UK UK
New Foundations

New Foundations

Introduction

Issues

Pillars

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Pillar 1: Clear rules, predictably enforced and subject to democratic feedback loops

What’s going wrong?

Britain is not short of good intentions. The problem is that we believe we can legislate or regulate them, one by one, into reality. Over time the resulting laws, procedures and requirements have accumulated to make action to achieve these intentions almost impossible.

This pillar comes first because it explains why governments of all stripes have consistently been unable to take the actions they believe will improve quality of life for people in Britain. And it is not just confined to governments. We have built a system so biased against action that neither government nor private organisations can do the things they know to be in the public good.

You cannot, for example:

Whoever you are in Britain - a private citizen, a successful business, a government minister - you do not know whether taking action to improve the country will be permitted. There are so many points of veto for almost any decision that those opposed can at least slow down decisions enough to make them extremely costly, and in many cases halt them altogether. And these vetos are not democratic in nature - they are exercised by courts or regulators whose remits make them distant from the consequences of their decisions.

The problem is not just that we’ve banned too many things, bad though that is. It’s that we’ve made it extremely hard to know if the thing you want to do is permitted. Prohibiting things at least gives certainty. You can take action in other spheres. The pervasive uncertainty smothering Britain today is far worse. The only safe course is to do nothing at all.

The system that has created this uncertainty is incapable of self-correcting. Its hallmark is the atomisation of policy into single issues, each of which stand alone without considering their consequences or how they interact. When something goes wrong we pass a law or create a regulator to prevent it from happening again. These laws and regulators are designed to look only at that specific issue rather than to consider trade-offs and optimise for the overall best outcome. The result of this atomisation is a quagmire that it is impossible to navigate, and the accumulation of unconsidered costs that together often create outcomes worse than the ones they were designed to prevent.

This is bad in normal times, but today it is even worse. We are simultaneously undergoing tremendous technological, economic, social and geopolitical changes. The next five years might well see the mass replacement of white collar labour occurring alongside an increase in global and European conflict. Without the ability to adapt we will struggle to survive - but the build up of legislation, regulation and process over recent decades makes adaptation close to impossible.

Fortunately, this is all changeable. The British Parliament is sovereign, and one of the most powerful in the world. It has given away power, but it can choose to bring it back. All of the single issue laws and regulators exist at Parliament’s pleasure. This can be fixed within the first half of a Parliament.

Why is it happening?

This is a consequence of both attitudes and policies. These mutually reinforce each other - changing attitudes manifest in changing policies, and the changed policies create a world that is more in line with the attitudes that led to their creation.

A brief history

The system above was not designed. No reforming government sat down and decided that quangos should be able to veto democratic decisions, or that employment tribunals should set wages for profitable retailers. The vetocracy accumulated through a set of individually reasonable decisions driven by the political incentives of the time.

The story begins with declining trust in politicians. While politicians have always been one of the least trusted professions, a steady decline began in the new millenium, triggered by a combination of events like the Iraq dossier, the MP’s expenses scandal and the 2008 financial crisis. Today it has reached a 40 year low, with just 9% of the public who say they trust politicians to tell the truth.

Given the collapse of trust in politics, people bet on placing it elsewhere. The first location was expertise. If elected politicians were self-serving and unreliable, perhaps the independent and the technically qualified were not. Coinciding with a decline in trust in politicians, civil servants and judges began to be seen as more trustworthy. As of 2010, 83% of the public said they trusted judges and 62% said they trusted civil servants, compared to just 17% who said they trusted politicians. This instinct led to the growth in the number of arm's length bodies — the Office for Budget Responsibility, the Climate Change Committee, the Migration Advisory Committee. Each one of these was created on the basis that removing a decision from political hands and placing it with people who could claim objectivity would produce better outcomes.

Trust also got placed in process and law. If people could not be trusted, perhaps the right rules could constrain them. This instinct produced the expansion of judicial review, the Human Rights Act, the growth of regulatory oversight, and the proliferation of laws that hardcode policy aspirations into primary legislation - each designed to make it harder for subsequent politicians to make a decision the creators of the rules disagree with.

This relocation of trust coincided with the rise of an intellectual movement that believed the British constitution to be logically indefensible, and so in need of redesign. By the rationalists’ standard the constitution was a mess. It made no sense to have a Lord Chancellor sitting in Cabinet, heading up the judiciary, and presiding over the House of Lords. The argument was summed up by Lady Hale, who said that “however well this arrangement had worked in practice, it could not be justified in principle”.

The result is that principle has trumped practice. The old constitution was never designed, it evolved. Ministers became answerable to Parliament through political practice, and even Parliamentary sovereignty rests on political foundations. This was harder to justify from first principles, but it was functional. What we have now is a system so complex as to appear clever and thoughtful on paper, whilst being dysfunctional in reality.

In part this is because the rationalist approach, grounded in a faith in technocracy as discussed above, ignores the trade-offs the old system was designed around. The old system knew there was a tension between the government and the judiciary. It resolved it by placing that tension in a single person, the Lord Chancellor, and tasking them with managing it. If they were unsuccessful then democratic accountability would see to it that they were replaced. The new system assumes that every problem can be split up into component parts that neatly map to a given regulator, handed out accordingly, and that the sum of the results will be a coherent and effective strategy. Whilst attractive, this simply doesn’t work.

