Constitutional change in the UK – joining the dots
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Marc Bloomfield
Description: PLP
It is perhaps an understatement to say that Boris Johnson’s time as prime minister has been constitutionally eventful, given: the prorogation of parliament in 2019; Brexit; the implications of the Northern Ireland Protocol for the UK; the Independent Review of Administrative Law; the Independent Human Rights Act Review; proposals to reform the UK Supreme Court; three coronavirus lockdowns; the resignation of seven permanent secretaries;1Sir Mark Sedwill, Sir Philip Rutnam, Sir Simon McDonald, Sir Richard Heaton, Sir Jonathan Jones, Dame Rowena Collins Rice and Jonathan Slater. and further English devolution.2West Yorkshire Combined Authority (Election of Mayor and Functions) Order 2021 SI No 112. These are events that make the news and grab attention, but many more developments – often seemingly disparate, technical changes – are also impacting on our constitutional settlement.
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.
There have also been several instances where constitutional conventions and norms have been strained. One is the apparently cavalier attitude towards the Sewel Convention during the passage of the UK Internal Market Act 2020, which made substantial changes to the operation of devolved competences. Official advice has also been ignored, such as refusing to sack the home secretary for misconduct against the conclusions of the adviser on the Ministerial Code, and appointing Peter Cruddas as a peer against the advice of the House of Lords Appointments Commission. Connected to this sceptical approach to independent advice, since 2019, as mentioned above, seven permanent secretaries have resigned from office following an alleged ‘hard rain’ attitude towards senior civil servants.
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.
 
1     Sir Mark Sedwill, Sir Philip Rutnam, Sir Simon McDonald, Sir Richard Heaton, Sir Jonathan Jones, Dame Rowena Collins Rice and Jonathan Slater. »
2     West Yorkshire Combined Authority (Election of Mayor and Functions) Order 2021 SI No 112. »
3     See Professor Kim Lane Scheppele, ‘The case for systemic constitutional analysis’, Law and Other Things, 30 January 2021. »

About the author(s)

Description: Lee Marsons - author
Lee Marsons is a research fellow at Public Law Project.