What does Boris Johnson’s victory mean for the constitution?

Before the election, most UK party manifestos set out ideas for constitutional reform, most specifying the need for a codified constitution written down in one place, with some sort of constitutional convention to determine this. However, although Britain is one of very few states lacking a codified constitution, the Conservative manifesto made no such commitment, indeed it lauded the flexibility of Britain’s uncodified constitution as “its ability to evolve.” Yet the absence of a commitment to comprehensive constitutional reform does not mean the Conservative manifesto said nothing about the constitution. On the contrary, commentators highlighted some “ominous” manifesto passages, especially those on p48.

This article focusses on some of these potentially concerning passages. However, it is also written with more general reflections in mind about what constitutions are and do. It is worth assessing the manifesto commitments according to these standards, underlining flashpoints for constitutional strife.

What is the point of a constitution? Their existence, usually in codified form, is a recognition that rules about major state institutions (parliament, executive, courts, monarch) are fundamental and different in kind from other rules, such as on dangerous dogs. Constitutions concern rules about how the state may legitimately exercise power. So constitutional laws should be distinguished from everyday laws, although in Britain, absent a codified constitution, this is often tricky, and it is too easy to change even fundamental rules on the basis of partisan interests.

Constitutions do many things, but they have three particularly important functions for contemporary Britain. First, they delineate the roles of major state institutions, and relations between them. They usually provide for separation of powers, as well as checks and balances between institutions, which provide some accountability. Second, constitutions also regulate the relationship between government and individual, usually by a Bill of Rights, providing some protection for individuals against an overbearing state. Third, in most states, there exists not only a horizontal separation of powers between central institutions, but also a vertical separation, distinguishing powers of central institutions from those at state/regional level, whether the system is federal, or devolutionary as in Britain. In all these ways, state power is regulated, limited and made accountable.

So what are the potential consequences of the new Conservative government for the separation of powers and accountability; human rights; and devolution? Much of our answer relates to the Conservative manifesto, as, in these early days of government, this is what is available. However, a cautionary word: political manifestos are not legally enforceable (this was established in the Wheeler case in 2008).

Political/electoral

The conservative manifesto suggests “the failure of Parliament to deliver Brexit… has opened up a destabilising and potentially extremely damaging rift between politicians and people.” A number of pledges follow from this, mainly dealing with the electoral system, mostly designed to ensure more decisive government. There is the intention to “get rid of the Fixed-term Parliaments Act,” with the explanation that “it has led to paralysis at a time the country needed decisive action.” But if this Act is repealed, what, if anything, will replace it? Prior to the Act’s adoption, the royal prerogative enabled a prime minister to call an election at will, so if the Act were not replaced by other legislation, the prerogative is likely to revive, strengthening executive power at the expense of parliament.

The manifesto also declares there will be “updated and equal parliamentary boundaries, making sure that every vote counts the same.” Here of course the devil lies in the detail, as constituencies with equal populations can be fashioned in many ways, with scope for gerrymandering, as in the US. We are also told, “We will continue to support the First Past the Post system of voting, as it allows voters to kick out politicians who don’t deliver, both locally and nationally.” This does not sit well with the previous commitment to ensure every vote counts the same, given many constituencies elect MPs on large majorities, with votes for others largely wasted. The current national electoral system favours the Conservatives (and has previously favoured Labour). However, if proportional representation were applied to national elections, Johnson would not have achieved a parliamentary majority. Much of Britain already votes on a PR system, for example in devolved parliaments, some local elections, and (imminently defunct) EU Parliament elections. Can we be confident these PR systems will continue, given the manifesto’s reference to both local and national elections? A further pledge is to “protect the integrity of our democracy, by introducing identification to vote at polling stations.” Who would not want to protect the integrity of democracy? However, there is actually very little voter fraud in Britain, and the danger is that voter identification can be used to deter voters and suppress the franchise, again a feature of US politics.

These pledges by and large work in favour of government, at the expense of parliament and voters for smaller parties. They appear to reduce the potential of parliament to act as a check on government.

Rights and judicial review

Commitments here are set out in the rather vague section on p48 that declares, “After Brexit we also need to look at the broader aspects of our constitution.”

Most constitutions protect human rights. This is particularly necessary in Britain, given the first past the post system, where legislation prejudicing minority groups (especially those lacking electoral rights, such as EU nationals) can be passed by a bare majority in parliament, a majority now readily available to Johnson. Human rights have a precarious status without entrenchment, a tool for immunising laws from repeal by simple legislative majority. However, under Britain’s uncodified constitution, with its emphasis on parliamentary sovereignty, entrenchment is not possible. (And this is why Johnson’s planned introduction of a clause in the Withdrawal Bill to block extension of negotiations on a trade deal with the EU beyond the end of 2020 is not a cast-iron guarantee. It could easily be overturned by simple legislation.)