Nonetheless it makes good headlines. The incentive on politicians is to keep present in the media, to keep showing that they are “doing something”. They must feed the beast, and do so by proposing ever more rules and restrictions that signal their good intentions. Whether these intentions ever lead to better outcomes is beside the point. They got the media appearance and that’s what counts.

The result is a world where process substitutes for people, where well-intentioned systems substitute for good outcomes. It hopes that the perfect institutional design can be found, and so remove the need for political judgement or democratic accountability. The cost of this ambition has been to create the paralysed, unaccountable vetocracy that now governs Britain.

There have been four shifts in how we think about politics and government that have led to this situation.

First, we have come to see government as a technical, rather than a moral or political, challenge. We assume that there is an objectively ‘right’ answer out there, and that if only we can get the right experts in the right process then it shall be found. This is a denial of the reality of politics. There is no objectively true vision of the perfect state. Everything is a trade-off, with some winners and some losers, some belief systems prioritised over others. “Politics” has come to be seen as something shameful - we ask to “take the politics out of” contentious issues. In fact, “politics” is just the name we give to having and trying to resolve debates. We cannot shy away from making these trade-offs.

Second, as a result, we have assumed that responsibility cannot be exercised by politicians. Politicians, in the public consciousness, are self-serving and stupid. Power must therefore be exercised by the impartial and the expert. Only those who are apolitical can be trusted to wield power, so we transfer responsibility for ever more important decisions to those who do not have to seek election. Politicians have encouraged this. They’ve made use of the cloak of impartiality to defend themselves and to try to bind their successors to their policy after they’ve left office.

Third, we have given the state responsibility for ensuring nobody suffers from any harm. Rather than conceiving of the role of the state as creating the conditions for people to do good, we have begun to conceive of it as preventing anyone from coming to harm. Or, in many cases, compensating people for harm rather than dealing with the root causes. This is increasingly seen as the main role of government, which should be pursued regardless of the costs. If a bad news story happens then “something must be done”, and that something is invariably a new restriction or regulation on activity. Sometimes these will be warranted, but we have developed a habit of leaping to restriction without considering the costs. These costs have accumulated whilst our economy has stagnated, such that they are now far greater than the public realise.

Fourth, we have come to treat some high-profile laws, once passed, as infallible and immutable. The British legislative tradition is one of empirical lawmaking. It treats lawmaking as an iterative exercise - a law is a Parliament’s best attempt to create a better future, not a stone tablet handed down from on high. Laws that lead to better outcomes are retained, those that fail to achieve their objectives are improved or removed. We have stepped away from this tradition, instead seeing too many laws once passed as inherently good and any attempt to change them as ‘undermining the law’.

Fifth, our entrance into the EU has made us a more law-based, regulatory state. Britain's oldest advantage was its adaptability. The common law is empirical: it develops case by case, in response to real disputes, and corrects itself when a rule stops working. Its instinct began from a permissive premise, that what is not prohibited is allowed, and adjusted case by case after the fact as the world around us changed. But EU law often works differently. It is codified and largely animated by the precautionary principle written into the European treaties, under which an activity may be restricted even without conclusive evidence that it will cause harm. This inverted the common-law default, from "permitted until shown to be harmful" to "prohibited until shown to be safe."

Figure — Departments by number of inherited EU laws (converted into an exhibit and pushed to git; not yet embedded here)

We have unfortunately brought the worst of both worlds into reality. Not every European rule is wrong, nor is codified law always a bad idea. But Britain has absorbed the rigidity of EU norms without the things continental systems paired it with (delivery plans, ample state capacity), not least their greater success at actually building things. And a decade after Brexit, it has retained those cautious instincts anyway.

These attitudes have combined into a simple heuristic that now dominates British politics and government - that rulebooks should be trusted over the representatives of the people. This is a reversal of the traditional British constitution, which was distrustful of rigid process and a priori rules that bound future leaders to rules made today. The most telling example is that Britain has never had a written constitution at all. Where other nations fix their fundamental rules in a single document, Britain has relied on constitutional conventions and rules of political morality to guide governance.

The most important fact about how Britain is governed, that the Crown reigns but does not rule, exists nowhere in law and never has. It was settled and continues to be sustained not by a code but by accountable people honouring convention. Over the eighteenth and nineteenth centuries, responsibility for government shifted from the Crown to elected representatives through an evolving understanding that the monarch would exercise their formal powers only on the advice of ministers accountable to Parliament. It is a convention so complete that the sovereign retains, on paper, the legal power to refuse assent to laws or dismiss a government, yet, by accepted practice, never does.

The British tradition is not, like the French or American, attached to rules we believe to be sacred. It prizes effectiveness above all else, and this effectiveness is ensured through entrusting people who are held highly accountable. Leaders in British government, be they monarchs or elected politicians, rule by virtue of the outcomes they create for people. When these outcomes are not good enough, the leaders are ejected. They are not judged on a series of narrow tests in courtrooms, but on whether they create a better life for the public at large.

We have abandoned this tradition, lost ourselves in “dreaming of systems so perfect nobody has to be good”. High economic growth in pre-2007 allowed us to mask the costs of this - we could afford to compensate people for harm and overlook the costs of regulation. But as growth has slowed and we have spent down the proceeds of previous decades, these costs are becoming harder to ignore.

