Richard Ekins: The repeal of the Fix-term Parliaments Act is essential for restoring faith in our democracy

6 Jul

Professor Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.

For a certain type of critic, the Government’s constitutional reform agenda is authoritarian populism in action, contemptuous of the rule of law and parliamentary democracy alike.

The riposte is that many academic lawyers or political barristers seem rather keen on tempting courts to depart from the law in order to discipline an unruly Parliament or people – not much respect for the rule of law or democracy there. In limiting the prospects for political litigation, the Government and Parliament can help vindicate the rule of law and the integrity of parliamentary democracy.

The more fair-minded critic of the Government’s agenda sees that its aim is to restore the traditional political constitution, but goes on to question whether this would be a desirable change or even whether it is possible in view of how the world has changed.

That is, is it wise to unwind recent innovations and is it feasible for legislation to reinstate the constitution as it stood before these changes? These are good questions for parliamentarians to ask about proposed legislation.

The Queen’s Speech promised legislation to restore the balance of power between executive, legislature and courts. It remains unclear exactly what form that legislation will take and thus whether it will prove an effective means to help reverse the rise of judicial power.

The worry may be that the legislation does not go far enough, leaving the problem largely unresolved, rather than that it works too radical a change. However, another of the Government’s legislative proposals is rather more advanced, prompting questions now about whether it is warranted or will work.

The Dissolution and Calling of Parliament Bill, which has its second reading in the House of Commons today, will repeal the Fixed-term Parliaments Act 2011. Repeal should not be, but may prove to be, controversial.

The 2011 Act is an unloved statute. Both major parties contested the last general election promising to repeal it. Repeal is necessary because the Act proved dangerous in the last Parliament and indeed was very nearly disastrous.

In preventing dissolution, the Act made it possible for a cross-party coalition of MPs to maintain a government in office but not in power, refusing formally to withdraw confidence and thus trigger an election, but denying that government the capacity to govern.

The Supreme Court’s prorogation judgment made a bad crisis worse, denying the Government an option to provoke withdrawal of confidence and making it easier for a gaggle of parliamentarians to govern without taking responsibility.

If the Liberal Democrats and the Scottish National Party had not calculated that an early election was to their electoral advantage, the constitutional impasse could have continued for months or even years longer, with the country practically ungovernable.

Parliament has a responsibility to avoid a repeat of this constitutional debacle. The Bill now before the House helps to achieve this, per clause 2, by restoring Her Majesty’s prerogative power to dissolve Parliament as if the Fixed-term Parliaments Act had never been enacted.

Some academic lawyers argue that it is impossible to revive a prerogative power and that if the Bill is enacted the power to dissolve Parliament must be a statutory power, which will invite judicial review. The argument is fallacious, for a sovereign Parliament can certainly legislate to restore the law as it stood before its prior legislative act, provided that it makes its intention clear, as clause 2 does.

However, if the Bill were simply to restore the prerogative, as if the 2011 Act had never been enacted, the risk would be that political opponents of an early election would invite the courts to quash a dissolution, on similar grounds to those asserted in the prorogation judgment.

They would argue before the Supreme Court that the Government had wrongly dissolved Parliament for political advantage or for no obviously good reason and that dissolution had cut short parliamentary accountability and made it impossible for Parliament to enact legislation. The argument should fail because it is not for the courts to police the timing of elections. But the same argument succeeded in the prorogation judgment and its logic clearly extends to the prerogative of dissolution.

It has been clear for some time, as Policy Exchange has argued in a series of articles and reports, that legislation to repeal the 2011 Act needs also to reverse the Supreme Court’s judgment, protecting the prerogative of dissolution from judicial review.

Clause 3 goes some way towards this end providing in strong terms that no court may question the exercise or purported exercise of the powers referred to in clause 2 or the limit or extent of those powers. Predictably, some critics have argued that this is an unconstitutional clause, that it ushers in lawless government and unreasonably disarms the courts from intervening in extremis.

