Dominic Cummings and the unchained ministers

BRITONS HAVE been gripped in recent days by a drama superior to anything Netflix has to offer. Dominic Cummings, the all-powerful adviser who masterminded Brexit and had Boris Johnson in his thrall, has been ousted by a triumvirate made up of Allegra Stratton, the prime minister’s press secretary, Munira Mirza, his policy chief (who used to be a revolutionary communist—but that’s another story) and his girlfriend, Carrie Symonds. Those who disapproved of Mr Cummings not just for his appalling manners but also for his radicalism, of whom there are many both inside and outside the Conservative Party, are hoping that Mr Johnson will revert to being the pragmatic One Nation centrist he was as mayor of London.

That is certainly the impression that the prime minister gave this week when he launched a ten-point plan to turn Britain green. But Mr Cummings’s great project will roll on without him.

The plan, which has the support of the Tory party and was outlined in the 2019 manifesto, is to weaken the judicial, political and administrative limits that have been placed on the power of the executive. Brexit is only the beginning. By the time of the next election, ministers will have control over more policies, enjoy more discretion and face fewer restraints than they have for decades.

Meg Russell, director of the Constitution Unit at University College London, warns of “democratic backsliding”. Charlie Falconer, the shadow attorney-general, sees Britain falling “under a majoritarian dictatorship”. Some see parallels in America or even Hungary, yet this is a distinctly British story: a conservative counter-revolution against checks and balances to executive power built up over half a century.

In a televised lecture in 1976, Lord Hailsham, a former Lord Chancellor, called for the overthrow of Britain’s ruling dictatorship. There was no junta of mustachioed generals and secret policemen; James Callaghan, the Labour prime minister, was a gentle fellow. Rather, Hailsham argued, Britain was an “elective dictatorship”. Parliamentary sovereignty, the underpinning principle of Britain’s uncodified constitution, granted the legislature the power to make and undo any law it wished, he explained. A government which commanded a majority in the House of Commons enjoyed a power absolute in theory and constrained in practice only by political realities and MPs’ consciences. “Only a revolution, bloody or peacefully contrived, can put an end to the situation,” he said.

Hailsham proposed a written constitution, inspired by those in Australia and Canada, which would curb the power of Parliament. He wanted a federal system of devolved parliaments for Britain’s nations and regions, a bill of rights and an elected House of Lords. The new arrangement would be overseen by the courts. The queen would stay, of course.

Yet the regime he criticised was already being dismantled. From the 1960s, judges and legal academics responded to the ever-bossier post-war state by developing the doctrine of judicial review. In a series of cases, they marked out the scope for judges to overturn the decisions of ministers who had overstepped the powers Parliament gave them, failed to follow a fair process or behaved irrationally.

In 1973, Britain joined the European Economic Community. In the following decades, control of many areas of policy once dealt with in London went to Brussels. In exercising their remaining powers, ministers were constrained by European laws on state aid, procurement and the environment. Margaret Thatcher was enthusiastic, for the process limited the scope for them to mess with the economy. Brussels required the courts to strike down domestic laws and decisions that contradicted European law.

Tony Blair, who took office in 1997, thought Britain over-centralised and remote from citizens. The revolution he led looked a lot like the one Hailsham envisaged. He set up new devolved governments in London, Scotland, Wales and Northern Ireland. (An assembly later planned for north-east England was rejected in a referendum after a campaign on which Mr Cummings worked. Its slogan was “More doctors, not politicians”.) A Supreme Court was created, independent of the legislature. A Human Rights Act, with which laws and ministers’ decisions had to conform, was passed. There was more oversight and less secrecy. Thatcher had set up the National Audit Office to scrutinise government spending; Mr Blair’s Freedom of Information Act created new rights of access to official papers.

David Cameron, a small-state moderniser, abolished the prime minister’s power to trigger elections. He strengthened Whitehall’s hand, recognising the civil-service code, which asserts officials’ political impartiality, in law. He bolstered the regime of ministerial directions, under which senior civil servants can publicly caution ministers if they believe a project is undeliverable or wasteful.

Vernon Bogdanor, a constitutional historian, concluded in 2009 that Mr Blair’s reforms were a classically liberal project in limited government, “seeking to secure liberty by cutting power into pieces.” Before proposing a law, ministers had to check that it was compatible with European and human-rights legislation, as well as the devolution settlement. Ministers could expect their decisions to be scrutinised by judges, auditors and the public. The elective dictatorship had been toppled.