The new system

The new approach to government is characterised by bad superior legislation, a weaker parliament, and empowered undemocratic decision-makers. By atomising problems into single issue laws and regulators it has severed the link between rule-making and outcomes, such that those who wield power are not responsible for the results of how they use it.

Bad, superior legislation. We have created swathes of duties on both government and private organisations. Some of these are procedural, some involve the creation of rights or duties. In all cases they are costly, and too often we do not realise the existence of these costs. The sheer volume of them is too complex for most people to follow, such that even the well-meaning inevitably fall foul of some procedural requirement and the well-resourced can veto them.

Many of these rights and duties are subjective value decisions that get treated as if they were objective tests. Judgements that were once left to politicians or private actors, about morality, fairness or trade-offs, increasingly end up in the courts. Sometimes this is direct: where Parliament writes open-ended tests like "equal value" into statute, a tribunal must decide what they mean, and in doing so makes a value judgement. More often it is indirect: when every statutory duty is a factor that must be considered, and every omission a ground for quashing, the court becomes the final arbiter of whether things happen. These are not questions with a ‘right answer’. They must be adjudicated by the people’s representatives.

The core of the issue is bad lawmaking. Sometimes Parliament writes clauses so broad that a court must decide what they mean, and on other occasions it writes careless duties to "have regard to" one factor after another, each a fresh ground for challenge. The Next equal value work case shows exactly how a few open-textured words can hand a political judgement to a tribunal.

In 2024 an employment tribunal ruled that it was illegal for Next to have paid different wages to warehouse workers and retail staff. This ruling was based on an interpretation of a clause in the Equality Act, which states that work is equal to a comparator’s if it is “of equal value”. The Equality Act defines work of equal value by the demands it makes on the worker, "such as effort, skill and decision-making". The market rate is not among the factors, so what a job is worth is assessed not by what people will accept to do it, but by consultants scoring jobs against these criteria.

The judgement was handed down against Next despite them having had a scheme to encourage retail workers to switch to warehouse roles, and despite the lead claimant telling the tribunal that she’d need “a lot more money” to even consider working in a warehouse over a shop.

This case also shows the impact of trying to achieve policy objectives for free through bad legislation. The tribunal’s ruling against Next was contingent on the fact that Next was a profitable business, and therefore could have afforded to pay above market rates to shop workers. The logic of the law is that any profitable business should be using its profit to ensure that average wages across men and women are equal, regardless of what jobs people choose to do or the objective market value of that work.

It is hard to believe that Parliament’s intention in creating the Equality Act was to prevent employers from paying a premium to low-wage workers doing some of the least pleasant jobs our society requires. There is nothing in Hansard to suggest MPs wanted to prevent refuse collectors or warehouse staff from being compensated for working in unpleasant conditions, or thought that doing so was an act of sexism. Indeed, the tribunal accepted as a point of fact that, as the claimant admitted, the higher paid roles were less desirable.

The campaigners of the past would be aghast to discover that the legislation they believed to be defending the lowest paid was now pressuring employers to depress pay or move employees off the books to less scrupulous outsourcing firms. And more than this, such an approach flies in the face of basic market principles. British and world history has taught us that committees cannot set prices or determine wages better than markets. Our prosperity as a nation has been dependent on accepting this, and undoing that will come at a great cost.

Of course we do not have to be bound by the intentions of the past - the contention of this essay is that our national rulebook should be adaptive. The question is who should be able to make what adaptations? Should a decision to make paying market wages illegal for some employers rest with judges or with Parliament? Today, previous Parliaments have drawn some of our laws so broadly that it rests with the judiciary. But this leaves no recourse for the people if we think this judgement is not achieving the right outcomes. There is, rightly, no democratic feedback loop for judges. But this means that judges should not be making decisions that are political in nature. They cannot make trade-offs about whether the cause of equalising average pay across demographic groups, regardless of the employment choices made by people in those groups, is worth the cost of bankrupting councils and rising consumer prices. This decision is political in nature, and therefore must be reserved for politicians.

This is not to say that judges should not interpret legislation. Laws will rarely be perfect and will always need interpreting in unforeseen contexts. But we should accept that this is speculating on the will of Parliament, and that when that speculation goes wrong it should be normal for Parliament to step in and make its will explicit.

Enshrining some policy objectives in law and not others distorts decision-making and prevents government from balancing competing priorities. Take the Climate Change Act for example. It commits the country by law to net zero by 2050 and obliges government to meet binding five-year carbon budgets along the way. No competing objective such as energy security, industrial competitiveness, the cost of living or defence, carries the same legal weight, so when they collide the legislated duty wins by default, regardless of the needs of the present hour.

Climate budgets are a victim of further superior legislation as well. Britain has decarbonised faster than almost any major economy, and has done so mainly through technological change (the collapse of coal in favour of gas and renewables), rather than through legislated targets. Yet in 2023, the courts struck down the government's carbon budget delivery plan, judging only about a fifth of it sufficiently credible, when at the very moment, the government was running ahead of its targets. The plan was deemed unlawful not because the country was failing to decarbonise, but because the decarbonisation could not be budgeted for in advance to a court's satisfaction.

