Reversing the Ratchet

Busy times for me at the moment, but this is an aide memoir / place-holder for some later posts.

Its now undeniable that the current British Government is damaging our democracy. Several measures either proposed or enacted that strengthen the power of the executive, reduce accountability and/or threaten free speech.

  • The intent to scrap the Human Rights Act
  • The measures in the Police, Crime, Sentencing and Courts Act 2022 which allow the suppression of protests which cause a ‘nuisance’
  • Eroding the independence of the Electoral Commission
  • Insisting on the regressive ‘First Past The Post’ method for elections that previously used something more proportional.
  • The Online Safety Bill, which would impose impossible moderation standards onto social media companies and hand too much power to the Government to suppress speech it doesn’t like
  • Measures to constrain Judicial Review
  • New plans to curb the rights of workers to strike
  • The undermining of ministerial standards and accountability, as demonstrated by the way the Prime Minister ignored the findings of a report that the Home Secretary bullied civil servants
  • The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 allows the security services to authorise criminal conduct in new, unaccountable ways.

These are the ones I can think of off the top of my head. There are probably more.

Whenever any one of these democratic transgressions is proposed, many people lament the fact that the British political system places the Government of the day in the position of an elected dictatorship. A Prime Minister with a healthy working majority and (fairly) loyal backbenchers can legislate anything it wants. The House of Lords has no independent democratic legitimacy, and so has limited influence as a ‘revising chamber.’

Such lamentations are often accompanied by a complaint about the ‘ratchet effect’ i.e. once freedoms have been removed, its hard to get them back. The direction of travel, it is said, can only be towards fewer freedoms and ever larger democratic deficits.

But that’s not quite true. The very fact that our political system allows an ‘elected dictatorship’ means that the ‘ratchet’ is not as unyielding as we may suppose. Any one of the lawful-but-awful measures enacted by this government may be undone by another.

Reversing the previous administration’s worst legislation is not something that the opposition parties tend to focus on when making their bid for government. The conventional wisdom is that simply ‘opposing’ is not enough — a true government-in-waiting the opposition must to be proactive, and present its own, new ideas, if it is to find favour with the electorate.

For this reason, the idea that a future government may simply reverse the damage that Boris Johnson’s tenure has wreaked on our democracy is under discussed. This needs to change.

The time to reverse the damage should be early in the lifetime of a new administration. If and when a more progressive government takes office, it should waste no time in shoring up our democracy and restoring some of the ‘guardrails’ that the Tories are currently dismantling. The repair must take place in the ‘honeymoon period’ where the new government feels strong and – crucially – has yet to acquire the same addiction to power that the current government is clearly exhibiting.

So the work needs to start now. Ahead of the election, progressives need to develop an ‘oven ready’ Bill that would restore and augment our democracy. The work will have three stages:

  1. Identify the democracy-offending provisions
  2. Draft the legislation that would excise the problem and restore democracy.
  3. Secure manifesto commitments from as many opposition parties as possible to implement the ‘Democratic Repair Bill’ should they be in a position to do so.

We would need, for example, a piece of draft legislation which amends or abolishes section 78 of the Police, Crime, Sentencing and Courts Act 2022, which hands the police (and therefore, the government) a vague and broad power to suppress and criminalises, inter alia, causing ‘serious annoyance’ to the public.

Some problems might be fairly easy to fix — an amendment here, or a repeal there. In other cases, such as the regulatory mess that is the Online Safety Bill, more detailed proposals would be required.

An enhanced version of this project would look at illiberal measures introduced by pre-Johnson governments. Tony Blair’s Labour Government was not above undermining habeus corpus for example. But the most recent (and therefore, less culturally entrenched) measures would be a good place to start.

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