Tag Archives: Independent Review of Administrative Law

The 2019 Conservative Party manifesto: were its pledges on the constitution delivered? 

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The 2019 Conservative Party manifesto contained a number of constitutional policy commitments – on Brexit, UK institutions, elections, civil liberties, and devolution. As the manifestos for this year’s general election emerge, Lisa James assesses the delivery record of the 2019–24 Conservative governments against the pledges made in 2019. 

The 2019 Conservative Party manifesto contained a wide-ranging set of constitutional commitments. Since its publication much has changed – the UK has left the EU, experienced a global pandemic, and had three Prime Ministers and five Chancellors of the Exchequer. But delivery against manifesto commitments still matters, so with the 2019–24 parliament dissolved, now is the time to reassess the pledges that were made. 

Getting Brexit done 

The single highest profile – and titular – pledge of the manifesto was of course the promise to ‘get Brexit done’. The election followed a period of parliamentary deadlock, and the negotiation of Boris Johnson’s Brexit deal. The manifesto pledged to pass this deal, limit the length of the ‘transition period’ for negotiating new trade arrangements, end the jurisdiction of the European Court of Justice (ECJ) over the UK, and end the supremacy of EU law. 

The Brexit deal was rapidly passed following the Conservative general election victory, and the UK left the EU on 31 January 2020. The pledge not to extend the transition period beyond the end of 2020 was also kept. The deal largely removed ECJ jurisdiction from the UK, but the court retained a continuing role in relation to Northern Ireland as a result of its treatment under Johnson’s Brexit deal (discussed further below). The supremacy of retained EU law (a special category of legislation derived from the UK’s EU membership) was ended by the Retained EU Law (Revocation and Reform) Act 2023. 

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What happened to the Constitution, Democracy and Rights Commission?

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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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Parliament has the right to reverse judicial decisions, but governments must be careful not to undermine the important role the courts play as a check and balance in our unwritten constitution

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The Independent Review of Administrative Law provoked much criticism and concern when it was announced by the government, but its final report was less radical than many predicted. In the last of our series of posts from speakers at our June conference on the government’s reform agenda, Lord Faulks speaks of the work of the review panel, which he chaired, and the government bill that resulted, which went further than the review recommended in terms of limiting judicial review.

The government has now published the Judicial Review and Courts Bill, which has had its first reading in the House of Commons and will proceed through its remaining parliamentary stages in the autumn.

The Independent Review of Administrative Law, which I had the privilege of chairing, will now be a footnote in the development of the law in relation to judicial review. The panel no longer exists and its members have returned to their normal pursuits

I would like to think, however, that we made a useful contribution to the debate. There were some commentators who thought the setting up of the review was ‘sinister’ and that our conclusions would inevitably lead to the radical reform of judicial review. I can assure those who said this that the review was genuinely independent, in the sense that we reached our conclusions entirely free from any interference by government. We were, however, influenced by the many high quality submissions that we received. Whatever our preliminary views might have been, we approached our task in an open way and without any predetermined conclusions.

The response by the government was at least initially, that it wanted to go further and it set in motion a further consultation. That was a course, it seemed to me, that it was entirely open to it.

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The anatomy of democratic backsliding: could it happen here?

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The term ‘backsliding’ has been coined to describe the phenomenon by which leaders who come to office within a democratic framework, only to attack some of democracy’s core features when in office. Stephan Haggard and Robert R Kaufman outline some of the key features of ‘backsliding’, discuss how and why it can take hold, and whether there are warning signs that such a process could happen in the UK. 

During the presidency of Donald Trump, American democracy suffered the most serious challenge it has faced since the country’s Civil War. Trump and his administration inflamed divisions that jeopardise the rights of women and minorities; attacked the press; defied oversight; sought to stack the judiciary and law enforcement agencies with partisan loyalists; challenged the integrity of the electoral system, and ultimately stoked a violent challenge to the democratic transfer of power. These threats were different from conventional forms of democratic reversion, such as the coup d’etat. Instead, they reflected a more insidious process that has come to be known as ‘backsliding,’ in which illiberal leaders rise to power within a democratic framework and attack core features of democracy from within.

Because the United States occupies a unique position at the heart of the international system, backsliding there commanded worldwide attention. But the United States was hardly alone. In a new study, we identified at least 15 other countries in which duly-elected democratic governments recently moved along similar paths. Not all of these paths lead all the way to autocracy; in the United States, democracy survived the Trump era badly damaged but intact. But depending on the metric used, more than half of these cases slid into ‘competitive authoritarian rule’: systems in which elections persisted but were manifestly rigged. Notably, although many of the failed democracies we examined were weakly institutionalised at the outset (for example, Bolivia, Ukraine, and Zambia), others such as Hungary, Poland, and Venezuela were once considered relatively robust democratic regimes.

These cases raise the question of whether similar adverse developments could occur in other seemingly stable democracies. Could they perhaps even happen in the UK? 

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