Not only is this ‘performance management’ by the wrong people, it is bad performance management. Any effective organisation would manage performance in a balanced way, looking at all the outcomes that should be achieved and assessing how effective overall performance is. Here we specify a handful of outcomes in legislation and thus arbitrarily prioritise those above all else, even if the world has changed considerably from the point in time the original legislation was passed or plan developed.

Much of this legislation comes about because our politicians seek to achieve policy objectives for free. Rather than tackle terrorism, we require village halls to create terrorism plans. Rather than face up to the costs of our preferred welfare policy and pay the taxes it would require, we demand that businesses spend their profits paying above market wages to certain groups. Legislation lets us pretend to avoid costs and get gains for free, but the concealed costs creep up on us later - often in more harmful ways. The result is that the silent cooperative majority pay the cost for the wishes of a small vocal minority.

Expanded role of the judiciary. The judiciary should constrain government to prevent the abuse of power, and to stop it acting against the will of Parliament. That is a vital role. But it has quietly expanded into something quite different: judging whether the government has made a decision well.

Judicial review considers whether a decision is lawful. Some decisions are unlawful because they breach existing statute, or in some way breach natural law. But others fall foul of the courts’ evolving standard for whether the decision was made lawfully. This is not a standard set out by Parliament. It is a standard that, according to modern public law doctrine, is set out by judges “on a case by case basis”.

This standard has evolved beyond recognition in recent decades. The test for a decision being rational was once whether a decision was “so unreasonable no reasonable body could reach it”. Courts now ask whether a minister took reasonable steps to inform themselves, whether their reasons were adequate, whether they gave enough weight to the right considerations, whether they consulted in a manner the court considers fair. This strays well out of the rightful territory of the judiciary into matters that are, by their nature, political. How highly to weight different considerations is a moral and political judgement, not a legal one.

It is also important to consider the litigant power that expanding these standards create. Because the grounds have grown so broad and so uncertain, almost any decision can be plausibly challenged, and an objector needs only to make the attempt to impose months or years of delays and compliance costs on whoever is trying to act. The overwhelming majority of these judicial review challenges fail. For Aarhus claims, an unsuccessful claimant’s liability for legal costs is capped by default at just £5,000 (or £10,000 for an organisation), so a challenge that imposes years of delay and millions in cost can be brought at almost no personal risk.

Of 167 major infrastructure consents granted since 2008, just six were quashed following a challenge. The unsuccessful attempts at JR are not without cost. Each legal challenge took on average 1.4 years to reach a conclusion, the courts spent more than 10,000 working days on these cases, and major road projects have paid up to £121 million per scheme due to delays. And the Aarhus Convention means there is little cost to be borne by the objectors.

Fixating on process also subverts the correct accountability mechanism for the government. If people believe the government’s decision-making to be sloppy or ill-considered they can eject the government. It should be for the people to decide if they prefer to judge the government on outcome, on process, or on a balance of both. This is not an argument for unchecked power. Government must be subject to bounds that prevent the abuse of power. But we cannot legislate for the government’s decisions to be good ones, and we should not try.

This approach is also ineffective. Its consequence is that government and public bodies spend significant time and effort producing unreasonable levels of bureaucracy and paperwork to act as a proxy for good decision-making. Ever larger volumes of consultancy reports act as a defensive wall against judicial review, keeping claims at bay without improving the quality of decision-making (or arguably, making it worse). It also means that we as citizens pay for the state to pre-empt any conceivable complaint, regardless of whether anybody actually holds that objection. The incentive is to create pre-emptive paperwork to show that all possible views were equally considered, just in case a challenge materialises.

The A47 upgrades in Norfolk show how little it takes to jam the system. In 2022 the government granted development consent for three linked road schemes around Norwich. A single objector, Dr Andrew Boswell, a former Green Party councillor, brought forward a judicial review. His ground was not that the roads should not be built, it was that the Transport Secretary had assessed the carbon emissions of the three schemes separately rather than adding them together.

The government won each round of the challenge, albeit slowly over two years. The High Court dismissed the challenge in 2023. The Court of Appeal first granted Boswell permission to appeal on the view that the appeal had a "real prospect of success", but after further review dismissed it in early 2024. And finally in May 2024 the Supreme Court refused permission to go further. But the road works were paused till these disputes were resolved, a delay described by the National Highways to have cost “tens of millions of pounds,” the largest of which was a £300 million dualling that was held up for 20 months and is now not expected to open till 2027, with its overspend driven by inflation during the period.

One individual, funding his judicial action with around £73,000 crowdfunded online, was able to suspend £300m of consented national infrastructure for two years on a process point the courts ultimately rejected.

The Climate Change Act and carbon budgeting

Powerful, atomised regulators. We have created a large tier of regulators who have a mismatch between power and responsibility. They have wide powers to affect swathes of society and the economy, but narrow remits to consider only certain outcomes. To do their stated job well they should impose costs on other areas of society in order to achieve their objectives in the ones they are responsible for - and that is what they are doing.

Empowered regulators responsible for single issues are required to optimise for these issues without considering the broader impact of their decisions. They achieve their goals, whilst undermining the rest of society from achieving its broader goals. The job of Natural England is to protect fish from harm, regardless of the consequences to the rest of society of doing so. There is no democratic feedback loop for people to argue for trade-offs to be made differently. This is a feature, not a bug.

