Yesterday I gave oral evidence (via Zoom) to the House of Commons Public Administration and Constitutional Affairs Committee (PACAC). It is conducting an inquiry into the government’s proposed ‘Constitution, Democracy and Rights Commission’. Late last year, in its General Election manifesto, the Conservative Party committed itself to setting up such a body within a year, a pledge subsequently reaffirmed in the Queen’s speech.
I was appearing specifically because of my association with a project (the Citizens’ Convention on UK Democracy) considering how deliberative democracy might incorporate members of the public into a process of this kind. But before we get to the particulars of how a Commission might operate and ways in which it might engage more widely, it has to exist, have members, and terms of reference.
My fellow-witnesses were the former MP, Graham Allen (on a panel with me, and Convenor of the Convention project); and on a preceding panel, Professor Meg Russell; and Lords Lisvane and Sumption.
It became apparent that none of us, nor anyone on PACAC, had any idea when this Commission is likely to be set up; the form it will take; who will sit on it; how it will operate; what issues precisely it will look at – or indeed if it will ever appear at all. Potentially, it will be dealing with some weighty matters: the balance of power between executive, legislature and judiciary; the status of the House of Lords; public access to justice; the powers of the intelligence and security agencies; and the future of the Human Rights Act (though some of the work that might have fallen to the Commission seems to have been taken on by the Independent Review of Administrative Law announced in July).
In other words, this Commission – if and when it comes – is likely to be a subject of controversy. The wording of the Conservative manifesto pointed to the party leadership having clearly formed views on the direction in which any investigations in this area should lead. For instance, it conveyed the sense of excessive judicial power being a problem that needed solving; and of the executive being subject to unnecessary constraints. Some would dispute these premises. The Commission will therefore be subject to considerable scrutiny from the outset as to whether it is a genuinely independent inquiry, or a delivery mechanism for the predetermined conclusions of the government.
In this context, what is to be made of the official silence on this subject? Given the original deadline of one year to instigate the Commission, time is running short. It is possible that the body could be announced soon. It might be delayed beyond 12 months, on the reasonable grounds that more pressing matters have been a distraction. The government might be waiting for an opportune moment to rush through a process. It might have lost interest in a Commission; or never have been particularly serious about it. It might be keeping its options open. At the moment, those of us outside government – including the parliamentarians who sit on PACAC – can only guess.
This experience leads to certain observations about the nature of the UK constitution. Within our system, the executive is never all-powerful, and is subject to various legal and practical limitations. But it has important sources of strength, central among which is its power of initiative. Not only can it determine the content of proposals, but also the timing. Moreover, alongside the ability to act, the ability not to act can be important. We can only wait, speculate, and perhaps eventually respond.