On the contrary, as I argued in evidence to the Joint Committee on the Fixed-term Parliaments Act, the fears about clause 3’s application are illusory. The restored prerogative of dissolution will help avoid constitutional impasse. In ruling out judicial review, clause 3 does no more than restate the law as it clearly was until the Supreme Court made new law, without admitting it, in the prorogation judgment.

The Independent Review of Administrative Law has recognised the merits of clause 3, which affirms traditional limits on judicial review rather than somehow constituting a novel, dangerous exemption from judicial oversight. The clause has to be framed in strong terms if it is to prove effective, for courts read legislation that seems to limit judicial review narrowly.

Some critics of clause 3 have even suggested that the courts might revive their overheated 2019 dicta, abandoning parliamentary sovereignty and quashing Parliament’s choice that dissolution shall not be subject to judicial review.

This seems an odd hill on which to choose to die. It is scarcely a fundamental of our constitution that courts should decide on the timing of elections and it seems very unlikely that the Supreme Court, led by Lord Reed rather than Lady Hale, would accept this argument.

The courts have no power to quash legislation preventing judicial review of a dissolution. However, future litigation challenging a dissolution, and thus an early election, would aim to evade the legislation, not least by targeting the steps leading up to Her Majesty’s order, including ministerial advice.

Clause 3 should be reframed to specify that a court may not question any (purported) act of the Crown relating to the dissolution of Parliament or any ministerial advice, or other procedural steps, relating to such an act. The clause might also usefully be supplemented by specifying that Article 9 of the Bill of Rights 1689 covers all acts of the Crown relating to prorogation and dissolution, and all ministerial advice to Her Majesty in relation to such action.

The Bill could also provide that the Supreme Court’s prorogation judgment and the judgment of the Scottish court on appeal in that case have no authority and cannot be relied upon in any UK court, which would restore the constitutionally sound judgments at first instance.

No one should lament the repeal of the Fixed-term Parliaments Act. In repealing the Act, Parliament has to address the law the Supreme Court invented in its prorogation judgment. Clause 3 of the Bill now before the House goes some way towards this end but should go further.

Interview: Goodhart says Johnson understands better than Starmer that a graduate meritocracy alienates manual workers

21 Oct

Sitting on a bench on a sunny afternoon in Hampstead, on a grassy bank with a view of Erno Goldfinger’s modern house at 2 Willow Road, David Goodhart warns of “the dark side of creating a cognitive meritocracy”.

In his new book, Head, Hand, Heart: The Struggle for Dignity and Status in the 21st Century, Goodhart contends that this meritocracy now shapes society largely in its own interests, and has devalued work done by hand or from the heart.

He believes Theresa May, Nick Timothy and Boris Johnson have so far shown greater signs than the Labour Party of comprehending what has gone wrong, and the need to uphold a national social contract.

Goodhart adds that we are sending far too many people to university, creating “a bloated cognitive bureaucratic class” and “a crisis of expectations for the kids”, many of whom find their degrees are of no real worth, and turn instead to protest movements such as Momentum and Black Lives Matter.

He laments “the lack of emotional intelligence of highly educated people”, and also touches on his own outbreak of rebellion after failing to be picked for the First Eleven cricket team at Eton.

ConHome: “Let’s start with the distinction you made in your previous book, The Road to Somewhere, between the Somewheres and the Anywheres.”

Goodhart: “The new book is The Road to Somewhere part two. It’s motivated by the same interest in understanding the political alienation of so many of our fellow citizens and what lies behind it.

“One of the complaints about the previous book was that the Anywhere/Somewhere divide is too binary. Obviously it is somewhat binary. But in the real world it is somewhat binary.

“People who read the book will know there’s lots of sub-divisions in the Anywheres, lots of sub-divisions in the Somewheres.

“A lot of the Guardian-reading classes felt I think very defensive about the last book – possibly rather less so about this one. The last book made more enemies because I was pointing out to a lot of people who think of themselves as progressive, and indeed on the side of the people who I call the Somewheres, that they are part of the problem.

“They like to think it’s the rich and the corporations that are the problem. But actually it is the lack of emotional intelligence of highly educated people whose priorities have dominated our society for the last generation or two.”

ConHome: “So this is new? Or it’s got worse, anyhow.”