Natural England, an arms length statutory body tasked with advising the government on “protecting and restoring the natural world,” is a case in point.

In February 2021, Natural England wrote to the Ebbsfleet Development Corporation to inform them that part of their site would be designated a Site of Special Scientific Interest. It was possible that it was home to a population of distinguished jumping spiders. This effectively cancelled the building of 1,300 homes - not on greenbelt land but on industrial wasteland next to Ebbsfleet International Station. The government had by then spent £300 million trying to build a new garden city at Ebbsfleet. And, according to conservation groups, the spiders were not actually even present in the area set aside for building.

It is legitimate for government to seek impartial expert advice on the conservation status of species, especially those with endangered populations in Britain. The problem is not that experts offer government this advice. It is that we have set up a system that disconnects decision-makers from the consequences of their decisions.

Natural England have a duty to:

ensure that the natural environment is conserved, enhanced, and managed for the benefit of present and future generations, thereby contributing to sustainable development

Yet the powers they have to achieve this are extremely broad. Their judgement that a species is at risk means that only they can approve development near that species’ habitat. They can permit such development if they deem that (a) there is “no satisfactory alternative” and (b) the development is in the “overriding public interest”. But here is the problem. These are not objective tests. They are subjective judgements about trade-offs that can only be made democratically. A quango with narrow responsibility and no democratic feedback loops cannot make judgements about the wider public interest. The only people who can determine what is in the public interest are the representatives elected by the public to do precisely that. In this case, if elected Ministers disagree with the unelected body’s judgement on what is in the public interest, we have set up the system so that it’s the unelected body’s view that wins out.

The result of this is a powerful vetocracy that controls modern Britain. Distributed veto points across regulators, agencies and courts allow for repeated battles weighted in favour of the objector. The outcome of each is uncertain. And whilst the actor must win them all in order to succeed, the objector must only win one.

Three flywheels

This is not a static picture. This chapter has told a story about a change that has continued and deepened over time, and which without action will continue to do so. This happens because of three flywheels that reinforce the attitudes behind the new, less-functional approach to government.

The first is around the quality of politicians. We are now in the peculiar situation where just as our society has become more process- and law-based, our politicians have become less able to understand and scrutinise legislation. As Parliament has ceded more power to outside bodies it reduces the impact parliamentarians can have in their roles. Talented and ambitious people, those driven to achieve as much good as they can for the people, see the reduced scope for impact and choose other careers. This degrades the quality of Parliament, and so strengthens the argument that power should be handed instead to experts or judges. “We can’t give power to people like that”.

The core argument of this chapter is that we must stop seeing politics as dirty and see it as noble. Politics is the process of making difficult decisions to which there are no objectively right answers. It is the process of confronting trade-offs and arguing about how they should be made. It cannot be outsourced to single issue bodies or technocrats in the hope that the trade-offs will go away. Stepping up to resolve these challenges for society, knowing you will be subject to criticism and ridicule, is a noble calling that we should celebrate.

The second is that regulation begets more regulation. As regulators are given greater remits they require more staff and resource. The newly enlarged regulator conducts more activity and so spots more opportunities for further regulation. With its greater capacity it lobbies for further expansion in order to take these opportunities.

The third is that the vetocracy is mimetic. It is so powerful that organisations must consider it in all their decision-making. They therefore hire people to help them navigate the obstacles put up by the legal-regulatory state. This creates a shadow power structure within every organisation, bringing the voice of the blocker into the boardroom. Because the costs of being deemed non-compliant are so high, organisations allocate a large amount of capital to remaining compliant - thus funding the worldviews that create this obstruction in the first place. This occurs across organisations, from Compliance to HR.

And because process is prized so highly it becomes rational for individuals in the system to emphasise process ever further. Doing process well, not achieving outcomes, becomes the thing that gets you promoted. And doing process badly is judged far more harshly than achieving bad outcomes. Anything other than strict deference to process is a great personal risk.

The vetocracy has infected the public and private sector. It started as a public sector problem, led to ever-expanding regulation on the private sector too, and now means that the private sector has a culture of vetocracy. Organisations now routinely go beyond what the law requires: withholding information the law permits them to share, vetting staff who need no vetting, documenting risks nobody has asked about. Caution that began as a response to law now persists independently of it.

The three examples of Natural England, Next and work of equal value, and the Climate Change Act all share a common thread. In each case, we were promised something valuable: protection for wildlife, fair treatment for women at work, and reduced carbon emissions. In each case, the mechanism chosen to deliver that promise - a quango, an employment tribunal, a statutory carbon budget - not only failed to deliver it, but made things worse. The spider is no safer, and the opportunity to get investment in their habitat and conservation has been lost. Workers face lower wages and fewer employment protections as employers avoid paying premium wages or hiring permanent staff. Britain's climate policy is less credible and more litigious than before, with no measurable benefit to the atmosphere.

These are the predictable consequences of a system designed for performative rather than real accountability. When we place power to make inherently political decisions with unaccountable bodies, we do not get impartial expertise applied in the public interest. We get narrow mandates pursued without regard for wider costs, subjective value judgements dressed up as objective tests, and vested interests that have learned to navigate every point of veto the system creates. The people the system claimed to protect are worse off, whilst those with the resources to exploit it are not.

What should we do?

We need to reset our approach to government, and correct the mistakes made under the current approach.

