LL Looks At… the Conservatives’ Constitutional Reforms

Bad judges? English Parliament? Lazy Lords? The Conservatives want new rules for British democracy

July 25, 2020

8 min read

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What’s going on here?

Page 48 of the 2019 Conservative manifesto contains this promise: “in our first year we will set up a Constitution, Democracy & Rights Commission”. When it was first written, the promise was, debatably, a precaution that Conservatives wanted to take in order to ensure that they could “get Brexit done” in the face of legal difficulties. The previous government had been overruled twice by the UK Supreme Court (UKSC) in relation to triggering Article 50 and the attempted prorogation (suspension) of parliament. 

Now, however, with a large Conservative majority, it is unknown what form this Commission will take. Some fear that the government will use it as a move to take revenge on the courts for these Brexit legal difficulties. Others consider it a necessary change in testing times.

The aspects of the UK’s constitution that the Conservative manifesto highlights as key areas for reform1 are:

  • the relationship between the Government, Parliament and the courts
  • the functioning of the Royal Prerogative 
  • the role of the House of Lords
  • judicial review (the review of the lawfulness of decisions made by public bodies)

Michael Gove, Chancellor of the Duchy of Lancaster, is meant to be leading the review alongside the justice secretary, Robert Buckland and Attorney General Suella Braverman. Although the government has not yet decided who will lead the commission, Braverman’s predecessor, Geoffrey Cox, and the former Supreme Court Judge Jonathan Sumption have both expressed interest in the position.

The most recent constitutional reform took place under Tony Blair’s Labour government in the 2005 Constitutional Reform Act. This act aimed to increase the separation between the legislative (Parliament and the House of Lords), the judicial (the courts) and the executive (government departments that execute the laws) branches. It instituted this in two important ways:

  1. It created the UK Supreme Court, moving the UK’s top judges out of the House of Lords.
  2. It empowered the Judicial Appointments Commission to appoint judges, rather than the Queen. 

So, what plans might this government have in store? How might this affect the future of the United Kingdom? What is the best course of action for the safeguarding of British democracy?

Judicial Review and the Queen

The most controversial possible reform seems to be the government’s commitment to place judicial review under review. In accordance with the 2005 Constitutional Reform Act, judges are currently appointed apolitically by the (creatively named) Judicial Appointments Commission. In cases of judicial review, the UK government has a good record: it wins 75-80% of the time. But the rhetoric of Attorney General Suella Braverman, arguing that Parliament must “take back control” from the judiciary, suggests that the Conservative government might consider the political appointment of judges.2

So, what would this change look like?

Here are four examples of jurisdictions with a system that politically appoints judges3:

Jurisdiction

How judges are appointed

Canada

The Prime Minister alone appoints Supreme Court judges.

United States

The President nominates candidates for the High Court and Supreme Court, and the Senate approves or rejects them.

Germany

Both legislative chambers (the Bundestag and the Bundesrat) elect judges

South Africa

The President appoints judges on the advice of the Chief Justice of the Court who presents a list of nominees from the Judicial Service Commission.

The range of political involvement within these judicial models demonstrates various ways in which politics and politicians can be involved in judicial appointment. Therefore, there could be a limited degree of political involvement in the judiciary that would not cause a radical change. However, this cannot be counted on, with politicians undoubtedly eager to base their decision on a candidates’ politics rather than their ability to be a fair judge. 

Moreover, the political appointment of judges might not prevent judges from impinging on political matters. The point at which judges encroach on political territory is a hard line to clearly define. Governments tend to believe that their powers do not merit judicial checks due to their elected legitimacy. However, without effective judicial review, who stops a government from acting unlawfully? In addition, the fact that judges tend to serve for longer than any one political party is in power might leave certain politicians frustrated when there is a change of government. Conservatives would no doubt disapprove of Labour-appointed judges’ decisions and vice versa. 

Moreover, the effects would be felt by the whole of society as well as in cases of judicial review, given the scope of the UKSC. A court with political judges could potentially damage society’s faith in the judicial system’s ability to deliver fair justice. Ultimately, political involvement in either the institution of the court or in how they make certain decisions leaves much to be desired.

The constitutional role of the Queen is also on the Conservatives’ list for reform. Since the Queen does not interfere in political matters, the royal prerogative effectively empowers ministers in several different ways: examples include dissolving parliament, acting on foreign affairs and pardoning individuals from criminal conviction.4 However, the unaccountability of this power that ministers enjoy, as well as the Queen’s ability to overrule the Prime Minister and his Cabinet, means that a constitutional commission would make a broad investigation into where a definition of the royal prerogative in law might be needed.

