Lee Marsons: Constitutional change in an era of incrementalism: Launching Public law Project’s UK constitutional reform tracker

We are living in constitutionally eventful times. From the prorogation of Parliament, Brexit and the Northern Ireland Protocol, the Independent Review of Administrative Law, the Independent Human Rights Act Review, the Nationality and Borders Bill, the Judicial Review and Courts Bill, or multiple stories surrounding the ministerial code, this is a time of ongoing constitutional importance, tension, and change. It is difficult to keep up, even for those who are experts.

But these changes are not being approached in a unified way under a single Bill, review, or commission. The grand Commission on the Constitution, Democracy and Rights – promised in the Conservative Party’s 2019 manifesto – is no more. Instead, policies which have constitutional implications are being pursued at different times by different departments in different ways to achieve different objectives. This makes it difficult to track what is going on, in which department, why it is important, how it interrelates with other changes, and what its broader or longer-term implications might be. “Incremental” is the buzzword of the day, with ministers “eating the elephant in chunks”. This also means that much of the change produced may not even be intentional. It may be the unexpected consequence of a series of measures taken together over time.

For these reasons, Public Law Project is today launching a UK constitutional reform tracker, available here. The tracker is a tool designed to help users keep up to date with constitutionally significant events and perceive important patterns as they emerge by categorising these events according to constitutional theme. During this project, PLP has worked closely with the Bingham Centre for the Rule of Law, the Bonavero Institute of Human Rights, the Constitution Unit, the Institute for Government, and the UK Administrative Justice Institute. The initial phase of development has been led by PLP Research Fellow, Lee Marsons, and PLP Research Assistant, Mustaqim Iqbal. 

How does the tracker help?

The tracker does two important things.

The first is to provide a chronological list of constitutionally important events under the current administration beginning 24 July 2019. We have taken this date as our starting point given that it makes most sense to be interested in constitutional developments under the government currently in office, rather than any previous administrations. Given that the current constitutional reform trend is not exclusively legislative in some areas, these important events include not only primary legislation but also secondary or delegated legislation issued by Ministers, policy papers, parliamentary motions, ministerial statements, government speeches and announcements, public appointments, administrative practices, and key cases from the courts associated with these things. The purpose is to highlight events that may otherwise be obscure or missed. 

The second important feature is to make every one of these entries searchable by various tags and sub-tags. Currently the major tags are: Parliament; Courts; Ethics, standards and integrity; Human rights and equality; Devolution and the Union; Civil service and public sector reform; and Rule of law. Entries are also identifiable with a wide range of sub-tags for users with more specific interests in these general themes. For example, the “Parliament” theme contains sub-tags including “hybrid proceedings”, “standing orders”, and “committees”. The “Courts” theme contains sub-tags including “judicial review”, “ouster clauses”, and “tribunals”. The “Civil service and public sector reform” theme contains sub-tags including “new public bodies”, “special advisors”, “public body appointments”, and “relocation”. 

Users can also search for entries related to particular central government departments (e.g. “Home Office”, “Ministry of Justice”, or “Department for Digital, Culture, Media and Sport”) and entries related either generally to “Coronavirus” or specific stages of the crisis (e.g. “first lockdown” and “roadmap out of lockdown”). The full list of searchable tags and sub-tags is available on the website. This feature will help users understand not only what is going on in terms of individual changes but also the interrelationships between events, so that trends and patterns over time can be seen. 

Care has been taken to draft each entry in language which is as politically impartial as possible, in order to provide a factual description of events, allowing users to arrive at their own conclusions as to the quality and merits of the changes. The language is also designed to be accessible to non-lawyers and non-experts in an attempt to make this information available to the widest possible range of interested audiences. 

The scope of the tracker

At the time of launch, the tracker’s focus is on constitutional change produced by central government and the responses to this central government action, such as by litigation or parliamentary reports. Independent constitutional reforms adopted by the devolved nations – such as attempts to implement in domestic law various United Nations treaties – are not within the immediate ambit of this project but there is scope for expansion should there be appetite for this. 

Inevitably, this is the type of project that may never truly be complete. It may forever be too broad for some and too narrow for others. Equally, no matter how much time is spent researching, some events that should be included may be missing. Indeed, no claim is made that the tracker is yet fully comprehensive and this soft launch is intended more as an initial public test drive to trial the idea and to gather feedback for future improvement, refinement, and development.  

Nevertheless, the tracker can act as a helpful platform for identifying the range of activities that will be useful for public lawyers to know about and for fostering further understanding, debate, and analysis on this important subject. Whatever one’s constitutional area of interest, we hope that the tracker will prove to be a valuable research tool, drawing attention to developments that may have otherwise gone unnoticed and highlighting patterns that may otherwise have been only semi-visible. 

Lee Marsons, Research Fellow, Public Law Project.

Comments, feedback, or questions should be directed to l.marsons@publiclawproject.org.uk

(Suggested citation: L. Marsons, ‘Constitutional change in an era of incrementalism: Launching Public Law Project’s UK Constitutional Reform Tracker’, U.K. Const. L. Blog (19 October 2021) (available at https://ukconstitutionallaw.org/))