The Conservatives miss the ancien régime. They blame judicial review for gumming up decision-making, and human-rights law for hobbling immigration policy. The crude carve-up of policy areas between London, Edinburgh and Cardiff has, they think, left the British government too feeble to tackle crises like covid-19. Devolution was meant to save the Union but, they maintain, has only boosted separatists. On November 16th, in a moment of candour, Mr Johnson expressed this view, telling a gathering of MPs he thought Scottish devolution a “disaster” and Mr Blair’s “biggest mistake”.

What Hailsham saw as a dictatorship, the Tories see as a bond between voters and the government. Institutions and watchdogs created during Mr Blair’s tenure masquerade as independent, argues an official, but instead form a parallel political class. According to this view, Blairism weakened rather than strengthened democracy: voters are disillusioned not because Westminster is too mighty but because those they chose to run the country are constrained by people who have not been elected.

The restoration

For many Tories the prorogation debacle of 2019 confirmed that things had gone badly wrong. It was the culmination of a battle around Brexit which, said the Conservative Party manifesto in the subsequent election, “opened up a destabilising and potentially extremely damaging rift between politicians and people”.

Mr Johnson had promised, “do or die”, to deliver Brexit on October 31st, but without a working majority, and unable to call an election, he was blocked by Parliament. He prorogued Parliament, but the Supreme Court, which heard interventions from the Scottish and Welsh governments, blocked his move. The judges described their decision as a defence of Parliament, in keeping with the courts’ role in settling constitutional questions for more than 400 years. Brexiteers saw it differently, and are determined to prevent the executive from losing control again.

In most countries, changing the constitution is hard. In Britain, it is easy. The new checks and balances were passed by Parliament, and what Parliament has created, it can take away. The reforms of the past 40 years will not be overthrown, but there will be a course-correction to assert the primacy of the politicians over judges and officials. Danny Kruger, a Tory MP, calls it “a restoration of politics to its proper place at the apex of our common life.”

Brexit, which comes into full effect on January 1st, ends the supremacy of European law in Britain. As Mr Cummings’s campaign slogan of “take back control” promised, both the workload and the elbow-room of ministers will expand. They will take charge of the sanctions imposed on Russian kleptocrats, the allocation of airport landing-slots and the chemical composition of toilet unblocker. David Frost, Mr Johnson’s negotiator, sees Brexit as a zero-sum game in recovering lost sovereignty. Ending Europe’s control over state subsidies and emissions is “the point of the whole project.”

Parliament has passed a stack of laws to patch the hole left by Brussels in running Britain. But whereas in Brussels powers are distributed among the EU’s institutions, in Britain they are concentrated in ministers’ hands. MPs will have less freedom to block future trade deals than their counterparts in the European Parliament or America’s Congress; ministers will have wide powers to rewrite regulations on agriculture and medicines. A new environmental regulator has been set up, but campaigners think it weedier than the European Commission.

While ministers get mightier, the courts are being weakened. They will no longer be able to strike down decisions and acts incompatible with EU law. A review led by Edward Faulks, a critic of the prorogation ruling, will ask whether judicial review is being abused “to conduct politics by another means”. It will look at placing some of the prime minister’s prerogative powers, such as deploying troops or appointing ministers, beyond the reach of judges, and at “streamlining” the burden placed on government by disclosure rules.

Robert Buckland, the Lord Chancellor, is considering changing the Supreme Court’s name to downgrade its status. A further review of how the courts apply the Human Rights Act will be launched this month. Mr Johnson wants to reclaim the power to trigger elections by repealing Mr Cameron’s Fixed-term Parliaments Act.

Critics argue that this will result in worse, not better, government. If disclosure is limited, the scope for bringing unlawful behaviour to light will be too. Judicial-review cases are usually about everyday matters in which officials have administered lousily, rather than grand constitutional questions. Judges enter political terrain rarely, reluctantly and only with good reason—which, many would argue, they had in the case of the prorogation of Parliament.

Devolution is being nudged back too. Mr Johnson wants to end the impression that he is a visitor in a foreign land when he tours the United Kingdom, and to show that being in the Union pays. Brussels used to send money to Scotland and Wales to pay for film festivals, bridges and other goodies. In future London will distribute that bounty. The pandemic has also left city mayors feeling squeezed. Manchester’s Andy Burnham, among others, complained about the imposition of lockdown in his city; Sadiq Khan, mayor of London, accused the government of a power grab after it threatened to take control of Transport for London, the Tube operator, during bail-out negotiations.

The Internal Market Bill, published on September 9th, is intended to create an all-UK market after Britain drops out of the EU’s single market. It contains wide “ouster” clauses, limiting judges’ scope to review how ministers use their powers and exempting them from their duty to act in accordance with the Human Rights Act. The government’s legal advice justified the bill on the bald principle of parliamentary sovereignty: if lawmakers vote for it, it is constitutional.