Goodhart: “Exactly. It’s only really in the last 25, 30 years that the liberal graduate class has become so dominant, more numerous, and less inhibited about pursuing their own interests – generally thinking, for most of the time, that these are in the general, common interest, and indeed some of the time they are.

“Quite a large part of this is about educational stratification. It’s about the dark side of creating a cognitive meritocracy.

“We’re in the middle of a great deluge of books having a go at the meritocracy. There’s the Michael Sandel book, The Tyranny of Merit, there’s a guy a few months ago called Daniel Markovits who wrote a book called The Meritocracy Trap, he teaches at Yale Law School and is partly talking about his own very, very high-flying American students, and how even they suffer from it in some ways.

“These bigger reflections on the limits of meritocracy have mainly come from America. It’s quite interesting to reflect on why that is. One obvious reason is that meritocracy only really became – contrary to Michael Young’s intention [in The Rise of the Meritocracy 1870-2033, published in 1958] – a feature of Centre-Left politics back in the Eighties, Nineties.

“After all, the Left had been at least formally more egalitarian than meritocratic. Meritocracy after all is the opportunity to be unequal.

“As that bold religion of socialism died, meritocracy became the soft soap version for modern social democrats, as the Left was forced to accept much of the political economy of the Centre Right, the Reagan/Thatcher reforms.

“It was easier for them to tell the meritocracy story than for the traditional Right, who at some level were still defending privilege. But even the Right was quite happy to take up the meritocratic mantle – the joke was that Tory party had been the party of people with large estates and was now the party of estate agents – they practised meritocracy while the Left talked about it.

“In America in particular this coincided with a period of grotesque increases in inequality, and slowdowns in social mobility pretty much across the western world.

“Meritocracy tends to get it both ways. It’s both criticised for not being sufficiently meritocratic, and it’s criticised in itself, for its own ideal – the Michael Young critique, which is essentially an egalitarian one. He was a very old-fashioned egalitarian socialist.

“Most people would go along with the Michael Young critique if you express it in terms of why on earth would we want to turn society into a competition in which the most able win and most of the rest feel like losers?”

ConHome: “It’s a very bleak, utilitarian idea, isn’t it. It doesn’t even contemplate the idea of human beings being of equal worth, which is the Christian idea.”

Goodhart: “The foundation of Christianity, and the foundation of democracy. One person one vote.”

ConHome: “We hold these truths to be self-evident: that all men are created equal…”

Goodhart: “In recent times, too much reward and prestige has gone to this one, cognitive form of merit.

“Of course we all believe in meritocracy at some fundamental level. You do not want to be operated on by someone who’s failed their surgery exams. The people who run your nuclear research programme should be your top nuclear physicists.”

ConHome: “If you support Arsenal, you want Arsenal to have the best players.”

Goodhart: “You do not choose the England cricket team by lottery.”

ConHome: “In your new book, while remarking on the role played by chance in deciding a life course, you say your rebellious streak, mucking up your A levels and so forth, emerged as the result of your failure to get into the First Eleven cricket team at Eton.”

Goodhart: “I compare myself to John Strachey, who became a leading Communist in the 1930s after failing to get into the Eton First Eleven.

“My self-regarding explanation for that is that I was captain of the under-16 team, and I was a very selfless captain.”

ConHome [laughing]: “You gave everyone else a bowl.”

Goodhart: “I was an all-rounder, so I came in at number seven or eight, and I bowled fifth or sixth change, so I didn’t really develop either skill to a sufficient level to get into the First Eleven.”

ConHome: “Too much of a team player. And why did you not get those six votes when you stood on a Far Left ticket for a full-time student union job at York University, and just failed to win?”

Goodhart [laughing]: “That was bloody lucky. I’d be a f***ing Labour MP now.

ConHome: “Your father, Sir Philip Goodhart, was a distinguished Conservative MP. Anyhow, you feel relieved not to be a Labour MP.

“Which leads on to the question: who, politically, gets what you are talking about? Did Nick Timothy and Theresa May?”

