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Consultations, Courts, England and Wales, Human rights/equalities, Inquiries, Judicial review, Judiciary

The Perpetual Constitution, Democracy and Rights Commission

The Perpetual Constitution, Democracy and Rights Commission

By Lewis Graham (University of Cambridge)

In its 2019 election manifesto, the Conservative party promised voters that it would set up the ineloquently named ‘Constitution, Democracy and Rights Commission’ (CDRC) before the end of its first year in power. The proposal raised alarm bells in some quarters at the time, but the Commission did not materialise. Now, ten months into the new government’s tenure (hardly a quiet period by any means), this post returns to that manifesto promise and how it might be realised. This may be surprising to some. Indeed, many may have thought that the Commission was dead and buried, until the idea of the Commission quietly resurfaced a few weeks ago when the Public Administration and Constitutional Affairs Committee (PACAC) announced a new inquiry into the Commission and what direction it ought to take.

A Brief History of the Commission

For those who have not kept up with the ins and outs (and u-turns) of Conservative party policy, a brief timeline of the rise and fall (and rise?) of the CDRC follows:

The Party manifesto containing the key promise to establish the CDRC was published (just) in time for the December 2019 election. That promise, set out in full, reads:

After Brexit we also need to look at the broader aspects of our constitution: 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 for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth and come up with proposals to restore trust in our institutions and in how our democracy operates.

Following the Conservatives’ comfortable victory, considerable speculation arose as to what form the Prime Minister’s “fast-track plans” might take, especially in light of his (admittedly fairly vaguely expressed) threat of “consequences” for the senior judiciary after they declared unlawful his plans to prorogue Parliament last September. Although at first it seemed that plans were starting to get off the ground, with the Prime Minister doubling down on his promise of a “fundamental review” of the justice system in the Queen’s Speech. The House of Lords’ Research Briefing, published in March, suggests plans to establish the Commission were still moving forwards at that point. However, in June, in the midst of the coronavirus pandemic, former Conservative MP Paul Goodman announced that the Commission had been “quietly shelved”.  

Given all that had taken place between the 2019 election and the announcement, the fact that sweeping constitutional reform had been put on hold might have been perfectly understandable, but soon after the Prime Minister confirmed that the government were instead convening “small, highly expert panels”  to tackle constitutional reform issues, starting with judicial review. Details of the Independent Review of Administrative Law (IRAL) were formally announced by the end of July. IRAL is currently seeking responses to its Call for Evidence, which closes on October 19th. The panel is due to report back before the end of the calendar year. 

I think I speak for many when I say that I had presumed that the IRAL had taken the place of the CDRC. It seemed logical to suppose that the promise of wider constitutional reform had been jettisoned for a more streamlined review into what many suspected to be the real target of the manifesto pledge: the judiciary.

It was therefore quite surprising when, at the end of September, the Public Administration and Constitutional Affairs Committee (PACAC) announced, without too much fanfare, an inquiry into “The Government’s Constitution, Democracy and Rights Commission”. Further, it issued a Call for Evidence (open until 16 November) asking for views on the following questions:

  1. What form should the Commission take?

a. How should it be composed?

b. Should the Commission engage the public, and if so how?

c. How should the Commission proceed in its work?

d. Over what timescale?

  • What should be the main purpose and output of the commission?

a. How should the Commission report its findings?

  • Given the remit of the Commission to look at “the broader aspects of our constitution” and “come up with proposals to restore trust in our institutions and in how our democracy operates” are there issues not on the Government’s list that need to be examined?
  • What areas should be a priority for the Commission and why?

This is a very broad set of questions indeed. The inquiry is basically asking contributors what the Commission should do, how it should do it, who should sit on it, and when it should take place. The only thing which seems to be certain here is that there will be a Commission. Beyond that, who could guess?

On Tuesday 6th October, the Committee held its first (and only) oral evidence session on the CDRC inquiry. This, presumably, would be a fine opportunity to clarify what the Commission is really going to be all about. The Committee invited three expert speakers, Lord Sumption (former Justice of the UK Supreme Court), Meg Russell (Director of UCL’s Constitution Unit), and Lord Lisvane (former Clerk of the House of Commons). This first hour was followed by a more focused discussion on citizens assemblies and direct democracy with Dr Andrew Blick and Graham Allen of the Citizens’ Convention on UK Democracy.

