The government’s proposed Constitution, Democracy and Rights Commission: what, why and how?

meg_russell_2000x2500.jpgalan.jfif (1)The Conservative Party manifesto promised a ‘Constitution, Democracy and Rights Commission’, but as yet little is known about the government’s plans. Meg Russell and Alan Renwick reflect on what such a Commission might look at, and how it might go about its work. They conclude that a long-term perspective is important, so that the Commission is not just ‘fighting the last war’ over Brexit. Given the fundamental nature of the questions that may be asked, citizens should be fully involved.

Page 48 of the Conservative Party manifesto committed the government to establishing a ‘Constitution, Democracy and Rights Commission’ within its first year. This could have a far-reaching remit, covering ‘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’, plus the operation of the Human Rights Act. Creation of such a body is clearly an ambitious enterprise, with potentially long-lasting effects – but, as yet, very little is known about the government’s plans for the Commission. This post first explores the ‘what and why’ of the Commission: which issues might it need to address, and what is the motivation behind it? Second, we consider the ‘how’: specifically, in terms of how the public could and should be involved.

What will the Commission review, and why?

The list of topics potentially ascribed to the new Commission is long, and covers some absolute fundamentals of the constitution. While the UK has seen much constitutional change in recent decades – most obviously Labour’s post-1997 programme, which included devolution and Lords reform, and the subsequent Constitutional Reform Act 2005 which established the Supreme Court – these developments involved no formal review of the core relationships between different constitutional branches. Indeed, Labour’s programme was often criticised as piecemeal, and for failing to go back to first principles. In some ways, a review of these fundamentals is therefore refreshing. But questions such as the proper balance of power between government, parliament and courts, and the role of the monarchy are also extremely big, complex and delicate.

So why are such challenging questions being asked now? This is where the Commission’s potential role gets more troubling. The UK has recently witnessed an exceptionally turbulent period in constitutional terms, with the referendum vote for Brexit followed by a significant struggle over its implementation. Particularly during 2019, tensions ran very high between government and parliament, with the Supreme Court becoming involved via the prorogation case. That these tensions helped motivate the proposed Commission seems clear from other words in this section of the manifesto, which suggest that ‘The failure of Parliament to deliver Brexit… has opened up a destabilising and potentially extremely damaging rift between politicians and people’. Leaving aside the question of which parliamentarians exactly were responsible for blocking Brexit, this statement highlights how concerns about the most recent period (including the Supreme Court’s role) have driven some on the Conservative side to seek reform.  Continue reading

Do we need a written constitution?

image1.000.jpgPrior to the general election, several of the parties’ manifestos called for the creation of a codified constitution for the UK. In December, the Constitution Unit hosted an event to debate the merits and downsides of such an exercise. Harrison Shaylor summarises the discussion.

What did the 2019 Liberal Democrat election manifesto and the Brexit Party’s ‘Contract with the People’ (from the same election) have in common? Both advocate the need for a written constitution in the UK. So too did the Green Party manifesto, and that of the Alliance Party of Northern Ireland. Meg Russell took part in a discussion on a written constitution in The Briefing Room on Radio 4 in September, and on 28 November, the Constitution Unit held its own event entitled ‘Do we need a written constitution?’. Two distinguished law professors – Sionaidh Douglas-Scott of Queen Mary University of London and Nicholas Barber of the University of Oxford – set out the case for and against a written constitution, in a debate chaired by a former Unit Director, Professor Robert Hazell. What follows is a summary of the presentations made by each participant. 

The argument for a written constitution: Sionaidh Douglas-Scott

‘Someone, I haven’t been able to trace whom, once said: Constitution building is a bit like dentistry: there’s never a good time for it; no one does it for fun; but it’s sometimes necessary and, when it’s done right, it prevents greater pain in the future.’

Professor Douglas-Scott explained that a constitution delineates the relationships between the major institutions of state, such as the executive and the legislature, as well as between the state and its citizens. More abstractly, a constitution says something about legitimacy and power. How does the state exercise power? And when is it legitimate for it do so?

