Monitor 81

The Commons Committee on Standards published its final report on proposed revisions to the MPs’ Code of Conduct on 24 May. The committee called for a tightening of lobbying rules, a total ban on MPs providing paid advice on parliament, greater transparency relating to MPs’ outside interests, and a harmonisation of the declaration rules for ministers and backbenchers. The report accepted the recommendations of the Ryder review (see Monitor 80), including the creation of a formal appeals system for MPs. It also called for a yearly standards debate in the Commons to facilitate ongoing revisions to the Code.

The committee also called for new rules on all-party parliamentary groups (APPGs). Its initial report – which is currently being consulted on – set out a number of options for reform, such as banning external secretariats, limiting the number of groups that an MP can chair, and creating a ‘gatekeeper’ to approve new groups.

The Lords Conduct Committee has also recommended amendments to its Code of Conduct, including a simple measure aimed at protecting peers’ freedom of speech. After a complaint was lodged in relation to statements made during a parliamentary debate on trans prisoners, concerns were expressed that allowing the Commissioner for Standards to investigate such complaints was an affront to parliamentary privilege and would have a chilling effect on how members speak in debates. The committee recommended that the Code be amended to make clear that statements made in the chamber could not alone form the basis of a complaint.

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Party leaders investigated over ethical conduct

The Commons passed a Labour motion on 21 April that referred Boris Johnson to the Commons Committee of Privileges due to allegations that he knowingly misled parliament over partygate. Conservative whips initially sought to amend the motion to force a delay. But, finding they could not sustain support for Johnson on their own benches, they dropped the amendment to allow a free vote. The motion then passed without any opposition.

Harriet Harman (CC BY 2.0) by University of Salford

The inquiry will be chaired by Harriet Harman, who was elected to the role after the committee’s chair, Chris Bryant, recused himself, having publicly commented on the Downing Street parties prior to the referral. The committee established the inquiry’s processes in a report published on 21 July. This confirmed that Boris Johnson will give oral evidence on oath and that the standard of proof for the inquiry’s factual conclusions is the balance of probabilities, rather than the higher threshold of ‘beyond reasonable doubt’ used in criminal courts.

The investigation continues, notwithstanding the Prime Minister’s resignation, and could result in sanctions against Johnson as an MP. For technical reasons, there was initially some uncertainty as to whether the law requiring a recall petition to be opened if an MP is suspended from the Commons for more than 10 sitting days (or 14 calendar days) would apply in this case. But Commons Speaker Lindsay Hoyle confirmed in July that it would. Were such a petition supported by 10% of the electorate in his Uxbridge and South Ruislip constituency, a by-election would result. Johnson would be able to stand as a candidate, as Chris Davies did – unsuccessfully – in 2019.

Concerns about the inquiry’s likely conclusions, which will follow sometime after the parliamentary summer recess, no doubt fed disquiet on the Conservative benches, contributing indirectly to Johnson’s downfall.

Labour leader Keir Starmer is also currently under investigation – by the Parliamentary Commissioner for Standards – due to allegations relating to the timely declaration of gifts and earnings.

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Sexual misconduct in parliament

The Times reported in April that a worryingly high proportion of MPs – 56 out of 650 – were at that time being investigated for sexual misconduct. A group of staff members working for Conservative MPs wrote to the Prime Minister a month later to express concern about what they described as the ‘toleration and acceptance of abuse’ and a ‘culture of indifference and fear’.

A matter of weeks after receiving that letter, the Prime Minister resigned as a consequence of his handling of claims of sexual misconduct against a member of the government (see Sexual misconduct in parliament). Deputy Chief Whip Chris Pincher resigned from the government on 30 June following an alleged incident at a private club the previous evening. Fresh allegations of misconduct have since been made against him and an investigation is taking place in accordance with the Independent Complaints and Grievance Scheme.

The problem of harassment is not limited to one party or parliamentary chamber. Former SNP Chief Whip Patrick Grady was investigated for sexual harassment; a finding of misconduct was upheld by the Independent Expert Panel and he served a short suspension. There was further controversy when a recording of a meeting of SNP MPs about Grady’s case was leaked, raising concerns that the party leadership in Westminster did not take the matter seriously.

In the House of Lords, Labour peer Lord (David) Lea of Crondall was found responsible for multiple acts of harassment and bullying for the third time in two years. The Lords Conduct Committee was powerless to suspend Lea, as he retired before its report was completed. The House of Lords Commission accepted the committee’s recommendation that he not be issued a retired member’s pass.

Looking to the future, a Speaker’s conference on the employment of members’ staff in the Commons was established in June to review whether it is sensible for MPs – rather than parliament – to be the employers of the people who work in their parliamentary offices. This proposal was made once before, in 2009, but ultimately rejected.

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Peerage controversies

Recent months have also seen significant controversies about Boris Johnson’s approach to appointing peers. Particular attention focused on his appointment of Lord (Evgeny) Lebedev, who was ennobled in July 2020. Lebedev was a friend of Johnson’s and proprietor of the Evening Standard newspaper. In March reports emerged suggesting that Johnson had intervened to suppress official advice provided by the security services on Lebedev that might have prevented his approval by the House of Lords Appointments Commission (HOLAC). This was denied by Number 10, but sparked an opposition day debate on 29 March sponsored by Labour, at which MPs used the humble address procedure to demand that the security advice should be published. This mechanism is generally considered binding, but ministers insisted in May that the advice must remain confidential, publishing only heavily- redacted documents. At a hearing with the Commons Public Administration and Constitutional Affairs Committee in April, HOLAC chair Lord (Paul) Bew had elliptically suggested that there was ‘uncertainty’ around Lebedev’s appointment, and that he was a ‘unique case’ due to his father’s position as a KGB agent.

Subsequently, new concerns arose about Johnson’s plans for future peerages. It was widely rumoured even before his resignation that a new set of nominations was coming, including former Daily Mail editor Paul Dacre. Subsequently, concerns swiftly emerged about Johnson’s resignation honours list, which it was said would run to ‘pages and pages’, including numerous peers.

Aside from HOLAC’s non-statutory advice on propriety (which Johnson has once flouted), peerage appointments remain essentially unregulated. These various events substantially strengthen the case for greater regulation.

