Gove, Grayling, Duncan Smith and Johnson have all tried to sidestep accountability
A key Vote Leave argument is that after Brexit we would be better governed. This is because, they contend, decisions that affect our lives would all be taken in Britain, directly accountable to Britons and to parliament.
This sovereignty boost is an attractive prospect that chimes with the left and the right. Tony Benn repeatedly attacked the EU on this accountability issue, predicting riots on the streets after the Maastricht Treaty because Britons were unable to sack European Commissioners if they acted poorly.
Fortunately this forecast was wrong, but the ‘self-rule’ argument remains one that works best with centre and left voters.
The records of Vote Leave’s leading lights, Boris Johnson, Iain Duncan Smith, Chris Grayling and Michael Gove, all dim this hope.
While, in newspaper arguments and TV appearances, they promise Brexit will bring a gold standard of accountability, many of their actions in government displayed ambivalence, event resistance, to everyday Britons accessing justice or the right to challenge illegitimate government action.
This would be irrelevant if there was no connection between those championing Leave, and those who would likely implement Brexit. Vote Leave maintains that David Cameron’s government would implement Brexit, not them, so what Vote Leave individuals want is irrelevant.
However, in a surprising statement after ITV announced an EU debate between Nigel Farage and the prime minister, Vote Leave heavily implied they would soon be in power and able to punish the television station.
“ITV has effectively joined the official IN campaign and there will be consequences for its future – the people in No10 [Downing Street] won’t be there for long.”
— Jim Waterson (@jimwaterson) May 11, 2016
This then is both an admission that senior Vote Leave figures probably would take over government in the event of a Leave vote, and a hint of future policy direction. That direction is contrary to Vote Leave’s liberal rhetoric: making a major threat to an independent television network, and accusing it of lying and bias, is not typically a move confident democratic-liberals make.
The statement above was not unrepresentative. The next morning it was followed up by a more measured note with the same underlying theme:
NEW: Vote Leave release new statement making further allegations about ITV impartiality with new legal threat pic.twitter.com/3qPlarZ11N
— Sam Coates Times (@SamCoatesTimes) May 12, 2016
Following these statements, it is reasonable to consider leading Leavers’ records to see if they respect Britain’s democratic institutions as far as their rhetoric indicates.
Iain Duncan Smith’s record is the one that shows the most distain for true parliamentary scrutiny. When in 2013 the courts ruled that his Work Fare scheme was flawed, and the Work & Pensions Department owed many jobseekers compensation, Duncan Smith did not admit fault.
Instead he attempted to rush retroactive legislation through Parliament, using the ‘emergency powers’ procedure designed for swift action in reaction to terrorism or war.
The Work Fare case is still in the legal system now, with Duncan Smith losing on the basis that this rushed revision undermines the right to a fair hearing.
The pertinent point regarding Brexit is this: to cover his mistake, Duncan Smith rushed a law past MPs without proper scrutiny or debate, using inappropriate powers. This is not the action of someone who valorises parliamentary oversight, particularly the checks and balances MPs are supposed to exercise over the government.
Another Vote Leave cabinet minister is Chris Grayling. During his time as Justice Secretary, Grayling attacked Judicial Review, repeatedly cut Legal Aid, and attacked Employment Tribunals. He increased the cost of the latter to £1,200, a moved condemned by 400 barristers as a ‘barrier to access to justice’.
This is a huge cost for ordinary workers challenging unfair dismissal, sexual or racial discrimination, or sackings arising from whistleblowing.
Cost is the same issue for Legal Aid cuts. Grayling was determined to save money with little regard for how his changes would affect access to representation for the poorest.
The cuts have faced over 90 legal challenges, and in a display of good judgement the new Justice Secretary Michael Gove suspended – but did not cancel – the latest round of cuts. He did not reverse the first round of cuts, and made speeches calling on lawyers to work for free to make up shortfalls.
Grayling also instituted a Criminal Courts Charge, a high mandatory payment for convicted defendants, which the Conservative-dominated Justice Committee called ‘incompatible with principles of justice’, particularly because it created the perverse incentive for poorer defendants to plead guilty.
One would expect a minister with reverence for Parliament’s will to react to this critique. They were not cancelled until Gove took over.
Grayling’s third dubious move was to attack Judicial Review. Judicial Review is designed to stop a minister acting beyond the powers that parliament allows her: it upholds parliament’s will against executives acting like autocrats. Other important bodies whose decisions affect our lives like councils and the police are subject to Judicial Review. This helps to set out precisely what actions those bodies can and cannot make, and on what grounds.
Attacking Review indicates, rather than a love of British parliamentary tradition, a desire for governments to have a five year period of unchecked rule, in which no other power can monitor them. Essentially Grayling tried to make the legal threshold for starting a Review unreasonably high and expensive.
This was a difficult task and he gave up in January 2015 after two defeats in the House of Lords.
Grayling’s successor, Michael Gove, looks good next to Grayling. But on Freedom of Information (FOI) Gove does not appear enthusiastic about better accountability. FOI requests are a key tool for journalists, the opposition, charities and individuals to see politicians are acting as promised.
As Education Secretary Gove’s department failed to answer 85 per cent of FOI requests on time and fought a losing battle with the information commission to hide details of those applying to start free schools.
When he became Justice Secretary, reports emerged that Gove wanted to crack down on FOIs by making it easier for officials to refuse them on cost grounds. On the same subject Duncan Smith fought and lost multiple FOI requests about the spiralling problems of Universal Credit.
Grayling too attacked the FOI system, accusing journalists of ‘misuse’ when they uncovered stories using it, a practice he deemed ‘not acceptable’. Boris Johnson, another key Leave figure, resisted disclosing details of West Ham’s Olympic Stadium contract for a year, until forced to do so by the information commissioner.
Johnson has not held government office so cannot be judged in quite the same way. However, he has been accused ‘of burying an air quality report while he was Mayor of London that showed hundreds of school in the city were in areas which exceed EU pollution limits’, completed in 2013 but never published.
The results showed 433 of 1,777 primary schools were in areas with dangerously high nitrogen dioxide levels. He cannot claim to have been unaware that air pollution was an issue, since he did a lot of work on it before the 2012 Olympics. Johnson has also been accused of misleading the London Assembly over the controversial ‘Garden Bridge’ plan.
None of this is to say the rest of the government, or Remain leaders, are perfect. The Coalition rejected the proposal of disgraced MPs’ recall and failed to reform the House of Lords. The current government tried to cut a fifth off of the ‘short money’ provided to fund an effective opposition.
Nor is it to say that the men above are not true democrats, only that their practice of democracy gives higher precedence to executive action than their rhetoric.
The referendum should not, of course, be decided by the personalities and records of individual politicians. But if these are the men who will take over from David Cameron and carve out a new Britain post-Brexit, it focuses the mind to consider how far they will hold to their rhetoric.
They demonstrated in office an impatience with checks and balances, a frustration with due process, and scant respect for ordinary people’s access to justice.
Whatever engaged democratic utopia might blossom after Brexit, it is unclear that these are the men to tend it.
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