The 2019 Conservative Party manifesto promised to appoint a Constitution, Democracy and Rights Commission to conduct a wide-ranging constitutional review. In practice, this promise has not been delivered. Tom Fleming and Petra Schleiter discuss this by summarising their recent article about the Commission, Radical departure or opportunity not taken? The Johnson government’s Constitution, Democracy and Rights Commission, as published in ‘British Politics’.
What did the government promise?
At the 2019 general election, the Conservative Party’s manifesto promised to appoint a ‘Constitution, Democracy and Rights Commission’. This body would be tasked with reviewing various aspects of the constitution and producing proposals ‘to restore trust in our institutions and in how our democracy operates’.
The Commission’s proposed remit was very broad, encompassing many of the central elements of the UK’s constitution. It would be asked to examine: ‘the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people’, as well as the Human Rights Act, administrative law, and judicial review. However, the manifesto was decidedly vague about how the Commission would be organised. There was no information about its proposed membership, format, or timeline, beyond a commitment that it would be established within a year of the election.
The manifesto’s language suggested that this proposal stemmed in part from the government’s experience of the Brexit process. This was most obvious from the manifesto’s controversial description of ‘the way so many MPs have devoted themselves to thwarting the democratic decision of the British people in the 2016 referendum’ creating ‘a destabilising and potentially extremely damaging rift between politicians and people’. This led some observers to warn against the dangers of the Commission ‘fighting the last war’ rather than crafting durable constitutional reforms.
Whatever its motivation, the proposed Commission had the potential to be a radical departure from previous investigations of constitutional reform in the UK. In particular, it held out the prospect of a joined-up review of multiple interconnected constitutional issues. Such joined-up thinking is vital for ensuring a coherent reform agenda, but has been conspicuous by its absence in recent decades.
Moreover, the Commission offered a potential opportunity for direct public involvement in discussing the future of the UK’s constitution, where previously their role has been mostly limited to endorsing certain changes in referendums. Public participation was not explicitly promised by the government, but might have served their goal of enhancing public trust in the Commission’s proposals, as well as ensuring that they had ‘long-term stability and broad support’.
How could this promise be delivered?
This proposal could have been implemented in a number of different ways. International experience offers a wide range of models for how constitutional review bodies can be organised.
Our article discusses four potential options in particular: elite commissions (small groups of relevant experts and/or political figures), representative conventions (larger bodies based on some form of indirect public representation), citizens’ assemblies (deliberative bodies composed of randomly selected citizens), and citizens’ assemblies involving political parties (where citizens deliberate alongside politicians).
Any of these four models could have allowed the government to deliver joined-up constitutional thinking, provided they had a sufficiently broad remit and access to an appropriately wide range of expertise. That expertise could either come directly (via the members of elite commissions) or indirectly (via advisers to representative conventions or citizens’ assemblies).
The government’s vaguer goal of its proposals generating public trust in political institutions could also potentially be achieved under any of these models. However, it might be most directly prioritised by the two citizens’ assembly models. Only these models allow members of the public to be directly involved in discussing constitutional reform (rather than being indirectly represented or responding to public consultations). This could enhance the likelihood of any changes being viewed as legitimate, not least by ensuring that any changes are rooted in clear evidence about how the public actually views the complex constitutional questions facing the Commission.
What has actually happened?
In practice, this potentially radical approach to drafting constitutional reform has not materialised. After the election, the government chose not to appoint a single Constitution, Democracy and Rights Commission. Instead, it has appointed a series of narrower issue-specific reviews, organised as elite commissions.
The first of these reviews was the Independent Review of Administrative Law (IRAL), chaired by Lord (Edward) Faulks, which investigated judicial review between July 2020 and January 2021. The government then appointed an Independent Human Rights Act Review, chaired by former Court of Appeal judge Peter Gross, which reported in October 2021. In both cases, the government then launched further consultations, which have been criticised by some for diverging from the conclusions of the IRAL and IHRAR respectively.
These reviews undoubtedly addressed important and contentious topics. But they clearly did not represent the overarching constitutional review promised in 2019. Moreover, even these two closely related questions were examined through separate bodies, rather than being considered jointly. The absence of joined-up constitutional thinking was further underlined by the inclusion of an ‘ouster clause’ in the Draft Fixed-term Parliaments Act 2011 (Repeal) Bill in December 2020. This aimed to protect the prerogative power to dissolve parliament from judicial review, so appeared to pre-empt IRAL’s then ongoing investigation of that subject.
The government initially denied that the Constitution, Democracy and Rights Commission had been abandoned. Instead it claimed that these reviews represented separate ‘workstreams’ that collectively delivered the Commission. But in reality there was no organisational link between the different reviews, beyond the fact that they both reported to the Lord Chancellor. These exercises were clearly narrower in remit, and more fragmented in form, than the promised Commission.
There are various potential reasons for the government’s change of approach. Giving evidence to the Commons Public Administration and Constitutional Affairs Committee in December 2020, the (then) Lord Chancellor Robert Buckland pointed to several factors, including the COVID-19 pandemic and the perceived downsides of a ‘Royal Variety Performance’ considering multiple issues at once.
In our article, we discuss several further possible explanations for this change of tack. We suggested that if the government’s underlying goal is to bolster its position and weaken parliamentary and judicial checks, a more fragmented review process may help to obscure the combined effect of any reforms, and to divide their opponents.
Why should we care?
The government’s failure to establish the Commission is important, whatever its causes.
Put simply, broken promises matter in politics. The Conservative Party made a manifesto promise to establish a Constitution, Democracy and Rights Commission, but have not delivered on that promise. Of course, party manifestos are only read by a very small number of voters, and constitutional reform is a relatively low salience issue. But the principle that parties should at least seek to implement their electoral promises is nonetheless an important one. Moreover, ongoing work from the Constitution Unit suggests that the public do have meaningful opinions on a wide range of constitutional questions.
Just as importantly, the promise of a Constitution, Democracy and Rights Commission suggested a potential opportunity for some overdue joined-up constitutional thinking, and for involving the public in a conversation about how the UK should be governed. The failure to appoint this Commission thus represents a missed opportunity on both counts.
This post is a summary of a much more detailed article, which is available to download.
About the authors
Tom Fleming is Lecturer in British and Comparative Politics at UCL.
Petra Schleiter is a Professor of Comparative Politics and Joint Head of the Department of Politics and International Relations at the University of Oxford. She is also a Fellow of the UCL Constitution Unit.