It may appear a little dramatic to say that our democracy is under threat. However, if we look at how the UK is run, who holds the power and how that power is checked, I believe there are reasonable grounds on which to be very concerned indeed. Like many others I am guilty of exceptionalism when it comes to my pride in Britain, confident in our renowned sense of fair play and championing of the plucky underdog. Tin-pot dictatorships rule in far away lands and corruption never darkens our sunlit shores. However, scrape away at the veneer of respectability and we find that these issues are much closer to home and the threat to our democracy is a clear and present danger.
In very simple terms, government is split into three branches, the executive, the legislature and the judiciary. The executive is the government of the day which enacts the policies passed by the legislature i.e. Parliament, which is elected through the process of General Elections. The judiciary then interprets the law found in Acts of Parliament, the highest court being the Supreme Court. The judiciary cannot overturn primary legislation although it can review whether the government has followed its commitment to the European Convention on Human Rights, established by the Council for Europe following WW2. Again, in simple terms in theory these three branches, although they overlap at various points, should provide the necessary checks and balances to prevent abuse of power. As we will see below it can be argued that the reality is somewhat different.
One of the many alarming policies in the Conservative 2019 manifesto was a promise to review the process of judicial review: “…ensuring that it is not abused to conduct politics by other means or to create needless delays”. A judicial review is where someone (the “claimant”) challenges the lawfulness of a central or local government decision or a government body such as a regulator.
There are three main grounds for a judicial review: illegality, the decision maker did not have the legal power to make that decision; procedural unfairness, where the decision maker showed bias or representations were unfairly denied; irrationality, where the the decision made was so unreasonable that no reasonable person, acting rationally, would have made it. It is important to note that while a judicial review can quash or overturn a decision it is not a re-run of the merits of the decision and the public body may come to the same decision again, after having followed the correct process.
While the Conservative manifesto states that the rights of individuals against an overbearing state will be protected, the terms of reference for the review raise a number of concerns. These include the possibility of: narrowing the grounds for judicial review; reducing the extent of the ‘duty of candour’ which deals with the supply of information to the claimant; limiting the ‘law of standing’ which may stop cases being brought by those not directly affected by the relevant decision. This would impact campaign groups and charities; restricting rights of appeal in judicial review cases; increasing the costs of judicial review proceedings. The issue is covered in greater detail here.
We await the ‘Independent Review of Administrative Law’ report, due by the end of the year to find out their recommendations, but any changes in this area have huge potential to reduce the ability of the Courts to keep the Executive in check. It’s clear that the government want change in this area after receiving a bloody nose from the Supreme Court when it found that their five week prorogation of Parliament was unlawful. You can read a summary of the background detail to this case here.
European Convention on Human Rights
You will be aware that in certain quarters much has been made about the malign influence of the European Court of Human Rights (ECtHR) and the European Convention on Human Rights (ECHR) and the desire to ‘take back control’. However, the origin of these have a much more British flavour than the likes of Nigel Farage would lead you to believe.
The ECHR was born out of the ruins of the Second World War to ensure that never again could a national government set off on a path such as 1930’s Germany. The ECHR was drafted by ‘The Council of Europe’ a body that had been called for by Winston Churchill, and was drafted by David Maxwell Fyfe, Churchill’s Solicitor General. The ECHR has nothing to do with the EU and is a treaty between 47 states as opposed to the 28 that form the EU. The UK became a member of the Council for Europe at its inception in 1949, some 24 years before joining the EU.
The ECHR does not set law in the UK, or any of the other 46 signatories of the convention. It does not have the power to strike down Acts of Parliament which remain sovereign, but makes judgements as to whether laws are incompatible with the conventions. The Conservatives have made clear that they want to remove us from the ECHR and repeal the 1998 Human Rights Act, which was passed by a Labour government and enshrined the ECHR in UK law. The act enables matters to be dealt with by UK Courts rather than Strasbourg. You have to ask yourself which of these protections do they find so objectionable? Who benefits from their removal?
The Nolan Principles
There was a time when a breach of the law or the ministerial code would have automatically led to a resignation. However, it seems we no longer live in those times and so we have a list of politicians and advisors who have resolutely remained in post (or have been permitted to remain) following incidents from which, if any shred of integrity was still intact, a resignation would have followed. Every time this happens, trust in politicians is further eroded – I realise that we are notching down an already low bar.
This matters because we actually do need to have trust and confidence in our politicians, particularly in times of great upheaval such as the current pandemic. What we risk otherwise is the loss of consensus, which we have clearly seen in the public’s approach to the pandemic restrictions since Dominic Cumming’s refusal to resign following his journey to Durham. This refusal to accept the need to resign also normalises a lack of accountability and no doubt sets the tone for those in public office at all levels of government in the UK. This lack of accountability is a threat to democracy as once people have a view that ‘they’re all at it’ it disengages people from politics and discourages them from taking part in the democratic process.
