In 2009, Vernon Bogdanor wrote about The New British Constitution. His thesis was that a decade of New Labour reforms had produced a shift in the nature of the constitution, from one based on parliamentary sovereignty, to one based on the ‘sovereignty of the constitution’. Since 2009, further constitutional reforms have been implemented by governments of various political stripes, apparently consolidating the legalisation of the constitution, and the dispersal of power from the institutions of central government to Parliament, the devolved institutions, and the courts. The New British Constitution appeared to be firmly established. Recent events, however, demonstrate the shaky foundations of this new constitutionalism, with a growing trend towards a weakening of both legal and political checks on Governmental power. This blog post draws attention to this worrying trend, focusing on three key examples. It is based on the findings of the first report of the Constitutional Monitoring Group (of which the authors are both members), established to provide a biannual barometer of the state of constitutional principles in the UK. The report raises concerns not just about the potential consequences of this trend, but of the piecemeal and rapid manner in which it is occurring, with some important constitutional changes appearing to happen under the radar.
Reclaiming power from Parliament
The Dissolution and Calling of Parliament Bill 2021 aims to repeal the Fixed-term Parliaments Act 2011, ‘reviving’ the prerogative power of dissolution. Rather than placing the power to hold an early Westminster general election in the hands of members of the House of Commons (via a vote of no confidence in the government or a two-thirds majority vote), the Bill restores the unilateral, discretionary power of the Prime Minister to request that the Monarch dissolves Parliament.
The Bill raises a number of constitutional issues. First, there is a lack of clarity surrounding the nature and scope of the power of dissolution. Does the Bill successfully revive a prerogative power, or does it create a new statutory power with the content of the former prerogative power? In addition to uncertainty over the source of this revived power, there is also uncertainty as to its scope. Is the content of the former prerogative power limited by the conventions governing its use? If so, what is the scope of these conventions and how far can these be modified or limited by a Governmental statement of dissolution principles?
By reclaiming power over the timing of general elections from MPs, the Bill restores an important political weapon to the Prime Minister – one that can be used to maintain government control over the Commons as well as to gain electoral advantage for the governing party. Some would say that it also restores flexibility to the constitution – although Meg Russell has recently refuted the suggestion that the Fixed-term Parliament Act was a root cause of the political impasse during the later stages of the Brexit process. The Bill also seeks to head off any prospect of political control over election timing being replaced by legal control, via a potential Miller 2/Cherry-style challenge to the use of the revived dissolution power. A belt-and-braces ouster clause prevents courts from questioning the exercise or purported exercise of the power to dissolve Parliament, or any decision or purported decision relating to the power of dissolution. In addition, courts will be unable to question the limit or extent of the power to dissolve Parliament.
This is not to argue that the Fixed-term Parliaments Act 2011 was not without its problems, including uncertainty surrounding whether there could be votes of no confidence that did not take the format of the motion set out in the Act and, if so, the consequences of such a vote. It is also important to note that both the Conservative and Labour Party manifestos contained a commitment to repeal the Act. Nevertheless, the 2021 Bill moves away from the ‘new’ constitutional settlement by re-empowering the executive at the expense of both parliament and the courts.
Reclaiming power from the courts
The Judicial Review and Courts Bill 2021 traces its origins to the Independent Review of Administrative Law, the Government’s response and subsequent consultation exercise. The Review was established with the instruction to ‘bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law’, and was widely perceived as a backlash against high profile government defeats in the courts, particularly during the Brexit process.
Although the Government initially appeared minded to go further in reforming judicial review than the Review panel considered necessary or appropriate, the Bill proposes only modest modifications that are more in line with the recommendations of the independent review. The Bill provides courts with a discretionary power to grant suspended quashing orders and prospective only remedies. However, this discretionary power is coupled with an obligation to grant either a suspended quashing order or a prospective only remedy when this would provide an adequate remedy for the applicant, unless the court sees good reason not to do so. The Bill also sets out the criteria to be considered by the courts when determining whether to issue a suspended quashing order or a prospective only remedy. In addition, the Bill removes Cart judicial review, preventing the court from reviewing a decision of the Upper Tribunal not to hear an appeal from the First-Tier Tribunal.
