Boris Johnson finds the limit as the last hope of democratic accountability asserts itself
Initially buoyed by popular support, entering office with the largest Conservative majority since Thatcher, Boris Johnson leaves on a different note, forced out by his own party, with a sudden and immense slate of resignations. Johnson managed to survive a series of political scandals before they eventually caught up with him, raising important questions about intraparty democracy. The scandals have included Johnson’s defense of corrupt politicians, the questionable refurbishment of Downing Street and a blatant flouting of his own government’s pandemic lockdown rules. Still, Johnson held out, narrowly surviving a vote of no confidence within the Conservative Party caucus last month. In the end, it was Johnson’s promotion of MP Chris Pincher, who had been accused of sexual misconduct, that proved too much for the Conservative party and triggered mass resignations. Despite publicly claiming otherwise, Johnson was aware of the allegations when he made the decision to promote Pincher. Achieving accountability for the scandals proved challenging. As long as Johnson enjoyed the confidence of his Conservative majority in the House of Commons, the legislature was limited to spotlighting his conduct and testing the probity of his frequent denials and evasions. They pressed him at the weekly Prime Minister’s Questions. They pressured him into commissioning an extra-parliamentary investigation. They triggered an inquiry by the Parliamentary Privileges Committee. Johnson was not to be shamed into a resignation. Accountability only began to look likely on 6 June, when 41% of Conservative MPs voted against him in a vote of no confidence. Johnson soldiered on, but by 6 July it was clear that he was hemorrhaging support where it mattered. Belatedly responding to the revolt among Conservative MPs, Johnson resigned as leader of the party. However, he has stated his intention to remain in office as Prime Minister until the Conservative Party chooses a new leader. Ultimately, it was not his disregard of constitutional conventions, lies to parliament, violations of ethics rules, or personal moral scandals that were his undoing. Rather he found the limit when the scandal around Chris Pincher irreparably damaged Johnson’s electability, and led his party to finally and decisively turn against him. Given the Conservative Party’s strong position in the House of Commons, the last hope for democratic accountability for the scandal-racked Johnson government was the Conservative Party itself. While intraparty democracy often works more slowly than many might like, this is one of the unique strengths of a parliamentary system. Unpopular or even criminal presidents are often unchecked by weak political parties, but prime ministers are ultimately accountable to members of parliament in the last resort to their own party. A vote of non-confidence is far more likely to succeed than a drawn-out impeachment process. Intraparty democracy is an often overlooked but vital element of a well-functioning democratic system. The Conservative Party under Johnson missed the opportunity to be an effective institution for accountability several times, ultimately delivering for self-interested rather than principled reasons. As the party moves forward, it must recommit itself to being an institution that advances democracy over narrow self-interest. As we seek to reverse trends of democratic backsliding and the closing of civic space, intraparty democracy must have a prominent place among the solutions.
