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

Can Boris Johnson simply repeal the Fixed-term Parliaments Act?

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The Conservative manifesto pledged to repeal the Fixed-term Parliaments Act, but was silent about what, if anything, would replace it. Robert Hazell argues that it is not enough to simply repeal the Act; new legislation will have to be drafted, parliamentary scrutiny will have to take place, and the options for reform should be properly considered.

Can the Fixed-term Parliaments Act simply be repealed? The short answer is: no. As always, it is more complicated than that. But the commitment in the Conservative manifesto was unambiguous: ‘We will get rid of the Fixed Term Parliaments Act [sic] – it has led to paralysis at a time the country needed decisive action’ (page 48). And decisive action is what the government hopes to display through early repeal of the FTPA. It does not seem to be one of the issues to be referred to the new Constitution, Democracy and Rights Commission, since they were mentioned separately in the Queen’s Speech. So — unless the government has second thoughts — we can expect early legislation to be introduced to repeal the FTPA.

The government may feel that it can press ahead with little opposition, since the Labour manifesto contained an equally unambiguous commitment to repeal: ‘A Labour government will repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments’ (page 81). But there is no need for urgent legislation: this is not a pressing issue, and with a government majority of 87, we are not going to see motions for early dissolution or ‘no confidence’ any time soon. And there are good reasons for taking it more slowly: not least, that there is provision for a statutory review of the FTPA in section 7 of the Act, due to be initiated in 2020. In anticipation of that review, the Lords Constitution Committee is already conducting an inquiry into the operation of the Act, due to conclude in around March.

The evidence submitted last year to the Constitution Committee (in 14 written submissions, and four sessions of oral evidence) has brought out many of the difficulties involved. These are both political and technical. The main political difficulty is that repeal of the Act would return us to the situation where the incumbent Prime Minister can choose the date of the next election. No one disputes the potential advantage that confers: in Roy Jenkins’s famous phrase, uttered during a Lords debate on 11 March 1992, it is equivalent to deciding ‘to give the pistol in a race to one of the competitors and encourage him to fire it whenever he thinks that the others are least ready’. It also enables the government to time the election when they are doing well in the opinion polls, and to stoke up their support through good news announcements and giveaway budgets. Petra Schleiter’s research shows that this confers a significant electoral advantage: in the UK since 1945, the average vote share bonus realised on calling an early election was around 6%, and it doubled the likelihood that the incumbent PM survived in office.

Electoral fairness is the main argument for fixed terms, but not the only one. Other reasons include better planning in Whitehall because of greater certainty, less risk of losing legislation to a snap election, more clarity for the Electoral Commission and electoral administrators, and for the political parties. It is true that electoral certainty has not been much in evidence in recent years, with two early elections in 2017 and 2019. But it would be wrong to judge the FTPA solely on the basis of the extraordinary Brexit parliaments of 2015 and 2017. It is too early to rush to judgement, and it is too insular: most of the Westminster world, and almost all European parliaments have fixed terms, so there is plenty of wider experience to draw upon. A more balanced approach would ask – as the Lords Constitution Committee has done – whether the FTPA needs fine tuning, and if so what amendments are required, rather than rushing straight to repeal. 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

Should we codify the royal prerogative?

com.google.Chrome.vxw6lk.jpgThe recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading