The United Kingdom Constitution Monitoring Group published its first annual report in 2021. It described the UK Government as ‘set upon legislating over a range of substantial matters with a constitutional dimension’, with its overall programme being ‘notable for its scale, the speed with which it is being implemented’ and this being ‘far from a model of good practice in constitutional change’ (p5).
A significant aspect of the ‘constitutional dimension’ of such changes is that they expand executive power in a number of different ways. This post presents a brief summary of key expansions of executive power via legislation introduced to or passed in the Westminster Parliament in 2021. It then assesses the substance of these expansions, arguing that two key themes emerge. First, that there is an increase in the executive’s capacity to use coercive force, and, second, there is a reduction in the accountability of the executive to the electorate and the courts. The blog then examines the manner in which this reform is being sought, arguing that there are a number of factors obstructing parliamentary scrutiny of the changes outlined below.
1. Expansions of Executive Power in 2021
The two tables below set out a non-exhaustive list of key expansions of executive power via legislation introduced to or passed in the Westminster Parliament in 2021. In setting these expansions out, it is acknowledged that some legislation introduced in 2021 may also have the effect of minimising the role of the executive. For example, academics have argued that provisions in the Health and Social Care Bill will serve to minimise the duties of the executive with respect to certain health services, such as the provision of emergency services.
Table 1: Legislation passed in 2021
|Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (CHISA) Received Royal Assent on 1 March 2021||The CHISA extended executive power insofar as it provided statutory footing for a set of public authorities to authorise engagement in criminal conduct in the course of, or in connection with, in-person intelligence gathering (ss 1 – 3). A version of this power was held to be necessarily implied by the Security Service Act 1989 (SSA) for the MI5 in recent ‘Third Direction’ litigation. However, the statutory power contained in the CHISA enables the executive to authorise individuals from a long list of public authorities, including the Food Standards Agency (the list of authorities is set out in Schedule 1 of Regulation of Investigatory Powers Act 2000), to engage in criminal activity. CHISA also makes explicit that such authorisations can be made on the basis of broad grounds not previously impliedly recognised in related legislation (e.g. SSA) such as ‘preventing disorder’ (s 5 (b) of 29B in s 1). CHISA also gave statutory recognition to the use of child spies by public authorities capable of authorising criminal activity (s 2).|
|Counter-Terrorism, Crime and Sentencing Act 2021 (CTSA) Received Royal Assent on 29 April 2021||The CTCSA expanded powers to impose restrictive civil measures on those suspected of engaging in terrorism-related activity in the form of Terrorism Prevention and Investigation Measures (TPIMs). This included extending the time limit of such measures from 2 years to 5 years (s 35), powers to subject TPIM subjects to polygraph tests (s 38), drug tests (s 39) and an expansion of curfew measures (s 37).|
|Overseas Operations (Service Personnel and Veterans) Act 2021 (OOSPVA) Received Royal Assent on 29 April 2021||The OOSPVA expands executive power by erecting procedural barriers to claims which may be brought against executive actions during overseas operations. In particular, the OOSPVA creates a presumption against prosecuting the armed forces for actions when deployed on overseas operations (ss 1 – 4) and restricts the UK courts’ ability to disapply time limits for legal actions brought against the forces (Part Two). As a result of these restrictions, accountability of the executive for its actions in operations overseas is reduced, extending its power to act without being subject to legal checks in the form of judicial review, in addition to limits on judicial discretion for lengthening time limitations on civil and human rights claims, as well as a presumption against prosecution for criminal liability.|
Table 2: Legislation introduced to Parliament in 2021 (note – this may be subject to change, table correct as at 17/01/2022)
