Monday, 25 November 2019

The Conservative Party and the constitution

On Sunday 24 November, the Conservative Party published its election manifesto - "Get Brexit Done."  There is also a Costings Document.

At first glance, the manifesto does not appear to say much about constitutional reform but, as I seek to show, first glances can be misleading.

Brexit:

Exit Day from the EU is currently set at 31 January 2020 and, under
the latest withdrawal agreement concluded on 17 October 2019, the remainder of 2020 will be a transition (or implementation) period. The withdrawal agreement contains a possibility that the transition period could be extended if the Joint Committee so requests (Art 123) -

Unless there is such an extension, the transition period is a mere 11 months during which the manifesto claims that it will be possible to negotiate a trade agreement which will "strengthen our Union."  The Conservatives say that they "will not extend the implementation period beyond December 2020." In parallel to negotiating a trade agreement, the manifesto states that they will legislate to "ensure high standards of workers’ rights, environmental protection and consumer rights."

The now defunct European Union (Withdrawal Agreement) Bill did not entirely rule out an extension. Clause 30 provided that a Minister of the Crown could agree in the Joint Committee to an extension only if certain requirements were met including approval by the House of Commons.  On its face, the manifesto now rules out any extension. If there is a new Withdrawal Agreement Bill it will be essential to note what it says about extensions.

It is generally thought by experts that a comprehensive trade agreement cannot be negotiated and concluded within just 11 months - see e.g. The Guardian 6 November 2019.  Alternatives to reaching such an agreement appear to be either some form of "bare bones" agreement or, at the end of 2020,  "no-deal" at all.

Further, it is unlikely that matters such as workers’ rights, environmental protection and consumer rights can be dealt with in isolation from trade negotiations with the EU. As pointed out in a BBC article (Katya Adler 22 November), the EU will insist on "the utmost levels of EU regulation bells and whistles attached (the so-called level playing field provisions). This would mean the prime minister signing up to EU environmental regulations, for example, and the bloc's state aid rules."

The political slogan "Get Brexit Done" appears disingenuous because Brexit will not be done by 31 January 2020 other than perhaps in the formal / legalistic sense that the UK would no longer be a member of the EU. As I have attempted to show, much more will be needed to get Brexit done in a way which does not entail significant damage to the UK economy.

See also "The ghost of Christmas yet to come" - lecture at Glasgow University on 25 November 2019 by Sir Ivan Rogers - formerly UK Permanent Representative to the EU. Sir Ivan resigned on 3 January 2017.

Constitution / Legal:

Criminal Justice:

A Royal Commission on criminal justice process is proposed - (page 19). This appears at the end of a paragraph which reads - "We will conduct a root-and-branch review of the parole system to improve accountability and public safety, giving victims the right to attend hearings for the first time, and we will establish a Royal Commission on the criminal justice process."

Further details are absent. We could be forgiven for thinking that Royal Commissions had gone out of favour - a "lost world" as one Institute for Government article put it. The article commented -

"A royal commission is an ad hoc advisory committee appointed by the government (in the name of the Crown) for a specific investigatory and/or advisory purpose. An ancient institution (William I’s 1085 royal mandate leading to the creation of the Domesday Book is usually cited as the first), royal commissions have come in and out of fashion over the centuries. In the past 200 years, they were most in vogue during the 19th century: some 388 commissions were established between 1830 and 1900 (more than 5 a year on average). They have been less frequent in the post war-era: 30 were set up between 1945 and 1975 (just more than one a year on average), and just seven between 1975 and 2000 (0.28 per year on average).

Despite their importance, they have also been subject to frequent criticism. Sir Alan Herbert, the independent MP and wit of the inter-war era, once remarked that "a Government department appointing a royal commission is like a dog burying a bone – except that a dog does eventually return to the bone."

What will a Royal Commission actually tell us?  We already know the problems - serious underfunding of prosecution, courts, defence and forensic science services.

Northern Ireland:

The manifesto points out that "Northern Ireland enjoys huge benefits from membership of the United Kingdom and our country is stronger and richer for Northern Ireland being part of it. That is why we will never be neutral on the Union and why we stand for a proud, confident, inclusive and modern unionism that affords equal respect to all traditions and parts of the community."

The party would continue to work with all sides to re-establish the Northern Ireland Executive and Assembly. Tackling this seemingly intractable problem will be an issue for any new British government.

Scotland:

The Conservative Party is opposed to a second independence referendum. The manifesto states that - "Nicola Sturgeon and the SNP promised that the 2014 referendum would be a ‘once in a generation’ vote and the result was decisive. We believe that outcome should be respected."  This statement ignores the obvious point that Scotland voted to remain in the EU and that is surely a fundamental change of position since the 2014 independence referendum. There appears to be a strong possibility that Scotland could vote for independence provided that by doing so it could remain in the EU.