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Select committees and contempts

On 13 June, the Committee of Privileges published its final report on proposals to sanction someone who evades a select committee’s request to give evidence. Following a consultation on its initial proposals, the committee recommended creating a new offence of failing to answer a summons to give evidence to a select committee without reasonable excuse. Summonses would be issued by the Speaker. It also amended its earlier proposals to make clear that it is non-attendance and not the giving of unsatisfactory evidence that would be covered if its recommendations were implemented. The proposed maximum sentence for the offence is six months: this was revised down from 12 months on the basis that the period suggested at consultation stage was ‘disproportionate’.

The report included a draft Parliamentary Committees (Witnesses) Bill, which had been redrafted after the consultation to make clear that MPs and peers are to be exempt from its provisions. Draft guidance on the process for committees to follow in relation to non- attending witnesses was also included; the report cited this fact and the creation of a summons process as a justification for its belief that concerns about the potential chilling effect of its proposals are unfounded. It is unclear if critics of the plans will be convinced that the committee’s change of approach will avoid opening the ‘can of worms’ that they are concerned about.

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Dissolution and Calling of Parliament Act

The Dissolution and Calling of Parliament Act, which repealed the Fixed-term Parliaments Act 2011 (FTPA), received royal assent on 24 March, having been approved without any amendments. The Lords voted in favour of an amendment retaining a role for the Commons in approving early general elections, but MPs then rejected this proposal by 292 votes to 217. Hence early general elections no longer require parliamentary approval, and the Act has instead revived the prerogative powers abolished in 2011, under which the Prime Minister can request a parliamentary dissolution from the monarch. It also includes an ‘ouster clause’ designed to limit judges’ oversight of this power.

The Act’s most immediate consequence is to change the default date of the next general election. Under the FTPA, this was due in May 2024. But the current parliament could now be dissolved as late as 17 December 2024, with an election then following in January 2025. It also opened up room for controversy about the calling of a ‘snap’ election, which followed immediately after the Act was passed (see Collapse of the Johnson government).

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Proxy voting and babies in the Commons chamber

On 24 November 2021, the Commons Procedure Committee was asked by the Speaker to consider whether MPs should be permitted to bring babies into the Commons chamber and Westminster Hall.

The inquiry was subsequently expanded to consider changes to the proxy voting scheme.

Guidance issued by the Speaker states clearly that MPs should not take their seats if they have a child with them, but in practice it has been a matter of discretion for the person in the chair: Stella Creasy had done so on numerous occasions without incident before being admonished, which prompted the inquiry.

Stella Creasy (CC BY 3.0) by UK Parliament.

The committee published its report on 30 June. It recommended that babies should not be permitted in debates, but offered no substantive explanation as to how it had made that determination. It recommended against making the ban explicitly part of the Standing Orders, but was clear that discretion to permit a baby’s presence should be used ‘sparingly’.

The committee – relying on ‘overwhelming’ evidence – also recommended that proxy voting should be extended to people experiencing ‘serious long-term illness’, but that this should be an alternative to – and not a replacement for – pairing and ‘nodding through’. It was cautious about changing the definition of ‘absence’ to enable MPs on leave to attend at short notice without surrendering their proxy, but said MPs should consider this carefully. It also expressed ‘reservations’ about extending the maximum length of a proxy arrangement to one year (it is currently seven months).

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Restoration and Renewal

It is the start of a new era for the Restoration and Renewal (R&R) of the Palace of Westminster. MPs and peers have unanimously supported the decision to abolish the Parliamentary Works Sponsor Body and create a new joint department of the Commons and Lords to act as the R&R client, as part of a ‘new mandate’ for the works. This mandate widens the range of options for delivering the work, prioritises safety-critical work, and commits to regularly reviewing the delivery strategy during the project. While widening the delivery options may signal a weakening of the previous commitment for both Houses to move out entirely during the works, the delayed sitting of the Commons on 11 July, due to a water leak, demonstrated yet again that such a decision may be forced on parliament due to a failure of the infrastructure serving the building. Indeed, the Clerk of the Commons, John Benger, emphasised in evidence to the Public Accounts Committee in March that the Commons chamber, at least, would need to be emptied for a significant period of time. The new joint department now has the somewhat challenging task of producing a business case which addresses the urgent need to rebuild the Palace with a timescale, scope, and budget that MPs will support.

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PACAC report on Coronavirus Act

The Commons Public Administration and Constitutional Affairs Committee has published a report into the Coronavirus Act 2020, which was passed by parliament to facilitate various aspects of the government’s management of the COVID-19 pandemic. Most of the Act’s provisions expired in March due to a two-year ‘sunset clause’.

The committee’s report focused on the mechanisms that the Act afforded for parliamentary scrutiny, and on wider lessons ahead of the forthcoming public inquiry into the UK’s COVID-19 response (see Covid-19 inquiry). It made a number of recommendations about how the government should approach future emergency legislation of this kind. These included providing greater justification of the length of sunset clauses, and giving more consideration to parliament’s ability to scrutinise and amend emergency provisions rather than simply having to renew or reject them.

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Elections in May and June

There was a bumper round of elections in May: for the Northern Ireland Assembly (see Northern Ireland) and for local authorities elsewhere. All council seats were contested in Scotland and Wales, as were seats in large parts of England, including Greater London, most of the metropolitan boroughs, and some districts and unitary authorities.

Overall, the results were worse for the Conservatives than most observers had expected: they lost a net 485 seats, more than a quarter of those they were defending. Labour recovered from its poor showing in the elections of 2019 and 2021. Compared to when these seats were last contested in 2017 or 2018, however, it did little better than tread water, gaining just 22 councillors in England and 108 overall – mostly in Wales. The Liberal Democrats and Greens were the main beneficiaries of Conservative weakness, gaining 224 and 87 seats respectively – in the latter case more than doubling the party’s total. In terms of councils controlled, the Conservatives lost 11, while Labour gained five, the Liberal Democrats and Plaid Cymru three each, and the SNP one. Plaid’s gains came despite an overall loss in seats, while the SNP consolidated its place as Scotland’s dominant party (see Scotland).

The poor Conservative showing increased pressure on Boris Johnson, but did not precipitate a move against him: the Metropolitan Police investigation into gatherings in Downing Street during lockdown was still ongoing, and Sue Gray’s report (see Partygate) had not yet been published. Sceptics therefore continued to bide their time.

