Rt Hon Lord Tyler CBE, Liberal Democrat spokesperson on political and constitutional reform
Take a look behind the Brexit and Covid headlines this week and you will get a glimpse of a devious destruction of our constitutional conventions. In a series of proposals in recent months — including on constituency boundary changes, election spending and the Electoral Commission — the government’s intentions add up to an alarming undermining of democracy in the UK.
The Conservatives are not content with the likely additional winnable seats they will gain from the boundary changes in the new Parliamentary Constituencies Act, which will make constituency populations more uniform and see some disappear. Ministers have also resisted cross-party amendments in the Lords to get more eligible young people registered to vote which were set to boost the electorate in black, Asian and minority ethnic (Bame) communities, who are more likely to support opposition parties.
Hard on the heels of that came a Cabinet Office statement on December 3 that the Conservatives wanted to increase the party limit on general election spending from the present £19.5m to about £33m. The move would translate into many thousands of pounds that could be targeted at about 100 marginal seats. In the 2019 election no party spent anything like that. However, one party clearly wants to make millions more pounds the key element for success, rather than more millions of registered voters.
A few days previously, Chloe Smith, minister for the constitution reporting to Michael Gove at the Cabinet Office, asked for short-notice comments from a shortlist of experts on a proposed “clarification” of electoral law. This arises from a Supreme Court judgment in the election expenses case against South Thanet MP Craig Mackinlay, published in July 2018, which reiterated long-established law that a candidate and agent should be held responsible for all campaign expenditure intended to advance that candidature in a constituency.
The judgment was followed by extensive consultation from which the Electoral Commission produced final codes of practice in April 2020. Ministers have failed — for an unprecedented nine months — to present the codes to parliament. The proposed “clarification” would permit candidates and agents to claim they are unaware of their party’s targeted expenditure.
Last December, the Conservative party gave evidence to the public administration and constitutional affairs select committee inquiry into the work of the Electoral Commission. It claimed that the commission was “unaccountable”, suffered from “conflicts of interest”, required “clear ministerial and parliamentary oversight” and that there should be an “option to abolish it”.
No other party has made comparable comments. This is not surprising. The commission is a statutory regulator, accountable to parliament and deliberately divorced from any such party or government political influence. To make the referee subservient to one of the teams on the pitch would be to destroy their independence and integrity.
In themselves, these proposals may seem concerning but not exactly attacks on our established constitutional conventions. However, the complete lack of consensus, alongside other changes, is alarming.
The government has already proposed to “take back control” of prorogation and dissolution of parliament, thereby codifying royal prerogative powers in the hands of the prime minister. This week Jacob Rees-Mogg, leader of the House of Commons, refused an extension for the Commons committee on the future relationship with the EU, chaired by Hilary Benn. If he thinks that Brexit is done, he should listen to the fishermen, hauliers and supermarket managers.
Far from strengthening the sovereignty of the British parliament, and the electoral system on which it is founded, these changes add up to something more sinister.
In 1976, the late Lord Hailsham — former lord chancellor and a true Tory if ever there was one — warned of Britain’s slide towards “elective dictatorship”. He said: “My object is continuity and evolution, not change for its own sake.” Some 45 years later, this lecture is especially relevant because it is more than 12 months since Boris Johnson promised: “In our first year we will set up a Constitution, Democracy and Rights Commission”. This is not yet formed, but is expected to examine the role of British judges and the use of judicial review — a thorny issue after the prime minister’s defeat over shutting down parliament in 2019. What changes will its work bring?
Of course, Hailsham could not foresee the arrival of digital campaigning, and, with it, US-style inflation of “dark money”, foreign interference and attempts to undermine electoral law. However, his case for comprehensive rather than piecemeal change remains persuasive.
Parliamentarians of all stripes believe that the challenge and the opportunity are now even more urgent. The government’s attrition must stop. Instead, the constitution commission must be truly independent, and resolute in protecting our parliamentary democracy from this elective dictatorship.