2020: A New Dawn for UK Constitutional Reform?

This article by Stephen Clear, Lecturer in Constitutional and Administrative Law, at Bangor Law School was published here on the 17th December 2019.

Last week’s General Election returned a decisive Conservative majority– the likes of which have not been seen in the UK since 1970. During campaigning much was reported on Tory pledges to deliver Brexit. And, this week, it has been reported that new Bill amendments are already in the pipeline to ensure there are no further delays.

However, Boris Johnson’s other plans to change the UK Constitution gained less exposure- despite his party’s manifesto setting out radical proposals for reform. The scale and significance of the new proposals are comparable to those during the infancy years of Tony Blair’s Labour administration in 1997. The Conservative manifesto states the changes are owing to a “destabilising and potentially extremely damaging rift between politicians and the people” under the last parliament. They recognise that one of the strengths of the UK’s Constitution is its ability to evolve, and how, following a loss of faith in politicians, the need to change is now “greater than ever.” So is 2020 set to be a new dawn for UK constitutional reform?

Conservative party majority following the General Election in December 2019.

Electoral reform

Amongst the most voluminous proposals, are those relating to changes to the way we elect MPs. The manifesto sets out plans to deliver constituency boundaries reform- a move which would reduce the number of MPs from 650 to 600. Yet the Boundary Commission consultation exercises depicted how smaller regions, such as Wales, disproportionately lose more MPs under the proposals than other parts of the UK. There are also concerns that the new consistency lines have been curated in order to favour specific political parties (such as the Tories and Labour parties).

Other controversial proposals, that are only briefly mentioned, include the requirement to produce identification to vote at polling stations– a move which has been criticised as denying the right to vote to our most disadvantaged within society. For example, those who cannot afford to apply for a driving licence or passport.

However, of greater constitutional significance are proposals to repeal the Fixed-Term Parliament Act 2011. The Act stipulates that General Elections must be called every five years, with early elections held only in exceptional circumstances- such as where the Commons agree to such by a two-third majority, or if there is a motion of no confidence in the Government.

The Conservatives believe that the Act is being used as a political tool, and has led to “paralysis” in parliament, at a time when the “country needed decisive action.” Removing the default date for a General Election has sparked concern that such gives the Prime Minister discretion to decide when to call an election, and could see this Government’s term last a decade. The concern therefore becomes what constitutional safeguards would be put in place to replace this law and counterbalance against the arbitrary power of Government? The answer to which, we currently do not have an answer.

In other areas the status-quo will prevail. At a time when Wales and Scotland are reducing the voting age to 16, the Conservatives want to maintain 18 years old for voting in Westminster elections. Similarly, despite repeated calls to look at alternative proportional voting systems, the Conservatives state that the simplicity of the First Past the Post system will be maintained.

revisiting human rights

Repealing the Human Rights Act 1998 and replacing it with a ‘British’ Bill of Rights, has long been mooted by the Conservatives. Such was discussed as a post-Brexit possibility under the last Parliament.

Read more: UK Human Rights Act is at risk of repeal – here’s why it should be protected

The Conservative manifesto discusses the need to revisit the balance between freedom of expression and national security within the context of rights- pathing the way for a possible repeal of the Act.

The pro’s and con’s of the Human Rights Act 1998.

Other changes include a commitment to promoting free speech, by repealing section 40 of the Crime and Courts Act 2013 and calling a halt to a second Leveson inquiry– which has been recognised as being too burdensome in operating against legitimate investigative journalism.

On the other hand the manifesto commits to revisiting the right to free speech within the context of parliamentarian rights– in light of the abuse and threats MPs received via social media under the last parliament.

Such, again, hints that a wider human rights review is on the cards under this Government.

‘updating’ administrative justice

Interestingly, despite cuts in legal aid, and concerns about the justice system, the manifesto promises to “update” administrative justice.

They pledge to ensure a “proper balance” between the rights of individuals and effective Government- via a commitment to ensure judicial review is available to protect the rights of the individuals against an “overbearing state.” While ensuring that it is not abused to conduct politics by other means, nor create needless delay.

There is a distinct lack of detail as to how this will be achieved in reality. It will be interesting to see the metric that is used to achieve this “proper balance”– particularly when judicial review has been significantly reformed in recent years, and now criticised for offering too speculative of an outcome for the average layperson.

changes to parliament

The only date given within the manifesto in respect of these changes is that of setting up a new Constitution, Democracy and Rights Commission within one year. Reading between the lines, its function will be to adopt a wider review of the Constitution, through the guise of addressing trust within politics.

Given the recent Supreme Court Miller 1 and 2 judgments, it is likely that the Commission will focus on the relationship between the UK Parliament and Government. In particular the way in which governmental privileges, executed via the royal prerogative, exist within the UK, and the extent to which parliament can monitor and challenge such powers.

The manifesto also hints at possible further reform to the House of Lords, which has not seen substantial changes since the Blair Government introduced the House of Lords Act 1999– which substantially reduced the number of hereditary peers within the Upper Chamber (down to 92); and the Constitutional Reform Act 2005– which removed the Law Lords, introduced a separate Supreme Court as the highest court of Appeal within the United Kingdom, and substantially changed the role of the Lord Chancellor (by replacing his or her judicial function with a separate individual- the Lord Chief Justice of England and Wales).

However, it is currently unclear what form Boris Johnson’s reform of the Upper Chamber will take. It is likely the Conservatives will want to explicitly reaffirm the supremacy of the Commons over them via a new Act, and possibly revisit their ‘powers of delay’ – something that David Cameron considered implementing following the Strathclyde Review in 2015, and Theresa May subsequently threatened when the Lords refused to pass her Brexit legislation through to Royal Assent straightaway.

the future for the uk union

However, the most seismic constitutional challenge for the PM is the future of the UK Union. The party claims to want to strengthen the Union, and deliver Brexit to ensure shared prosperity across the four Nations.

Throughout, the manifesto states the need to avoid a second Scottish independence referendum. More recently, senior Ministers have reported that the Conservatives will never re-run such within this parliament.

The SNP responding to The Rt Hon Michael Gove MPs comments that there cannot be a second Scottish Independence Referendum.

Legally speaking, under the devolution legislation, the make-up of the UK is a reserved matter for Westminster, not for Holyrood. However, politically speaking, as articulated by the former First Minister of Wales via Twitter, it is difficult to envisage the UK Government being able to arbitrarily force a country to stay in the UK Union against their will.

Should the political will for another independence referendum continue in Scotland, it is likely that the UK Government will be forced back into Court by the SNP– albeit with limited prospects of legal success given the explicit wording of ‘reserved matters’ within the Scotland Act 1998, but with much political gain for the SNP’s cause.

the future

It should be noted that manifestos are not legally binding. They are merely political promises. There is no absolute legal expectation to deliver on such- a principle that has been tried and tested within Court in relation to Lib Dem promises for free University tuition, when they joined forces with David Cameron in the 2010 coalition Government.

However, early signals from the PM in wanting to pass his pledges into law, when coupled with an 80 strong majority, indicates that he has the legitimate mandate- and numbers- to deliver these reforms at pace.

In Boris Johnson’s own words “you ain’t seen nothing yet folks!”

Got a question about this blog post? email s.clear@bangor.ac.uk. The images on this post are taken from Pexels (who offer licence free photos, for use without accreditation, for further information see: http://www.pexels.com).

Published on the 17th December 2019

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