(No) separation of powers

Ruth Green, IBA Multimedia JournalistTuesday 16 November 2021

Lobbying scandals and efforts to undermine the judiciary are eroding public trust in British democracy and standards in public life. Global Insight examines the implications for the rule of law.

The fragile balance between the executive, legislature and the judiciary safeguards democracy and is the hallmark of a society governed by the rule of law. Yet, recent examples of rich, powerful lobbying interests unduly influencing government decision-making – from Covid-19 contracts to corporate climate-related advocacy – as well as attacks on the very mechanisms and institutions that seek to hold government conduct to account, are putting this in jeopardy.

In March, it was revealed that the former UK Prime Minister David Cameron had personally lobbied the Chancellor of the Exchequer and other Treasury ministers to secure Greensill Capital access to an emergency loan scheme established in the wake of the pandemic.

The former Prime Minister was at pains to point out that he broke no rules in acting as an adviser to the firm. Former ministers are only banned from engaging in lobbying for two years after they leave office. However, the scandal provoked considerable unease that something was rotten in the halls of Westminster and significant change was needed to tighten the rules.

Multiple inquiries followed, including one led by Slaughter and May corporate lawyer Nigel Boardman. His second report, published in September, called for a series of reforms, including establishing a new statutory code of conduct for registered lobbyists and bolstering the transparency, regulation and reporting requirements related to lobbying activities.

The national register of lobbyists currently only covers consultant lobbyists – around ten per cent of the UK’s lobbying population. There’s no such requirement for so-called in-house lobbyists – what Cameron was for Greensill.

Daniel Bruce, Chief Executive of the Transparency International’s UK chapter, says that, even before Greensill, it was ‘glaringly obvious’ that this discrepancy needed to be addressed. Boardman’s recommendations – to expand the existing register to include former senior civil servants or ministers engaged in lobbying and lobbyists employed by more than one organisation – would partly address that gap.

Against this backdrop, in early November, MP Owen Paterson found himself in the eye of a lobbying storm. MPs were poised to vote on whether to endorse his 30-day suspension after an independent, cross-party inquiry found the former cabinet minister had committed ‘an egregious case of paid advocacy’ by misusing his position to benefit two companies that employed him as a paid consultant. Paterson, a former Secretary of State for Northern Ireland, had declared his positions in the public register of interests and denies all wrongdoing.

However, in a bizarre series of events the Conservative-majority government pressured MPs to delay the decision on his suspension. Instead, it moved to rewrite the rules on how MPs’ conduct is investigated. The role of the independent standards commissioner – who investigated Prime Minister Boris Johnson’s own personal finances on several occasions before he was later cleared – appeared to be in question.

Following heavy criticism – including from Lord Evans of Weardale, the former head of MI5 who chairs the Committee on Standards in Public Life – and less than 24 hours later, the government was forced to backpedal on its controversial decision to suspend the vote. Paterson subsequently resigned, saying he was ‘unable to clear [his] name under the current system’. Former Prime Minister John Major described the administration’s handling of the debacle as ‘politically corrupt’. Boris Johnson took the opportunity of his appearance at COP26 to announce to assembled journalists that the UK is not corrupt – remarkable in itself, but even more so given he hadn’t been asked about this.

There’s been a marked deterioration in what Bruce terms the ‘guardrail for integrity and standards’ governing the conventions-based system in recent years. ‘What this shows is there's a challenge to that system that's based on goodwill and people morally agreeing to play by the rules’, he says. Transparency International found 30 potential breaches of the ministerial code or parliamentary rules in 2020 alone. Yet the overwhelming majority of these were not pursued due to insufficient transparency around investigation.

The latest parliamentary scandal points to a wider institutional malaise in Britain’s political system that is eroding public trust both in democracy and in standards in public life. Lobbying practices need to come out of the shadows, but the scandals have also heightened concerns that the UK has little credibility in calling other countries out on corruption and flouting rule of law norms when it is failing so flagrantly to address such problems in its own backyard.

Houses of Parliament, London. Shutterstock.com/olavs

The independence of the country’s judiciary is also under threat. Two recent high-profile UK Supreme Court cases overturned significant ministerial decisions – first on the need for a parliamentary vote to trigger Brexit and second on the question of whether parliament could be prorogued. The Judicial Review and Courts Bill that’s working its way through the House of Commons appears hell-bent on restricting similar future judicial reviews from taking place.

UK Prime Minister Boris Johnson also found common ground during a recent call with Polish Prime Minister Mateusz Morawiecki in which he ‘underlined his concerns about the role’ and jurisdiction of the European Court of Justice over the fiercely contested Northern Ireland Protocol. Given the concerted efforts by Poland’s ruling Law and Justice Party to crack down on judicial independence at home, this attempt by Johnson to ally with Morawiecki can only be cause for great concern.

It also comes at a time when the Justice Secretary shows little respect for the work of the European Court of Human Rights, advocating an ‘overhaul’ of the UK’s Human Rights Act by introducing a ‘mechanism’ to ‘correct’ rulings by judges in Strasbourg. Such moves jar with those of us who uphold the rule of law.

Both the role of the courts and the rule of law are held as essential values in the Global North. As all these events demonstrate, however, we may still have something to learn from our southern neighbours. Take the recent example of Samoa. In May, it was the country’s courts that finally brought an end to a 15-week constitutional crisis following a two-way tie in the April presidential election between the ruling Human Rights Protection Party (HRPP) and newly formed opposition party Fa‘atuatua i le Atua Samoa ua Tasi (FAST).

Ten days after the election, the country’s Electoral Commissioner attempted to create an extra parliamentary seat for the HRRP, arguing that this would fulfil a 2013 amendment to the constitution that required women to hold at least ten per cent of seats in parliament. The move prompted fierce public debate and the HRPP was accused of weaponising the issue of gender equality for political gains. The Supreme Court declared the move unlawful.

An extraordinary chain of events unfolded, including FAST’s new leader, Fiamē Naomi Mataʻafa, being blocked from entering her swearing-in ceremony. Instead, she was sworn in as the new Prime Minister in a tent outside the Parliament building. On 28 June, the Supreme Court ruled that the swearing-in was illegal, but the Court of Appeal later ruled that the ceremony was constitutional.

A protracted series of court cases finally led to Mataʻafa being installed as Prime Minister on 23 July, marking the first change in government in close to 40 years and the nation’s first ever female Prime Minister. The crisis illustrates the critical role played by Samoa’s courts in upholding democracy, says Suliana Mone, an expert in Pacific legal matters at the University of Waikato. ‘The lesson I would take from all this is the importance of an independent and qualified judiciary who have a firm understanding of the underlying cultural issues at play and the people involved, in order to decide on interpretations of the constitution that best effect justice in that particular Pacific context.’

Samoa’s constitutional crisis is all the more interesting when you learn that Mataʻafa served as Deputy Prime Minister of the HRPP from 2016 until her resignation in 2020 in protest against proposed changes to the judicial system, which would have curbed the powers of the Supreme Court. With Mataʻafa in office, it’s hoped judicial independence and the separation of powers in the country will prevail.

Ruth Green is Multimedia Journalist at the IBA and can be contacted at ruth.green@int-bar.org

Header pic: Shutterstock.com/Atstock Productions