A renewed theory of government

Our theory of how government works is broken. We need to reset our view on the role of different branches of government and how they relate.

Parliament

Parliament is responsible for creating laws that achieve the best possible outcomes for citizens, and for holding the government to account for its performance. Parliament must reclaim the British tradition of lawmaking, an empirical rather than a rational tradition where laws are judged on their effectiveness rather than their intention or legalistic tidiness. This means being more willing to amend legislation where its effect has become perverse, such as the examples above about the Equality Act and Climate Change Act.

Doing this well will require Parliament to be more responsive to judicial decisions, passing short bills to clarify its intention where judgements are not consistent with the outcomes Parliament is trying to achieve. For example, Parliament should have passed a short ‘notwithstanding’ bill immediately after the Next case to clarify that equal value can be determined by the wages being offered and accepted on the open market. This responsive approach to clarifying legislation is not overstepping Parliament’s responsibility - it is fulfilling a responsibility that Parliament is currently shying away from. In fact, Finance Acts routinely reverse tribunal and court decisions the government considers wrong, often retrospectively. The Treasury even sends Parliament an annual memorandum listing the retrospective measures and the rulings they correct.

Similarly Parliament must step up to the responsibility of holding the government to account, rather than shifting this responsibility to private citizens via the courts. Parliament should be the judge of whether a climate budget is an acceptable plan, or whether a development is in the public interest. These are value judgements that can only be made by the people or their representatives.

Courts

The judiciary's job is to apply the law without fear or favour, and to prevent those who hold power from abusing it. They should welcome a more responsive Parliament that states its intentions clearly and updates the law as the world changes — it makes their task easier, not harder, because it leaves less for them to infer.

What they should not do is decide whether power has been used well. Preventing the abuse of power and enforcing the wise use of it are different things, and only the first belongs to a court. Whether a minister informed himself sufficiently, weighed the right factors, or consulted widely enough are not questions with a legally correct answer. They are the very stuff of politics, and the people already have a mechanism for judging them. The scope of judicial review should be tightened so that it bites only where an action is an unambiguous abuse of power — not wherever a decision falls short of a judge's expectation of good practice.

This would mean retaining the duty for judges to intervene where a government violates fundamental legal protections, breaches statute or statutory duties. But judicial review should no longer consider whether decisions meet judges’ own standards of good process. A government should not be stopped for:

Regulators

Regulators are delegated power by Parliament to take decisions that must be made impartially. This does not include policy decisions - these are inherently political and must be taken as part of a democratic feedback loop. Regulators should be responsible for the impartial application of policy in spheres where the risk of corruption or abuse of power would be intolerable were it left to politicians. This would apply, for example, to competition authorities as it would not be appropriate for individual politicians to routinely adjudicate on decisions about interfering in the market. It may apply to Ofsted, where it would not be appropriate for a Minister to influence the inspection outcome of a given school as these have to be impartial and objective. But it would not apply to the many other bodies who do not meet this criterion - Natural England, Sport England, the Migration Advisory Committee.

Insert regulator explorer, use to build out argument that we need fewer regulators overall (pushed to repo)
Can we do a bit of work on what regulators are common/not common in other advanced economies? Where are we outliers? (pushed to repo)

Corrective action

Adopting this approach is not enough. We will also need to undo some of the legacy of the existing approach. Parliament should:

Repeal sweeping superior legislation that enables the vetocracy. The British constitution does not have any formal notion of superior legislation - all primary legislation is equal in stature. And yet some acts have de facto acquired this status, partly through their scope and partly through emerging convention.

Much superior legislation has acquired its status from a sense of moral authority. It is well-intentioned and designed to protect that which would otherwise be at risk - such as minorities and the environment.

That the purpose is virtuous should not place the legislation itself beyond scrutiny. Superior legislation is both failing to achieve its purpose and doing so at great cost. As detailed above, judgements based on the Equality Act are making life outcomes worse for those it was supposed to protect, and progress on emissions reduction is occurring in spite of, not because of, the Climate Change Act.

This legislation not only fails to generate the intended benefits, it creates far more than the intended costs. There is no evidence that the Parliament that voted through the Human Rights Act intended it to become a route for criminals to avoid reasonable sanction. There is no evidence that the Parliament that voted through the Equality Act intended it to bankrupt councils for paying market wages, or that if they had been presented with that potential outcome, they would have accepted such an outcome as a necessary trade-off for the act’s wider benefits.

Existing superior legislation should be repealed and be replaced by much tighter legislation that removes present day (a) ambiguities and (b) duties that supersede all other concerns.

For example, the Equality Act should be replaced by a much shorter Act built on clear lines. Direct discrimination should be outlawed outright, including where an employer uses a proxy, such as an irrelevant requirement adopted in order to exclude a particular group, with predictable sanctions and a simple route for employees to bring claims without needing a lawyer. But employers should not face liability simply because a reasonable practice produces uneven outcomes between groups. And the equal pay rules should recognise that the wage people will accept to do a job is a legitimate measure of its value.

Similarly, the Human Rights Act should be replaced by legislation that returns to Parliament the decisive judgement it currently hands to the courts. Most Convention rights are qualified: they may be restricted where necessary in the public interest. The problem is not the rights themselves but that judges, not Parliament, decide when a restriction is justified. Where Parliament has set out how the balance should be struck, for example that foreign criminals should be deported, courts should apply that rule rather than substituting their own assessment of proportionality.

