Lord Willetts is President of the Resolution Foundation. He is a former Minister for Universities and Science.
One of the most extraordinary features of the debate on Covid measures has been the interventions of Conservative MPs who think that we are on our way to a Soviet or Nazi state. There are legitimate arguments about balancing the costs of new measures with the benefits, but that is a far cry from authoritarianism.
A requirement to show you have been vaccinated or offer evidence of a recent negative test before entering a crowded place is not an over-mighty state. The price of liberty is indeed eternal vigilance, but this seems to be going rather over the top. A limit of £50 on the amount of money you could take abroad as part of post-War exchange controls until 1979 was a far more illiberal extension of the state.
Meanwhile, many ministers feel the very opposite – how hard it is to exercise power in modern Britain. They chafe particularly at the legal constraints on their actions as everything is now up for judicial review. Will the MPs who voted against the new controls because they extend the power of the state nevertheless vote to weaken judicial scrutiny of what governments do?
When I was working for Margaret Thatcher in the 1980s, the obstacles to her reforms were essentially organised opposition from trade unions, left wing local councils and then Jacques Delors and the European Commission.
Trade union power is much weakened –if anything today’s gig economy workers could do with innovations to strengthen their voice. Locall councils are not the force they were, and the Government is trying to give them a bigger role. And the Delors agenda of using majority-voting to impose European social regulations on us had been seen off long before Brexit.
Coming back into Government in 2010, I was struck by how the constraints on ministers had changed. Everything we did was susceptible to legal review and challenge in a way that had not applied during the 1980s. Many more decisions came with elaborate advice on legal pitfalls and constraints.
Sometimes the advice could be very cautious. David Cameron rightly said to Cabinet that we should not automatically be inhibited from acting because of the risk of legal challenge. We should be willing to go ahead and then see our judgements tested in the courts – if we lost, that was not to be seen as a political blow. He would rather that than our being reluctant to do anything because of the fear of legal challenge.
Moreover, sometimes these legal protections can serve Conservatives as much as socialists. It would be terrible if the cancel culture spread as far here as it has in the US. One reason I still hope it won’t is that there are more legal protections for workers here than in the US, so an employee can’t just be sacked because they get caught in a social media storm.
Judicial review is clearly more intrusive than it was a generation ago. It can be surprising, even, shocking when you find how far some lawyers want to go.
For example, I did my best to resolve a constituent’s complaint about child support but I failed to get the result he had hoped for. But what took me aback was then getting a letter from his lawyer saying that they wanted to take me to court for failing in my duty of care for my constituent. Nothing came of it – but still it was a reminder of how the legal environment was changing.
However, this is not something peculiar to politics. Boards of companies, trustees of charities and indeed even conventional media outlets are much more legally constrained than they were. Indeed, some of these intrusions have been led by politicians themselves, who are then surprised when they themselves are subject to similar constraints.
These constraints can be very tiresome when you are trying to get something done. And then the paranoia which can creep up on any busy and harassed Minister means you start thinking there is a deep-state trying to stop you doing anything. But it is not an organised conspiracy like that – it is the checks and balances which protect us in a liberal democracy.
Now ministers ought to be worried about another constraint. A strong majority and the belief that you will be around as a Government for a long time does give extra authority and capacity to do things.
But if your majority is falling, and people think you may not be around in a couple of years then authority drains away. One Cabinet minister said to me that he thought his officials were much more helpful when the Government had a healthy lead in the polls than when it was behind. He was too pessimistic, but perhaps sometimes advisers might go through the motions but don’t believe you will be around long enough to check what has been done. Then making things happen really would get hard.