Lord Judge’s warnings about executive overreach: overstated, understated, or just right?

March 17, 2023

Meg Russell FBA is Professor of British and Comparative Politics and Director of the Constitution Unit, UCL


It is a pleasure to respond to Lord Judge’s elegant lecture on the prerogative 1622/2022. He has become a key voice in warning against the risks of executive overreach and sidelining of parliament, and we should be grateful for his vigilance.

Some may suggest that Lord Judge goes too far, and others that he does not go far enough, in identifying these dangers. Through touching on three substantive topics within his lecture, I suggest that both of these might in their own way be true.

Where I have no argument whatsoever is with Lord Judge’s analysis of the Dissolution and Calling of Parliament Act 2022, which repealed the Fixed-term Parliaments Act (FTPA), returning the prerogative power to dissolve the House of Commons in effect solely to the Prime Minister. This was a retrograde step. The FTPA was far from perfect, but its most important effect was to bring this prerogative under the control of parliament, in line with previous trends in other areas. While the 2/3 majority requirement was shown to be ineffective in 2019 given the Act’s lack of legal entrenchment, the Act meant that the Prime Minister could not dissolve the House of Commons early without its own assent – which would usually mean the assent of the governing party. This was a small protection against a Prime Minister going ‘rogue’. Unfortunately, while experts warned of these very dangers, which were recognised by the House of Lords (through Lord Judge’s own amendment), the House of Commons voted to relinquish its power. There was a supreme irony that only a month later Conservative MPs began expressing fears that Boris Johnson might call an election against their wishes, and against the party’s likely electoral interests. When Johnson’s ministerial colleagues forced him out as leader in July, these concerns became very real. A Prime Minister who enjoys the confidence of the House of Commons is unlikely to face difficulties getting its support for an election if this is in the interests of the governing party. To allow a Prime Minister who lacks Commons confidence potentially to exercise such a power is a serious problem.

Where Lord Judge if anything downplays the risks concerns another prerogative power in practice exercised personally by the Prime Minister: the appointment of peers. To be fair, the lecture’s limited treatment of this topic probably stemmed from its need for brevity, more than anything else. But here, as in so many other things, Prime Minister Johnson pushed the boundaries of what a premier can get away with, by appointing excessive numbers of peers, disproportionately tilted towards the Conservatives, and including nominees of dubious quality – one of whom was explicitly rejected by the House of Lords Appointments Commission. Similar misdemeanours by prime ministers, and indeed previously by monarchs, were hardly unknown – but this is the 21st century. Again we have moved gradually, albeit painfully slowly, towards a more rational, regulated system. Johnson put that into reverse. Unfortunately, recent prime ministers seem to have recognised that there are cynical gains to be had by overappointing to the Lords, and appointing questionable individuals – through making the chamber look ridiculous. That a Prime Minister can control the membership of one chamber of parliament is inappropriate enough, but that they can deliberately bring it into disrepute through their appointments, thereby strengthening the executive further against parliament, is disgraceful. The need to rein in this unconstrained patronage power, and get a grip on the size of the House of Lords, is urgent.

If there is anything that Lord Judge overplays, this relates to the House of Commons. There is a temptation, to which he risks succumbing, of assuming that the Commons is under the control of the Prime Minister given that it so rarely defeats the government. My work has sought to expose why this assumption may be flawed. Votes on the floor are a poor guide to the influence of the chamber, because so much discussion goes on behind the scenes and particularly inside the governing party. On Lord judge’s own worst bugbear – secondary legislation – scrutiny processes undoubtedly need tightening up. But even here, ministers may occasionally climb down and withdraw instruments in the face of private back-room resistance. On primary legislation, recent events for example over the Levelling up and Regeneration Bill, or the Online Safety Bill, illustrate how the government often amends its own legislation to avoid humiliating defeats. This is the stuff of politics, which frequently gets overlooked by legal scholars – whose interactions with parliament may not extend beyond reading the record for amendments and the outcome of votes.

But Igor Judge is himself a legislator, so his concerns must be taken seriously. The difficulty with the dynamics just described is that, precisely because of their invisibility, it is difficult to know whether they are operating.  And there are various clues suggesting that the Johnson administration was different. A key one was his brutal stripping of the whip from 21 Conservative MPs who defied him by supporting measures to block a no deal Brexit, among them former long-serving Cabinet ministers such as Ken Clarke and Philip Hammond. Few prime ministers would have had the audacity to do this, particularly having just months earlier themselves cast rebellious votes on similar topics. Johnson also issued threats of stripping the whip, and in a few cases carried them out, on other matters. This approach destroys the latitude for independent thought on which the normal intra-party dynamics depend. Johnson famously believed that the rules and norms governing others need not apply to him, and this extended to his treatment of his parliamentary party – which he seemed to rule through an unusual mixture of indifference and threats.

Such behaviour can contribute to a sticky end, as was seen in July 2022, and some kind of normality has now hopefully been re-established. But the Johnson experience demonstrated how our political constitution is vulnerable when presented with actors who reject unwritten rules, and opportunity exists for extreme executive overreach by those who choose to exploit it. While it is to be hoped that future prime ministers will have better instincts, an inadvertent part of Johnson’s legacy may well be tightening up of rules and legal constraints in areas such as those so astutely identified by Lord Judge.

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