If impunity is the handmaid of corruption, scrutiny is corruption’s enemy. Governments shrink from critical examination. The last thing they want is transparency. Getting things done becomes more complicated. When it comes to naming their most disliked piece of legislation, Ministers most likely would plump for Labour’s Freedom of Information Act (FOI) 2000, rued by many who voted for it. That sinking feeling, trying to remember what was said in incautious emails, meetings, or printed within departmental reports, is vice’s compliment to scrutiny. And it was, of course, a 2008 FOI request to the House of Commons, unsuccessfully challenged in the High Court, which revealed the British parliamentary expenses scandal.
The resilience and effectiveness of official procedures and bodies designed to scrutinise the conduct of the Executive and ensure its integrity are a measure of the health of a democracy. A truth-telling Press is vital. Journalists around the world investigate behind the lies, spin and obfuscation that obscure the reality of their governments’ motives and behaviour even if they can’t directly control it. Sometimes it can cost them their lives or imprisonment.
In the USA, Trump’s strategy was to get the highly politicised mass media to convince his supporters that any critical examination of his behaviour and lies was ‘fake-news’ - quite a good translation of the Nazis’ word ‘lügenpresse’ (lying Press) as Yale History Professor Timothy Snyder has pointed out. We saw the ultimate consequences on 6 January in the Capitol. Right-wing bias in newspapers and mass media, as well as social media silos now the sole source of information for many, is a pressing problem for democracies such as our own. Scrutiny of the sensational and the personal cannot replace serious investigation of policy and malfeasance.
Our Parliament has hands-on responsibility for scrutinising the use of Executive power and calling it to account with, in well-defined circumstances, the judiciary as final arbiter. So when the Executive makes efforts to elude parliamentary scrutiny of its integrity and performance, its policies and legislation, and the Right-wing Press attacks the judiciary, alarm bells should start ringing. Parliament, and within its limits the judiciary, are the two institutions that can stop government meandering down the road to corruption with the resultant erosion of democracy and its premise and promise of representation of the people.
There are more ways than one to avoid parliamentary scrutiny. The phrase ‘Henry VIII’s clauses’ recalls Henry’s rule by proclamation referring today to amendments to parliamentary Bills which by means of secondary legislation, that is by Ministerial fiat; such government statutes are intended to expedite implementation of policy but enable parliamentary scrutiny to be bypassed. Parliamentary Select Committees focussed on the work of particular government departments, or on wider issues, can step in here. Since the 1980s, they have become a major vehicle of democratic scrutiny. In recent years the sittings of the Audit Select Committee, overseeing government’s financial reporting and disclosure procedures and performance, have proved particularly revealing.
The Liaison Committee whose members are chairs of Select Committees holds an annual stock-take with whoever is Prime Minister. In August 2019, Boris Johnson highlighted his attitude to accountability by proroguing Parliament to forestall further debate about BREXIT, an act the Supreme Court unanimously found unlawful, a textbook example of the judiciary safeguarding democracy. Johnson also found on three consecutive occasions that he was unable to attend the Liaison Committee, once allegedly because he was kept too busy by BREXIT. Since BREXIT was what the Committee expected to hear about, Dr. Sarah Wollaston accused him from the chair of avoiding accountability. His perfunctory performance in May 2020 when he did appear suggested that perhaps he was too lazy to master his brief on topics the Liaison Committee would examine. The pandemic had made hiding from the public no longer an option.
The Hansard Society, an NGO specialising in research on Westminster and parliamentary democracy, has described ways how Parliament can be marginalised that are difficult to challenge legally. No piece of parliamentary business has been more complex and subject to avoidance of scrutiny than the EU-UK Trade and Cooperation Act (TCA). Run the negotiation right up to an internationally agreed deadline and, ‘oh, sorry’, tell Members of Parliament they have only four days over Christmas to read a 1,246 page Treaty. Then, after its publication, allow 24 hours to discuss and pass its Implementation Bill. As the consequences of Johnson’s BREXIT are emerging with minimalist scrutiny, have Mr. Rees-Mogg refuse to extend the life of the ‘BREXIT Select Committee’ beyond 16 January 2021.
Small matter that the TCA agreement, the most important document affecting the future of our country since the declaration of war on Nazi Germany, defines our relationship with our largest trading partner, involving 27 European countries, for years to come. Not that the EU treated its own Parliament any better allowing provisional implementation before the TCA went to the EU Parliament for ratification. But then the EU’s Parliament is in reality often a fig-leaf for rule by summitry, heads of State and the Council of Ministers, with the Commission acting as political and technical Sherpas. In short, our government has taken back control of our own democratic deficit - with great benefit to its donors and friends.
The pandemic has meant urgency has become more plausible as an excuse for short-circuiting Parliament. Everything is urgent or, at least, becomes urgent when indecision, the hallmark of the Prime Minister, repeatedly creates crises requiring immediate action. Parliament and Opposition are required to rubber-stamp legislation and guidance with far-reaching implications for the economy and daily life.
But why not hear from and consult with Parliament upstream when broad strategy ought to be debated? Johnson’s repeated - faux Churchillian - martial language ignores the fact that we faced the enemy with a government of National Unity. Johnson cannot be accused of leadership in uniting the nation: he sees the Opposition as no less his enemy than the EU. For political effect, timely suggestions from Keir Starmer are publically ridiculed only to be implemented days later.
Government pandemic projects have been a pretext for massive misspending of taxpayers’ money. Details of PPE contracts, sometimes redacted, have been withheld until forced into the public domain by intense legal pressure. In a normal government in normal times, Dido Harding’s stewardship of taxpayers’ money would result in resignation. Meg Hiller M.P., chair of the Public Accounts Committee, concluded recently that “despite the unimaginable resources thrown at this project Test and Trace cannot point to a measurable difference to the progress of the pandemic, and the promise on which this huge expense was justified - avoiding another lockdown – has been broken, twice”. In the words of Sir Nicholas Macpherson, a Cross-Bench peer and former Treasury Permanent Secretary to three Chancellors (under Blair, Brown & Cameron), this was “the most wasteful and inept public spending programme of all time”. But as he tellingly remarked last week, “the extraordinary thing is that nobody in the government seems surprised or shocked”.
Meanwhile government ‘levels up’ in the North with ‘bungs’ to Conservative constituencies such as Richmond, Yorkshire, the Chancellor’s seat’; 40 out of the 45 areas getting regeneration funding have a Conservative member of Parliament. Government contracts generated by the pandemic disproportionately went to the companies that just happen to be linked to Tory donors and friends. 30,000 laptops for poorer children known to be least equipped for online learning short of their delivery target? A free school meals scandal involving a private company? Cherchez le Tory donor.
To date the slide into unaccountability has been held in check by the strength of our institutions dedicated to the scrutiny of government conduct. This includes NGOs such as the Good Law Project; the High Court recently found that: “the Secretary of State [Health] acted unlawfully by failing to comply with the Transparency Policy” in a case involving COVID contracts. Efforts to avoid such scrutiny have been deliberately, sometimes accidentally, multiplied in the last few years. The consequences are becoming visible.
As Thomas Paine said of the Paris aristocrats prior to the French Revolution: “A body of men holding themselves accountable to nobody ought not to be trusted by anybody”. Not an ideal state of affairs in a pandemic. Not a good time for Global Britain to challenge China and Russia. Not an ideal state of affairs in a democracy anytime.