The discussion was as thoughtful and interesting as could be expected from such distinguished speakers. Unfortunately, however, after watching the PACAC session, I am no more certain about what exactly the CDRC is going to be or what work it will do. Further, I have a feeling that the speakers, eminent as they are, know little more than I do.


What is under review?

So, what did the speakers say? There is a surprising amount to unpack. All three agreed that the government’s constitutional reform programme was more fragmented and piecemeal in nature than the lofty promises in the Conservative manifesto might have indicated. Meg Russell called it a “scatter gun” approach; Lord Lisvane suggested that the whole idea of the CDRC may have been borne out of some “Friday afternoon moment” from the manifesto drafters, with constitutional reform “shoehorned” into the proposal, resulting in vague promises broadly in line with the Conservatives’ ideological position. There was agreement between the speakers that by promising such general and wide-ranging reform without an obvious path to its realisation, the government may have bitten off more than they could chew. Lord Sumption suggested that the government is “cooling off” on the idea of pursuing wider constitutional reform, and is now focusing on the more narrow issues being considered by IRAL. And yet the three speakers found themselves  speaking before PACAC, on how the government should pursue exactly the sort of reform agenda they had just suggestion was not being taken seriously.

The speakers also spoke of concerns relating to the panel’s composition. They each concurred that membership of the Commission was an important factor in its legitimacy. Meg Russell stressed it should be inclusive, should include a range of voices, and should be ideologically balanced. Lord Lisvane agreed, stressing that its membership should be (at least primarily) independent of political (and especially government) ranks. Lord Sumption suggested that a senior judicial figure may be apt to lead the Commission. He named no names – does he have someone in mind?

Concerns about the timescale of any of the Commission’s projects were also raised. Lord Lisvane doubted that constitutional questions of serious depth could be tackled in a short time period. Meg Russell stressed the importance of achieving a system of reforms which was coherent and principled, and echoed Lisvane’s doubts about the time required to achieve this. The comparisons with the IRAL, which is somehow expected to deliver a formal report before Christmas, following a consultation period taking place over a tiny six-week window, are obvious here.

Meg Russell highlighted the real challenge involved with setting up a body which is trusted by the public and respected by politicians, especially in the current political climate. In addition to seeking maximum independence, she recommended that the Commission should strive to include the views of the wider public, including lay members as well as those of professionals and experts.

What should the Commission’s priorities be?

One of the first questions posed in the evidence session – indeed, before the Commission’s purpose or makeup were even considered – is what its priorities ought to be. Given the breadth of issues mentioned in the Conservative party manifesto as well as the open-ended nature of the questions in PACAC’s Call for Evidence, the speakers had plenty to choose from – House of Lords reform, access to justice, the security services, and the more nebulous concepts of the “overbearing state” and the “broader aspects of our constitution” are all apparently on the table.

Lord Sumption began by lamenting that “Parliament is regarded as largely irrelevant” by the general public and that the Commission’s priority should be to remedy this, and to “re-establish confidence in Parliament, and in particular, the House of Commons”. Meg Russell suggested that the focus should be upon the powers of the executive and its relationship with other bodies, but agreed with Sumption that it is vital to “rebuild public trust in institutions”. Lord Lisvane was less sure that a particular priority could be usefully identified, noting “the sheer size of the canvas” put forward by the government. Each aspect of constitutional reform, he suggested, is intimately linked with others. He warned of concentrating on one aspect of the constitution without considering how it would affect other areas, including access to justice, legal aid and the devolution settlements.

For the remainder of the hour, the speakers discussed a myriad of issues related to constitutional reform. However, three inter-related themes emerged from this discussion: the legislative process, the power of the executive, and the role of the courts.

Theme 1: the legislative process

Criticism of the UK’s executive-led legislative process is certainly not new. But despite, appearing again and again in debates and academic writing, executive dominance is seemingly such an entrenched part of the UK constitutional framework that no real efforts have been put forward to remedy this.

