The Constitution, Democracy and Rights Commission: death by independent review

Alex Walker
By: Alex Walker

One passage in particular from the 2019 Conservative General Election manifesto has generated considerable discussion among constitutional observers. It comprised the promise that, if elected, a Conservative government would set up a Constitution, Democracy and Rights Commission to look at ‘the broader aspects of our constitution’. The year in which the Commission was promised is now drawing to a close and it has finally been confirmed that the government has opted instead for a series of independent reviews. Does the passing of the Constitution, Democracy and Rights Commission represent an opportunity missed for constitutional reform?

The Commission had been the source of much mystery since the election. Reports in the new year confirmed that it would be the responsibility of the Cabinet Office and the Minister for the Constitution told the Public Administration and Constitutional Affairs Committee (PACAC) that details would be forthcoming. This was followed, however, by almost total silence from the government. Over the summer a Conservative Home article asserted that the manifesto commitment was dead, claiming that it was to be replaced with a series of ‘mini-commissions’ covering similar ground.

The Lord Chancellor, Robert Buckland, has this week given evidence to PACAC confirming this to be the case. Rather than opting for what he referred to as a ‘Royal Variety-style’ process, where the different elements of the constitution would be examined by one entity, this work would instead be done by a series of separate, more limited and focused panels.

The first of these, the Independent Review of Administrative Law (IRAL), tasked with looking at the options for reforming judicial review, was announced in July and is due to report by the end of the year. The second, the Independent Human Rights Act Review (IHRAR), has just been set up. Initiatives covering other areas mentioned in the manifesto will be announced ‘in due course’. Going by the manifesto, these could include the functioning of the Royal Prerogative and the role of the House of Lords, which would be handled by the Cabinet Office. Buckland also indicated to PACAC that he is considering a review of the Constitutional Reform Act 2005, which established the Supreme Court.

Although the Lord Chancellor made the argument that the work of the Commission is still being done but via different ‘workstreams’, this is undoubtedly a deviation from the approach originally promised in 2019. The need for the government to focus on its response to the Covid-19 pandemic – and the delay this caused – was given as one reason for the change of tack. Nevertheless, Buckland also praised an incremental and focused approach to constitutional change, with issues dealt with in turn by individuals with relevant expertise. This approach is not without its merits. There are of course benefits to deploying specialist knowledge, especially on complex legal questions. Furthermore, a series of focused panels will able to work much more quickly than one body tasked with reviewing the whole constitutional settlement. The latter would be an immense task and likely need at least two years to report. By contrast, Buckland said he expected the two ongoing reviews to take roughly nine months from establishment to government response. If the government were looking to speed along the process after the disruption caused by coronavirus, then this method makes some sense. Many, however, would argue that it is entirely appropriate that constitutional reform processes are lengthy and considered.  

Opting for a targeted set of separate initiatives over a more all-embracing review process is certainly in keeping with previous constitutional reform. In recent decades, for instance, both the reforms of the New Labour era and those of the coalition government have been criticised for being piecemeal responses to particular problems, lacking a coherent strategy and joined-up approach. There are downsides to this. For one thing, it ignores the fact that altering one aspect of the constitution has knock-on effects. An independent review might make a specific recommendation that alters the broader balance of power in ways that were not intended or considered. Speaking to PACAC, Buckland referred to himself as a constitutional plumber, working to improve elements whilst retaining the overall design. To stick with this analogy, a plumber working to improve a system surely needs to understand and consider how its different parts interact. Different plumbers working on different parts without conferring would be confusing and counterintuitive. Likewise, an approach that considers the relationship between different aspects of the constitution at a more fundamental level can help avoid unintended and counterintuitive consequences. Although they are eminent in their various fields, most of the members of the panels named so far are not constitutional experts. They therefore may not necessarily be well placed to consider the broader constitutional implications of their recommendations.

Furthermore, examining the constitutional framework in a more holistic fashion now might have helped resolve some of the inconsistencies and tensions that have emerged as a result of the failure to do so in the past. The current state of devolution in particular reflects the fragmented approach to constitutional reform taken by previous governments. Gordon Brown recently acknowledged that Labour did not give enough thought to mechanisms of cooperation between the different UK administrations. Powers were devolved without thinking through the nature of the future relationships more deeply, or the principles on which they would rest. The UK Internal Market Bill is evidence that Whitehall continues to lack a ‘devolution mindset,’ as Brown puts it, opting for central control rather than mechanisms of cooperation. Neither England’s place within the union nor the question of its governance were properly addressed as a result of disjointed and partial reforms. The pandemic has highlighted the flaws in England’s current governance arrangements – both its inconsistency, and the weakness of regional leaders relative to the centre. A review of intergovernmental relations (announced in 2018) is ongoing and an English Devolution White Paper has been long promised. These are important initiatives that will hopefully bring some clarity to these areas. Nevertheless, a Commission could potentially have offered a helpful reflection on how the UK’s territorial governance fits together at a more general level.

A Constitution, Democracy and Rights Commission with broad terms of reference would have had a further advantage over a spate of independent reviews – that of additional opportunities for public involvement. There is a strong logic to the argument that fundamental changes to a democratic political system ought to have direct input from citizens. When quizzed on this, Buckland pointed to the government’s electoral mandate and said that members of the public could participate by engaging with their local MP on these issues. Yet for constitutional reforms to command legitimacy beyond the electoral cycle they arguably need more widespread public buy-in than this allows for.

Furthermore, the legitimacy of any reforms will in part rest on the extent to which they come out of a transparent and open process. IRAL has been criticised on these grounds: it hasn’t held any public hearings, the timeframe has been short, and it has been reported that not all the submissions to its consultation will be made public. Additionally, its membership was decided by the Ministry of Justice, rather than through a more independent selection process. The recently announced review of the Human Rights Act so far looks set to follow the same rubric. In contrast to this relatively closed process, a Commission could have potentially hosted a more inclusive and transparent consultation. Buckland said he had considered some form of deliberative public engagement, but had come to the conclusion that citizens would be more interested in addressing problems closer to home than abstract constitutional issues. Deliberative public engagement has indeed been successful in a local context. But citizens have also effectively deliberated on constitutional questions in many countries, including Ireland and Canada.    

A Commission of the sort proposed in the Conservative manifesto may have had its advantages over a series of independent reviews. In particular, a more all-encompassing, open exercise could have perhaps compensated for the absence of a joined-up and widely-consultative approach in the past. Nevertheless, it remains to be seen what recommendations will be made by the independent panels and how the government will respond – concerns may yet prove unfounded.

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.

Alex Walker is The Constitution Society’s Communications Manager. He manages, edits and contributes to the blog.