|Police, Crime Sentencing and Courts Bill (PCSCB) Currently in House of Lords Report stage, with next sitting days on 10, 12 and 17 January 2022||The PCSCB in its current form seeks to extend executive powers by increasing the circumstances in which police can impose conditions on ‘public processions’, including political protests. This includes where the ‘noise generated by persons taking part in the procession’ results in ‘serious disruption to the activities’ of organisations in the vicinity or has ‘significant’ impact on ‘persons in the vicinity of the procession’ (Part 3, s 56 in HL Bill 72). Serious impact may be defined on the basis that it ‘may result in the intimidation or harassment of persons of reasonable firmness with the characteristics likely to be in the vicinity’ (s 56). Moreover, the Bill removes the need to ‘knowingly’ breach police-imposed conditions in order to commit an offence (s 58). The PCSCB would also replace the common law offence of public nuisance with a new statutory offence of ‘intentionally or recklessly causing serious harm, or a risk of serious harm, to the public or a section of the public’ (s 61), applicable to online communications as well as public processions/demonstrations. It also enhances police stop and search powers with respect to terrorist offenders (s 160) and creates a new offence of ‘residing on land without consent’ (s 63).|
|Dissolution and Calling of Parliament Bill (DCPB) Due to enter House of Lords Committee Stage on 27 January 2022||The DCPB seeks to repeals the Fixed Term Parliament Act 2011 and brings the power to call elections back within the remit of prerogative power (s 2 of HL Bill 51). If not dissolved earlier, Parliament dissolves automatically after five years (s 4). This power is stated by the DCPB to be non-justiciable in the courts (s 3). The Bill contains no provisions to compel the Government to call an election in the case that the Prime Minister loses a vote of no confidence (see also p 12 – 13 in the research briefing linked above for further discussion).|
|Elections Bill (EB) Due to enter the House of Common’s Report Stage on 17 January 2022||The EB as currently drafted would allow the executive to control access to voter identification through regulating the application process for voter identification (Schedule 1, para 2 of HC Bill 178). It would also allow government to set the terms and priorities relating to elections for the Electoral Commission (Clause 13).|
|Nationality and Borders Bill (NBB) House of Lords Committee stage begins on 27 January 2022||The most recent version of the NBB would extend executive powers by enabling deprivation of citizenship to take place without giving the individual prior notification (s 9 of HL Bill 82) and creating new maritime powers for the Border Force to turn individuals away from the UK while at sea (s 40).|
|Judicial Review and Courts Bill (JRCB) Currently at the House of Commons Report Stage||The JRCB as currently drafted seeks to introduce prospective-only quashing orders and presumptions that remedies are suspended or prospective only (s 1 of HC Bill 152). This would limit the power of the courts to remedy unlawful action on the part of the executive and so widen the power of the executive to commit unlawful acts. The JRCB also attempts to remove Cart judicial reviews which allow decisions of the upper tribunal to be appealed- typically used in asylum cases.|
|Online Safety Bill (OHB) Currently at pre-legislative stage with a Draft Bill published on 12 May 2021 (in response to which the Joint Select Committee published a report on 14 December 2021)||The OHB Draft Bill, among other things, would impose new ‘duties of care’ (clause 5) on social media companies (‘user-to user’ or ‘search services’) to prevent ‘harm’ (clause 11) by policing and censoring their platforms for ‘priority illegal content’ (clause 9)- or face penalties. What constitutes ‘priority illegal content’ would be determined by the Secretary of State through delegated legislation.|
2. Obstructions to parliamentary scrutiny of changes
The Government is seeking to institute this significant constitutional reform in an environment which has obstructed parliamentary scrutiny in a number of different ways. First, these reforms are being sought during a global pandemic, which has dominated the daily news headlines and appears to have sharply increased the volume of case work of MPs. Scrutinising the manner in which the Government has responded to the pandemic has also been a huge task for parliamentarians, particularly due to the Government’s chronic marginalisation of Parliament from key pandemic decisions. This was highlighted by two parliamentary reports published late last year. The first was by the House of Lords’ Secondary Legislation Scrutiny Committee, entitled ‘Government by Diktat: A call to return power to Parliament’. The second, by the Delegated Powers and Regulatory Reform Committee, emphasised there was a ‘potentially serious threat to a cornerstone of our constitution – effective parliamentary scrutiny of legislation’ and that ‘now as a matter of urgency that Parliament should take stock and consider how the balance of powers can be re-set’ (p 3). In this way, the pandemic has exacerbated already existing trends of poor Parliamentary scrutiny (most recently during the UK’s withdrawal from the EU), which not only undermines the prospect of adequate parliamentary scrutiny with respect to the bills above, but has brought to head constitutional dysfunction which may serve as a significant distraction from the current legislative agenda.