An English Parliament

A serious concern for the Conservative government is the growing cries for further devolution in the face of Scottish political power centred in its independence movement and Irish reunification.5 The Conservatives (and Unionist Party) will hope they can “strengthen the Union” and stem cries for an independence referendum. 

Tensions within the Union have revitalised calls for an English Parliament. The idea stems back to when the then MP for West Lothian Tad Dalyell posed the West Lothian question: why should MPs in Scottish constituencies be able to vote on issues that only relate to England, when MPs of English constituencies cannot have any say on Scottish issues? A later Conservative movement aimed to ensure that there were only “English votes for English laws” and led to David Cameron instituting minor changes that allowed MPs of English and Welsh constituencies to veto legislation that only applies to England and Wales. 

It is unclear, however, whether taking this further to create an English Parliament would actually “strengthen the Union”. On the one hand, devolved power in the UK, in a similar fashion to Germany’s federal constitution, would allow each region of the Union an increased autonomy. On the other hand, Germany’s successful model is due to its unique history and balance between regions. This is not the same as the UK, where England has dominance over the Union and represents around 85% of the population.6 Some fear that this inherent difference would make the creation of an English parliament counterproductive and “a recipe for collapsing the Union”.

The House of Lords, Proportional Representation and Referenda

If the SNP remains in power after the 2021 Scottish elections, there may be a powerful and renewed effort for reform or an independence referendum. The Conservative government has a range of reforms beyond further devolution that it could use to stabilise the Union

Reforming the House of Lords to make the upper chamber more accountable to the electorate is one option that Boris Johnson is considering. He hopes that this will improve the image of the British Parliamentary system and restore faith in the Union. The notorious lack of accountability, nepotism and perception of the Lords as lacking interest in their duties has damaged the chamber’s PR.7

In 2015, the Strathclyde Review controversially concluded that the Lords power of veto should be removed to better balance power between the two legislative chambers. However, David Cameron’s past attempts to reform the Lords achieved relatively little. The House of Lords Reform Act 2014 merely gave members of the Lords the ability to retire or resign, as well as threatening peers with exclusion if they did not attend a whole legislative session. Boris Johnson may decide that any change beyond setting a retirement age for peers may not be possible.

Changing the rules of the game

First-past-the-post

MPs are elected by winning a majority in their constituency. 

Proportional representation

MPs are elected in accordance with the overall vote share.

The government could also change the rules on referenda. It could outlaw referenda with generic statements such as Scottish “independence” in favour of a specific bill that can be enacted by Parliament (a lesson that has perhaps been learnt the hard way from the Brexit referendum). Equally, changing the electoral system from first-past-the-post system to proportional representation could force parties to compromise more and therefore invite political cooperation within the Union. 

The difference in the outcome of the UK’s 2019 election under a system of proportional representation is striking.8 Both reforming referenda and the UK’s electoral system are very unlikely to be enacted by the Conservative government, although they could be included in a constitutional commission’s recommendations.

LittleLaw’s Verdict: Will Boris listen?

Regardless of the possible outcomes mentioned above, any kind of reform depends on the government’s intentions. If the government has a clear idea about what reforms it would like to institute, then the commission’s findings will either be ignored (as many of its kind have been in the past), or the people selected to be on the commission will be carefully chosen and directed by the government. It may be that the policy of appointing judges politically is a foregone conclusion for this Conservative government for example.

However, any radical changes that do not seem to be justified from a commission’s findings will likely not last very long. When there is a change of government, the reform will simply be overturned. The government will also need the commission for certain issues that are of growing importance such as calls for a second independence referendum in Scotland. The government has consulted the cross-party Constitutional Reform Group who consider this to be the most important subject for the commission to focus on. 

It will also be interesting to see if calls for changes to referenda and the first-past-the-post system are considered beyond their immediate political purposes. As Jonathan Sumption pointed out in his Reith Lectures last year, the decline in membership of political parties is leading to an increased polarisation within our politics.9  This means we have more radical options that may be damaging to our democracy in the long-term. Proportional representation would help to limit such polarisation, by forcing political parties to compromise. Similarly, the lack of clarity around what “Brexit” really means calls for a review on how the UK conducts referenda. It remains to be seen how the Conservatives will conduct and act on any such findings of a constitutional commission. 

The question is: will Boris listen?

Report written by Will Holmes

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