The Johnson government does not yet seek fundamental constitutional change

A government can either have a genuine social and economic reform agenda or a genuine constitutional reform agenda, but it cannot effortlessly have both.

This is because giving effect to either agenda would be all-consuming, and parliamentary, ministerial and civil service time is scarce. An administration will soon find if it is too ambitious for any fundamental change that it will get bogged down. It is better to focus on priorities. And this would be true of any government, regardless of having to deal with Brexit as well.

Announcements are easy. A press release is a quick win, a line or two in a manifesto or a speech is as much exertion as a few minutes’ typing. And the 2019 Conservative manifesto certainly contained some troubling suggestions for judicial review and other constitutional matters.

Often these proposals are floated just for the effect they have in opponents. In this cynical age of Steve Bannon and Dominic Cummings, the outrage of the opposition is the sound of successful politics. Certain policies are promoted just so as to prompt concern and alarm but have no more substance than that. This is noise.

Another possibility is that, like a bully in a playground, the government is making threats now so that it will not be crossed by those with the power to do so. The government is telling courts and the other elements of the state that any interference with the executive will not be a tolerated. Again, this is noise.

The question of whether there will be serious interference by the new government in the United Kingdom’s constitutional arrangements is about substance not noise, and here the government’s real position is less clear.

No big bang

There will not be, at least in the first years of this administration, a “big bang” policy of constitutional reform. This is notwithstanding, say, the Conservative manifesto’s “Page 48” and its strident passages.

In the Queen’s Speech yesterday these explicit proposals were absent. There was instead the statement that a “Constitution, Democracy and Rights Commission will be established.”  A talking shop, in other words. The appearance of doing something as opposed to actually doing something.

The relevant “briefing note” is no more informative. There is no legislation promised, and indeed the topic is listed under “non legislative briefs.” The only further information is this paragraph of padded waffle:

“[The proposed Commission will] Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission. Further announcements shall be made in due course.”

In other words, they do not have a clue what to do at the moment.

It may be that they do not want positively to park the issue—but they do not seem to be that enthusiastic about driving it either. A similar commission was set up under David Cameron’s premiership to examine proposals for a replacement to the Human Rights Act, and it went off and did so and reported, and it was then ignored and forgotten about.

As with the early years of the first Blair administration, which saw the HRA, the Freedom of Information Act and some reform of the House of Lords, an incoming government can do quite a lot if it wants to do so. But in its first full legislative programme the Johnson government will not be seeking fundamental constitutional reform.

Smaller bangs

But the absence of a big bang approach does not mean the absence of smaller bangs. There are many smaller changes being proposed. Limits on who can vote. Legislative proposals for judges to disregard otherwise binding EU law. Possible repeal of the Fixed-term Parliaments Act, enabling a prime minister to have general elections at will. These proposals, however, are such that one can imagine any government—Conservative, Labour or coalition—making them. It is not unusual for central government to want more power.

The government, however, has the greatest prize that the constitution of the United Kingdom can offer: a substantial majority in the House of Commons for a full five-year term.  The House of Lords cannot constitutionally veto any policy set out in the manifesto. The courts cannot constitutionally set aside primary legislation. The Conservatives are the masters now.

And given this dominance, those few constraints which the constitution of the United Kingdom place on the government become more important, not less. A government with a majority of 80 should not be in the business of entrenching and expanding executive power. It has more than enough already. All proposals for fundamental constitutional change, whether contained in a manifesto or otherwise, should and will be placed under the most anxious scrutiny in the House of Lords (even if they cannot be vetoed), by the devolved administrations and, ultimately, by the Supreme Court.

Such constitutional conflicts may be what some in the administration want, as they may “play well” with voters. Perhaps certain constitutional dramas will be engineered for public and media consumption. But a government seeking to implement social and economic change as well as dealing with the realities of Brexit will have more than enough to do.

This new administration is certainly capable of seeking to rig the constitution in its favour.  But on the face of the Queen’s Speech, serious constitutional shenanigans are not an immediate danger and there are so many other things ministers need to use their majority for.

Perhaps the major proposals for constitutional reform will come at the end of this parliament if the government faces losing its majority and its power. If so, there may still be desperate stuff ahead.