This, of course, did not discourage Lord Sumption, who was particularly enthusiastic about the need for legislative reform. Ultimately, Sumption criticised the idea that “the Commons is there to support the government”, a view which he (likely correctly) claims is widespread, being held by many members of the public, government ministers and Parliamentarians. He argued that“Parliament should be able to criticise government policy if they see fit” and should feel able to “take the initiative and force a change of direction” where they disagree with government policy. Lord Lisvane broadly agreed with him, criticising the “perfunctory” nature of legislative scrutiny in the Commons, where party discipline and the whip system limits the possibility for genuine debate and deliberative argument.

Many of these issues are undoubtedly linked to the “fused” model of separation of powers operating in the UK. Perhaps, then, one solution to the problems identified by the speakers is to ensure a greater, more hardline separation of powers in practice and to create distance between the executive and the legislature. The speakers disagreed. Lord Sumption in particular suggested that the fused model largely worked (although came close to arguing that it is a normatively good model simply because it has been in existence for long time). Meg Russell worried that such a move might encourage the government to “go to war” with Parliament, which would only increase existing tensions. Whilst the speakers were being asked to highlight key problems rather than provide solutions to them, Lord Sumption did at least offer the suggestion that, at minimum, Parliament should be able to set its own agenda. But it is doubtful that this alone would bring in the sort of change Sumption is arguing for.

Theme 2: executive power

The second theme concerns the executive, and the (actual or potential) overreach of its power. Obviously, government domination of the legislative process is one aspect of this, but the speakers were just as concerned with which laws do not go before Parliament as they were with those that do.

Lord Lisvane (with whom Meg Russell enthusiastically agreed) expressed concern over the trend of the government essentially granting itself significant and wide-ranging powers through the use of secondary legislation and Henry VIII clauses. Lord Sumption worried that as a result, the UK was slipping into an “authoritarian model of government”, a view which should be very familiar to anyone following his views on the government’s actions to contain the coronavirus pandemic.  Indeed, Meg Russell questioned whether the existing constraints on the executive were sufficient, and whether Parliament is becoming too complacent about the use of mechanisms by which the government can essentially “reduce checks on its own power”.

The fact that such concerns are being expressed in light of the continued measures against coronavirus will not be lost those hearing them. A certain member of the panel has been very outspoken about the government’s approach to combating the virus. But concerns about the form of the government’s response – rules rushed into law through secondary legislation, often coming into force at the last-minute, and sometimes containing errors and oversights – have been expressed by those holding a whole range of views (even those which do not win the endorsement of an ex-UKIP MP) about the substance of those measures.

Given that Members of Parliament are increasingly putting pressure on the government to bring its measures to combat the virus before the chamber, this is an area which may be on the move, thanks in part to criticism such as that which was expressed in this session.

Theme 3: the role of judges

The third theme was the role of judges and courts in the wider constitutional landscape. This should not be surprising, as both the IRAL and the number of heavily critical statements by politicians on this manner suggest that the courts are clearly a big concern for the government.

IRAL itself was discussed at some length. All three speakers were relatively critical of the process, drawing particular attention to the short period of time allocated for review, its lack of transparency, and the extremely limited possibility for oversight of its actions. There was also uncertainty as to how IRAL and the CDRC relate to one another. Lord Sumption suggested it would be unwise to artificially separate issues relating to judicial review from the wider constitutional issues which may be considered by the CDRC. But the two bodies are clearly distinct, and much is uncertain. Do issues related to judicial review exclusively fall for consideration by the IRAL, or would they be considered separately by the CDRC? Would issues relating to the Human Rights Act fall under the IRAL’s remit or would this be something for the CDRC to look at instead? And would the IRAL and CDRC work together, formally or informally?

More fundamentally, all three speakers showed a degree of scepticism about IRAL and its function. Commentators have previously expressed concern that the Panel may simply be used as a cover to justify putting into effect the government’s longstanding desire to curb the power of the courts. The speakers did not put matters so bluntly, but there was still a surprisingly frank discussion on the issue.

