BACK TO THE FUTURE: FROM OLD CORRUPTION TO NEW CORRUPTION Part One

I have spent sixty years, first working as a civil servant in British Government, then teaching and writing about it as a university academic. Trained as a historian, I was always keen to locate the strengths and weaknesses of British governance in a historical context, the better to judge how changes and reforms took place over periods of time. Generally I held the optimistic assumption that over time, things would progressively improve in the ways in which we governed ourselves, that the strong values of democratic control (though only won relatively recently) would be realised, buttressed, and protected by long standing principles of the rule of law, underpinning a universally admired ‘British Constitution’.

As I look at the ways in which this Constitution has been traduced in the past decade, I now feel as though I had got all this badly wrong; or perhaps alternatively, that our British political leadership in the twenty-first century has got all this badly wrong. The constitutional safeguards that seemed to work well enough in the recent past now seem flawed and disregarded, the political system itself damaged and dysfunctional. As a result, the majority of British citizens would put politicians at the bottom of the list of people they feel able to trust. Many think that British government is now more corrupt than it has ever been in their lifetimes. Moreover, sadly, there is plenty of evidence to support that belief.

Old Corruption

‘Once upon a time, my dears…’  we thought we knew what corruption was, and how we got rid of it. It was a set of undesirable social and political practices in the past that broadly involved:

• the ownership and control of parliamentary seats and constituencies, and related elections, by an aristocratic landed class (including the monarchy). This patronage enabled a ruling class to command political power and influence, and so control the resources of the state, privileges not available to other social classes. An excellent example of this is my original Yorkshire school town of Knaresborough. In the middle of the nineteenth century this small market town had 287 voters who sent two members to Parliament, the same number as the nearby industrial city of Leeds, with 9000 voters and a population of some 400,000. The Knaresborough members were nominated in the Whig (later Liberal) interest by the aristocratic Duke of Devonshire. Elections were often close enough, and high levels of expenditure were common: in Knaresborough in 1807 election expenses were £528, free drinks accounting for £140 of this. At least such elections were contested, not the case in so called ‘rotten boroughs’ which might not even be inhabited except by a few sheep, yet could return a Member to Parliament (until abolished in 1832)

• the purchase and or control of both major and minor offices in state administration, so that aristocratic patronage included the gift of these offices, including military commissions, to family, friends, and supporters

• the control of related privileges, sinecures, and honours such as peerages and knighthoods

• the control of many trading and commercial contracts and licenses, and the profits to be derived from these

• these practices extended to British imperial possessions, especially in India, making fortunes for many members of the upper classes, and a source of immense patronage

It took two ‘revolutions’, the Industrial Revolution and the Agricultural Revolution, to erode and finally eliminate ‘Old Corruption’. These economic and social changes brought a long series of political reforms which gradually undermined the control and power of the landed aristocracy. Electoral reforms from 1832 onwards had to be fought for by both the rising commercial middle classes, then by the industrial and rural working classes. The First World War changed the political landscape again, with the final elements of universal suffrage (1918) and the full admission of women into the electoral fold (1928). The first part of the twentieth century saw a marked decline of the older landed classes alongside the steady rise of both a propertied middle class, and a trades union based working class.

The shock post- Second World War victory of the working class based Labour Party in 1945 seemed to herald a new world in which the old upper classes would lose their stranglehold on the state and its resources, while elements of the rising middle class would accept something that looked like a social contract based on progressive taxation and the acceptance of a universal welfare state. This in principle created a much more broadly based system of constitutional governance, in which the incidence of corruption, and the opportunities for overbearing class privilege were much reduced. Individual and collective legal rights were strengthened, giving due weight to values of equality and fairness. The broadening of educational opportunities, and establishment of recruitment by merit, reduced the possibilities for favouritism and nepotism in employment, particularly in state institutions. Old Corruption seemed to be what it sounded like: an old and discredited system, now replaced by a modern and efficient form of governance, based on a set of broadly shared national values.

But from the vantage point of 2022, some seven decades on, that last sentence sounds like pure nonsense. Respected critics now argue that significant elements of ‘Old Corruption’ still persist in the 21^st century in forms that we might describe as ‘New Corruption’. I’ll consider this claim through five key questions, which I’ll seek to answer in this and four further posts.

1   Is the British Constitution Still Fit For Purpose?

 2   Do We Follow Systematic Principles of Public Morality?

 3   Do We Have A Meritocracy?

 4   Have Our Public Services Been Politicised?

 5  What Is To Be Done?

Part 1 Is The British Constitution Fit For Purpose?

It depends what you mean…

Professor Joad, the once famous but now forgotten 1930s-50s socialist philosopher (but not forgotten by me, riveted as I am by the unlikely fact that he was once expelled from the extremely respectable Fabian Society for philandering) would have said: “it all depends on what you mean by democracy”.  Likewise, it all depends on what you mean by the British Constitution, often described as “unwritten”. This is not completely the case, since, for example, significant electoral arrangements, forms of local and sub-national governance, and several types of human rights, are set out in parliamentary legislation, which provide a framework of clearly formulated and testable public law. But there are certain unwritten, yet essential, parts termed ‘conventions’, practices that might have no legislative basis, but reflect shared constitutional values generally agreed on by all participants in the political system. For example, the crucial office of Prime Minister developed as a convention; and the doctrine of individual ministerial responsibility, under which Ministers would be expected to resign if they made a complete mess of things, was an accepted convention until very recently, the last such being Amber Rudd in 2018.  At the time of writing there is a convention that Ministers (including in principle the Prime Minister) would resign if found to have lied to, or knowingly misled Parliament.

Constitutional Conventions

Conventions have always been regarded as a considerable strength of the British Constitution because they enabled a process of necessary political and constitutional changes and reforms to take place without long drawn out and politically divisive confrontations. In this manner, it is argued, Britain avoids the constitutional straitjackets which prevented modernising changes in, say, the USA, or France, or India; and British citizens believe that they can rely on the protections of a British constitutional system that is universally respected and admired. Peter Hennessy, a foremost and highly respected historian of British politics, has termed this ‘the good chap theory of government’. Such a system depends heavily on trust (that honourable politicians will honour the conventions, and agree together on any changes to them), and on the integrity of politicians working within the system. But, as a Guardian reader pointed out recently: ‘a rogue Prime Minister, lacking integrity and with a servile majority in the Commons can alter this uncodified constitution to his own advantage… accentuating the trend to an unaccountable elective dictatorship.’ (R. Boffy: letter to The Guardian, 31 May 2022).

A key issue in this respect is the existence of clearly stated formal standards in public life (overseen by The Committee on Standards in Public Life). These were introduced by John Major’s administration in the mid-1990s after a series of embarrassing cases of Members of Parliament, notably Neil Hamilton, selling (for cash) various forms of political influence. These standards are also set out in the Ministerial Code, and breaches of them are policed by a specially appointed ethics adviser. A previous adviser, Sir Alex Allan, found the Home Secretary, Priti Patel, guilty of breaching the Ministerial Code in bullying her civil service staff. She refused to resign, and the PM, Boris Johnson, refused to sack her. So it was the Independent Adviser who felt obliged to resign. His successor, Lord Geidt, has in his Annual Report (31 May 2022) claimed that he is powerless to challenge the Prime Minister about any breaches the Prime Minister might make. Specifically, he cites the Prime Minister having broken the law and having been fined for this by the police, (the so-called Partygate scandal). But it is the Prime Minister himself who is the sole arbiter of the Code, so can act as judge and jury in his own case. Astonishingly, it is reported that Johnson is now busy rewriting the Code himself, and tellingly, has deleted all references in his Foreword to the need for probity, integrity, and honesty in public life.