The government then suffered two further defeats in June – in parliamentary by-elections in Wakefield and Tiverton and Honiton, the latter of which overturned a larger majority than in any previous by-election. These defeats triggered the resignation of Conservative Party Co-Chair Oliver Dowden and further weakened the Prime Minister. But it was only the Chris Pincher scandal a week later – and Downing Street’s cavalier and dishonest handling of it – that finally brought Johnson’s downfall (see Collapse of the Johnson government).

For the most part, these elections were conducted under the same rules as in years past: the Elections Act (see below) had become law shortly before, but its provisions - notably, the requirement for photo ID at polling stations - had not yet come into effect.

In four council areas in Wales, however, a pilot of early voting took place. Two of the councils – Caerphilly and Torfaen – allowed voting during the weekend preceding the official polling day, while two more – Blaenau Gwent and Bridgend – allowed it on the Tuesday and Wednesday before. The Electoral Commission is now evaluating the pilots and will report on lessons learned, before the Welsh government decides whether it wants to take the initiative further.

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Changes to electoral law

The Elections Act became law on 28 April. As reported in Monitor 80 this alters numerous aspects of electoral law, of which two changes are particularly controversial. First, it introduces a requirement for voters to show photographic ID in order to cast a ballot at a polling station. Second, it enables government ministers to prepare a ‘strategy and policy statement’ setting out priorities for the Electoral Commission, and the Commission will be held to account for how it adheres to that statement.

The bill passed through the House of Commons with little difficulty in January, notwithstanding a highly critical report from the chamber’s Public Administration and Constitutional Affairs Committee (PACAC). It met stiffer opposition in the House of Lords. Peers backed amendments that would have removed entirely the provisions on a strategy and policy statement and that would have extended the list of documents acceptable as voter ID. The Commons rejected these amendments, however, and peers chose not to insist upon them. That was despite grave concerns expressed by experts, including the Unit’s Alan Renwick, that the provisions – particularly the strategy and policy statement – would allow ministers to violate the independence of the Electoral Commission, which is a bedrock of electoral integrity.

Meanwhile, the Scottish Parliament passed legislation in June that confers the right to stand for election to local government in Scotland to resident nationals of countries with which the UK enters a treaty on electoral participation – currently, Luxembourg, Poland, Portugal, and Spain. Foreign nationals already had the right to vote in Scottish elections, so the new law plugs a gap in provision.

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Online Safety Bill

After extensive parliamentary scrutiny of its draft form (see Monitor 80, pages 7-8), the Online Safety Bill was introduced to parliament in March. The bill seeks to strengthen regulation of online communications in order to address a wide range of harms, through a combination of formal rules and requirements for internet companies to establish transparent procedures for self- regulation.

During the second reading debate on 19 April, MPs from all sides agreed that legislation in this area was necessary and that the principles underpinning the bill were sound. The (Conservative) chairs of the two committees that had scrutinised the bill at the pre- legislative stage – Julian Knight of the Digital, Culture, Media, and Sport Committee, and Damian Collins of the joint committee established specifically to examine the draft bill – both welcomed a range of improvements that had been made.

But concerns were also expressed. Several Conservatives sought reassurances on protection of free speech, and opposition speakers urged greater action to tackle disinformation and misinformation. There were also criticisms of a kind that have lately become familiar across multiple proposed laws: that the bill would grant excessive powers to ministers to act through secondary legislation; and that the independence of the regulator – in this case Ofcom – would be undermined by new powers of ministerial direction. There were also complaints from all sides that the time allowed for the debate – giving little more than an hour for backbench contributions – was inadequate for a bill of such length (225 pages) and import.

The bill’s report stage began on 12 July, with Damian Collins leading for the government, having been appointed as a junior minister after the previous week’s wave of resignations. Further consideration of the bill was, however, then postponed until after the summer recess. Some of the candidates in the Conservative leadership contest – especially Kemi Badenoch – were highly critical of the bill’s content.

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Developments in deliberative democracy

In March, the Scottish government published the report of its Working Group on Institutionalising Participatory and Deliberative Democracy, whose members included the Unit’s Alan Renwick. The working group was tasked with recommending ways to implement the government’s plans for regular citizens’ assemblies, an assembly for under-16s, and the development of more participatory democracy, as set out in the SNP’s 2021 election manifesto.

Accordingly, it made recommendations under two headings: ‘developing a broad range of participation and democratic innovations’; and ‘using this system as a basis to establish routine use of Citizens’ Assemblies in Scotland’. It proposed that a unit be established within the Scottish government responsible for participation, which would establish infrastructure for citizens’ assemblies and other initiatives. Other proposals included a National Participation Strategy, a Participation Academy to train organisers and facilitators, and ‘a children and young people’s democracy symposium to co-develop a Citizens’ Assembly for under 16s’.

The report was discussed by the Scottish Parliament’s Citizen Participation and Public Petitions Committee in April. The responsible minister welcomed the report and said that the government will publish its response in due course.

Meanwhile, the report of the Citizens’ Assembly on Democracy in the UK, convened by the Unit as part of its project exploring public attitudes to democracy, was published in April (see Report of the Citizens’ Assembly on Democracy in the UK).

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Collapse of the Johnson government

On 7 July Boris Johnson announced that he was stepping down as Conservative Party leader, and would continue to serve as Prime Minister until election of a replacement leader. The immediate catalyst for the crisis was the resignation of Deputy Chief Whip Chris Pincher after allegations that he had sexually assaulted two men. Number 10 initially denied that Johnson had been aware of previous complaints of similar behaviour, but on 5 July Lord (Simon) McDonald of Salford, a former Permanent Secretary at the Foreign Office, published a letter which claimed that Johnson had been informed of a formal complaint made during Pincher’s time as a Minister of State in the department.

For some government ministers who had been repeatedly asked to defend Number 10 lines which subsequently unravelled, this proved to be the last straw. On 5 July the Health Secretary, Sajid Javid, and Chancellor Rishi Sunak resigned from the government. On 6 July a delegation of Cabinet ministers privately urged the Prime Minister to step down. When that didn’t work, several proceeded to do so publicly, but refused to resign from the government. After a slew of over 50 resignations of ministers and their aides, Johnson reluctantly announced his decision to stand down as party leader, but defied calls to also step aside immediately as Prime Minister. Concerns were expressed by members of the Commons Liaison Committee that he would seek to call a general election in a final attempt to retain office, but this did not come to pass.