How independent is the US Supreme Court? Updated GSoD Indices show a decline
In the last weeks before its 2022 summer break, the Supreme Court of the United States of America ruled in several cases that will have life-altering consequences for millions of Americans and which captured the world’s attention. In New York State Rifle & Pistol Association Inc. v. Bruen, the Court ruled that the state governments may not prevent people from carrying concealed firearms in most circumstances. In Dobbs v. Jackson’s Women’s Health Organization, the Court struck down a 50-year-old precedent (established in Roe v. Wade in 1973) and ruled that there is no constitutional right to abort a pregnancy. In West Virginia v. Environmental Protection Agency, the Court ruled that executive agencies cannot regulate without explicit authorization from Congress—stymieing the Biden administration’s plan to reduce carbon emissions. These cases address issues on the political fault lines in the USA, and highlight how changes on the bench have delivered different outcomes. The political backlash to the Court’s rulings raises questions about the Court’s powers and its independence. As opponents of these recent rulings begin to float proposals for reforms that would reduce the Court’s powers or independence, it’s natural to consider how the US Supreme Court compares to courts in other countries. International IDEA’s Global State of Democracy Indices (GSoDI) have data on judicial independence in 173 countries from 1975 to 2021, facilitating comparative analysis of the independence of the US Supreme Court both now and in the past. In 2021 (the most recent full year for which we have data in the just-released v6.1 of the GSoDI), the courts in the USA were among the most independent in the world. The USA was solidly in the top 25 per cent globally but was not the most independent among countries that have similar legal traditions. Figure 1. Map of Judicial Independence scores Among countries with British-derived system of common law and a high level of overall democratic performance, there is relatively little change over time. The USA has consistently had lower levels of Judicial Independence than Australia and New Zealand, higher than the United Kingdom of Great Britain and Northern Ireland, and has been roughly the same as Canada. Figure 2. Judicial Independence trends in selected countries Despite very different appointment processes between the USA and Canada, the courts have historically had very similar levels of independence from the other branches of their governments. Both countries have seen declines in Judicial Independence over the past few years. In the case of the USA, the decline is statistically significant. The overall trend is driven by declines in variables tracking the willingness of the Court to rule against the government beteween 2016 and 2020, and by a decline in 2021 in a variable tracking the impartiality of the legal system more broadly. Considering these data alongside public opinion data, we find that while the US Supreme Court is now less in step with the broad trends in public opinion in the country, it is also less independent of other (elected) branches of the government. One should expect that this imbalance will be addressed in some way, most likely through new legislation in Congress. Some of the proposals for reforming the court in the wake of the paradigm-shifting rulings of the last month (such as adding new justices, establishing term limits, or reducing the Court’s jurisdiction) could potentially have democracy-enhancing effects but could also reduce Judicial Independence in other ways. Whatever happens, we will report on developments during 2022 in version 7 of the GSoDI, planned for release in the second quarter of 2023.
The Human Rights Act: The next casualty of British populism?
Editor’s Note: This post was updated on 1 July 2022 for comprehensiveness. On 22 June 2022, the UK Government introduced to the House of Commons a long-awaited draft Bill of Rights. According to Justice Minister Dominic Raab, it is intended to "curb abuses of the [human rights] system and reinject a healthy dose of common sense." In pursuit of this aim, however, the Bill restricts the ability of claimants to bring human rights cases in domestic courts and has the potential to significantly weaken human rights protections in the UK. The Bill of Rights would repeal and replace the Human Rights Act— the centrepiece of the UK’s rights protection framework, which incorporates the European Convention on Human Rights (ECHR) into domestic legislation and serves as its rights charter. In justifying the changes that the Bill of Rights will bring, the government has presented a very bleak picture of the status quo—a framework that allows an overbearing European Court of Human Rights (ECtHR) to shape domestic policy, that improperly brings British judges into the legislative sphere and protects the rights of foreign criminals at the expense of the public interest. This stands in contrast to the generally positive findings of the Independent Human Rights Act Review (IHRAR) commissioned by the government and the parliamentary Joint Committee on Human Rights. The government’s narrative is not new. It repeats the same mischaracterizations of the Human Rights Act that have been deployed by previous Conservative Party governments, in what has