There has been a string of legislative proposals that enhance executive power, reduce judicial scrutiny and have potentially detrimental consequences for the rule of law. An example of the first would be the Draft Fixed-term Parliaments Act 2011 (Repeal) Bill
(CP 322, December 2020), which returns to the prime minister the prerogative power to dissolve parliament and call a general election. An example of the second would be the ouster clauses of extraordinary breadth found in several proposals, such as clause 3 of the Draft Fixed-term Parliaments Act 2011 (Repeal) Bill, which prevents judicial review of the ‘exercise or purported exercise’ of the prerogative as well as ‘the limits or extent of those powers’, and clause 45 of the then UK Internal Market Bill
(as first introduced), which required a court to uphold subordinate legislation ‘notwithstanding any relevant international or domestic law with which [it] may be incompatible’. Examples of the third include the Overseas Operations (Service Personnel and Veterans) Bill and the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, both of which provide a degree of immunity from ordinary criminal liability for agents of the executive.
Another trend is the appointment to public bodies of people with government sympathies, such as Lord Wharton at the Office for Students
, Sir Ashley Fox at the Independent Monitoring Authority for the Citizens’ Rights Agreements
, and Lord Herbert at the College of Policing
, all former Conservative politicians. There have also been several attempts to increase executive influence over parliament, such as the failed bid
to install Chris Grayling as chair of the Intelligence and Security Committee. Moreover, in spite of an admittedly weak commitment
that the number of peers in the House of Lords should be reduced, Johnson has appointed over 60 new peers
, which has consolidated the Conservatives as the largest voting bloc (32 per cent of the House)
. Furthermore, several non-Conservative peers are nevertheless likely to agree with the government on Brexit matters, such as Gisela Stuart, Kate Hoey and Claire Fox.
There has been significant commentary on the merits of individual proposals and changes. However, there has been less systemic
constitutional analysis. That is, the consideration not of individual reforms on their own terms, but the multifarious ways that constitutions can be changed – via legislative means or otherwise, good or bad – and what the aggregate consequences are for executive accountability, the rule of law, human rights and other constitutional fundamentals.3See Professor Kim Lane Scheppele, ‘The case for systemic constitutional analysis’, Law and Other Things, 30 January 2021.
This absence of systemic description means that it is, at the very least, difficult to get a clear sense of what is happening as a general, interlocking pattern over time (particularly for those not in the habit of tracking developments). To put it simply: we need to do more to join the dots. This will not only allow us to make better sense of overall patterns of constitutional change (the good and the bad), but also to draw much-needed broader attention to the constitutional dynamics of this period.