Boris Johnson at a Cabinet meeting with Sajid Javid and Rishi Sunak (CC BY-NC-ND 2.0) by UK Prime Minister.

The resignations left the government with an unprecedented number of vacancies, and ministers were quickly appointed to fill key Cabinet posts (see People on the move for a list of relevant appointments). Number 10 insisted that controversial plans such as the Rwanda deportation policy (see Select Committees and scrutiny of government) and legislation to enable the government to override the Northern Ireland Protocol (see The Northern Ireland Protocol) would not be withdrawn. The caretaker convention requires the government not to embark on new initiatives which might bind the hands of a new government, but it is silent about legislation which is already before parliament. Number 10 briefed that: ‘It’s not that the Government cannot continue to deal with challenging or long-standing issues. It is simply the convention to stick with delivering on pre-agreed policies, not unpicking them.’ 

The contest to elect a new Conservative Party leader is well under way (see Conservative Party confidence vote and leadership contest). The timetable set by the 1922 Committee of backbench MPs means that if the two remaining candidates stay in the race to the end, a new Prime Minister should take office in the first week of September.

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Partygate

The Metropolitan Police and senior civil servant Sue Gray both issued their final verdicts on partygate in May. A total of 12 gatherings in Downing Street were investigated by the police, including at least three attended by Boris Johnson. The police eventually issued 126 fixed penalty notices to 83 individuals, including one each to Boris Johnson, his wife Carrie, and Rishi Sunak, the then Chancellor of the Exchequer.

Sue Gray’s final report on the matter was published on 25 May. It described 15 events, eight of which were attended by Johnson. Gray was critical of what she described as ‘excessive alcohol consumption’ in Number 10, with parties that went on until the early hours of the morning, and her report concluded that ‘[t]he senior leadership at the centre, both political and official, must bear responsibility for this culture’.

The issuing of fines led to the departure of Justice minister Lord (David) Wolfson of Tredegar, who said in his resignation letter that persistent law-breaking had gone on with ‘constitutional impunity’. Gray’s report led four more Conservative MPs to call for Johnson’s resignation, but he remained in post until his conduct in relation to Chris Pincher’s conduct proved to be the final straw for a large number of ministers (see above).

Labour leader Keir Starmer and his deputy, Angela Rayner, were also investigated in relation to an allegation of breaching lockdown rules on a visit to Durham. Both pledged to resign if fined, but a police investigation concluded that the relevant gathering was lawful, as it was deemed to be reasonably necessary for work purposes.

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The Ministerial Code

In the week that the Sue Gray report was published (see above) the Prime Minister published an updated version of the Ministerial Code, which clarified that there is a range of sanctions short of resignation available for ministers who breach it, including a public apology or a salary deduction. The new Code failed to give any new powers to the Independent Adviser on Ministers’ Interests, despite correspondence with Lord (Christopher) Geidt earlier in the year suggesting his role would be strengthened. In particular, the approval of the Prime Minister will still be required in order for an investigation to be launched. The government also declined to implement recommendations from the Committee on Standards in Public Life, including its proposal that the Ministerial Code should be given statutory backing.

Changes to the Code’s foreword by the Prime Minister also removed reference to the Nolan principles and the impartiality of the civil service. The accompanying statement from the Cabinet Office set out the government’s view that parliament can have no role in upholding standards inside government, as that would risk ‘conflating the executive and the legislature’.

Two weeks later Lord Geidt appeared before the Commons Public Administration and Constitutional Affairs Committee (PACAC). He was visibly uncomfortable talking about the limitations of his powers, and his difficulties in advising whether the Prime Minister had breached the Code during partygate. Geidt dramatically left his post the following day, saying in his resignation letter that his departure was in part a consequence of being asked to advise on government proposals that involved a ‘deliberate and purposeful’ breach of the Code.

Lord Geidt is the second ethics adviser to have resigned in protest during Boris Johnson’s relatively short time in office, following the resignation of Alex Allan in November 2020 (see Monitor 77, page 12). Number 10 subsequently stated that it would review the role, and decide if it needed to be overhauled or replaced by something else. A new Prime Minister will likely be making that decision.

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COVID-19 Inquiry

The public inquiry into the COVID-19 pandemic published its draft terms of reference in mid-March. The terms were widened following public consultation, and finally approved by the government on 28 June. The inquiry’s scope is UK-wide, and ‘will examine, consider and report on preparations and the response to the pandemic in England, Wales, Scotland and Northern Ireland’. In considering devolved matters ‘the Inquiry will seek to minimise duplication of investigation, evidence gathering and reporting with any other public inquiry established by the devolved governments’.

Baroness (Heather) Hallett, who will chair the inquiry, has set out seven principles on how it will be conducted, including a commitment to independence, a promise that its sessions will be held across the UK, and a pledge that it will produce interim reports to deliver recommendations as soon as possible. Formal evidential hearings are not expected to commence until 2023.

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Public Appointments

The process of appointing people to head public bodies continues to be a cause for concern. The Commons DCMS select committee issued critical reports following its pre-appointment hearings with the government’s preferred candidates to head Ofcom and the Charity Commission. In both cases the committee’s criticism was directed more at the chaotic nature of the appointments process than at the merits of the individual candidates.

The Ofcom appointment was first advertised in February 2021, but was reopened three times thereafter. The government’s first preferred candidate, Paul Dacre, had been ruled ‘not appointable’ by the original interview panel. Eventually, in March, the government named Lord (Michael) Grade of Yarmouth as its preferred candidate. The committee’s report on his candidacy expressed concerns about his lack of experience of social media and online safety, but did not recommend against his appointment.

The government’s first choice for Chair of the Charity Commission, Martin Thomas, resigned in December just 10 days before taking up the post, following newspaper reports of inappropriate behaviour whilst working at a charity. In March the government announced that, rather than rerun the competition, it would appoint Orlando Fraser, who had applied for the vacancy at the same time as Thomas. Fraser was a legal member of the Charity Commission board for four years and has a wide experience of charities. The committee’s report on his appointment said Fraser was a competent but ‘unimaginative’ choice. It expressed serious concerns about the selection process, which it concluded had been ‘drawn out and subject to allegations of political interference’. It did not formally endorse his appointment and recommended that the government look again at its public appointments processes. The government confirmed both appointments in April.