been a long-standing (and thus far unsuccessful) bid by the Party to repeal the Act. As an established bête noire that taps into some of the same grievances stirred up by Brexit, it is not surprising that the cause has been taken up by Boris Johnson’s government as it seeks to shore-up support amongst its populist voters. British populism It is helpful to understand populism as Mudde and Kaltwasser do, as ‘a thin-centred ideology that considers society to be ultimately separated into two homogenous and antagonistic camps, “the pure people” versus “the corrupt elite”, and which argues that politics should be an expression of the volonté générale (general will) of the people’. The second point to note is that populism can take different forms and that it has the capacity to influence politics in situations that fall short of the sort of system-takeover that has occurred in Hungary and Poland. The populism that has most shaped British politics in recent years has been associated with the political right in England; its values tend to be socially conservative and authoritarian and incorporate elements of (largely English) nationalism, Euroscepticism and a hostility to immigration. Its chief mouthpiece was the United Kingdom Independence Party (UKIP), which from the late 1990s achieved electoral success by exploiting growing dissatisfaction with Britain’s liberal consensus. In 2016, the Brexit referendum revealed this dissatisfaction had evolved into what Norris and Inglehart have termed a ‘cultural backlash’. This left the country divided along a cultural cleavage, with voters who endorse populist values showing a greater level of support for UKIP and for leaving the European Union (these voters are colloquially known as a ‘Brexiteers’). Whilst the cultural cleavage is long-term, its manifestation in the Brexit referendum result was what Sobolewska and Ford have described as a ‘moment of awakening’. It transformed the political landscape, splitting both of the UK’s major political parties (the Conservative Party and the Labour Party) and leaving a large section of the electorate (the populist side of the cultural divide) politically under-represented—at the time of the referendum, UKIP was the only party fully aligned to this group of voters. The referendum empowered the Eurosceptic wing of the Conservative Party and led to a re-orientation of the Conservatives towards the Brexiteers. To woo these strategically important voters, the establishment-friendly Conservative Party has adopted light forms of the populist tactics and tropes that were formerly the preserve of UKIP. This has had the effect of mainstreaming and sustaining populism in British politics even after the Conservatives succeeded in marginalising UKIP and its successors. Recent data indicate that the cultural cleavage may be fading but the importance of the Brexiteers to the Conservative Party’s 2017 and 2019 electoral successes (and the Party’s declining support) means that it continues to employ a values-based approach, as is evidenced in the culture wars it persists in fomenting. The attack on the Human Rights Act is one of these. Is the draft Bill of Rights likely to become law? The draft Bill of Rights is just the latest (albeit the most advanced) in a series of, until now, unsuccessful Conservative Party efforts to scrap the Human Rights Act (see the Party’s 2010 and 2015 manifestos and their 2014 strategy paper). Will it fare better than its predecessors? The Bill and the public consultation document which preceded it show very little change in the Party’s thinking. As was proposed previously, the draft Bill of Rights seeks to reduce the domestic influence of the European Court of Human Rights (ECtHR) by removing the requirement in the Human Rights Act that British courts ‘take into account’ its jurisprudence. Again, it seeks to restrict British courts’ judicial law-making ability by curtailing judges’ interpretive powers. And again, it aims to combat the ‘rights culture’ by striking a different balance between the rights of ‘undeserving claimants’ (the consultation document cites numerous cases involving unpalatable ‘foreign criminals’) and the national interest (see for example clause 8 of the Bill), and by putting a stop to ‘frivolous or spurious’ cases (see clause 15). The analysis underpinning the draft Bill of Rights has been widely contested. Whilst these arguments and solutions have until now failed to deliver reform, there is reason to believe that the post-Brexit political landscape may be more propitious. The majoritarian thrust of the draft Bill of Rights meshes well with Brexiteer populists, who are likely to view it as an unshackling of the government and parliament (the voices of the People) from the restrictions imposed by the liberal judicial elite (particularly those sitting in Strasbourg) and the demands of unpopular minorities. Now a distinctive and self-conscious electorate, Brexiteers have demonstrated a capacity to effectively mobilise around their populist values. The traction that the Bill has with Brexiteers is likely to have been increased by events since the referendum, including the British courts’ interventions in the Brexit process and, more recently, the ECtHR’s intervention in the government’s controversial off-shore asylum seeker processing scheme. At the supply level, we have already seen that Boris Johnson’s