Most people, I imagine, would agree that some basic principles should apply to the way we are governed in the UK. For example:
- Government ministers should be held to high ethical standards of conduct
- People appointed to the House of Lords for life should be of conspicuous distinction and integrity
- Significant new laws should be properly scrutinised by parliament
- The conduct of elections should be free from improper interference by the incumbent government (or other interests)
I was part of a Governance Project which recently reported on these and related issues. Our Commission is a group of people with a mixture of first-hand experience of government, parliament, the civil service, the legal system and public administration. Although some of our members are (or have been) politicians, we are politically independent and party-neutral.
The Commission concluded that, while there might be general consensus on the broad principles, and while there are rules and structures to give effect to them, those rules are often unclear and the structures are weak. In some cases they have simply been ignored or bypassed. This has led to worse decision-making and policy-making, as well as poorer scrutiny and accountability. In turn this has undermined public confidence in our systems of government—creating an assumption that politicians cannot be trusted but are simply “out for themselves”, that decisions are made for personal advantage rather than in the national interest. Take, for example, the finding of the Commons Privileges Committee that Boris Johnson had deliberately misled parliament over Partygate, thereby “undermining the democratic process of the House”. Or the widespread dismay at Liz Truss rewarding allies with peerages and honours after only 49 days in office as prime minister.
The polling and survey data in the annex to our report suggest that such examples have contributed to a wider problem of public disillusionment with politics and democracy. For example, a 2023 report by the UCL Constitution Unit recorded that, in the summer of 2022, only 38 per cent of respondents described themselves as “very satisfied” or “fairly satisfied” with the way democracy works in the UK, versus 52 per cent who were dissatisfied. While 78 per cent of respondents believed that “healthy democracy requires that politicians always act within the rules,” 52 per cent agreed with the statement that “politicians tend to follow lower ethical standards than ordinary citizens.”
Here are some illustrations of the problems, and the Commission’s suggestions for addressing them.
Ministers behaving badly
All recent prime ministers have issued a Ministerial Code setting out standards of conduct for ministers. But the code has become rather a jumble of ethical principles and relatively mundane administrative rules. The “independent adviser” on the code is not really independent. The prime minister has a veto over what can be investigated and can ignore any findings. That was what Boris Johnson did when the then independent adviser, Alex Allan, found that Priti Patel as home secretary had breached the code by bullying officials, “even if unintentionally”. Allan resigned. So did his successor, Lord Geidt, over concerns that Johnson was himself contemplating “measures which risk a deliberate and purposeful breach” of the code.
We recommend clarifying and strengthening the core elements of the Ministerial Code dealing with the duties and standards expected of those holding ministerial office. Parliament should legislate to put the code on a statutory footing and provide for a fully independent, properly resourced commissioner to enforce it. The commissioner would have the power to initiate and conduct investigations, make findings about failures to meet the standards set by the code and recommend sanctions. The prime minister would make the final decision but would have to justify publicly any departure from the commissioner’s recommendation.
Separate guidance would be prepared and published on the operational and administrative aspects of ministers’ roles, such as their travel arrangements, the organisation of private offices and their responsibility for special advisers.
Legislators for life
Whatever the pros and cons of the House of Lords more generally, appointments to the House are among the most important in our constitution. Those appointed become members of the legislature for life, as well as receiving the dignity of a peerage. The House of Lords Appointments Commission (Holac) gives advice on the appointment of new peers. But its advice is not binding. Boris Johnson ignored it when nominating Peter Cruddas (the former Conservative party co-treasurer) for a peerage.
Moreover there is a lack of transparency about the process of appointing peers. A new batch of political peerages was announced earlier this month. These may be excellent people, but most of us know nothing about them or why they are judged suitable for appointment to parliament for life.
Our Commission recommends that Holac should be made an independent statutory body, with sole power to decide which individuals can be recommended by the prime minister to the King for appointment as life peers. Holac would apply strong criteria around past conduct, personal integrity, achievement, expertise, and the ability and willingness to make a contribution to the work of the Lords. There would be nothing to prevent the prime minister (or other party leaders, or indeed other citizens) from submitting names to Holac. But only those approved by Holac could ultimately go forward to be made a peer. No longer would it be possible for appointments to be made purely as a favour or reward.