“We are living through Hailsham’s nightmare,” says Peter Hennessy, a constitutional historian. The difference between the 1970s and today, he says, is the degree to which ministers restrain themselves to do only what they regard as right and proper: the so-called “good chaps” theory of government. “The problem with this government is its alarm bells don’t ring,” he says.

The executive lacks internal checks and balances. Mr Johnson’s cabinet is stuffed with timid loyalists whose aides, since a restructuring by Mr Cummings, now answer to Downing Street. The government’s top lawyers—Mr Buckland, Suella Braverman, the attorney-general, and Michael Ellis, the solicitor-general—nodded through the Internal Market Bill, which broke international law, although the head of the civil service’s legal department and the advocate-general for Scotland quit over it. “If you operate a command model, you can go a long way foolishly before anyone raises a flag,” says Lord Hennessy.

Raising flags is one of the two jobs of Britain’s permanent civil service. The civil service is not merely an instrument of ministerial will, bound to deliver the policies of the elected government: it is also a soft check on ministerial whim. Civil servants are obliged to provide politically impartial advice based on rigorous evidence. Job security, the logic runs, encourages honesty.

The tension between the civil service’s two jobs is of long standing. Mr Cummings’s complaint that mandarins smother innovation and defend the status quo was the premise of “Yes, Minister”, a 1980s TV comedy. But the attacks on it now are unusually fierce. Under Mr Johnson, a string of top civil servants have been shoved out. Mark Sedwill, who quit as cabinet secretary in June, told MPs on November 17th that briefings to newspapers discouraged civil servants from giving “blunt and candid” advice.

The government wants to make the civil service more skilled and to raise the prestige of “operational” folk. But it also wants to make it more responsive to ministerial will. Mr Johnson has filled top jobs with political allies, including Dido Harding, the head of Britain’s test-and-trace service, and Lord Frost. The number of ministerial directions has risen sharply this year (see chart), largely because of the need for speed during the pandemic. Theodore Agnew, the minister in charge of government reform, thinks ministers should be more willing to override cautious civil servants.

The main obstacle to the Internal Market Bill is now the House of Lords, which heavily amended the bill on November 9th. “It would be extraordinary if a measure of this kind, which whatever your view is a controversial measure, had not been questioned. They were carrying out their constitutional duty,” says Lord Fowler, the Lords’ speaker. Yet the upper house has little power: it can only delay bills, and by convention does not block the government’s manifesto promises. Its credibility is undermined by a bizarre appointments system which combines tradition with patronage. Mr Johnson has shown disdain for it, filling it with pals and suggesting it move to York.

Moody blues

For 200 years, the Conservative Party has forestalled popular revolution by constitutional evolution. Ministers say that is what they are doing now, by channelling populist anger at over-mighty judges and foot-dragging mandarins. But there are worries about the direction of travel, not least from the government’s own side.

An overweening executive does not sit comfortably with a taste for small government. Immigrants may appeal to judges to avoid deportation; so do Home Counties Tories keen to block developments. Business, too, dislikes government by ministerial whim, for investors prize the security that the rule of law offers. Those concerns have already made themselves felt. On October 16th, Moody’s downgraded Britain’s credit rating, blaming, in part, the country’s weakened institutions and its approach to rules and norms.

Mr Cummings’s goal was to deliver vast “moonshot” projects faster and cheaper. But government failures are often the consequence of hasty ministers listening to civil servants too little, not too much. “There’s a real problem with ministers that overpromise and under-deliver. You need checks and balances upfront,” says Gus O’Donnell, a former cabinet secretary.

There are diplomatic costs, too. The breach of international law embodied in the Internal Market Bill was condemned not just by the Labour Party and all living former prime ministers, but also by Joe Biden, whom Mr Johnson is now desperate to impress. It also poisoned trade talks in Brussels. And how, asked Sir John Major, a former prime minister, could Britain wag the finger at Russia and China again when they flouted international norms?

Mr Johnson fought the 2019 election on the basis that “getting Brexit done” would heal the country’s divisions. Instead, it opens new questions about where power should lie and how it should be constrained. Sir Keir Starmer, the Labour leader and a former human-rights barrister, is a defender of the checks, balances and mores of Mr Blair’s era. Mr Johnson represents a new strain of majoritarian democracy, for whom statecraft is a simple matter of serving voters what they ordered. The battle for Brexit is over. The fight for the constitution has just begun.■