government is aligned and committed to these voters in a way that his predecessor David Cameron was not—even as they have become increasingly out of step with broader public opinion. Just as important is Boris Johnson’s majority in the House of Commons. Whilst fractured, it too reflects the Brexiteer alignment and has shown itself not to be squeamish about passing legislation curtailing human rights (more on this later). It is worth noting here that there is no indication at present that a change in party leadership would lead to a significant re-orientation. As one commentator put it, Johnson’s departure would likely precipitate a battle between successor candidates ‘to offer Johnsonism without Johnson’. Yet, significant obstacles to reform remain. The House of Lords (the upper chamber of the UK Parliament), which has of late become progressively more combative in its defence of human rights, may well oppose aspects of the Bill and inflict damage by invoking its delaying powers. More problematic would be opposition from the devolved legislatures in Northern Ireland, Scotland and Wales, whose consent may be needed to replace the Human Rights Act. Highly critical submissions made by the devolved governments of Scotland and Wales and by Northern Ireland’s Equality Commission suggest that such consent would not be forthcoming, which could lead to a situation in which different human rights standards were applied in different parts of the UK and on different issues. If the draft Bill of Rights becomes law, what would it mean for human rights protections in the UK? In its current form, the Bill of Rights would make it more difficult to bring human rights cases in domestic courts. For instance, clause 15 introduces a permission stage in which human rights claimants would have to first prove that they had ‘suffered a significant disadvantage’ before the substance of their case could be decided upon. As is its intention, this additional hurdle would lead to fewer cases reaching a substantive hearing. Another impediment can be found in clause 8, which almost entirely removes the ability of “foreign criminals” to challenge their deportation on the basis that it would breach their Convention right to respect for private and family life—they would have to prove that deportation would result in a family member coming to “extreme” harm (a very high threshold). As well as being discriminatory (it would, of course, only apply to non-citizens), Professor Mark Elliott notes that this provision does not accord with ECtHR jurisprudence. The divergence from the ECHR that it creates would give rise to a situation in which some human rights claims barred domestically by clause 8 could still be brought in the ECtHR because the UK would still be bound by the ECHR—which allows individuals to apply to the Court to have it adjudicate a complaint concerning the violation of the Convention. The process of applying to the ECtHR is, however, slow and expensive and hardly a perfect substitute for a timelier domestic hearing. Expert analysis of the proposals on which the Bill is based suggests that whilst the Bill of Rights could bring about far-reaching changes, it is unlikely to deliver on some of the bigger promises made by the government, largely because it will not withdraw from the ECHR. The gap between rhetoric and reality raises the possibility that dissatisfied critics of the Human Rights Act may in time ratchet up the pressure for the more radical option of the UK withdrawing from the ECHR. Outside of the ECHR, the UK would no longer be within the jurisdiction of the ECtHR and the government would have much greater freedom to re-write its human rights protections. The government’s rhetoric indicates that if it were given a freer hand, human rights protections would be sparser. The obstacles to an ECHR withdrawal, however, are greater than those facing the draft Bill of Rights, and include the EU-UK trade agreement, under which the UK appears to have committed itself to the ECHR. Yet, even if the draft Bill of Rights is not passed into law and the UK remains a party to the ECHR, the current repeal effort is likely to have already damaged human rights protections in the country by promoting a narrative that undermines the legitimacy and stability of the current regime. As alluded to above, its bleak mischaracterization of the status quo follows a well-trodden path and will surely perpetuate long-standing public misconceptions about the Human Rights Act, such as it being a ‘villain’s charter’. The IHRAR was sufficiently concerned about the state of public knowledge that it recommended the government develop ‘an effective programme of civic and constitutional education in schools, universities and adult education’. The narrative is thus likely to further weaken public confidence in the current regime and make it vulnerable to meddling. Any weakening or damaging of human rights protections is particularly concerning at a time when the government has become increasingly bold in its efforts to restrict civil liberties and hostile in its treatment of migrants. Examples of this include the Public Order Bill, in which the government is seeking draconian powers to prevent disruptive protest, and the Nationality and Borders Act, which empowers the home secretary to, without notice, strip British citizenship from dual nationals and those born abroad.