On March 18 2021, something unusual happened in Whitehall. It involved Lord Faulks QC, a former Conservative minister; Robert Buckland QC MP, the Lord Chancellor; and the Ministry of Justice (in the former Home Office building) on Petty France.
That day, the Lord Chancellor published The Independent Review of Administrative Law (195 pages), which had been chaired remotely by Lord Faulks. Simultaneously, the Ministry of Justice responded with Judicial Review Reform (56 pages), sending its own additional proposals – especially ouster clauses (excluding the courts) and remedies – out to consultation (with the public to respond by April 29 2021).
Normally, governments cherry pick recommendations made by committees, and take their time. Here, the Government had to fatten up Lord Faulks’s meagre offerings before expiry. What on earth was going on?
Think back to November 2019 – before Covid-19 and the depletion of the nation’s finances – to the Conservatives’ manifesto. There, Boris Johnson had promised a constitution, democracy and rights commission. Bliss it was in that dawn to be alive.
Rights went back to David Cameron in 2006, and his idea (on which I advised) of a UK bill of rights. Democracy was a reference to the 2016 Brexit referendum. And constitution was a new idea, trailed first by Geoffrey Cox QC MP as attorney general, the day after Miller Two in the Supreme Court (September 25 2019) – the prorogation of parliament case which the Government lost badly.
On Christmas eve, I began what became my lockdown book, now provisionally entitled Writing the UK Constitution: a contested project. It is basically a workbook for such a commission, an unprecedented promise in our political history. The contest is between traditional common lawyers, who believe the constitution exists (in their minds), and modernisers including myself, who believe the UK needs to get itself a written constitution. I therefore am an advocate of joined-up constitutional reform, though I accept there can be short- , medium- and long-term goals over two parliaments.
At some point (after Cox was replaced in February 2020), the Government quietly abandoned the idea of a constitution, democracy and rights commission. This was revealed by Paul Goodman in ConservativeHome on July 23 2020. Buckland confirmed as much to a select committee on December 8 2020.
On July 31 2020, the Faulks commission had been announced. Reform of judicial review – through which the courts supervise the legality of executive actions – was a totemic Conservative issue. The Lord Chancellor, however, appointed mainly professional lawyers. There is the explanation for no statutory codification of judicial review, into which safeguards could be built.
If Miller Two was judiciary one, executive nil, the Faulks report (pending the further consultation), makes the score now judiciary two, executive nil.
On December 1 2020, this time the Cabinet Office – there being a job share on the constitution by Buckland and Michael Gove – announced the forthcoming repeal of the Fixed-term Parliaments Act 2011. A draft bill included the non-justiciability of prerogative powers concerning parliament. The Government agreed to pre-legislative scrutiny, including by the House of Lords, where sits the informal lawyers’ and judges’ party on the cross benches. Could this be judiciary three, executive nil?
On December 7 2020, the Ministry of Justice (again) announced a review of the Human Rights Act 1998, another totemic Conservative issue. The chair was to be Sir Peter Gross, a retired court of appeal judge. The members of the review include academic lawyers. One hopes for an agreed UK bill of rights, but it could end up in coming months as: judiciary four, executive nil.
Speaking last week to a university audience, Buckland made a diplomatic stab at articulating the Government’s strategy: “it falls to me to propose reforms which, as far as possible, avoid drawing judges into the political realm and forcing them to adjudicate on moral and philosophical issues.” But what Lord Chancellor, if the judges – led by Baroness Hale – upset the so-called constitutional balance, as they arguably did in Miller Two?
Whitehall has a track record on constitutional reform in the 1990s, 2000s and 2010s, which should have been a warning from history for the current government in its early months.
The first Blair government (1997-2001) did enact: human rights; expulsion of hereditary peers; and devolution (which has turned out very different). Constitutional reform – it is rarely observed – was then replaced with public-sector reform led by number 10. The sacking of Lord Irvine of Lairg QC in 2003 led to the misnamed Constitutional Reform Act 2005, which gave us judicial appointments commissions to be stuffed with quangocrats.
Gordon Brown was – and is – more serious about constitutional reform, but Whitehall balkanized his ambitions in the form of the Constitutional Reform and Governance Act 2010. The Equality Act 2010 – a sectional project of Labour women ministers – was never a proper constitutional project concerning the state.
The coalition of 2010-15 divided over electoral reform and delayed boundary changes, and House of Lords reform (a project which has been staggering since 1918).
I hope, if there is life after recent deaths, that Johnson will return to the commission idea, and work towards the next general election in 2024.
My perspective is not, honestly, particular reforms: presidential (through the monarchy) and prime ministerial powers; a federal UK to save the union; separate legislatures; proportional representation.
My big idea is an expert report for ministers in this parliament, inspired by an Irish document of 1996. The objective would be a written constitution, to be enacted by parliament in the first instance. There are arguments against such an idea, especially the slogan flexibility versus rigidity.
The commission would comprise legal and non-legal constitutionalists. And they would provide reasons for and against particular provisions, and how practical ideas could work one with another. Advisers advise, ministers decide, and the people or peoples – after 2016 – should vote decisively on the rules of the state.