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The Platinum Jubilee and the future of the monarchy

The Queen’s Platinum Jubilee was the occasion for widespread celebrations of Britain’s longest reigning monarch, marked also by much discussion about the future of the monarchy. A Unit blogpost considered whether public support for the monarchy would outlive the Queen; what kind of monarch Prince Charles is likely to be; and whether more of the realms (the 14 Commonwealth countries where the Queen is also head of state) might in future become republics.

A series of stories were published in June and July as part of a long-running Guardian investigation into the role of Queen’s consent in the legislative process. This included a report that correspondence from the National Archives demonstrates that in 1992 the Duchy of Cornwall – headed by Prince Charles – obtained an exemption from further leasehold reform legislation for Newton St Loe, a village owned by the duchy which was ‘particularly well liked and valued by his Royal Highness’. The Scottish Parliament’s Presiding Officer, Alison Johnstone, issued new guidance in June requiring Scottish ministers to notify MSPs as early as possible if a bill might require consent, so that it can be properly scrutinised.

Prince Charles has also been making headlines in relation to other matters. In response to an allegation that the Prince of Wales had accepted a suitcase containing over £1 million from Sheikh Hamad bin Jassam, Clarence House acknowledged in June that the former Qatari Prime Minister had made cash gifts totalling €3 million that had been properly passed on to one of the Prince’s charities, but added that ‘For more than half a decade… this has not happened and it would not happen again’.

An additional source of embarrassment came amidst preparations for the Commonwealth Heads of Government Meeting in Rwanda, when the Times reported that Prince Charles had privately described the government’s policy to send migrants to Rwanda as ‘appalling’. Clarence House did not deny the story, but stated that the Prince of Wales ‘remains politically neutral. Matters of policy are decisions for government’.

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The Bill of Rights Bill

On 22 June the government published the outcome of its consultation on a ‘Modern Bill of Rights’, which it had launched following the release of the Independent Human Rights Act Review in 2021 (see Monitor 80, page 11). Despite a joint request by several parliamentary committees, the Bill of Rights Bill proposed in the response was not made subject to pre-legislative scrutiny in draft, but was introduced by Justice Secretary Dominic Raab the very same day. Not for the first time during the Johnson government, Commons Speaker Lindsay Hoyle complained as part of his introduction to the debate that a minister was making a statement in the chamber after its contents had been extensively leaked to the media.

Justice Secretary Dominic Raab (CC BY-NC-ND 2.0) by UK Government

The bill seeks to repeal and replace the Human Rights Act 1998 (HRA), which incorporated the European Convention on Human Rights into UK law. Raab told the Commons that the bill will protect the same ‘Convention rights’ as the HRA. However, it proposes major changes to the current framework. These include: removing the requirement on courts to interpret legislation compatibly with Convention rights so far as is possible; removing the obligation to take into account the case law of the European Court of Human Rights; preventing courts from interpreting Convention rights as imposing ‘positive obligations’ new to UK law; and requiring courts to interpret the right to respect for private and family life restrictively in deportation cases.

The bill has been subject to widespread criticism. Professor Mark Elliott, a former legal adviser to the House of Lords Constitution Committee, argued that it significantly diminishes the level and forms of domestic protection afforded to Convention rights. Liberty described it as ‘a power grab’. The Commons Justice Committee and the Joint Committee on Human Rights heard evidence about the bill’s impact on 5 July and 6 July respectively, and the latter has written to the government expressing multiple concerns. In addition, despite Raab’s repeated assertions both before and during the debate that the government wants to explicitly protect and strengthen the right to free speech, the relevant parts of the bill have been criticised as giving the government increased protection from legal challenges to laws that seek to limit freedom of expression.

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Judicial Review and Courts Act

The Judicial Review and Courts Act received royal assent on 28 April, after the government agreed to amend a controversial provision relating to judicial review.

The original bill contained two clauses affecting judicial review. Clause 1 sought to provide courts with new powers regarding quashing orders, which nullify a decision of a public body where it has acted outside its legal powers or in breach of natural justice. The bill proposed allowing courts to make ‘suspended’ and ‘prospective-only’ quashing orders and sought to create a presumption in favour of such orders, essentially making them the default option. Clause 2 sought to abolish Cart judicial reviews, subject to certain exceptions, reversing a 2011 decision of the Supreme Court which allowed the High Court to exercise supervisory jurisdiction over the UK tribunal system.

The government suffered defeats in relation to both clauses in the Lords. Peers voted to remove ‘prospective- only’ quashing orders. They also passed a ‘compromise amendment’ which sought to retain Cart judicial reviews but limit the right of onward appeal.

Speaking in the Commons following these defeats, then Justice minister James Cartlidge stated that he did not accept that the presumption in favour of certain types of order fettered the discretion of judges or was dangerous. But the government agreed to yield to the ‘persuasive arguments that it is in fact unnecessary’ for the presumption to be part of the bill. The government rejected the other amendments, which were not insisted on by the Lords.

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Conservative Party confidence vote and leadership contest

On 6 June Graham Brady, Chair of the 1922 Committee of backbench Conservative MPs, announced that a confidence vote in Boris Johnson’s leadership of the party would be held later that day. It seemed unlikely that the rebels would have the votes to win and so it proved: Johnson won by 63 votes, with 148 (41%) of his 359 MPs voting against him. Party rules stated that another confidence vote could not be held for 12 months, but the scale of the rebellion prompted immediate speculation that backbenchers would try to change those rules to permit another challenge.

Leadership contenders Rishi Sunak and Liz Truss (CC BY-NC- ND 2.0) by UK Prime Minister.

In the end, it was his ministers who forced Johnson out, on 7 July, as a consequence of the largest single set of ministerial resignations in modern history (see page 10). In the following days, 11 Conservative MPs announced their candidacy for the Conservative Party leadership, with eight still in the race by the time of the first ballot of the parliamentary party. After five rounds of voting, former Chancellor Rishi Sunak and Foreign Secretary Liz Truss were selected as the final two candidates. The contest was not without incident: Cabinet Secretary Simon Case opened an inquiry into leaks about the conduct of the third-placed leadership candidate Penny Mordaunt during her time as a minister. The closeness of the final ballot, with Sunak on 137 votes, Truss on 113 and Mordaunt on 105 meant that underhand behaviour could well have swung the result, and that the winner may have demonstrable support from less than a third of the parliamentary party – with attendant risks to future party unity.

