proposals on 8 June (the Commissions for Scotland, Wales and Northern Ireland will follow suit in the coming months). Final recommendations will appear in the summer of 2023. This time (the previous two attempts at redistricting faltered before being implemented) the new map is very likely to be adopted. And if past reviews are any guide, the process will be carried out amidst claims and counterclaims regarding potential winners and losers, and whether there is deliberate bias in the process.

Of course, redrawing the constituency map inevitably involves winners and losers, even when (as in the UK) done by politically impartial Commissioners. Previous reviews have tended to result in relative losses of seats for Labour and gains for the Conservatives (smaller parties tend to suffer greater disadvantages from the disproportional nature of First Past the Post (FPTP) than from the effects of boundary reviews). Some Labour figures are likely to argue (as they have done in the past) that the review is a gerrymander against their party, and so drives a nail into the coffin of its electoral chances. On the other side some Conservatives will argue the review simply redresses substantial anti-Conservative bias in the old seats – a nail in the coffin in which that bias is to be buried.

Both views are wrong, but for different reasons.

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