Goodhart: “Well I think so. People sometimes say I influenced the notorious ‘If you believe you are a citizen of the world, you are a citizen of nowhere’ [May’s party conference speech of October 2016], but I think Nick is perfectly capable of thinking of that himself.

“But I contributed to a climate of opinion that made those sorts of ideas more legitimate and mainstream.

“It’s a shame that section of that speech…”

ConHome: “Came out all wrong.”

Goodhart: “I think what she said is perfectly right and perfectly legitimate, and she was actually aiming not so much at the Guardian academic, what Thomas Piketty called the Brahmin Left, she was aiming more at the people who don’t pay their taxes and the corporations who don’t pay their taxes, the people who live in the first-class airport lounges.

“All she had to do was preface it by something like ‘Of course there’s nothing wrong with being an internationally minded person…'”

ConHome: “There are lots of people here in Hampstead who think of themselves as citizens of the world, but they love Hampstead as well, and would rise up in their wrath against any threat to Hampstead.”

Goodhart: “They don’t have to love their country, but it’s also important they feel some kind of attachment to their fellow citizens, rather than feeling only attachment to international bodies or people suffering in faraway lands.

“Of course one should as a human being feel that. But national social contracts remain incredibly important, central to politics in many ways, and if the best educated and most affluent people are detaching themselves from those social contracts then I think there is a problem.

“And it’s reasonable for politicians to talk about it.”

ConHome: “To some extent both Trump and Johnson – without falling into the trap of imagining them to be identical – their success is partly explained by the work you’ve been doing.”

Goodhart: “Populism is a bastard expression of a majority politics which has not received expression in recent decades. The politics of what one might call the hard centre.

“Daniel Bell, the American sociologist, was asked for his political credo, some time back in the 1990s, and he said ‘a socialist in economics, a liberal in politics and a conservative in culture’.

“And I think that combination, I suppose someone like David Owen in this country might have come closer to it than most people, is very attractive, and I think it’s almost a majority one, but for various contingent historical reasons neither of the main political parties of the Centre Left or Centre Right have at least until recently adopted it.

“A lot of populism is a bastard form of that kind of lost centre actually.

“But I think both the Theresa May and to some extent the Boris Johnson government, when the Conservative Party decided it was going to be the party of Brexit, and particularly given how they’ve shifted to the Left on economic management, they probably come closer to that combination at the moment than any other political formation.

“And in some ways that’s a good thing. Boris rather oddly represents that combination, perhaps more than Starmer. And I do think, although I’ve been a member of the Labour Party most of my adult life, I resigned only a couple of years ago, I couldn’t bear the direction, because of Corbyn, yes, but even for Starmer I think there’s a real problem, me and Matt Goodwin argue which of us used this analysis first: that it’s easier for parties of the Right to move left on economics than it is for parties of the Left to move right on culture.”

Goodhart ended with some remarks about universities: “It’s absurd that we subsidise, even with tuition fees, the grand motorway into higher education. We’re international outliers in the very expensive form of higher education, which is residential higher education.

“Breaking that is I think pretty important in some ways. It’s a difficult thing to do. You get accused of wanting to kick away the ladder.

“We do need to readjust, and not allocate all of the prestige and reward to people that take the academic route, particularly as you just get diminishing returns.

“The most useful people, the Einsteins, are always going to be the people with the very highest academic, intellectual insight, producing new knowledge.

“What’s happened, though, is a whole great bloated cognitive bureaucratic class has emerged that piggybacks on the prestige of the higher intellectual cognitive class, and it’s now become dysfunctional.

“The knowledge economy simply doesn’t need so many knowledge workers, and yet we’re on automatic pilot, we’re creating a crisis of expectations for the kids.

“Even before AI comes along you can see this in the collapse of the graduate income premium. It used to be 100 per cent or 75 per cent, it’s now for most kids who don’t go to the most elite universities below ten per cent.

“They have these expectations. I think a lot of the political eruptions of recent times – Bernie Sanders in America, Jeremy Corbyn and the Momentum movement, even perhaps the Black Lives Matter movement, although there are obviously other factors there – are partly an expression of the disappointment of the new middle class at the lack of higher status and higher paid employment.”