Second, as emphasised by the Constitution Group and as is hopefully illustrated from the tables above, the Government has sought to push through a wide array of changes in a short space of time. This will also have restricted Parliament’s capacity for scrutiny, and undermined the extent to which this complex and wide-ranging legislation can be challenged. Moreover, it is notable that a number of these powers were not mentioned in the Conservative Party 2019 Manifesto. In particular, the manifesto made no mention of giving public authorities the ability to authorise criminal activity, giving the police powers to impose conditions on public events, or restricting the use of quashing orders in the judicial review context. The lack of foregrounding for such changes in this way will also have limited Parliament and the electorate’s capacity to subject such changes to scrutiny and political opposition.
Third, beyond the Government’s management of the parliamentary schedule, parliamentary scrutiny has been limited by other aspects of parliamentary procedure. For example, the Government chose to introduce significant amendments to the PCSCB – which include the creation of new criminal offences applicable to political protests and powers to ban named people from demonstrations- after the Commons had passed the Bill. This shut MPs out of applying proper scrutiny to some of the most controversial powers now contained in the Bill. It is also notable that the PCSCB had its second reading in the House of Commons less than a week after the Bill was published and was only allocated two days of debate.
Finally, parliamentary scrutiny has also been undermined by the inclusion of powers to make delegated legislation to fill in details of the changes which have significant implications for determining the extent of executive power and its impact on human rights. One such example is the PCSCB which gives the executive broad powers to determine. For example, as mentioned above, the Bill contains new powers for the police to intervene in public processions where noise may result in ‘serious disruption of an organisation which are carried on in the vicinity of the procession’ (s 56 in HL Bill 72). It is the executive who then has the power to ‘define any aspect’ of the meaning of ‘serious disruption to the activities of an organisation’ by way of delegated legislation (s 56 (4)). This provides the executive with significant leeway to define the scope of the police powers to intervene in public events.
As mentioned, the OHB Draft Bill, would impose new ‘duties of care’ (clause 5) on social media companies (‘user-to user’ or ‘search services’) to prevent ‘harm’ (clause 11) by policing and censoring their platforms for ‘priority illegal content’ (clause 9)- or face penalties. It is the executive that would decide on ‘priority illegal content’ through delegated legislation. Moreover, while the definitions of ‘harm’ (clause 46) are set out in the Bill, the executive would have the power to extend the list of harms. It may also bring exempt user-to-user services under the auspices of these new regulations based on their determination of the risk of harm to individuals (clause 3), and vary the ‘online safety objectives’ of regulated user-to-user services (clause 30). Finally, while OFCOM would be the body responsible for ensuring user-to-user services comply with duties of care through Codes of Practice, the Secretary of State can modify these to reflect government policy (clause 33). As a result of these provisions, it is clear the Draft Bill affords the executive extensive power to define the application of its broad-reaching powers through delegated legislation.
Another important example is in the Elections Bill. The Bill gives the executive significant powers to control access to voter identification through regulating the application process for voter identification (currently in Schedule 1, para 2, 1 of HC Bill 178), including the timing of an application for an electoral identity document (s 5 (a) of 13BD in s 2, Schedule 1) and what evidence is required to accompany the application (s 3 (c) of 13BD in s 2, Schedule 1). In this way, the Bill gives the executive powers to make decisions which may have significant implications for the ability of voters to access voter identification.
