Kemi Badenoch has been elected leader of the Conservative Party to renew its thinking.
The rationale of her ‘Renewal2030’ campaign is that once the Party can unite around common values again, it can begin the task of winning back the trust of former voters and the wider public. All the while, the Conservative Party membership will play a central role in developing the policy it will go into the next general election campaigning on. At Conservative Party Conference, Badenoch pitched herself as the engineer who would begin a once in a generation project to rewire, reboot and reprogramme the British state and economy.
She told delegates that this comprehensive plan would look at “our international agreements. At the Human Rights Act. The Equality Act. At Judicial review and judicial activism. At the Treasury and the Bank of England. At devolution and Quangos. At the Civil Service and the Health Service. At how we use power to give power to the British people.”
Post conference, and a long way pre-election, the new leader and her shadow cabinet now have plenty of time to drill down to first principles, to agree the proposed unifying philosophy and to come to a considered and settled view before formulating and refining policy.
But what can we already infer about the constitutional positions which Badenoch’s new look Conservative Party might adopt?
On the ECHR
One of the key dividing lines between Robert Jenrick and Kemi Badenoch was their difference in approach toward leaving the European Convention on Human Rights (ECHR).
Robert Jenrick was the only candidate of the six Conservative leadership hopefuls who explicitly proposed to exit the ECHR in order to “stop the small boats”, or combat illegal immigration.
Badenoch’s position was to acknowledge that she was prepared to leave the ECHR if she thought it would become necessary to control migration. Going further, at the GB News hustings she said the policy of withdrawal wasn’t a silver bullet, and “not even the most radical thing we could do.”
Leaving the ECHR is just one of a number of possible solutions for lowering immigration, and a proper plan is required to address areas which will be affected. This includes consequences for Northern Ireland related to the Belfast / Good Friday Agreement (B/GFA), for example. In the last Parliament, chair of the Northern Ireland Affairs Committee Sir Robert Buckland MP outlined the concerns the Committee heard from witnesses over the potential implications of the UK leaving the ECHR for Northern Ireland. These included:
- that there would be practical implications for policing given the duty for public bodies to comply with the ECHR;
- the Government would knowingly be in breach of the B/GFA, and withdrawal would trigger the review procedure built into it (requiring a joint review with the Irish Government, in consultation with the Northern Ireland Assembly);
- that Northern Ireland could have a “separate human rights framework” because the ECHR, as applied through the Human Rights Act 1998 and the devolution settlements, provides a UK wide standard of rights (a situation which a Queens University Belfast Professor said would represent “a failure of statesmanship”).
Some legal commentators have also made the point that the ECHR is intertwined with the devolution settlement envisaged by the B/GFA itself. For example, “the treaty itself – and not simply some abstract reference to it or the standards it sets – is a part of the safeguards guaranteed to all parts of the community in Northern Ireland on the basis of ‘mutual respect’” between rival political and community traditions that are preconditions for entry (along with complete rejection of paramilitarism) into the devolved institutions.
The ECHR is “woven inextricably with the framework of rights and safeguards which the B/GFA envisioned for Northern Ireland.” Neither detachable from the B/GFA’s text, and nor replicable by some statutory manoeuvre enacted at Westminster or Stormont (i.e. the Northern Irish Bill of Rights proposed by Robert Jenrick during the campaign).
While former UK Supreme Court justice Lord Jonathan Sumption advocates leaving the ECHR, he also conceded to the Spectator that a likely outcome of departure will mean Northern Ireland has to be left behind “in the Convention system.” This is mainly because in Sumption’s view, the B/GFA “specifically requires we confer [on citizens in Northern Ireland] the human rights envisaged in the Convention” – and partly also because the alternative of negotiating another arrangement with the Irish Government in Dublin would be so unlikely.
For reasons including Northern Ireland, we can expect Badenoch to take a more sophisticated and broader approach to reducing illegal immigration. This might include proffering new interpretations of UK’s human rights legislation, and how the courts should deal with asylum and immigration cases, where it appears we have a lower threshold for granting leave to remain than some other countries.
Shadow Home Secretary Chris Philp will aim to get to the heart of why other ECHR member countries like Germany reject more asylum claims than the UK, and why they also manage to deport more people who are there illegally. Clearly work can be done. In Poland, Prime Minister Donald Tusk announced last month he would temporarily suspend the right to asylum for people crossing the border from Belarus, after Chancellor Olaf Scholz introduced checks at all German border controls, in a move France has since said it wishes to replicate.