Reassert Parliament as the judge of whether a government is setting and meeting its objectives. The present situation, where some policy goals exist on a statutory footing and others do not, is well-intentioned but perverse. It prevents governments from making trade-offs, regardless of the need that may emerge in other areas. For example, the Climate Change Act prevents the UK from defending itself in wartime if that would breach climate goals.

It is also perverse to have courts as the judges of whether a government’s plan to meet its objectives is a good one. This is not a legal decision but a political one. A court cannot decide whether it is a good decision for the government to bet on technological improvement over reductions in consumption. These are both reasonable strategies, and the choice between them should be made democratically.

Instead of legislation that places some goals on a statutory footing and invites the judiciary to performance-manage the government on them, Parliament must own this role once more. Existing legislation such as the Climate Change Act should be repealed. Instead of trying to performance manage governments through legislation this duty should be returned to Parliament. MPs can demand that governments set out the goals of the administration and report against progress on these, and such goals could include climate and the environment if they were part of the manifesto chosen by the people.

Legislate to define the scope of judicial review. The conventions for what constitutes rational decision-making have become too broad in nature. This constricts reasonable decision-making and incentivises the generation of paperwork over the serious consideration of trade-offs. Parliament should pass legislation to make clear the role of the judiciary as detailed above, such that decisions cannot be cancelled on the grounds of judge-made standards of good process.

Legislate to define the scope of objectives and powers of all regulators. The scope of every regulator should be tightly defined in primary legislation. This is the case for some, but for too many their powers are defined in secondary legislation such that they can be easily expanded with little oversight. This exercise should be carried out after reviewing the objectives and powers of all regulators, ensuring these are aligned and that powers are proportionate to and focused on the objectives.

Cap regulatory expansion and let dormant powers lapse. Most regulators have their core purpose set in primary legislation but their powers defined in secondary legislation or inferred from broad objectives, allowing remits to widen with little scrutiny.

Powers, and where appropriate the bodies themselves, should carry sunset clauses, lapsing automatically unless a minister actively renews them with a short justification laid before Parliament. And a regulator's income and spending, whether from grant or from levies on its sector, should not grow beyond a set baseline without explicit ministerial sign-off, reconnecting the self-funded growth that currently escapes all spending discipline to an accountable political choice.

End one of the totemic examples of unpredictability - the Town and Country Planning Act. Parliament should show it is serious about ending the reign of unpredictability by dealing with one of the biggest manifestations of this problem immediately.

The Town and Country Planning Act, which embeds discretionary planning decisions and makes it close to impossible for those who want to build to know in advance if their proposal will be permitted. This should be replaced by a rules-based planning system, with discretion reserved only for applicants who want to do something beyond the scope of the rules. This could be achieved as an expansion of existing permitted development rights and design codes, both of which are already features of our planning system. Although the authors of this essay would prefer a more permissive system, a rules-based system need not be so if local communities decide otherwise. Its one inherent feature is that it’s predictable, so applicants can know what is allowed without needing to go through a planning process first.

As well as introducing a rules-based planning system, we should dramatically reduce the scope and volume of Building Regulations. Originally intended to protect consumers from unscrupulous builders and developers, these regulations now prevent homeowners from making perfectly reasonable adjustments or developers from building the features that prospective buyers actually want. The law should not dictate how you choose to ventilate your extension, or cap how big your windows can be.

Why would politicians do it?

Successive generations of politicians have chosen to outsource power. Why would they choose to reclaim it? The incentives have changed for three reasons, and so this has now become an option.

First, the shield of outsourced responsibility has stopped working. It used to be the case that outsourcing power and responsibility was a win-win for politicians. If things went well they claimed credit, if not they blamed the quango. This theory is now clearly not matched by reality. Ministers are, rightly, blamed for the consequences of the government's behaviour. Scandals such as the Post Office prosecutions, infected blood and grooming gangs have shown how interlinked the government is with the bodies it set up. The public do not distinguish meaningfully between them. Ministers get the blame when things go wrong - but outsourcing power means they lack the control to do anything about it.

Second, the vetocracy is now vetoing them. Initially the new system was blocking things other people wanted to do - developers, businesses, individual citizens. That has now changed. Ministers are finding that the vetocracy blocks them from doing things they have committed to do, often with an explicit democratic mandate. Their election pledges - new roads, new reservoirs, deportation flights - are being blocked by the anti-action infrastructure created by their predecessors. Honouring the commitments they’ve made to be elected requires them to remove the barriers.

Third, the political returns to honesty and accountability have risen. The outsourcing model depended on voters being willing to accept that complex decisions were best left to experts. That deference has collapsed, not just in Britain but across the democratic world. Voters are punishing technocratic governments, not rewarding them. A politician who stands up and says "I will make this decision; it comes with some trade-offs, I will own those trade-offs, and you can hold me to account for the results" is offering the refreshing honesty that voters want. The reclamation of democratic accountability is not just a constitutional argument, it is a political offer with an eager audience.

Although these three changes shift the incentives, this remains primarily a collective action problem. No one minister can decide to take on personal accountability because their decisions and actions remain at the mercy of all the elements of the vetocracy outside of their purview. This needs to be a decision either by a political party that ends up in government, or by the political class as a whole.