This willingness to avoid any ethical basis for his own decisions and actions, or proper accountability for them, has been described as ‘an affront to democracy’. An Observer columnist, Andrew Rawnsley, puts it more bluntly, declaring in relation to Partygate, and the scandal of lawmakers being the principal lawbreakers in relation to Covid19 rules, that Boris Johnson ‘has vomited over standards in public life’ (The Observer, 5 June 2022) Unsurprisingly, Lord Geidt has now resigned. So too has Johnson’s own nominated Anti-Corruption Champion, Conservative MP Jonathan Penrose. As I write this, Johnson has most unconvincingly won a Vote of Confidence on his leadership held by all Conservative MPs, just over 40% expressing no confidence in their party’s leader. Both Johnson as PM and his Conservative Government are now badly damaged, a leaking ship of state that can only continue to drift and finally sink.

The Attack on Parliament

Arguably a more serious affront to democracy was the attempt by Johnson’s government in 2019 to suspend the working of Parliament which he wanted to prevent from blocking his secret preparations for a no-deal Brexit. Defeated on successive occasions in the House of Commons, Johnson attempted to shut down Parliament for five weeks. The Speaker, John Bercow, described this as a ‘constitutional outrage’; the First Minister of Scotland, Nicola Sturgeon, characterised Johnson’s actions as those of ‘a tinpot dictator’; meanwhile several thousand demonstrated outside Parliament against this suspension.

The prorogation received a legal challenge (Gina Miller v Prime Minister) and was taken for final decision to the Supreme Court. The Court’s judgement was that the Prime Minister’s advice to the Queen was ‘outside his powers’; that prorogation would have the effect of frustrating Parliament’s constitutional functions, and would have an ‘extreme effect on the fundamentals of democracy.’ Moreover, the Government had ‘provided no adequate justifications for its actions’. This Prorogation was declared to be unlawful, and therefore null and void. The question as to whether Johnson had misled the Queen was neatly avoided.

Subsequently Johnson said that the Supreme Court was wrong to pronounce on a political question, while Conservative Cabinet Minister Jacob Rees-Mogg described the judgement as a ‘constitutional coup’. On the Conservative side of the political fence, judges were seen not as interpreters and guardians of the law, but as ‘enemies of the people’; this description had been levelled by the tabloid Daily Mail in relation to another  Gina Miller challenge to the executive power. In a significant constitutional judgement, the Supreme Court had ruled in January 2017, by an 8-3 majority of all 11 Justices, that the British Government did not have the authority to exit the EU without doing so through parliamentary legislation. 

Bolstered by the electoral victory in December 2019 that gave him a strong parliamentary majority, new Prime Minister Johnson was able to meet this requirement, finally taking the UK out of the EU. But the Conservative Government has not forgotten or forgiven, and has now declared the intention to limit the powers of the judiciary to make what are described as political interventions, not legal matters. In effect, this attempts to push back hard against the constitutional principle declared in the Supreme Court judgement on prorogation: that ‘the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries’. An expert on constitutional law suggests ‘this reflects the principle of the rule of law, which dates back to Magna Carta and towards the birth of civilised, democratic society’ (J. Stanton: blogs.lse.ac.uk/politicsandpolicy/r-miller-v-prime-minister-2019/ ). Ferdinand Mount, a leading journalist and former Tory policy adviser adds ‘[Johnson] claims that this is to protect judges from being drawn into politics, but in reality it is to protect politicians from being drawn into the courts.’ ( F. Mount: ‘Ruthless and Truthless’ London Review of Books, 6 May 2021).

Clearly there is a blurred line here which in the current increasingly divisive climate will need to be clarified, and then protected from increasingly anti-democratic politicians. In my view it is over-mighty politicians who are most likely to be enemies of the people, and we need both clearer constitutional protections against them, and judges ready to police such protections. This tends to push us towards the case for a written constitution, and a fundamental reworking of our failing political and governmental institutions. This will be a recurring theme in this mini-series of posts.

Part 2 will consider the question : Do We Have A Meritocracy?