The government’s approach to the UK constitution: cause for concern

Alex Walker
By: Alex Walker

With Parliament returning this week, the government will continue legislating on a range of constitutional issues, including the calling of UK general elections, political protest, and voter identification. Although its programme of constitutional change is piecemeal, it is nonetheless progressing at speed and scale. Furthermore, to each of the government’s proposed reforms there are significant informed and principled objections, either to their substance or the way they are being carried out, or both. This is not a model of good practice in constitutional change.

This is the conclusion drawn by the United Kingdom Constitution Monitoring Group (UKCMG) in its first report, published today by The Constitution Society. The UKCMG is a group of senior academics and former practitioners with considerable constitutional expertise. Over the last six months, the Group has been closely monitoring the government’s approach to the UK constitution. As detailed in the report, it believes there is cause for concern: about the changes the government is making to the UK constitution, the way it is approaching them, and its attitude towards the norms and conventions that are particularly important within the UK’s uncodified system. The report covers the six-month period from January to June 2021 and analyses legislation, decisions and events against a set of 20 principles the Group has identified as central to the proper operation of the UK constitution. Reproduced below some of the main observations and conclusions contained in the report.

Elections

The government’s Dissolution and Calling of Parliament Bill, which is currently before Parliament, represents a major change to the way UK general elections are called. The report outlines concerns about both the substance of the legislation and the approach the government has taken to changing this aspect of the constitution.

The Bill seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA) and return to the way in which general elections were called previously: by Royal Prerogative, exercised by convention on the request of the Prime Minister. However, there remains uncertainty surrounding whether an abolished prerogative power can be revived via statute. Furthermore, the old system relied on a set of principles and conventions which may no longer be well-understood. However, as the Group notes in the report, the government has ignored advice that these be thoroughly detailed and publicised.

The Bill serves to transfer power from the legislature to the executive. Aside from the principled case against this transfer, the report notes concerns that the prerogative power could, in extreme circumstances, be used by the executive to evade Parliamentary scrutiny. There is also a fear that the legislation places the monarch in a position in which they could be drawn into party-political matters.

As the above demonstrates, the proposed change remains contested, which the Group makes clear is less than ideal when it comes to an important reform of this nature. Many of the flaws in the Fixed-term Parliaments Act were attributed to the speed at which it was drafted and passed. Despite this, little time has been given in the House of Commons to debating its replacement.

The publication of the Elections Bill confirmed the government’s intention to legislate for individuals to produce photo ID at polling stations. The report acknowledges the criticisms of this proposal: that the problem it is intended to address (voter fraud) is minimal in practice, and that it may lead to certain social groups being less able to vote than others. Whilst not taking a definitive position on the issue, the Group notes that the trials of the proposal may not have been extensive enough to exclude this possibility. They take the view therefore that caution is preferable, stating that ‘it would be regrettable if a law presented as a means of safeguarding the integrity of elections proved to be disproportionate in its negative impact on participation in democratic processes.’

Judiciary and the rule of law

As the report remarks, the government’s position continues to be that the judiciary is prone to overreach into matters of politics and policy. This view formed the background to the commissioning of the Independent Review of Administrative Law (IRAL). The Group suggests that the government’s response to IRAL, which included the announcement of a further consultation, gave cause to believe it had a predetermined position irrespective of the conclusions the review it established might reach. The report states that such an approach is problematic in an area of such constitutional sensitivity.

The outcome of this process – the Judicial Review and Courts Bill –is currently before Parliament. The Bill reverses the Supreme Court’s Cart decision, but does not contain more overarching measures restricting judicial review or relating to the enforcement of ouster clauses. Nevertheless, the government is pressing on with the use of another controversial ouster clause in the Dissolution and Calling of Parliaments Bill, which would make the power of dissolution unreviewable by the courts. The government has indicated it is minded to use such clauses in legislation more frequently in the future.

The report points out that during the period covered, the government’s commitment to the international rule of law has again been called into question. Following on from the subsequently abandoned clauses in the UK Internal Market Bill – which avowedly would have broken international law – the government decided to unilaterally delay the full implementation of aspects of the Northern Ireland Protocol in March 2021. This gave rise to a second round of legal action against the UK by the EU (though – at present – paused).

Devolution and the Union 

Tensions have been high between the UK government and the devolved administrations throughout the period covered by the report. Although this issue goes back further, relations were worsened in particular by the UK Internal Market Act 2020. The Group concludes that the Act represents a serious and unacceptable curtailment of the powers of the devolved legislatures, which challenges the principle of cooperation between the devolved and UK governments. The Welsh government’s legal challenge to the Act is ongoing and the UKCMG predicts that the legislation will be the cause of further political dispute and legal action as its extensive delegated powers are used in the future. The recently introduced Subsidy Control Bill continues the trend of shifting power from the devolved to UK level. It remains to be seen whether the government will opt for a more cooperative approach through the agreement and use of common frameworks.

It is clear that intergovernmental relations are not well served by the machinery currently in place to support them. The Group suggests that the recommendations of the Dunlop Review of UK Government Union Capability and the accompanying progress update on the review of intergovernmental relations offer means by which the structures and processes supporting intergovernmental relations might be revitalised. But these proposals are yet to be taken forward or fully agreed.

There also remains a lack of clarity in Northern Ireland and Scotland (although the precise contexts differ) as to the conditions in which referendums on exiting the United Kingdom might be held. The Group holds that this lack of consensus on a fundamental constitutional issue is unsatisfactory.

Executive standards and integrity in public life

The report also details a number of instances from January-June 2021 in which the government has failed to uphold the standards that are expected of those in public office. The government’s conduct towards Parliament provides several examples, including occasions on which it has been alleged that the Prime Minister has misled the House of Commons or made announcements to the media rather than the House, the latter leading to rebuke by the Speaker.

Several controversies have raised more general doubts about whether adherence to the rules in documents such as the Ministerial Code are well enforced. The Committee on Standards in Public Life (CSPL) is in the process of reviewing how executive standards might be better promoted. However, the Prime Minister has already rejected some of CSPL’s recommendations relating to the role of the Independent Adviser on Ministers’ Interests.

There has also been evidence that the integrity of the public appointments process has been increasingly undermined during the period by intense political pressure. The outgoing Commissioner for Public Appointments, Peter Riddell, has expressed concern about this development and the CSPL are looking at how the Commissioner’s role might be strengthened.

The ongoing work of CSPL reflects apprehensions about the effectiveness of mechanisms designed to uphold integrity in public life. These apprehensions are echoed in the UKCMG’s report and the Group recommends that CSPL’s recommendations be given close consideration.

Conclusion

This report, which forms the first instalment in an ongoing biannual series, highlights that significant changes are being made to the UK constitution. These changes are being made via a number of piecemeal legislative measures and through the government’s approach to aspects of the constitution such as the rule of law and the Union.

A government with a comfortable majority in the House of Commons, however, is in a position of strength that enables it to pursue constitutional change, and there is little to ensure that it adopts good practice in doing so. Conversely, it could choose to adopt a more considered and consensual approach. The UKCMG’s stated aim is to assist the realisation of such good practice in constitutional change. Whilst the government’s approach to the UK constitution over the last six months may not have satisfied the Group’s first principle – that ‘constitutional change should take place in a considered fashion and as far as possible on a basis of consensus’ – the next six months present an opportunity to change tack.

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

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.