By the time Monitor went to press, Sunak had pledged to move quickly, if elected, on appointing a new Independent Adviser on Ministers’ Interests following the resignation of Lord (Christopher) Geidt in June (see The Ministerial Code). On Brexit, he had promised to accelerate the process of reviewing retained EU law and would demand that recommendations on legislation for repeal be delivered to him within 100 days of his appointment as Prime Minister. Truss had committed to passing the Northern Ireland Protocol Bill (see The Northern Ireland Protocol). On levelling up, both candidates had endorsed a series of pledges by the Northern Research Group of MPs, which include creating a ‘minister for the north’.

The party membership will now decide whether Sunak or Truss will be the UK’s sixteenth post-war Prime Minister, and the fourth in barely six years. The winner will be announced on 5 September and is expected to replace Johnson as Prime Minister the following day.

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The Union and intergovernmental relations

It was reported in Monitor 80 (pages 12–13) that the UK and devolved governments had reached agreement on a series of reforms to intergovernmental relations, including a new three-tier system of ‘Councils’ to replace the previous Joint Ministerial Committee structure.

The middle-tier Interministerial Standing Committee has since met twice. Eight sectoral interministerial groups have also met at least once since March, including those focusing on Finance and on Elections and Registration. There have been no meetings, however, of the Prime Minister and Heads of Government Council.

The increased volume of interministerial engagement in recent times was the central theme of an Intergovernmental Relations Annual Report published by the Department for Levelling Up, Housing and Communities at the end of March, the first since 2013.

Written from the UK government’s perspective, this painted a rosy picture. In his foreword the then Minister for Intergovernmental Relations, Michael Gove, referred to an ‘unprecedented amount of calls and meetings’, while the report’s opening paragraph proclaimed a ‘defining year’ for how the UK and devolved governments had worked together. Case studies detailed cooperation on COVID-19, the COP26 climate conference and regional growth deals, as well as the work of the British–Irish Council.

There was no mention in the annual report of the underlying tensions between the UK government and its Scottish and Welsh counterparts. The Scottish Constitution Secretary, Angus Robertson, claimed that a lack of consultation in relation to the ‘Brexit Freedoms Bill’ ‘makes a mockery of the UK Government’s recent commitment to reset relationships with the Devolved Governments’. Meanwhile, the Welsh Minister for the Constitution, Mick Antoniw, described the process that preceded the Bill of Rights Bill as ‘totally unsatisfactory, not least in relation to engagement with the Devolved Governments’. It seems very unlikely that these bills would receive legislative consent motions as currently framed.

The next Prime Minister will therefore inherit a situation in which trust between the UK’s administrations has been low for an extended period. Changing this will not be straightforward. The intergovernmental tensions of recent years reflect fundamental differences in how central and devolved governments understand the constitution, even if they have at times been exacerbated by Boris Johnson’s confrontational style and political party differences. Further conflict is inevitable unless ministers are willing to step back from their assertion of what has been described by Professor Michael Keating as a ‘unitary’ understanding of the UK.

There have also been some developments in relation to interparliamentary relations. In late February a new Interparliamentary Forum held its first meeting, attended by committee chairs from all three devolved legislatures and both Westminster chambers. This body is a successor to the Interparliamentary Forum on Brexit, which met eight times from 2017–19. The new forum aims to ‘improve scrutiny through the mutual exchange of information and by seeking a consistent approach to improving transparency and accountability at both a ministerial and inter-governmental level in our respective jurisdictions’. The current Lord Speaker, Lord (John) McFall of Alcuith, has made strengthening interparliamentary relations a personal priority.

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England

Progress has continued on a new generation of devolution deals with county areas across England. Derbyshire and Nottinghamshire have made a joint submission, but proposals in some areas continue to face local opposition. Some support for a mayoralty has been expressed in Cornwall, Norfolk and North Yorkshire, but uncertainty remains.

Croydon elected its first executive mayor, Conservative Jason Perry, at the local elections in May. A referendum in Bristol, meanwhile, saw voters approve plans to abolish its mayoralty once the incumbent’s term ends in 2024. Below county level, councils have expressed opposition to provisions in the Levelling Up and Regeneration Bill that will allow new combined authorities to be created without their involvement.

At the Local Government Association’s annual conference in June, then Levelling Up Secretary Michael Gove announced his intention to deliver a two-year funding settlement for local government. However, it is unlikely to include a substantial uplift in resources. He also stated that the Fair Funding Review of needs assessment, which had been in abeyance since 2018, is set to be completed by the end of 2022, and that the number of funding pots for local authorities will be reduced. A new Office for Local Government, which will be responsible for publishing and comparing performance data, is to be established, in part filling the gap left by the abolition of the Audit Commission. Some of the responsibilities for managing the local government audit system will transfer to the new Audit, Reporting and Governance Authority (ARGA).

The collapse of the Johnson government in early July casts doubt on the future of these plans. The same can be said for the new ‘trailblazer’ deals being discussed for Greater Manchester and the West Midlands, with both regions’ mayors expressing concern for the future of levelling-up policy. Tees Valley Mayor Ben Houchen, a Conservative, drafted an open letter urging the contenders for his party’s leadership to commit to several key levelling-up pledges, including devolving tax policy to areas with metro mayors and a commitment that the Department for Levelling Up will be retained. Andy Burnham, the Labour Mayor of Greater Manchester, expressed concern that levelling up could be ‘dead in the water’ when Boris Johnson steps down. The future of English devolution is uncertain.

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Northern Ireland

Devolved government remains largely inoperative because of disputes over the Northern Ireland Protocol (see below), as it has been since the DUP withdrew its First Minister in February (see Monitor 80, page 14).

May’s Assembly election results were on their face dramatic. Sinn Féin won 27 seats (out of 90) to the DUP’s 25, entitling it to nominate the First Minister for the first time. Symbolically the impact is great, reinforcing that unionism is no longer in the political majority. Materially it is less important, since the two offices have precisely identical (and joint) powers. Speculation that the results presage an early border poll on Irish unity is overheated, as the nationalist vote overall was around 40%.

