Boris Johnson’s constitutional legacy

Boris Johnson’s premiership is expected to end on 6 September, when it is anticipated that he will offer his formal resignation to the Queen at Balmoral and make way for the winner of the Conservative Party leadership election. Lisa James demonstrates that his time in office has been marked by an impatience with constitutional checks and balances and a willingness to depart from convention. She argues that his legacy risks being the normalisation of such behaviour.

What have been the major issues and challenges during Johnson’s premiership? 

Constitutional controversy has been a consistent feature of Boris Johnson’s premiership. His first months in office, amid the turmoil and acrimony of the late-2019 Brexit deadlock, were marked by the unlawful prorogation of parliament, suggestions that he would defy the law, and briefings from allies that if the Commons withdrew its confidence he would ‘dare the Queen to sack him’.

Thankfully, the monarch was not dragged into Johnson’s resignation this summer. But the Prime Minister stepped down only after a tense standoff with his own party, as it forced him from office over a series of standards-related scandals. The most prominent of these, partygate, will outlast Johnson’s premiership – with the Privileges Committee’s investigation into whether the Prime Minister misled parliament ongoing.

Though the intervening years perhaps lacked such obvious constitutional fireworks, these topics were never off the agenda. The Johnson government’s reform programme, and behaviour, often provoked controversy; the COVID-19 pandemic raised questions about how the country should be governed in times of crisis; and the fallout from Brexit heightened tensions over the territorial constitution, as discussed elsewhere on this blog – particularly in Northern Ireland.

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What happened to the Constitution, Democracy and Rights Commission?

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.

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How do you solve a problem like judicial review reform?

The Independent Review of Administrative Law (IRAL) announced last autumn has been much criticised for both its remit and its process. Joe Tomlinson and Lewis Graham offer an early assessment of the review, highlighting the flaws in its conception and design. They also acknowledge that the recently announced review of human rights seems not to be repeating the mistakes of IRAL.

In our constitutional system, it is a reality that central government wears two hats in relation to the judicial review system: the actor chiefly responsible for the design and management of the system in practice and the key ‘repeat player’ defendant. It is almost inevitable that, from time to time, tensions will result from this arrangement. Indeed, the UK has a rich history of governments of different political stripes ‘clamping down’ on the judicial review system and ‘striking back’ against specific court judgments. When such moments occur, they understandably provoke a form of constitutional anxiety that is familiar in the UK: a sense that the government is allowed to mark its own homework (or at least to exercise influence over the marker). While cyclical anxiety about the position of judicial review and looming reforms may be better understood as a feature not a bug of our contemporary system, startlingly little attention has been paid to the issue of how reform to the judicial review system ought to be considered. 

The importance of the reform process adopted was on display recently when, after being on the wrong side of a series of high-profile court cases, the government announced that the time was right for a new wide-ranging reconsideration of judicial review. It was clear immediately that this review—styled the Independent Review of Administrative Law (IRAL)—promised to be the most expansive policy examination of judicial review in decades. It is chaired by Lord (Edward) Faulks—a former Conservative Justice minister and now a crossbencher in the House of Lords—and constituted of a small group of academics and practitioners. Six months or so later, there has been much angst about potentially regressive changes being proposed and the defence of the current system has been robust. However, at the same time, many have been pointing to what they perceive to be significant deficiencies in the reform process. Features of the IRAL process which have drawn criticism include:

  • Confusion over the parameters of review: IRAL’s formal Terms of Reference have been described by Mark Elliott as ‘replete [with] syntactical errors’ and commentators have drawn attention to a number of ambiguities relating to the scope of the Panel’s mandate. For example, whilst the Review’s Call for Evidence confirmed that it was ‘considering public law control of all UK wide and England and Wales powers only,’ it seemingly left open a number of questions as to how any proposed changes to the law would affect devolved institutions (see here, here and here). The consultation also contains a paucity of relevant information, in contrast to previous consultations, which included details of the specific proposals and empirical data being considered. 
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