Indeed, Brexit removes the protection for rights currently afforded by EU law, which operates as a sort of “semi entrenchment.” Until we Brexit, the EU Charter of Fundamental Rights, and other rights in EU treaties, apply and national courts can disapply incompatible domestic legislation. Post-Brexit, the EU Charter will not be retained in UK law, and other EU rights will be vulnerable to repeal, even by ministers using secondary legislation. As Vernon Bogdanor writes, “We will be engaged in a process, not of entrenchment, as was the case in 1973, but a process of disentrenchment, quite unique in the democratic world.”

This means rights protected under the Human Rights Act (which guarantees most European Convention rights in domestic law, but is unrelated to EU law) become even more important after Brexit. Yet this Act is under threat, and, although an attempt to legislate a “British Bill of Rights” during the coalition government failed, the Conservative 2017 manifesto pledged to repeal the Act “when the process of leaving the EU concludes.”

The 2019 manifesto states, “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.” This is vague. What does “update” mean? Repealing the Act might still be a consideration, as might leaving the European Convention on Human Rights altogether. But in the absence of repeal, “update” of the Act might include the following: removing the duty of the courts to “have regard” to Strasbourg caselaw; abolishing judges’ power to issue declarations of incompatibility between HRA rights and UK legislation; and diluting the duty to interpret legislation so far as possible in line with ECHR rights. Other changes could include increasing government power to deport foreign nationals, and limiting the territorial scope of the Act so that armed forces overseas were no longer within its remit. All such changes would transform and dilute the human rights landscape in the UK, and remove important checks on government action.

Also interesting is the manifesto commitment to “champion freedom of expression and tolerance.” But will this commitment apply to the media? In the pre-election climate debate, when Johnson did not participate, Channel 4 “empty-chaired” him and replaced him with a melting ice block. In response, the Conservative Party threatened to revoke Channel 4’s licence if in government. Post-election, the BBC has been warned that the government is considering decriminalising non-payment of the licence fee, and will boycott Radio 4 Today over perceived anti-Tory bias. Yet a free and independent media is a bulwark of a tolerant, democratic society, and its restriction or absence notable in autocratic states such as Orban’s Hungary. Restricting the media removes another check on government. The manifesto also reads, “We will ensure that judicial review is… not abused to conduct politics by another means.” The intention to “look at the functioning of the royal prerogative” is also stated. What might this mean? It is surely related to two high-profile Brexit-related Supreme Court cases: in the first Gina Miller case in 2017 the Court held it would be unlawful to trigger Article 50 without first obtaining parliament’s consent; in the Gina Miller/Joanna Cherry case in 2019 that the prorogation of parliament was unlawful. The manifesto seems to suggest limiting judicial review, especially where perceived to be “political.” It must be said, however, that judicial review in the UK is misunderstood—it does not permit courts to replace government decisions with their own, but instead is a supervisory mechanism reviewing the lawfulness of decisions taken by public bodies. Limiting judicial review would reduce an important check on government. This is especially concerning, given the huge scope for Henry VIII clauses (namely, provisions allowing ministers to repeal statute law) in the EU Withdrawal Act (EUWA) 2018, the sprawling constitutional legislation transferring much EU law into national law. Parliament’s ability to scrutinise application of these clauses is already limited by the EUWA itself. If judicial review is constrained, there will be few effective checks on ministerial abuse of power.

The manifesto further proclaims, “Our independent courts and legal system are respected throughout the world.” However judicial independence was afforded little respect when Johnson openly disagreed with the Supreme Court’s prorogation judgment in September 2019, nor was it in Miller 1 in 2016, when the Divisional Court were declared “enemies of the people” by the Daily Mail. And we should not forget that judicial independence is under attack by authoritarian regimes such as Poland and Orban’s Hungary. The manifesto further states, “In our first year we will set up a Constitution, Democracy & Rights Commission that will… come up with proposals to restore trust in our institutions.” Who is appointed to this Commission, as well as its remit, will be key. And in any case, can we really agree that trust is lacking in the courts?

Devolution

And so to the vertical separation of powers. What is most notable is that the manifesto’s first mention of devolution refers not to already devolved nations, but to an ambition “for full devolution across England.” This is redolent of the aftermath of Scotland’s 2014 independence referendum, when David Cameron identified measures for England as a priority, rather than anything promised to Scotland prior to the referendum. One should certainly not dismiss English devolution, but it was attempted in the early 2000s with little success, and the English regional development agencies were shut down by the coalition government in 2011. Elsewhere, references to devolution in Northern Ireland, Scotland and Wales fall under the heading of “strengthening the Union,” rather than detailing how devolution there will work after Brexit. There is a reference to “Lord Dunlop’s Independent Review into UK Government Union” but no further elaboration.