Michelle O’Neill, Vice-President of Sinn Féin (CC BY 2.0) by Sinn Féin.

The share of the vote received by parties of the centre ground increased dramatically, with Alliance more than doubling its representation to 17 MLAs. The binary unionist versus nationalist character of Northern Ireland politics, which informed the Belfast/Good Friday Agreement, is changing.

The DUP seems unlikely to nominate a deputy First Minister until the Protocol Bill is much nearer to implementation. In an unexpected twist, the DUP also blocked the election of an Assembly Speaker, which means that the Assembly cannot meet. Existing departmental ministers remain in post, but are unable to take controversial or crosscutting decisions in the absence of an Executive (which only the First Minister and deputy First Minister can call, acting jointly).

London is mistrusted on all sides, which reduces its honest broker capacity; as does the rupture in relations with Dublin, and the end of the traditional Westminster bipartisanship on Northern Ireland. The Protocol Bill opens up the prospect of Northern Ireland, or the whole island, being excluded from access to the European Single Market for goods. That might lead non-unionist parties to rethink their willingness to participate in devolved government. A perception that the government’s Bill of Rights Bill weakens the Agreement’s guarantees on human rights might have a similar impact.

Also looming in the background is the government’s bill to end prosecutions, civil cases and inquests in relation to Troubles deaths. The proposals, essentially motivated by a commitment to end the prosecution of British soldiers for such deaths, were unanimously rejected by the previous Assembly.

Prospects for a return to devolution thus appear poor, and any restored Executive would be fragile: the underpinnings of devolution are crumbling.

If a First Minister and deputy First Minister are not appointed by October, the Northern Ireland Secretary must by law call new elections, though whether this would change the political climate is unclear. Shailesh Vara replaced Brandon Lewis as Secretary of State after the latter resigned as part of the push to oust Boris Johnson in July (see Collapse of the Johnson government). It is impossible to know who will be in post come October, or what their approach will be.

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The Northern Ireland Protocol

The Northern Ireland Protocol Bill was introduced in the Westminster parliament on 13 June, causing considerable tension in British, Irish, and European politics. It passed its Commons stages immediately before the summer recess. The government argued that the bill will ‘fix’ the contentious parts of the Northern Ireland Protocol, restore stability following the recent collapse of the Stormont institutions, and protect  the Belfast/Good Friday Agreement. The move was welcomed by unionist parties as a step in the right direction.

But the proposals have been strongly denounced by the Irish government, the European Commission, the nationalist and non-aligned parties in Northern Ireland, and opposition parties at Westminster. Indeed, several prominent figures on the Conservative backbenches have also criticised the bill, including Theresa May and the former Secretary of State for Northern Ireland, Julian Smith (both of whom abstained at second and third reading). Critics, such as former Attorney General Geoffrey Cox, maintain that the government’s proposals are likely to be counterproductive, and could break international law by unilaterally altering an international agreement. They have also accused the government of exaggerating the economic issues created by the Protocol, risking further political instability in Northern Ireland, and creating needless tension with Dublin and Brussels.

The provisions of the bill include measures to create a ‘dual regulatory regime’ allowing companies to choose whether to comply with UK or with EU law. It would also remove the requirement for Northern Ireland to apply EU customs rules on goods coming from mainland Britain that are not intended to leave Northern Ireland. Controversially, the bill also provides very extensive powers for ministers to make further changes to the Protocol’s operation by means of secondary legislation – i.e. with minimal parliamentary oversight.

It remains unclear what action the EU will take if the bill is enacted, but it has resumed legal proceedings against the UK for earlier breaches. It has been suggested that the government intends to use the bill only as a negotiating tactic, however misguided such an approach might be.

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Scotland

Council elections in Scotland in May saw the SNP come first once again, with Labour now second and the Conservatives third.

The last few months have marked a new phase in Scotland’s constitutional debate. On 14 June the Scottish government published Independence in the Modern World. Wealthier, Happier, Fairer: Why Not Scotland?, setting out the framework of its political case for independence. The paper centred around an argument of economic underperformance by the United Kingdom compared to a range of (small, prosperous) comparator countries on a variety of measures. It sought to illustrate the weaknesses of the UK rather than the potential of an independent Scotland, a subject of intense contestation in the original independence debate.

First Minister Nicola Sturgeon (CC BY 2.0) by Scottish Government.

Later that month, First Minister Nicola Sturgeon delivered a speech to the Scottish Parliament setting out how a referendum might be achieved, and defining a target polling date of 19 October 2023. The Scottish government then published the Scottish Independence Referendum Bill on 28 June. Lord Advocate Dorothy Bain – Scotland’s senior law officer – immediately referred the bill to the UK Supreme Court, for a ruling on whether it falls within the competence of the Scottish Parliament. The UK government has argued that it is premature to do so before the bill has been passed, and it asked the court to direct that written arguments be limited to the question of whether the reference should be accepted, so that this point could be decided before the court heard arguments on whether or not the bill was within competence. The court denied the application and will hear arguments on both issues at a single hearing in October. If the Supreme Court does rule against the Scottish government, Sturgeon said the SNP would treat the next UK general election as a de facto referendum on independence, an option not previously considered desirable by the mainstream of the party.

The Scottish Parliament has now broken for its summer recess. Bills which will carry over into the new term include the United Nations Convention on the Rights of the Child Bill and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. Elements of both were judged by a unanimous five-judge panel of the Supreme Court to be outwith the scope of the Scottish Parliament’s powers. The Gender Recognition Reform Bill is also set to continue its progress, despite an intervention – criticised by some legal experts – by UK Attorney General Suella Braverman, who warned of a ‘two-tier system’ in the UK if the bill is passed. By that time the UK will likely have a new Attorney General and a new government, so it is hard to predict if this stance will be maintained.

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Wales

Party politics in Wales has not proved immune to events at Westminster, with a June poll showing that Welsh voters have a distinct dislike of Boris Johnson. This partially explains the ‘disastrous’ performance of the Welsh Conservatives in May’s local elections (see Elections in May and June), and the consequent reports that a split with the main party in London could come soon.

