The Johnson government’s constitutional reform agenda: prospects and challenges

thumbnail_20190802_092917.jpgThe Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should. 

Lord Dunlop was of the opinion that the new government is more likely to opt for targeted reforms rather than radical ‘big-bang’ changes. He expressed agreement with former First Parliamentary Counsel Stephen Laws, who has argued against ‘comprehensive constitutional reform’ and in favour of ‘limited changes to address weaknesses in our constitutional arrangements exposed by the process of UK withdrawal from the EU.’ 

One of the key weaknesses exposed by Brexit is the fragility of the Union. Lord Dunlop noted the significance of the Constitutional Reform Group’s proposed Act of Union, but argued that a quasi-federal Union was no answer to the problem of the dominance of England within the UK, and seems to ignore the fact that there is a ‘separatist’ government in Scotland. We are more likely to see the government seek to make Whitehall more ‘Union-focused’ in the way that it discharges policy, and to make the existing intergovernmental relations arrangements more robust. Other changes worth pursuing include working to reduce the size of the House of Lords and the repeal of the FTPA. As for the HRA, Lord Dunlop said that reform was more likely than outright repeal.

Lord Dunlop stated that he expects the timetable to have parallel tracks, running at different speeds. Early priorities, like the review and repeal of the FTPA, are likely to happen quickly, whilst the Constitution, Democracy and Rights Commission is likely to follow a slower process. He observed that if it is to be of value, its independence and credibility will be vital, which suggests the need for a process of public consultation before it begins its work. 

Lord Dunlop reflected that if ‘take back control’ is to mean anything, then it must enable a reassertion of the role of the UK parliament, preventing judges from having to decide political questions. Whilst he does not believe it is for parliament to act as the government, nor does he think a government with a strong majority should fear parliamentary oversight. A government kept on its toes by parliament is likely to produce better law: one of the dangers of a large majority is that parliament may not be so efficient and effective in its scrutiny as it was during the years of minority government. 

Chris White  

Chris White expressed agreement with Lord Dunlop’s observation that there were both short and longer-term influences on the decision to pursue a constitutional reform agenda. The manifesto was ‘a product of its time’ – there was frustration within government and the Conservative Party with parliament, the courts and MPs – but there have also been a number of issues ‘bubbling away’ for some time. 

One of the key constitutional problems identified by White is with the functioning of the royal prerogative. The repeal of the FTPA was welcomed by White, but he acknowledged that doing so also raises big questions about what should replace it: the previous prerogative power will not simply spring back into place

Preventing the ‘abuse’ of judicial review is another issue that White sees as a response to a long-term trend. White stated that his time in government taught him that civil servants are extremely cautious in the way that they behave because of the ‘burdensome’ extent of judicial review, and ministers in turn feel that the policy-making process should be easier. White expressed his concern that judges can amend policy via judicial review; in his opinion, this is improper, given that courts are ‘unaccountable’ in a way ministers are not.

White also raised the size of the House of Lords, and suggested there are ways to reduce the number of peers more quickly than the current system of retirement can accomplish. As for moving the House of Lords chamber to York, a range of practical implications would have to be considered before this was proposed in earnest. Other worthwhile reforms to parliament may include giving greater powers to select committees to summon witnesses unwilling to attend, and making sure that the government is properly scrutinised in the Commons by requiring the regular scheduling of opposition days. This latter change would avoid a repetition of the five-month period in the 2017-19 parliament during which no opposition days were granted.

White argued that we should not expect to see any detailed scrutiny of the electoral system, the voting age, or the Union – if there are to be changes to the devolution settlements, he was of the belief that they will primarily involve England.

Addressing the practicalities of the Commission, White recalled the quote from Yes Minister: ‘A basic rule of government is to never look into anything you don’t have to, and never set up an inquiry unless you know what in advance its findings will be.’ He argued that Brexit has shown that we do have to look into the operation of the British constitution, but it is not clear if the government knows what it wants to achieve. If it is genuinely seeking answers to some of the big constitutional questions raised above, then decisions about who chairs the Commission, who is on its panel, who gives evidence, and its remit, will all have to be taken with care. On the other hand, if the solutions are pre-determined, and the plans that emerge are obviously partisan, they may not last much longer than the government that introduces them.  

This post is a summary of the main contributions of the two speakers, and does not include any discussion of the interesting Q&A that followed. You can watch the complete event here, and view previous event videos on the Unit’s YouTube page

Our next event is:

‘The Fixed-term Parliaments Act: repeal or reform’.

Carl Gardner, legal commentator and former government lawyer, David Howarth, Professor of Law and Public Policy at the University of Cambridge, and Petra Schleiter, Professor of Comparative Politics at St Hilda’s College, Oxford.

Chair: Meg Russell, Director of the Constitution Unit.

24 March at 6pm.

Please visit our events page to sign up. Seminars are free and open to all, but please arrive early to avoid disappointment.

About the author

Sam Anderson is a Research Assistant at the Constitution Unit.