2020: constitutional review of the year

Andrew Blick
By: Andrew Blick

As expected, 2020 brought constitutional turbulence, but not wholly of the type we might have foreseen. At the outset of the year, it was reasonable to anticipate various strains lying ahead. They looked set to arise from the programme on which the present government was elected and the Brexit policy to which it was committed. At the end of January, the UK finally left the European Union. Though transitional arrangements would preserve continuity for the remainder of the year, the country had severed itself – after nearly fifty years – from a source of law superior to any other within the domestic system, with many other attendant consequences. Moreover, through its 2019 General Election manifesto the Conservative Party was committed, in a post-Brexit era, to reviewing various aspects of the constitution. In a continuation of the broad programme that had driven departure from the EU, the government appeared set on changes that would generally strengthen the discretionary powers of the executive, and curb the role of the courts. It had pledged to set up a commission to investigate the options.

Soon afterwards, the pandemic appeared. This health emergency has been connected to a series of dramatic events and tensions in the UK system of government. Elections were postponed; emergency legislation was rushed through Parliament; and the executive (or executives) of the UK took on powers to intervene in society and curb individual rights on a scale unsurpassed in peacetime history. Various organs of governance faced immense challenges – having to deploy online technology in new ways to enable them to continue functioning. Their capacity to deliver the necessary emergency responses on various fronts, including health and the economy, were tested. Tensions developed in the territorial constitution, with the devolved and UK institutions sometimes entering into open disputes over pandemic policy. Concerns emerged about adherence to propriety around the use of public money and awarding of contracts to the private sector, in what were admittedly fraught circumstances for the government. The so-called ‘infodemic’ of misleading claims about the virus raised difficult questions about the moderation of online content. Dominic Cummings’ career as the Prime Minister’s senior special adviser was a casualty partly of the pandemic. His exit from government has removed an important source of impetus for constitutional change in areas such as civil service reform, but the broad approach to which he contributed appears to have outlasted him.

The coronavirus experience is an extreme illustration of a tendency that remains ever present: for the unexpected to change the narrative. It is worth considering this possibility when we speculate about what might be coming next. But generally it is reasonable to anticipate the continuation of a combination of tendencies that preceded the pandemic, with added features arising from the events that have transpired this year.

Brexit remains far from resolved as an issue, whatever deal may or may not be reached. It will continue to produce tensions and dilemmas, involving, for instance, territorial relations within the UK – not just between Wales, Scotland, Northern Ireland and the UK, but also within England. The exact consequences of the Northern Ireland aspects of the exit agreement are difficult to predict but could prove problematic and will be complex. The long-term status of Northern Ireland, within or outside the UK, could become an increasingly pertinent matter. Demands from Scotland for a further independence referendum are likely to continue, and perhaps lead to legal action of some kind. And the government continues with the programme of change to which it alluded in its 2019 General Election manifesto. Rather than a single commission, it now appears set on a series of discrete initiatives – beginning already in 2020 with administrative law, followed by the Human Rights Act, and perhaps leading on to other areas, about which we will learn as 2021 progresses. Unless, of course, some other unforeseen circumstance radically alters the picture further.

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.

Dr Andrew Blick is Head of the Department of Political Economy at King’s College London and Senior Adviser to The Constitution Society.