WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
July 31 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Accountability should be a ‘people’s priority’

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Accountability should be a ‘people’s priority’

Government accountability is back in the national spotlight. News of possible breaches of both informal and formal rules of office has prompted many to ask – are existing mechanisms to scrutinise executive decision-making really working?

First, former Prime Minister David Cameron was found to have lobbied Ministers, senior civil servants and the Bank of England to give Greensill Capital access to government-backed loans. Cameron has worked for and had shares in the finance company, which collapsed in March with the loss of 440 jobs. The failure of Greensill Capital could cost UK taxpayers between £3 to £5 billion and there’s now at least eight different inquiries looking into the lobbying scandal.

Then came the claims that, contrary to previous assurances from Downing Street, the current Prime Minister had carried out renovations on his flat above 11 Downing Street by having Conservative Party donors advance £58,000 to cover the costs. The Electoral Commission is now investigating whether rules on political funding have been broken.

It was also revealed on Friday in documents disclosed to the High Court in a case against the government brought by the Good Law Project that the Government used an exclusive Whatsapp group to give ‘VIP’ CEOs information about PPE procurement opportunities. A full hearing is expected to take place on 17 May in which the court will decide on the lawfulness of certain taxpayer-funded contracts.

These stories are showing no signs of going away. Labour is calling on Ministers to publish all links with firms awarded government contracts during the COVID crisis. The Prime Minister’s former Chief Advisor, Dominic Cummings, whose own account of his time in Number 10 prompted the revelations on the Downing Street renovation, is set to be questioned by a joint committee of MPs later this month. Calls grow for an independent inquiry into the handling of the pandemic.

The shocking events have prompted questions about how we can ensure that decisions made by those at the top of Government are made transparently and how to set, and enforce, clear expected standards of behaviour. There is consensus that, beyond elections, there must be ways to challenge the actions of the powerful when they fall short of those standards.

The PM responds by saying he’s focused on delivering on ‘the people’s priorities’, but it’s become clear we as citizens have precious few ways of checking. The government being able to mark their own homework seems to benefit those with access to the PM and Ministers, but does nothing to foster good governance.

Mechanisms to scrutinise both formal and informal rules of office have been weakened significantly by this government. Sir Alex Allan, the PM’s former Advisor on Standards, resigned after the PM overruled his verdict that Priti Patel was guilty of bullying her staff. His replacement has no authority to initiate inquiries into the conduct of ministers, and the PM has the power to exonerate himself completely regardless of the claims.

We cannot forget the constitutional context in which these revelations have emerged. On legal questions, of which this piece is primarily concerned, the last year has seen intense debate on the appropriate balance of powers between the judiciary and executive. There’s clear evidence the government is looking to limit the reach of the courts and reduce scrutiny of executive decision-making. Newspapers reported last year that the Prime Minister wanted ‘an overhaul of how government is challenged in court’ and intended to continue with plans to opt out of basic rights protections for individuals (such as the Human Rights Act). David Anderson QC recently described the government’s view of the courts as a ‘growing and unjustified impediment to the exercise of executive power’.

Justice Secretary Robert Buckland’s recent response to the Faulks review of administrative law prompted backlash for pursuing constraints on judicial review that run contrary to the report’s findings. His proposals include restrictions on certain types of JR, limiting the ability of the courts to rectify an error made by authorities (through quashing orders) and potential changes to the rules on ouster clauses, putting some ministerial decisions beyond the reach of the court. Charities and practitioner groups have warned it could become more difficult for ordinary people to ensure that the government is obeying the law as a result.

These reforms are pursued in the name of delivering the ‘people’s priorities’, but the evidence that the public want less scrutiny is limited.

When Britain was last surveyed by the World Values Survey, the proportion of respondents who said they had ‘a great deal of confidence’ in the courts and justice system was more than four times that of the government. The combined number saying they had ‘a great deal’ or ‘quite a lot’ of confidence in the courts/justice system was 65%, whilst in government it was just 31%. More than nine out of 10 people (91%) responded positively when asked to what extent they thought that civil rights which protect people’s liberty from state oppression are essential to democracy.

A poll for the Independent in the wake of last week’s news found that 86% of voters said politicians should be more accountable for their actions.

These figures matter because it shouldn’t be assumed that the Government can count on public support for an agenda to rebalance our constitutional settlement in favour of the executive and against the justice system.

Recent events may well encourage a desire for stronger mechanisms to scrutinise and challenge the actions of those in charge. Evidently, the justice system isn’t a panacea (as the Post Office workers scandal has shown) but the solution to legitimate critique of decisions taken by the courts isn’t to take power away from the judiciary and give it to the government.

Clearly, for many of the problems that we face as a nation, law is not a substitute for social democracy, but neither is its absence – the two should complement each other rather than being set at odds by those in power.

Legal mechanisms to ensure that the state operates within the law are crucial to our constitution and underpin our democratic institutions. At the moment, our political establishment is falling short of the standards that people expect from their elected representatives. The question is – how can we make sure that constitutional reforms benefit society at large, not just the powerful? Surely that’s one of the people’s priorities?