Parliament:

"The failure of Parliament to deliver Brexit – the way so many MPs have devoted themselves to thwarting the democratic decision of the British people in the 2016 referendum – has opened up a destabilising and potentially extremely damaging rift between politicians and people. If the Brexit chaos continues, with a second referendum and a second Scottish referendum too, they will lose faith even further."  Of course, this ignores the actions of several Conservative MPs who, via the so-called "European Research Group" (ERG) were vehemently opposed to the withdrawal agreement negotiated by Theresa May.

The manifesto pledges to "get rid" of the Fixed Term Parliaments Act which they claim has led to paralysis at a time the country needed decisive action.  Comment: There is no detail as to what would replace the Act. Perhaps they prefer a return to the old prerogative system under which the Prime Minister could obtain a dissolution of Parliament at a time entirely of his own choosing. Given that the party sees Parliament as the culprit in obstructing Brexit, it is unlikely that they will wish to give MPs a say in whether to hold an election. Possible problems if the Act is repealed are discussed at Institute for Government 27 November - The FTPA is a bad law - but it should not be replaced with something worse

Parliamentary boundaries would change to make sure that every vote counts the same – "a cornerstone of democracy."  Comment: Boundary changes are proposed by the various Boundary Commissions. It was widely thought that the latest boundary proposals would favour the election of a Conservative government - BBC 10 September 2018


Having said that every vote should count the same - a cornerstone of democracy - the party goes on to say that it will continue to support the First Past the Post system of voting. Under that system there are many "safe" seats which have stuck with an MP from one or other of the main parties for decades. Those opposing such an MP hardly have a vote that counts the same.

The manifesto promises to introduce identification to vote at polling stations, stop postal vote harvesting and take measures to prevent any foreign interference in elections.  They would also make it easier for British expats to vote in Parliamentary elections - (unclear about referendums) - and would get rid of the arbitrary 15-year limit on their voting rights.

16 and 17 year olds will NOT be given the right to vote under a Conservative government.

Constitution / Legal:

At page 48 there is this "blockbuster" of a paragraph:

"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 and 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."

This paragraph requires considerable "unpicking"but here are some initial thoughts -

a) Relationship between the Government, Parliament and the courts -

Recent events have shown that the Prime Minister and other senior Conservatives would prefer to have a constitution that strengthened executive authority. One example has been their obvious irritation over MPs taking control of the order paper - see House of Commons Library 26 June 2019. There has also been obvious annoyance at the use of judicial review in connection with Brexit and in relation to prorogation of Parliament.

b) Functioning of the Royal Prerogative -

This is not at all clear but its inclusion in the manifesto indicates unhappiness within government about prerogative powers which technically belong to the Crown but are, in practice, exercisable by Ministers.  Regrettably, the manifesto does not amplify on this. The recent prorogation of Parliament is illustrative.  The power to prorogue is a Royal Prerogative power and the Prime Minister plainly thought - and appears to have been so advised - that Parliament could simply be prorogued (i.e. closed down) for a lengthy period. The Supreme Court unanimously held otherwise - see previous post 24 September.

c) Role of the House of Lords -

The manifesto is not proposing either abolition or reform of the Lords but seeks to examine its role. Again, there is no amplification of this. Neither is there any indication of what is thought to be wrong.

d) Access to justice for ordinary people -

I detest the phrase "ordinary people" but, leaving that to one side, it has to be noted that the Conservative led 2010-15 coalition enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which, by denial of legal aid, has been a major factor in limiting access to justice.  Criminal legal aid for representation has been attacked and, in the Crown Court, the so-called "innocence tax" is a disgraceful attack on the rights of the citizen - see Secret Barrister at The Guardian 27 December 2018 and, regarding unrepresented defendants, see The Guardian 24 November 2019.

e) Update the Human Rights Act -

The paragraph does not say exactly how the Act will be updated apart from seeking to "ensure that there is a proper balance between the rights of individuals, our vital national security and effective government."  Exactly what is meant by terms such as "proper balance" and "effective government" is not spelled out. There is little doubt that the Act is disliked by the executive because it can constrain their activities and makes Ministers accountable to law  where convention rights are breached by the State.  A weather eye must be kept on this subject.

f)  Judicial review -

This process, vital to the Rule of Law, empowers the senior courts to ensure that public authorities - including Ministers - operate within the law. Judicial review is already subject to several constraints including a key permission stage which is under the control of the judiciary. The permission stage ought to ensure that in cases against the government there is an arguable case suitable to be heard by the High Court. This ought to guard against abuse of the system.  Yet again, be aware!

g) Constitution, Democracy and Rights Commission -

These vital questions will be shuffled off to a newly formed Commission tasked with examining the issues in depth and making proposals "to restore trust in our institutions and in how our democracy operates."  Beyond that, the manifesto is silent about the Commission. Nothing about its terms of reference, membership, working timescales etc.

The manifesto, if implemented, could lead to greater executive power at the expense of Parliament and the courts.  Protection of human rights would be weaker and there will be more restrictions placed on judicial review.  For those reasons, this is a manifesto which ought to give rise to serious concern.

25 November 2019

Telegraph - Conservative Party Manifesto - Summary of key policies

The Guardian - Conservative Party Manifesto


 


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