Every day stories abound that indicate decay and failure. Those in power, however often they are reshuffled, seem unable to answer the questions, or find that they do not have the authority that they thought they did to change things. Andy Burnham is the latest to discover that he pulls the levers of power, says ‘go’, and instead of his servant going, his servant says, ‘I cannot’.
In the last week, the failures include the inability to ensure that PC Andrew Harper’s killers remain in prison to serve their sentences, even though the Prime Minister wants this to happen. Cambridge University has been humiliated by the award of a professorship to Jason Arday and the subsequent attempt to accuse his critics of racism. Electricity companies have told people not to use electricity during a solar eclipse, and small boat arrivals have become large boat arrivals.
All of this indicates a broken Britain. Yet there are clear underlying causes that have led to all of this happening. It is not that Britain is ungovernable, or that the particular problems are not solvable. It is, in its way, rather worse. We have chosen not to be governed.
Every one of the failures listed above comes from a legislative cause, from legislation that is designed to be ‘entrenched’, a concept that has traditionally been alien to the British Constitution. The three main culprits are the Human Rights Act 1999, the Climate Change Act 2007 and the Equality Act of 2010. Each one of these has overarching powers used to ensure that future government action is in accordance with them, so limiting discretion and making the levers of power fail, because the connecting wires have been cut.
Until the European Court ruled against it and the system was changed following its orders, the final decision to release prisoners was, in certain circumstances, made by the Home Secretary. This was a political as well as a judicial decision, to retain confidence in the criminal justice system. It applied especially to murder cases and had a compelling logic.
When the death penalty still existed, the ability to exercise the prerogative of mercy lay with the Crown, which for routine purposes meant the Home Secretary. Thus, when death was replaced with a whole life term, it logically followed that the ability to release should continue to lie with the same person.
The European Court of Human Rights thought otherwise. Jealously guarding the power of the judiciary, it ruled that such decisions could not properly be made by Ministers, but had to be made by a judge on sentencing, to protect the human rights of murderers. This means that the Sentencing Act 2026 could not give any Ministerial discretion over release dates. Hence the Government faced a conundrum, about which it has not been entirely honest.
While I accept that the Prime Minister does not want PC Harper’s killers released, the Labour Government he now leads essentially accepted David Gauke’s report, and its recommendations to reduce the amount of time served in prison. It has used the excuse of overcrowding to stop short sentences of under twelve months, and to switch other sentences to one third incarceration, one third place surveillance and one third release on licence.
This is a policy choice which the Government has not been willing to defend, as it is not popular and probably will not be successful. This dishonesty, or ‘spin’ to be generous, means that extending the excluded categories not only has a short-term disadvantage of keeping more prisoners in gaol, but it also undermines the unadmitted policy change.
This prevents the easy solution of all perpetrators of manslaughter from being kept in prison, because it undermines the new policy. Naturally, the government does not want to admit this. An even easier solution would have been to add Ministerial discretion to the Sentencing Act to allow individual prisoners to be kept in gaol, but the Human Rights Act prevents that from happening.
The next recent example relates to Cambridge University and Jason Arday. It is, fundamentally, a consequence of the Public Sector Equality Duty, which is required under the Equality Act 2010. Every decision a public body makes needs to bear in mind equality consideration, and it creates an implicit expectation that there will be equity, that is to say equality of outcome, in the appointments process.
This means that institutions, and Cambridge will not be alone, need to weight their processes to encourage applicants from minorities. In other words, they create an equalities bias that is, in itself, discriminatory.
Jason Arday, in that context, was manna from heaven. He ticked so many boxes at once, both on race and disability, that the fact that he was a fantasist was ignored. The consequences of this were of no concern to the bureaucracy at the University, because he made them look good. And so they encouraged his fantasy by promoting him, not just within the university, but in publicity materials as well. He was an invaluable public relations tool, regardless of the effect on students, whose interests seem to have been wholly overlooked. Until, of course, he was exposed, and the University looked completely foolish.
DEI, Diversity, Equity and Inclusion, has grown up since the Equality Act and is a pernicious form of discrimination. Again, it is legislated for and has an overriding force, so that lawmakers must consider it when making future laws. It is, thus far, a successful attempt at ‘entrenched’ legislation.
Another is the 2007 Climate Change Act, and its secondary offshoots, such as the statutory instrument that made net zero by 2050 a legal target. This Act has destroyed a once highly efficient electricity system.
In 2000, industrial electricity prices were in line with those in America. Now they are four times higher. This is a consequence of concentrating on renewables which, by their very nature, are unreliable. The wind does not always blow, nor the sun shine. This is not just during the rare occasions when there are solar eclipses. In the winter there is very little sunshine and a high demand for electricity. So backup plans are essential, which are extremely expensive.
This has made British industry uncompetitive and has led to manufacturing moving offshore, which has the effect of increasing total emissions, whilst reducing those for which Britain is technically responsible, alongside, of course, reducing employment in this country.
Yet the folly of the Climate Change Act has meant that a gas-driven energy policy would be illegal, and even exploring for more oil and gas has run into problems in the courts because of this Act. Once more, it is a semi-entrenched Act, that seeks to influence policy well beyond the strict confines of energy. It affects building regulations and infrastructure projects as well as many others.
Small boats becoming big boats is a similar problem to that of prison releases. It is a consequence of the Human Rights Act that the country is prohibited from taking the steps that would be necessary to stop the boats. Everything else is a palliative, whereas swift deportation would be a real cure.
The court cases that the last Conservative government lost in this area are a reminder of the problems even with a government that really wanted to solve illegal migration, rather than our current administration, that is supported by many people who really believe in open borders.
It is this legislative straitjacket that means the levers of power do not work, but there is a solution. Parliament can try to bind its successors, but it is a matter of constitutional fact that it cannot succeed. All three of these Acts, Human Rights, Climate Change and Equality, could be repealed or annulled. This would restore control to Ministers, who would still be answerable to Parliament and to the electorate for their decisions.
In all constitutions there must be a balance between democratic and judicial decision-making. Historically, the United Kingdom depended upon Ministers to make decisions, and judges to concentrate on what the law meant. Recently, laws have reversed this, to take swathes of decision making away from Ministers to give it to judges. Hence Andy Burnham cannot keep two bad men in prison.
The pendulum has swung too far and needs to swing back. The tools to make it swing are in the Prime Minister and Parliament’s hands.
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