The major constitutional news of recent months is the announcement in May by Welsh Labour and Plaid Cymru of an agreed position on the expansion of the Senedd to 96 members (MSs), who would be elected in 16 multi-member constituencies (based initially on paired Westminster constituencies) from closed party lists with integrated gender quotas. 

The use of closed lists would reduce voter choice  and prioritise party interests. The Special Purpose Committee on Senedd Reform backed the plans after its lone Conservative member resigned in protest at the government’s decision to announce a preferred position before the committee had finished its work. The majority on the committee recommended against use of the Single Transferable Vote system – the preferred method of the Expert Panel on Electoral Reform in 2017 – on the basis that it would be seen by voters as too complicated. The committee majority also rejected a flexible list system – which the Expert Panel had endorsed as an alternative to STV – saying that closed lists were already familiar to voters and ‘would facilitate strong, cohesive political parties’.

The exclusion of the government and parliament of Wales from mechanisms connected to the UK government’s Shared Prosperity Fund (SPF) – and the associated use of the Internal Market Act 2020 to take decisions in devolved areas – led the Welsh government to make a statement that it was ‘unable to endorse’ the UK government’s administration of the SPF in Wales.

A thorny constitutional dispute could result. The Welsh government continues to develop a distinct justice policy, overseen by a Cabinet sub-committee chaired by First Minister Mark Drakeford. In May, it published Delivering Justice for Wales, which outlined its principles should justice policy be devolved. The focus is on prevention and rehabilitation, a rights-based approach to law and a commitment to reduce the size of the prison population.

The resignation of Wales Secretary Simon Hart as part of the push to oust Boris Johnson (see Collapse of the Johnson government) led to the appointment of former Justice Secretary Robert Buckland as his successor. Buckland made clear in an interview shortly after taking office that making justice a devolved matter is not likely to happen on his watch. However, with a new Prime Minister due to be appointed in early September, his stint as Wales Secretary may be short.

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Report of the Citizens’ Assembly on Democracy in the UK

In April, the Unit published the report of the Citizens’ Assembly on Democracy in the UK. The Assembly was convened as part of the Unit’s current research project examining public attitudes to democracy in the UK, Democracy in the UK after Brexit, which is funded by the Economic and Social Research Council’s Governance after Brexit programme. It comprised 67 members of the UK public, who were carefully recruited to be representative of the UK voting-age population. Over six online weekends together, members considered in detail the question, ‘How should democracy in the UK work?’. They focused on three aspects of democracy: the relationship between government and parliament; the roles of the public; and ways of upholding rules and standards.

The report contains members’ conclusions, in their own words. It has three core findings. First, members expected high ethical standards of honesty and selflessness from their elected representatives, and supported a stronger role for regulators in order to achieve this. Second, members did not want power to be concentrated too far within the executive, advocating spreading it out to parliament and the courts. Third, members wanted better mechanisms for the voice of the public to be heard. They emphasised a need for better education and information, and greater use of citizens’ assemblies and other forms of participation in meaningful policy discussions.

This was the second report from the project: the first report, published in January, set out the results of a major survey of public opinion on democracy conducted in July 2021. A further survey is being carried out this summer, and the Unit will publish a report on its findings later in the year.

The report of the Citizens’ Assembly on Democracy in the UK.

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Report on constitutional watchdogs

In July, the Unit published a new report on the role of constitutional watchdogs in safeguarding democracy, entitled Parliament’s Watchdogs: Independence and Accountability of Five Constitutional Regulators. The report was authored by former Unit Director Robert Hazell, former IPSA Chief Executive Marcial Boo, and Zachariah Pullar, and provides a study of five organisations which have key functions in maintaining electoral integrity, overseeing the payment and conduct of MPs, safeguarding electoral integrity, and regulating public appointments.

The report explores the inherent tension in the need to maintain the independence of watchdogs from the politicians and democratic processes they regulate, while optimising their accountability to parliament, as public bodies paid for out of public funds.

The report makes a series of recommendations designed to maintain the independence of these watchdogs without compromising their accountability, including preventing appointees from being removed or having their functions changed arbitrarily; providing them with adequate funding to fulfil their functions; and creating mechanisms to challenge their decisions via appeal or judicial review.

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Unit annual conference

On 22 and 23 June the Constitution Unit, in partnership with the Bingham Centre for the Rule of Law, the Oxford Constitutional Studies Forum, and the UK in a Changing Europe, held an online conference covering a wide range of constitutional topics. This included five panel discussions, and a keynote address by former Conservative Cabinet minister and podcaster Rory Stewart. The panels discussed constitutional standards, the future of power-sharing in Northern Ireland, the future of the Union, the role of the courts, and parliamentary scrutiny.

Recordings of all sessions are available in podcast and video form – for full details of speakers see page 21.

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Constitutional Principles and the Health of Democracy

The Unit has embarked on a new project on constitutional standards and the health of democracy, funded by the Legal Education Foundation. This helped to make possible our conference, and has now begun to produce a series of briefing papers, aimed at policy makers and a wider public. These are available on the project website and through the Unit’s blog. The first briefing looked at the phenomenon of ‘democratic backsliding’, and whether the UK is at risk; the second briefing set out five key questions on constitutional standards for Conservative leadership candidates. The latter suggested that candidates must commit to strengthening the standards system, rebuilding parliament’s scrutiny role, defending the rule of law, abiding by constitutional norms, and defending checks and balances.

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Staff news

The Unit has welcomed two new colleagues. Peter Riddell was made an Honorary Professor at UCL after stepping down as Commissioner for Public Appointments. He will be writing regularly for the Unit blog and has already published several fascinating posts. We have also been delighted to host Joe Tomlinson as a visiting scholar; he is a former Research Director at the Public Law Project and a member of the University of York Law School, where he was recently promoted to Professor.

Sadly, we have also said goodbye to our colleague Luke Moore, who spent three years attached to the Unit as a Teaching Fellow in the Department of Political Science, covering Meg Russell’s teaching during her UK in a Changing Europe Senior Fellowship, which ended in May.

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Research volunteers

The Unit is, as always, grateful for the excellent work done by its research volunteers. A big thank you to former volunteers Oliver Bourton, Tom Leeman, Adam Khadra and Ioana Maxineanu.

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