On quangos and NGOs
To understand Badenoch’s views on the influence and power of quangos, we must first put it in the context of what she calls the growing ‘bureaucratic class’ of people whose job roles are ultimately a drag on economic growth.
During the campaign Badenoch and some of her elected supporters from MPs to Councillors published the pamphlet Conservatism in Crisis: Rise of the Bureaucratic Class. One of its key themes is that this new and growing group within society are administering regulation rather than providing goods or services to the market.
Their careers, the pamphlet argues, are directly tied to government rules and so too to the growth of regulation, but this group is found in the private sector as well as in the public and NGO spheres. This leads to a drain on the economy in contrast with the growth of these sectors.
These ideas can be traced back to Badenoch’s key argument connecting many of the reasons the Conservatives lost so decisively in the summer; that the political system doesn’t work anymore, and far from challenging this emerging status quo, the last government in some respects even added to it.
Outsourcing decisions to arms length bodies with more power than ministers including the Office for Budget Responsibility (OBR) is at the heart of the problem, the new Conservative leader argues.
In a recent Times article, Badenoch uses the example of two arms length bodies actually at odds with each other on the issue of immigration policy. The Migration Advisory Committee’s warnings about the likely consequences of relaxing visa rules weren’t heeded by the Treasury, which was ultimately constrained by methodologies used by OBR economists.
All of this to say that politicians are often held to account for decisions they haven’t directly made – and in some cases decisions which have been legislated out of their hands, undermining the objectives they’ve been elected to deliver. Constitutional reform to reshape the state and disempower organisations like this seems likely under any Badenoch led administration.
On judicial review
Judicial reviews are also referenced in the Conservativism in Crisis pamphlet. Therein, one example cited is the case of a Government Minister involved in planning policy who heard and dismissed suggestions at a roundtable to improve and speed up the planning process related to the construction of nuclear power stations. Suggestions included:
- That major infrastructure applications have a named civil servant responsible
- That there should be a major reduction in the consultation around environmental requirements for some infrastructure (given a nuclear station, for example, reduces emissions substantially); and
- To limit the capacity for judicial reviews against such a project.
The Minister’s reasoning for dismissing these suggestions were as follows:
- The first was impossible because officials “hate the accountability”.
- The second was impossible because “any precedent in reducing environmental regulations would be fought by green stakeholders and probably end their career,” and
- Thirdly, that limiting judicial review would “be fought by both external bodies and the legal team within the department, since they viewed more lawyers as integral to pretty much anything.”
This case study highlights a “failure of politics” where a culture has developed where some officials sidestep accountability, where common sense changes are fought tooth and nail by green stakeholders, and where external bodies and internal civil service legal teams view lawyers as integral to a process to the exclusion of other considerations (e.g. delivering infrastructure that benefits local communities and the wider country).
Badenoch’s approach to judicial review, to take this example, will likely be informed by the wider idea that our state bureaucracy has become untenable.
Concluding thoughts
In addition to these areas, we can also expect pieces of domestic legislation like the Human Rights Act (HRA) and the Equality Act to be part of the conversation as the Conservative Party embarks on its renewal in opposition. This summer Badenoch pledged to develop “the fullest and most detailed plan to control immigration that any political party has ever proposed.” She said that the HRA would be among the starting points for this, as well as a return to the principle that politicians make decisions and pass laws, while judges interpret the law.
On the devolution settlement, too, Badenoch is reported to have said to party members that she opposes any further devolution of powers in Scotland and in Wales (as well as opposing the expansion of the Senedd from 60 to 96 members). While it is more difficult to predict the direction of policies in these areas than the ones discussed above, expect to see the new Conservative leader take any opportunity to highlight and challenge decisions by devolved administrations which she views as harming the UK and its constituent nations. As Equalities Minister, Badenoch was closely involved in the decision taken by Alister Jack, the former Scottish Secretary, to block the Scottish Government’s Gender Recognition Reform (Scotland) Act, after it was passed by Holyrood.
The Conservative Party’s members and elected representatives will be hoping that similar political judgement and boldness in opposition continues to pay dividends for their new leader.
From a narrow political perspective, Badenoch and her new frontbench team will have to balance developing detailed policy which can unify the Party with making strategic interventions against the Starmer Government and rival opposition parties. In some of these areas, a Conservative Party is already leading the polls, and may find the pathway to connect again with their previously successful voting coalition.
Stephen Lynch.
Stephen Lynch is a writer and political commentator. His work has been published in the Times, Daily Telegraph, and Independent. He stood as a candidate for the Conservative and Unionist Party in the 2024 general election, and volunteered on Kemi Badenoch’s leadership campaign. He writes in a purely personal capacity.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.