That decision would change political culture such that owning accountability becomes the expected and respected thing, and outsourcing it becomes something that requires justification.

What will be the consequences?

Restoring power to Parliament will start a positive flywheel. A Parliament that makes real decisions attracts people who want to make real decisions - improving the quality of those who seek election, and so improving the quality of lawmaking. As quality increases, so would Parliament's perceived legitimacy, further increasing the incentive to join it.

But the flywheel extends beyond Westminster. As the scope for unpredictable, discretionary decisions decreases, there becomes less need for the expensive regulatory apparatus and the shadow compliance systems it has spawned inside every major organisation. This in turn reduces the capacity to lobby for further growth in the regulatory state. And as the vetocracy loosens its grip, the speed of decision-making increases in ways that compound over time. Infrastructure that takes five years instead of thirty represents a qualitatively different country, not just a marginally better one. Borders are controlled, businesses can hire, ring roads get finished. This is not a fantasy, or liable to lead to dire consequences; it is how we observe other advanced economies in Europe working successfully today. We can just choose to operate more like they do.

This proposal is not without its own risks and trade-offs. Minority rights exist precisely because majorities cannot always be trusted to protect them. The Human Rights Act and Equality Act are not bureaucratic accidents. They are deliberate protections for people who might otherwise lose in democratic politics. They are there to protect against the tyranny of the majority. If these can be overridden then maybe we’re not just streamlining government, we are removing an essential set of safeguards.

This is a serious concern, and it would be a reasonable argument against sweeping away all such laws wholesale. But it does not justify inaction or the excesses we have today.

First, because these safeguards, whilst nice in theory, fail in practice. Did the application of the Equality Act protect low-paid women in the Birmingham judgement? Salaries of teaching assistants in Birmingham aren’t meaningfully higher today. The effect of the Equality Act in this case was to depress the wages of refuse collectors and leave streets piled high with rubbish following prolonged acrimony. Has the Climate Change Act reduced emissions? Technological change bore the brunt of the work, whilst the Act has empowered a litigious minority to block the investment needed for the next wave of progress.

Second, because the British constitution has been built up over centuries of hard-fought experience to prevent tyrannical majoritarianism. A Parliament with free votes, strong select committees, an upper house, and MPs who need to seek frequent re-election is an excellent defence against the tyranny of the majority. Repeated governments have shown us that the most effective constraint on a radical government is its own backbenchers.

The danger of an unchecked Parliamentary majority is small and without modern precedent. But the danger of unchecked legal-regulatory power is here today. This power is not subject to electoral discipline or corrective feedback loops in the way Parliament is. It stands above these - free to impose its views, however radical, whatever the cost. From observing other liberal democracies around the world it is clear that it is possible to operate without our level of complex legislation and regulation, and without descending into dictatorship.

Thirdly, because, by making law unpredictable and discretionary, the current system creates more vulnerability for those without resources to navigate it, not less. A clear, simple law against direct discrimination, predictably enforced, does more for a minority employee than a sweeping Equality Act that favours those with the knowledge and resources to bring legal action. The best protection for minorities is not a thicket of superior legislation. It is a high-trust rules-based society with predictable boundaries that are easy to enforce.

None of these arguments are that the transition will be easy. True, there are no great technical or delivery challenges, however the political challenge is significant.

Many of the proposals above will look like a watering down of the state’s commitment to good causes. We need to make the case that it is a good thing to increase democratic accountability, that the best protection for good causes comes from the people rather than the quangos.

Many people are also employed by or depend on this system for their employment. They will lose out from these changes, both economically and in terms of their social status. It will be rational for them to oppose these changes. But preserving the status of a group of bureaucrats is not a sufficiently good reason to continue imposing these costs on the public at large. And those people who are ‘losing out’ may, in many senses, win. They could be doing far more productive and fulfilling things with their lives, and this set of changes would set them free to do so, difficult as the transition might be for them.

And there is hard work to be done in the transition. Repealing superior legislation is not enough - it needs replacing. Parliament must legislate clearly and quickly to fill the gaps created by repealing, or else this action will increase rather than reduce uncertainty. It must plan reform carefully and legislate replacement frameworks in parallel. This requires serious, difficult, careful policy and legislative work.

Changing the quality of people in Parliament is also not a passive activity. Restoring power does not immediately restore capability. Political parties committed to this change will need to convince a cadre of excellent people to join them as parliamentarians, otherwise they will fall short of the bar of exercising newly won power well. There is clearly a ‘chicken-egg’ coordination challenge to be overcome here, and doing so will require exceptional and inspirational leadership.

These difficulties are real, but they can be overcome. The status quo is not a safe option. It is easy to present the existing settlement as the cautious choice and reform as the risky one. But the costs of the current system are large and compounding: blocked infrastructure, perverse legal rulings, the slow erosion of democratic habit, and a growing public sense that the people who make decisions that affect their lives are not the people they elect. These costs do not appear on any balance sheet, but they are real. The costs of reform, by contrast, are largely transitional: a period of legislative catch-up, some international friction, the discomfort of politicians who have grown accustomed to shelter behind outsourced decisions. On any honest accounting, the costs of remaining where we are outweigh the costs of change.

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