To improve public confidence in these arrangements, we recommend that a public citation should be published for all new peers, explaining the basis on which Holac had assessed them as meeting the criteria for appointment.
Laying down the law
Huge volumes of laws in the UK are made by secondary legislation (mostly regulations in the form of statutory instruments—SIs). These are laws made by ministers under powers conferred by Act of Parliament (primary legislation). Typically between 1,500 and 3,000 SIs are made each year. Some of them make trivial changes or updates to the law. But secondary legislation is sometimes used to do much more important things. All the main Covid laws on lockdowns and business closures were made by SI. Major post-Brexit laws have also been made by SI: the government has recently been criticised for “introducing sweeping EU equality rules into British law… without any debate in the main Commons or Lords chambers.”
That last criticism is a fair one. If Brexit was about “taking back control”, it was not control by parliament. Secondary legislation receives little or no scrutiny by MPs. The great majority of SIs are not debated in parliament at all, and SIs are almost never rejected by parliament. Only 17 SIs out of 160,000 have been rejected in the last 65 years, and five in the last 25 years.
This means that large numbers of important laws are made without any meaningful consideration by MPs or peers. This has major implications both for the quality of the law and its democratic legitimacy. The problem is getting worse as reliance on the use of secondary legislation grows. This includes the increasing use of “skeleton” bills, which do little more than set out a number of policy topics, leaving much of the substance to be implemented by ministers by SI; and “Henry VIII powers”, which enable ministers to amend Acts of Parliament by SI.
The Governance Commission therefore makes recommendations to define the appropriate use of secondary legislation and enhance its scrutiny by parliament. We suggest that a memorandum of understanding should be agreed between the government and parliament setting out principles and limits on when secondary legislation is, and is not, suitable. For example, it should not be used for measures which have significant negative implications for civil liberties. We also recommend new procedures allowing MPs to raise concerns about SIs and suggest amendments, and for parliamentary select committees to consider the policy content of SIs and request a debate where they think an instrument merits consideration by the Commons.
Free and fair
It hardly needs saying in (almost certainly) a general election year that elections are at the heart of how power is allocated in the UK. It is vital that processes to ensure fair and transparent elections are robust.
The Governance Commission recommends that the complex body of electoral law currently on the UK statute book should be clarified and consolidated. It should be made easier for voters to check their own registration. Unincorporated associations making donations to political parties should be required to disclose the source of their own funding.
The Electoral Commission (EC) has a key role in overseeing these arrangements. It must be free from political or other improper influence, including by the incumbent government. We therefore recommend the repeal of the provisions of the Elections Act 2022 which empower the government to give the EC a “strategy and policy statement”. We also recommend that the EC be given stronger powers of investigation and prosecution.
Agenda for change
We also make recommendations designed to:
- give the House of Commons greater control over its own business and strengthen its ability to hold the government to account
- make honours for political service subject to the same process of independent assessment and validation as other types of honour—goodbye to the PM’s resignation honours list or separate political honours
- provide clearer and stronger regulation of conflicts of interest in public life, and of the movement of politicians and senior officials between the public and private sectors
- clarify the role, responsibilities and accountabilities of civil servants and special advisers
Modest reforms
This is not radical constitutional reform. Our proposals go with the grain of our existing constitutional arrangements. Nor do they represent some kind of power grab by the unelected “blob”. None of this can happen without the support of the elected government (of whatever political colour). There is nothing undemocratic in elected politicians deciding that aspects of our governance should be subject to rules overseen or enforced by independent bodies, accountable to parliament. In various other ways we propose enhancing, not diminishing, the role of parliament. Some (but not all) of our recommendations would require parliamentary consent in the form of primary legislation.
All our proposals are intended to be practical and implementable by any government which wants to make tangible improvements to the quality of our governance, and help restore public confidence in our democracy.