Indeed, both Northern Ireland and Scotland provide flash points for future constitutional problems. The manifesto states: “Our commitment to the 1998 Belfast Agreement and its successor agreements is unshakeable.” But the Belfast/Good Friday agreement provides for a border poll if the Northern Ireland secretary believes a majority in support of a united Ireland may exist. It is striking that, in last week’s election, Northern Ireland for the first time returned more nationalists than unionists to Westminster. Will there be a demand for a border poll? Everyone is keen to avoid a return to the Troubles, but the election results, along with Johnson’s distinct Brexit settlement for Northern Ireland, aligning it more closely to Ireland and the EU, at least suggest a divergent constitutional future for Northern Ireland.

The manifesto decries that in Scotland, “Twelve years of SNP government have led to an obsessive focus on independence,” and declares opposition to a second independence referendum. In contrast, the 2019 SNP manifesto stated that securing a majority of Scottish seats (which was achieved, with the SNP taking 48 of Scotland’s 59 Westminster seats) will give it a mandate to demand a second independence referendum. Unlike England, Scottish voters elected to remain in the EU with a 62 per cent Remain vote in 2016, but the UK government declared the UK would leave the EU, and negotiate withdrawal, as one nation. The EUWA was notably adopted without the Scottish Parliament’s consent, in breach of the “Sewel” convention (which requires consent of devolved legislatures in UK-wide statutes concerning devolved matters)—unconstitutional, if not illegal, behaviour by the UK government. The Conservatives continue with resolute opposition to a second independence referendum. But Nicola Sturgeon has already declared she will demand the power to hold one be transferred to Holyrood, and said that the UK can only continue to exist with consent. So the UK government claims a democratic mandate for leaving the EU on the basis of a (non-binding) referendum, and a strong majority in the 2019 election, while the Scottish government also claims a democratic mandate for seceding from the UK, on the basis of a strong vote in Scottish parliamentary elections in 2016 and a very strong showing in the recent election.

It is hard to see how this might be resolved. The SNP has threatened court action if a “section 30 order” (transferring power to Scotland to hold a referendum) is refused. Indeed, some important cases regarding Brexit (ie Wightman, where the European court confirmed the UK could unilaterally revoke Article 50, and Cherry, contesting prorogation) originated in Scottish courts. But it is unclear that courts would uphold any Scottish demand for a section 30 order—the legislation isn’t unambiguous, and courts may be cautious in the face of the manifesto attack on judicial review. So what will happen if there is no order? The consequences of declaring an independence rejected by the central state have been acutely obvious, given the custodial sentences of key Catalonian politicians. Yet the UK government cannot ignore the Scottish situation forever. If, in the 2021 Holyrood elections, Scotland were to elect a government with a manifesto commitment for a second independence referendum, and that position were rejected by Westminster, that would provoke a clear constitutional crisis (although we may already be in crisis territory).

The UK is not a federal state. It has no codified constitution providing component nations with legally enforceable protections against constitutional change such as Brexit. Instead it has devolution, more indefinite and frangible, and a mixture of law and convention. But Brexit has placed the constitution under severe strain, and set Westminster against Scottish, and probably now Northern Ireland, government.

What next?

Clashing perceptions of the British constitution exist. One account, that of Johnson’s (and May’s) government, sees the UK as a unitary, centralised state, founded on Westminster parliamentary supremacy, a view dating back to the Victorian jurist AV Dicey (although, ironically, Brexit revealed that “taking back control” can increase executive, rather than parliamentary, sovereignty). The EU referendum vote (formally non-binding) was perceived as UK wide, with no protection for different results in devolved nations, in contrast to many federal states. Therefore, neither Scotland’s nor Northern Ireland’s vote to remain in the EU was seen as of constitutional relevance. Human rights and judicial review also become potentially undesirable checks on government.

In contrast to this “unitary state” view stands an alternative approach, which analyses the UK as a union state, whose continued existence should not be taken for granted. The UK union was established and continued by treaties (eg Treaty of Union 1707, Good Friday/Belfast Agreement 1998) and relies on ongoing consent, a position recently confirmed by Sturgeon. This interpretation additionally argues that the British constitution was revised by exogenous commitments (EU and ECHR membership) but also transformed domestically by devolution, the Human Rights Act, and caselaw such as Jackson which reassessed parliamentary sovereignty. Even in Brexiting, the UK cannot return to the pre-1973 situation, before it acceded to the European Communities. The uncodified constitution has become more legalised, both in terms of legislation and judicial involvement. The Scotland Act 2016 and Wales Act 2017 (both Westminster legislation) assert the permanence of the Scottish Parliament and Welsh Assembly. If this is not superfluous rhetoric, how does it square with the conservative Diceyan assertion of an omnicompetent Westminster Parliament?

These two constitutional visions are in conflict. The Conservative manifesto confirms the first. However, it must deal with the flashpoints identified: a reduction of checks and balances; dilution of human rights and judicial review; and calls for Scottish independence and possibly a united Ireland.

It has been said that constitution-building is like dentistry. There is never a good time for it, no one does it for fun, but it is sometimes necessary, and when done right prevents greater pains in the future. This “dentistry” looks unlikely to occur anytime soon in Britain—and the result may be not just toothache but the potential demise of the UK.