This post was contributed by Ms Charlotte Crilly, Teaching Fellow and Module Convenor for Undergraduate Laws.
Before the coronavirus crisis hit, one of the things to watch out for in public law was the government’s announcement that it would be setting up a Constitution, Democracy and Rights Commission. Although the Commission will inevitably be delayed by current circumstances, it is highly likely that the government will want to continue with this project in due course. What might this mean for public law?
A Constitution, Democracy and Rights Commission was first trailed in the Conservative party election manifesto in December 2019, which promised that if elected they would ‘look at the broader aspects of our constitution’ and specifically:
• Look at the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice.
• Update the Human Rights Act and administrative law in the context of national security.
• Examine the process of judicial review.
To this end, the manifesto promised that a Constitution, Democracy and Rights Commission would be set up in the first year of a Conservative government.
As we know, a Conservative government was elected in December 2019 with a sizeable parliamentary majority (see blogpost on the General Election). The setting up of a Constitution, Democracy and Rights Commission was duly announced in the Queen’s Speech.
It’s important to be clear about the background to the proposed Commission, that is the troubled constitutional period following the Brexit vote and in particular the Supreme Court decisions in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 and R (Miller) v Prime Minister [2019] UKSC 41 (see blogposts on the prorogation case – part 1 and prorogation case – part 2). In both of these judicial review cases, the Supreme Court found against the government, to the disapproval of those who (wrongly) thought the Supreme Court was involving itself with political decisions.
Given this background, there is concern in many quarters about what the Commission may recommend. It is early days yet, with the membership of the Commission not even established, but questions have rightly been raised including:
• Will the government want to introduce some kind of vetting of the judiciary and give the government a role in the selection of judges? This could pose a serious threat to the independence of the judiciary.
• Will there be substantial changes to judicial review which will reduce its role in holding the government to account? Oversight of government decisions by the courts through the mechanism of judicial review shows that a society is committed to the rule of law.
• What does it mean to ‘update’ the Human Rights Act? Previous Conservative governments have mounted various attacks on the Act, including proposals for a British Bill of Rights. How could human rights protection be maintained if changes were made to the Act? How would this fit with the UK’s obligations under the European Convention on Human Rights?
The proposed Constitution, Democracy and Rights Commission will, by current indications, have a wide remit. While there have been significant reforms to the constitution in modern times, such as reforms to devolution, the House of Lords and those in the Constitutional Reform Act 2005, none of them have involved such a fundamental review of the foundations of the constitution, and the relationships between Parliament, government and the courts.
Further reading
House of Lords Library Briefing, ‘Constitution, Democracy and Rights Commission’, 26 March 2020
UCL Constitution Unit, ‘The government’s proposed Constitution, Democracy and Rights Commission: what, why and how?’, 14 February 2020
While I think that a thorough examination of some of the issues raised here will be a very good idea, I hope that we do not end up with proposals for a written/consolidated/entrenched constitution. There are many reasons against such proposals but just think about the last ten years. Who predicted the coalition government of 2010, the Brexit vote, or the Covid 19 pandemic? How could anybody foresee the political fallout from these events and construct an appropriate constitutional framework to help us deal with them?
On a more positive note, while there may be “…concern in many quarters about what the Commission may recommend” I for one hope it may produce some progressive proposals to improve democratic accountability. Judicial independence is touted as a fundamental requirement if the judiciary are to hold the executive to account, but where, when and how are the judiciary (here or in Strasbourg) held to account?
“How could human rights protection be maintained if changes were made to the Act?” Perhaps this could be done by introducing better definitions of human rights which are agreed through the legislative processes we have in place so that we avoid the “mission creep” which has characterised the application of ECHR. Of course our perceptions of human rights change but these need to be accommodated by explicit legislative changes not via common law interpretation.