3. Weakening of democratic safeguards
Many of the changes outlined above serve to strengthen executive powers to use force in a number of different ways. For example, the reforms seek to strengthen police powers to intervene in public events such as political protests, to restrict online communications, to remove individuals residing on land ‘without consent’ or impose more restrictive measures on those suspected (but not convicted) of engaging in terrorism-related activity, to further engage stop and search powers. We note that concern regarding the extent of such stop and search powers has even been expressed by police themselves. The powers of officials to use force more broadly have also been increased, including to enforce border control, and to enable a long list of public authorities to authorise the engagement in criminal conduct for intelligence-gathering for strikingly broad purposes, such as to ‘prevent disorder’.
This significant expansion of the UK executive’s powers to use force inversely correlates with a weakening of executive accountability. This is visible in the first instance by the noticeable lack of safeguards attached to the vast powers the Government has sought to pass. This is particularly the case with respect within the PCSCB. For example, in setting out the new powers for police, the Bill contains no human rights-related safeguards, such as the requirements that the powers are only exercised when this is necessary and proportionate for a legitimate purpose. Moreover, no provisions are included for independent authorisation, oversight or review of these powers to limit their impact on human rights. We note that in relation to delegated legislation passed under CHISA, the Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021– Baroness D’Souza (Crossbench) tabled a motion to regret the instrument on 12 October 2021. It stated that the Order ‘failed to include express limits on the crimes covert agents can commit’ and did not include ‘adequate safeguards’. Here the lack of safeguards attached to such powers received particularly poor scrutiny as important details relating to CHISA had been enshrined in secondary legislation, echoing the problem of excessive reliance on delegated legislation as referred to above.
Executive accountability will also be reduced with respect to the electorate. For example, the public will be more limited in its ability to engage in political protests as a means of holding the executive to account, and to use the courts to challenge actions carried out by the executive – including in relation to operations overseas. Moreover, the Electoral Reform Society has stated that millions of people may be disenfranchised by new powers related to voter identification in elections. Executive accountability is also reduced by elected representatives losing the statutory structures supporting attempts to trigger an early election via a vote of confidence, as well as the opposition losing guarantees around election timings, which may well impact on its ability to plan accountability strategies.
In this way, the combination of these changes and the manner in which they are being sought have strong implications for the weakening of democratic safeguards which constrain executive power in the UK. As Adam Tomkins has previously noted, the UK constitution is generally lacking in clearly defined limits but it has created mechanisms to hold the executive to account in certain ways. Indeed, many would associate such mechanisms precisely with Parliament, the courts and the electorate – all of which would be left with less scope to hold the executive to account where the expansions of power set out above are put into law. The erosion of such mechanisms in this way is consistent with observations made in Margit Cohn’s recent book on executive power regarding the general tendency for executives to continue to expand their powers (e.g. see p 279). Yet, in Margit Cohn’s view, this tendency can only be countered with the kind of concrete constitutional safeguards which subject the executive to clearly defined limits. As mentioned, such limits are noticeably absent in many constitutional contexts in the UK. With this background, the extent and volume of expansions of executive power sought in 2021 are particularly troubling. Even as the current executive is marred in a myriad of accusations of corruption and other constitutional improprieties, these expansions of centralised executive power and their significant implications for democracy in the UK should not go unnoticed.
Daniella Lock, Research Fellow, the CVRO and doctoral candidate, University College London (@DaniellaLock)
Dr Tanzil Chowdhury, Lecturer at Queen Mary, University of London, Senior Research Fellow at New York Law School and Visiting Scholar at The New School
(Suggested citation: D. Lock and T. Chowdhury, ‘Expansions of Executive Power and Weakening of Democratic Safeguards in 2021’, U.K. Const. L. Blog (17th January 2022) (available at https://ukconstitutionallaw.org/))