Meg Russell suggested that the manifesto promise could only be reasonably interpreted as an intention to rein in the courts. Lord Lisvane expressed serious concern about the government seeking to reduce a further check on its own actions. It was, however, Lord Sumption, who was most frank in this respect. Whilst he did say he has “some sympathy” for the government’s point of view, he clearly pushed back against the idea of clipping the wings of judges as political retaliation for unpopular decisions, and proposed, not entirely discreetly, that the government may be using IRAL to effect this aim.

He put forward the idea that because the government view the judges as “sources of impediments of [their] program”, they are now on the government’s “hit list” as a result. In this light, he said, it makes sense that IRAL might be used as a means of“doing down” or “knock[ing] out” the courts, under the auspices of good faith constitutional reform. Why else would IRAL operate under such a short timeline, especially in a pandemic? Reducing the power of the courts, in Sumption’s view, “won’t take [the government] very long”, whereas more serious constitutional reform would take a much longer time to complete. Sumption did not exactly endorse this thesis, but he did put it forward for consideration. His tongue may be in his cheek – slightly – but his scepticism over the IRAL comes through clearly regardless.

These comments do not mean that Sumption has changed his mind about his previously expressed view that there has been an overexpansion of judicial power, however. At an early point, he criticised the Human Rights Act for “transfer[ring] some political issues to the courts” which ought to be dealt with by Parliament, and (somehow) for contributing to an erosion of trust in the political process. 

Although he (thankfully) confirmed that “[nobody] is suggesting that… it shouldn’t matter whether the government exceeds its powers or behaves in a way that is unlawful”, and that we need to “preserve some system” to ensure that this continues, he did not defend judicial review in the same manner as his fellow speaker. His issue seemed to be with the government’s motives, rather than its actions. After saying that “the government is right in thinking [that judges] have occasionally trespassed from strictly legal issues to purely political ones”, he deliberated upon what needs to change to prevent this:

“There isn’t a single rule of law which can be amended or abolished so as to change the situation. The current differences between the judiciary and the government really arise from a judicial culture and a series of judicial attitudes towards government which have built up in the case law over a period of 50 or 60 years and are deeply ingrained in the way that the courts operate. For that reason, the only practical way of dealing with this issue… is to codify and rewrite the whole of English administrative law. I don’t think that that is an easy thing to do and I don’t suppose it’s going to commend itself to the government.”

It is not entirely clear whether Sumption is recommending that the government should undertake this grand re-write, or whether he is discouraging them from pursuing such an ambitious project. 

What to make of it all?

So, what should we take from the oral session, whether about the CDRC or the constitutional landscape more generally? Significant problems were identified, some of which are seemingly baked into our constitutional settlement, others attaching more to the current government’s actions and policies. Less clear is what to do about these concerns, especially given the relatively universal view that constitutional fundamentals, including the separation of powers (or lack of it), should not be meddled with. Lord Sumption, of course, said a lot of things, most of which were interesting, some of which were controversial. But the question remains: what is the CDRC, and what is it likely to be doing? The answer remains totally unclear. Back in February, Meg Russell and Alan Renwick of UCL’s Constitution Unit asked of the Commission: “what, why and how?” – we are no closer to answering these questions now than we were eight months ago.

Discussion

2 thoughts on “The Perpetual Constitution, Democracy and Rights Commission

  1. Hello. I a former civil servant and have worked on constitutional policy. I was surprised to find the list above, there are strict boundaries between the committee clerks and policy officials and it is not for officials or ministers to try and influence the call to evidence process too much, if at all a as me some departments may read the rules within wider guidelines. These are some of parliaments’ only checks and balances. In a true democratic process, questions should not be dictated by the government, nor call for evidence. This is the purpose of post and pre-legislative scrutiny and all other scrutiny of the government, to curtail this undermines government. I am very surprise that any part of the civil service would try to leverage anything which undermines democratic integrity.
    Rocio Ferro-Adams.

    Posted by Rocio Ferro-Adams | October 15, 2020, 10:22 am

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