As with the Dissolution and Calling of Parliament Bill, the Bill raises issues of certainty. How should courts combine a discretionary power with a requirement to exercise that discretion if certain conditions are met, unless the court sees good reason not to do so? This uncertainty may give rise to a large amount of litigation surrounding remedies. Second, concerns arise as to the form of the ouster clause used to remove Cart judicial review. Could this be used as a model clause in other areas? If so, might this give rise to a reduction in legal checks over administrative bodies that are neither performing a judicial function nor composed in a manner similar to the courts?
Reclaiming power from the devolved institutions
The United Kingdom Internal Market Act 2020 provides further evidence of the erosion of constitutional protections for the powers of the devolved institutions that has been evident throughout the Brexit process. The Act amounts to a major reform of the devolution settlements in order to prevent new barriers to trade within the United Kingdom arising as the result of the removal of the common external obligation on the UK and devolved institutions to comply with EU law. The mutual recognition and non-discrimination principles established by the Act resemble but do not replicate the internal market principles applied under EU law. In particular, they provide fewer opportunities to justify barriers to trade in pursuit of public interest objectives (such as environmental protection) than are available in EU law, and, because of the operation of Parliamentary sovereignty, they do not apply symmetrically to the UK and devolved institutions. There remains considerable uncertainty about the precise impact of the Act on devolved regulatory autonomy, but what seems certain is that it is likely to privilege regulatory choices made by the UK government and Parliament for the English market over those made by the devolved institutions for their own territories. The Act also gives UK ministers new powers to spend in devolved areas, again ostensibly to facilitate the replacement at UK level of EU funding mechanisms, but operating in a way that bypasses rather than empowers the devolved governments.
The Act has been described as another ‘power grab’ by both the Scottish and Welsh Governments. It was developed unilaterally by the UK Government, subject to minimal consultation, and enacted in just three months, without the consent (clearly required by the Sewel Convention) of any of the devolved legislatures. It also calls into question the co-operative process of developing post-Brexit ‘common frameworks’ that had been under way since the enactment of the European Union (Withdrawal) Act 2018. The Act thus provides further evidence of the ‘muscular’ and centralising unionism that has been increasingly apparent since the 2016 Brexit referendum, and which has undermined already fragile territorial relations within the UK. Indeed, this has provoked the Welsh Government into launching a legal challenge to the UK Internal Market Act, seeking clarification as to the extent to which the Act amends or repeals the Government of Wales Act 2006. However, given the sovereignty of the UK Parliament, and in the context of challenges to the legitimacy of judicial review, the Welsh Government’s legal action would appear to face an uphill struggle.
The revival of the political constitution?
These and other recent constitutional reforms suggest that the death of the old constitution had been greatly exaggerated. The power of the UK Parliament – and by extension of a UK Government with a secure majority in the House of Commons – remained unaffected, simply awaiting the appropriate political conditions for their reassertion.
Should we be worried about a move away from the ‘new’ constitution? After all, one of the key features of the UK constitution is its evolutionary nature. We should expect the relative balance of power to shift between different institutions of the constitution. A move away from a legal constitution could also be seen as a move back towards political constitutionalism, legal checks being replaced with political checks and balances.
However, as the Dissolution and Calling of Parliament Bill demonstrates, whilst legal checks are being removed they are not always being replaced by effective political checks. And, as the fate of the Sewel Convention shows, political checks are only effective if political actors are prepared to accept them.
Moreover, piecemeal reforms could have the same unintended consequences as the Fixed-term Parliaments Act, particularly when their provisions may be vague or ambiguous, and where reforms are rushed through with inadequate – or even no consultation; in some cases (such as the abolition of English Votes for English Laws) without even a vote in Parliament.
Of greater concern is the extent to which the reforms demonstrate the fragility of the UK constitution, which – despite the juridification of the past twenty years – remains fundamentally dependent upon political will as much as it is upon constitutional principles.
Aileen McHarg is a Professor of Public Law and Human Rights at Durham Law School
Alison L. Young is the Sir David Williams Professor of Public Law at the University of Cambridge
(Suggested citation: A. McHarg and A. L. Young, ‘The Resilience of the (Old) British Constitution’, U.K. Const. L. Blog (8th Sept. 2021) (available at https://ukconstitutionallaw.org/))