Another threat to the democratic process is Voter ID – a solution to a problem that doesn’t exist and taken straight from the US political playbook of voter suppression. In 2019 there were just 34 allegations of in-person voter fraud out of 58 million votes casts in all elections in that year. 3.5 million people in the UK do not have access to photo ID and 11 million do not have access to a passport or driving licence. There are currently around 1.3 million people in the UK who do not have a bank account. The requirement to present photo ID in order to vote will disproportionately affect the poorest in society – even a free ID card will incur costs through obtaining documentary evidence – BAME communities and people with disabilities. A cynic may say the only purpose of this is to disenfranchise those perceived not to be supporters of the Conservative party. I’d be inclined to agree. Any moves to suppress voting is a threat to our democracy.
The manipulation of our social media is also a serious threat to the democratic process. This issue was exposed by the revealing of the workings of companies such as Cambridge Analytica and their work with social media giants such as Facebook. The issue deserves a blog all of its own (you can see a short summary of the main points here) but what it has resulted in are targetted political adverts to specific individuals, which are not seen by anyone else. This means there is no chance of rebuttal or fact checking. Social media also makes us gravitate to people who think like ‘us’ and this, along with the social media algorithms means that we often only see the views of people who agree with us and this has a tendency to make people’s views more extreme. This promotes a more polarised society, but also weakens the ‘general will’ of the people to be governed under a democratic system.
The UK’s ‘First Past the Post’ (FPTP) voting system means that for many people across the UK voting is just a ritual. This disengages people from politics as their vote is effectively meaningless as “you could stick a red/blue rosette (delete as appropriate) on a pig” in many constituencies across the country and they would still get elected from one General Election to the next.
There are two main issues with FTTP. Firstly, the power of each vote isn’t equal and those voters in ‘swing’ seats often hold the key to how an election is won and lost. Drilling down further, the ‘swing voters’ in those seats hold even more power. It is these people that are vulnerable to the dark arts of social media advertising who are sought out with pinpoint accuracy as mass data harvesting and analytics works out our hopes and fears, our ambitions and ultimately, if not our political preferences, at least where we can be nudged to. Secondly, a FTPT system can lead to landslide victories (such as gained by the current UK government) which effectively results in an elective dictatorship.
While this ‘winner takes all’ system offers a tantalising prize, it is hardly democratic, especially when so many seats can be won with such a small proportion of the national vote. With an 80+ majority it’s not too much of an exaggeration to say that a Premier League footballer such as Marcus Rashford has more influence over government policy than the opposition.
A proportional system of voting would mean that each vote has equal value. Proportional Representation (PR) would result in less polarised approach as candidates need to appeal to a broader range of voters to obtain what could be crucial second preference votes. Everyone would have an incentive to vote as everyone’s vote would count and ‘tactical voting’ will end. Read more about the different types of voting systems here.
Attacks on the Judiciary
Another threat to our democracy are the constant attacks on our judiciary, derided by those in government as ‘lawyer activists’, ‘do-gooders’ or ‘lefty lawyers’ merely for upholding the due process of our UK laws. We end up on a very dangerous slope if we think that the legal process is only for certain groups of people, because you can be sure that once one group has been dealt with, they will move onto another. These attacks hardly follow the principles of the Magna Carta, a document heralded by the far right as the best of British values in which it states: “To no one will we sell, to none deny or delay, right or justice”.
Add to this the continual government attacks on the BBC and Channel 4, both through funding cuts and attacks on its content. For all its faults the BBC remains one of the most trusted institutions in the UK and we should be careful what we wish for before we end up with Fox News and the like, where impartiality is seen as a weakness.
More subtle erosions to democracy are being put in place. Allegra Stratton* will lead No.10’s daily televised press briefings. While Johnson claims that it will allow the public more “direct engagement” with the government, the reality is that it will do nothing of the sort. Stratton is an unelected advisor and the coverage of these televised briefings will further divert attention away from Parliament. With Johnson’s continual woeful performances at Prime Minister’s Questions you can understand why he found this idea so attractive, but it reduces the accountability of the Prime Minister. *this plan was scrapped on 20th April with Stratton moved to Johnson’s spokesperson at the COP26 Climate Change summit.
Other more sinister attacks on democracy by this Government have come to light only very recently. It has been revealed that Michael Gove has been running a ‘clearing house’ that vets ‘Freedom of Information’ requests, directs officials how to respond to them and would seem to be blacklisting journalists. You can read more about this here.
Combined, the above changes put forward by the government present a clear threat to the checks and balances of our democracy. In this task they will be aided by a print media happy to peddle hate, lies and a distorted sense of morality. If we allow these changes to happen our country will become more divided, our standing in the world further diminished and our ability to resist government overreach severely weakened. There is much at stake. Labour must be bold and put forward a radical agenda where compassion, accountability and democracy are championed. We must not go back to just being a nicer version of the Conservative Party. Labour should adopt a fairer voting system as a flagship policy in any future manifesto. It is not the answer, but it is a good start.
8th December 2020