Working to make government more effective

Comment

Conservative manifesto plans for the constitution are too reactive and Labour’s too uncertain

Dr Catherine Haddon warns against vague or short-termist constitutional reform.

Conservative and Labour manifestos set out plans for constitutional reform, but Dr Catherine Haddon warns against vague solutions and Brexit-related short-termism.

The Labour and Conservative manifestos both include significant plans for constitutional reform, but both raise many questions.

Alongside proposals to reduce the number of constituencies to 600 and introduce voter identification at polling stations,the Conservative manifesto says that "after Brexit" a Conservative government would hold a constitutional review to restore "trust in our democracy". This review would tackle the purpose of the House of Lords, prerogative powers, the role of the courts and the Human Rights Act 1998. But the phrasing in the Conservative manifesto implies the party already knows the conclusions.

Labour’s manifesto, meanwhile, sets out an ambitious programme, but leaves a lot of questions hanging on how it will be achieved. It is selling a "constitutional convention" which will focus on the future of devolution – but is not clear on what else.The manifesto also proposes replacing the House of Lords with a Senate (but leaving the balance of powers between the Houses of Parliament to be spelled out in the future). Where it is precise, it is also more limited: extending the franchise is in, but there is no mention of whether Labour’s constitutional convention – or a citizens’ assembly – will be allowed to look at electoral reform.

The Conservatives raise the issue of royal prerogative powers, but provide few clues on what they plan to do

Prerogative powers have come under close scrutiny in recent years – especially powers to prorogue and dissolve Parliament. But the Conservative promise to look at the "functioning" of these powers is vague. Does this mean reviewing the role of the Queen as the source for executive powers or how ministers use these powers? Is there a possibility of putting more powers into legislation? What role would Parliament’s view be of an increase in executive powers? The proposals don’t make clear whether these questions will be addressed, but they would be central to any changes on this fundamental part of how ministers operate.

Like Labour, the Conservatives pledge to repeal the Fixed-term Parliaments Act – but that means thinking about how this piece of legislation, which has proved to be so much more controversial than anticipated, would be replaced. Royal prerogatives are residual powers – leftover from an era when monarchs had much greater authority. They exist because they have not been superseded, but the idea of legally ‘restoring’ such a power is something that causes disagreement among lawyers – can you restore a constitutional power that is based on the lack of anything else?

But looking at prerogative powers is also a way of looking at the executive powers of the government. So the proposed review could be code for returning the power to call an election to the hands of the prime minister – and perhaps even strengthening the role of the executive further. If any review becomes about consolidating the power of ministers, there will be demands for reciprocal checks and balances in Parliament or the courts.

Conservative plans to look at the role of the courts should not be a reaction to government frustration over Brexit rulings

The wording in the Conservative manifesto about the role of the courts is more explicit and is one of the areas that will concern many constitutional experts. The Johnson government’s frustration with the Supreme Court’s prorogation ruling provides a backdrop – with the worry that major constitutional changes are brought in as a knee-jerk reaction to that case.

There are questions that the prorogation ruling poses: did the Supreme Court fundamentally change its role in that ruling? Likewise, the role of judicial review needs examining. It drives a lot of activity in Whitehall, from its approach to consultations to how it conducts impact assessments, and the effect of judicial review on policy making and how it interacts with parliamentary scrutiny is too little discussed. But the Conservative manifesto’s insistence that judicial review "is not abused to conduct politics by another means or to create needless delays"suggests a returned Conservative government would be keen to strip out powers – even though it also acknowledges the need for the courts to "protect the rights of the individuals against an overbearing state".

The reduction of court powers over judicial review risks a significant removal of scrutiny. And any review would need to be looked at alongside changes that will follow the UK’s departure from the EU. Improving policy making, including examining the effect of judicial review, is no bad thing, but reducing the powers of the courts out of frustration risks being a damaging move.

Labour’s plans are ambitious, but it is less clear how they will be delivered

On one reading, Labour’s plans are more extensive. Labour’s central commitment is to hold a UK-wide constitutional convention, led by a citizens' assembly, to examine where power should lie in the UK, the relationship between the nations and the regions of the UK and how to to put power in the hands of the people. Separately, Labour plans to abolish the House of Lords and replace it with a Senate, but previous governments have stumbled over attempts to reform the upper house.

But Labour doesn’t say when this constitutional convention would take place. This matters. Brexit, specifically Labour’s plans to hold a second referendum by next June, and the prospect of another referendum on Scottish independence – which Labour only rules out “in the early years” of a Labour government – could derail any convention. And nor is Labour clear about how the convention’s conclusions and recommendations will be put into action. The convention could result in proposals for major constitutional change, possibly even a codified constitution, but managing such an overhaul would be far from straightforward.

And what isn’t discussed also matters. The purpose of its constitutional convention is to tackle "how power is distributed" – but despite its plans to extend the franchise to 16- and 17-year-olds and to all foreign nationals resident in the UK, Labour doesn’t seem to want any other changes to the electoral system. It wants to keep the current constituency boundaries, and it isn’t clear whether its citizens' assembly will be allowed to stray into such questions.

Conservative plans are too short-term and Labour’s too open-ended

Both the Labour and Conservative proposals to review the UK’s constitution are not an inherently bad thing. There are many reasons why some kind of constitutional "reset" is needed, and the areas that both parties identify are many of those most in need of review. But whichever party wins the election needs to combine looking at what has gone wrong in recent years – as well as what has worked well – and how to reinforce respect for constitutional norms and conventions.

The Conservatives are in danger of continuing to make the constitution a Brexit battle ground. Making changes designed to avoid any repeat of the Parliament just gone would be a mistake – and would be no way to restore trust in our democracy.

Labour has identified longer-term areas that need tackling, but its grand convention fails to address medium-term challenges such as parliamentary reform, how to replace the Fixed-term Parliaments Act, or inter-governmental relations with the devolved nations.

Both manifestos reveal big differences in how the parties view the role of the executive and future of the UK Union – Labour place emphasis on the Union and on how the public view our democracy; the Conservatives focus on the functioning of our constitution and how it affects the role of government. Whichever party forms the next government, either approach need to bring in other parties, Parliament more widely, the legal system, the devolved nations and, of course, the public. And any reforms need to be achievable.

Against the backdrop of Brexit, the next government must make sure it helps to build a constitution which meets the demands of the future, not one that is a reaction to frustrations of the last two years.

Related content