The UK is unusual in not having a written constitution, in the sense of not having the fundamental rules of the constitution codified in a single document. It is one of only a few democracies in the world which lacks one, alongside Israel and New Zealand. The reason for this is historical. Since 1688, Britain has not experienced a revolution or regime change – a ‘constitutional moment’ – like the American or the French Revolution, or the withdrawal of colonial rule. Rather, Britain’s constitution has evolved slowly over time under relative stability; it has never been deemed necessary to list the fundamental laws and principles underpinning the country’s polity. As the Constitution Unit website states: ‘What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution.’

This arrangement, Professor Douglas-Scott argued, is no longer adequate. The current constitution is deficient for three reasons: its lack of clarity; its failure to properly protect fundamental rights; and the inadequacy of the current devolution settlement. Continue reading

Politics, courts and the UK’s single market

image_preview.jpgBrexit is likely to pose numerous legal questions about how the various parts of the UK relate to each other once the UK leaves the EU. Deborah Mabbett argues that the recent Supreme Court decision on prorogation is therefore unlikely to be the last time the judiciary is called upon to decide a matter related to Brexit.

Even among those who welcomed the Supreme Court’s decision on the prorogation of parliament, there has been concern that it has entered into dangerous new territory. It might have been forced there by a Prime Minister who failed to observe convention, or by a parliament that resiled from its duty to remove a government which has no majority, but forced it was, and this is a source of concern and regret. Several commentators have argued that the decision paves the way for a nasty and unpredictable election structured around a populist opposition of courts and parliament versus ‘The People’, and indeed those who see Dominic Cummings as an evil genius fear that this was the intention of the prorogation in the first place.

For those seeking a calmer view, the Court is clear in its self-assessment that, far from entering new territory, it is firmly placed on ground it has held all along. It has upheld the rule of law, in the specific sense of imposing limitations on arbitrary authority. This is the daily bread and butter of administrative law, of which there is a great deal more than excitable commentators seem to realise. Below the public gaze, the courts have dug in their heels over countless daily exercises of executive power, including the mistreatment of immigrants, the removal of welfare rights and the denial of access to justice. True, the arbitrary power challenged in these cases is not exercised by the contemporary king—the Prime Minister—but by the agents and minions of the state. Escalating the level of scrutiny to the actions of high political figures makes the prorogation decision a matter of constitutional rather than administrative law, but law it is.

On what grounds can it be claimed that the Supreme Court’s decision is ‘political’? The domains of law and politics cannot be defined by their subject matter, which clearly overlap across great swathes of social issues. We must look instead for differences in method and modes of reasoning. The characteristic method of politics is the structured antagonism of government and opposition, organised around the general political orientations of left and right. The belief that the Court had made this kind of decision seems to be behind the claim of Toby Young and Douglas Carswell, among others, that the prorogation judgment calls for action to ferret out and expose the partisan leanings of the justices. Yet left and right partisanship was obviously beside the point in the decision. Continue reading

How to rig an election

nic.cheeseman.oxfamOCkVQdGe_400x400 (1)As elections become more prevalent as the stated method of choosing who governs, is the world actually becoming less democratic? In their new book, How to Rig an ElectionNic Cheeseman and Brian Klaas argue that the increase in voting has not led to a corresponding rise in the embracing of democratic norms, with voter intimidation, strategic misinformation, and ballot-rigging common in many countries that describe themselves as democratic.

The greatest political paradox of our time is this: there are more elections than ever before, but the world is becoming less democratic.

Nowadays, elections are held almost everywhere. The vast majority of governments at least go through the motions of election campaigns, and are rhetorically committed to allowing citizens to cast ballots to choose the leaders who will govern them. However, in many places, that choice is little more than an illusion: the contest is rigged from the start.

In our new book, How to Rig an Election, we argue that elections have been co-opted by regimes across the globe to tighten their grip on power. Previously, it was assumed that a deluge of elections would lead to a flood of incumbents losing power. Instead, a small proportion of incumbents are losing office, and in some places, like sub-Saharan Africa, we actually find little difference in incumbent turnover rates since the ‘Third Wave of Democracy’ swept across the continent in the late 1980s. Some single-party dictatorships are actually less stable than ‘counterfeit democracies’ that are authoritarian but hold ostensibly multi-party elections. In other words, if you want to stay in power, rigging elections is preferable to not holding them at all. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading