The Conservative Party Manifesto and the Constitution

The Conservative Party — which, barring an electoral surprise that would make the election of Donald Trump look pedestrian, will form the next UK administration — has published its manifesto. What does it reveal about the constitutional aspects of the party’s programme for government?

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All of the major UK-wide political parties have now published their manifestos for the 2017 general election. All, inevitably, contain significant proposals regarding the constitution. The Liberal Democrats, for instance, have underlined their strong commitments to the European Convention on Human Rights (ECHR) and to reform of the voting system, and propose a shift to a “federal UK”. The Labour Party has proposed “a Constitutional Convention to examine and advise on reforming of the way Britain works at a fundamental level”; this would include consideration of “the option of a more federalised country”. Labour, like the Lib Dems, would also replace the House of Lords with an elected second chamber, and would retain the Human Rights Act 1998 (HRA).

Such changes would be highly significant, and it is particularly noteworthy that there is a clear interest across the centre-left in exploring at least the possibility of some form of federalisation. But unless the opinion polls are even more inaccurate that they often are, the Labour and Lib Dem manifestos are of only limited interest, for it is the Conservatives’ manifesto that will fall to be enacted after the upcoming election. Its constitutional proposals, unsurprisingly, are more limited in nature. Below, I highlight some of the key constitutional aspects of the Tories’ manifesto and offer some brief comments on them.

The territorial constitution

The Union upon which the UK is founded has changed very substantially — and has been tested almost to the point of destruction — in recent years. Against this background, the part of the manifesto that deals with the territorial constitution appropriates the Conservatives’ key campaign mantra, setting out a desire for a “strong and stable Union”. There is therefore, at least in part, an emphasis upon what will not change.

For instance, the Barnett formula — the mechanism whereby funding for the devolved nations is determined — is to be retained, while the manifesto restates the Prime Minister’s view that “now is not the time for another referendum” on Scottish independence. “In order for a referendum to be fair, legal and decisive,” say the Conservatives, “it cannot take place until the Brexit process has played out and it should not take place unless there is public consent for it to happen.” The suggestion that a referendum would not be “legal” prior to Brexit is of course entirely spurious, although it is most likely a veiled assertion that a referendum can be held only with the consent of the UK Parliament — a view that is at least contestable, as Ewan Smith and Alison Young have noted. The notion that the dust of Brexit should be allowed to settle so that Scotland can make a more informed decision about a future as part of the UK or the EU (or perhaps neither) is more defensible, although the irony concealed within that argument — bearing in mind the leap in the dark that the public was invited to take on 23 June 2016 — is hard to exaggerate.

The United Kingdom Government has in the past tended to ‘devolve and forget’. This Conservative government will put that right. — Conservative Party Manifesto

It will not, however, be entirely business as usual under a new Conservative Government; some changes are envisaged. The manifesto observes — correctly — that “the United Kingdom Government has in the past tended to ‘devolve and forget’”, and pledges that a new Conservative Government would “put that right”. The “devolved and forget” charge was levelled at the Government by the House of Lords Constitution Committee in a recent major report on The Union and Devolution, the point being that insufficient attentiveness to the Union, as distinct from devolution, risks enhancing the fissiparous potential of the latter. However, the manifesto has very little to say about how a new Conservative Government would actually attend to the health of the Union, and it is worth noting that the present Government’s response to the Constitution Committee showed only a limited appetite for engaging with the Committee’s detailed and specific recommendations in this regard.

As far as England is concerned, there is no mention — either positive or negative — of the “English votes for English laws” system introduced in the wake of the Scottish independence referendum, but there is some discussion of English “devolution”. In particular, there is some familiar rhetoric about giving local authorities “greater control over the money they raise” and a promise to “address concerns about the fairness of current funding distributions”. There is, however, no detail on these points. There is, though, an indication that the currently in-vogue English devolution model involving combined authorities and elected mayors may be in line for some systematisation: there will, in particular, be “clarity across England on what devolution means for different administrations so all authorities operate in a common framework”. The implication is that enthusiasm for a patchwork of disparate arrangements made via bespoke “devolution deals” is waning, as is, at least to some extent, enthusiasm for elected mayors: a new Conservative Government “will continue to support the adoption of elected mayors” but not in “the rural counties”.

Brexit

The manifesto restates the Conservatives’ commitment — evidenced by the Government’s recent White Paper — to a “Great Repeal Bill” that will repeal the European Communities Act 1972 whilst converting the vast majority of EU law into domestic law, at least for the time being. The manifesto implicitly draws attention to a tension — also evident in that White Paper — between the imperatives of Brexit and the management of the territorial constitution. The manifesto pledges to “respect the devolution settlements”, promising that “no decision-making that has been devolved will be taken back to Westminster”. It also says that devolved authority is likely to be enhanced by Brexit, with some powers that are repatriated from the EU being directed to the devolved capitals rather than being hoarded by Westminster and Whitehall.

But the manifesto also enters a note of caution, arguing that there is a need to ensure that “as we leave the EU no new barriers to living and doing business within our own union are created”. The implication is that the devolution legislation may need to be amended in order to ensure that powers that would otherwise flow back from Brussels to the devolved capitals — by virtue of being powers that fall within devolved subject areas but which are presently not exercisable at devolved level thanks to EU constrains built into the devolution settlements — are diverted to London. This may be a sensible policy, given the needs of the pan-UK single market. But it also means that the Conservatives’ contention that nothing that has been devolved “will be taken back” must be understood in its wider context, according to which the specification of devolved authority in the devolution legislation may well need to be adjusted in favour of London in certain spheres.

Human rights

Repeal of the HRA has for over a decade been a totemic policy for the Tory right. Indeed, Theresa May argued, shortly before the EU referendum in 2016, not only in favour of repeal of the HRA, but also in favour of the UK’s withdrawal from the ECHR itself. However, whatever the ideological position of the Conservative Party might be in relation to the HRA and the ECHR — and the Party certainly does not speak with one voice on this matter — the policy of HRA repeal has been dropped. Nor is there, according to the manifesto, any prospect — at least for the time being — of withdrawal from the ECHR.

But the commitments to the HRA and the ECHR contained within the Conservatives’ manifesto are explicitly and notably contingent. Thus a Conservative Government “will not repeal or replace the Human Rights Act while the process of Brexit is underway”. To similar effect, the UK “will remain [a] signator[y] to the European Convention on Human Rights for the duration of the next parliament”. These contingent statements are accompanied by a commitment to “consider our human rights legal framework when the process of leaving the EU concludes”. The implication, then, is that changes to the UK’s ECHR-based human rights framework are not in prospect for the time being, but they are certainly not ruled out — and might even be said to be implicitly contemplated — as a medium-term possibility.

Finally in relation to human rights, the Conservative manifesto confirms that the EU Charter of Fundamental Rights will not be brought into UK law. Thus although the Great Repeal Bill will convert much EU law into domestic law, the EU Charter will be exempted from any incorporation effected by the Bill. This is no surprise. Indeed, the last Labour Government was itself opposed to the Charter, and negotiated a so-called opt-out (albeit one that turned out to be barely worth the paper it was printed on).

Democracy

The manifesto contends that “collective faith in our democratic institutions and our justice system has declined in the past two decades” and argues that “in responding to the historic vote on our membership of the European Union”, a new Conservative Government will “re-establish faith in our democracy”. However, it appears to be envisaged that this will be achieved largely be reaffirming existing arrangements. For instance, the first-past-the-post voting system is not only to be retained for UK general elections, but extended to elections for Police and Crime Commissioners; the voting age for parliamentary elections will remain 18; and “traditional method of voting by pencil and paper” will be retained. Meanwhile, the Fixed-term Parliaments Act 2011 is to be repealed, signalling a return to business as usual in this area. The Act was passed largely in order to stabilise the 2010–15 Coalition Government, and, as upcoming election shows, does not guarantee fixed-term Parliaments. Rather, it merely places what proved — at least in present political circumstances — to be insubstantial procedural hurdles in the way of early elections.

Although comprehensive reform is not a priority we will ensure that the House of Lords continues to fulfil its constitutional role as a revising and scrutinising chamber which respects the primacy of the House of Commons. — Conservative Party Manifesto

The manifesto goes on to say that “comprehensive reform” of the House of Lords “is not a priority”. This language is perhaps surprisingly equivocal, in that it does not rule out “comprehensive reform”. The subtext, however, is tolerably clear. In a fit of constitutional pique following a defeat in the House of Lords on secondary legislation concerning tax credits, the Government commissioned Lord Strathclyde to review the House of Lords’ role in relation to such legislation. The Strathclyde Review concluded that the House of Lords’ powers in respect of statutory instruments should be brought more into line with its powers, under the Parliament Acts 1911–49, in respect of primary legislation. The Lords would have lost its power to block statutory instruments, any attempt to block being vulnerable to the exercise by the House of Commons of an override power. As with primary legislation, the Lords would have been able to require the Commons to think again, but it would not have wielded a veto.

These proposals were widely condemned, and the Government subsequently said that it would not implement the Review. But it clearly indicated that the clipping of the Lords’ wings was not entirely off the table, and that the proposals would be looked at again if the House of Lords (in the Government’s view) constitutionally overreached. It is against this background that the manifesto’s merely equivocal ruling out of “comprehensive reform” can be understood, as can the proviso that a new Conservative Government “will ensure that the House of Lords continues to fulfil its constitutional role as a revising and scrutinising chamber which respects the primacy of the House of Commons”. The threat is implicitly clear. It is also pertinent. As the UK stands on the cusp of Brexit, the “Great Repeal Bill” will entail an unprecedented conferral of legislative power upon the executive government, and the role that Parliament — including the House of Lords — must play in scrutinising the use of that power is plain. That Parliament should embark upon that task against the backdrop of an implicit threat to the House of Lords should it deign to stand in the Government’s way is, to put the point mildly, regrettable.

Final thought

Manifestos are merely prospectuses. Many of the promises made in them are never implemented, or are implemented only in a loosely recognisable form. After all, with one notable exception, manifesto commitments are not engraved in stone, and are inevitably susceptible to the vagaries of political and other developments that cannot be foreseen. It occurs to me that this is particularly true of the Conservative Party’s programme for Government during the next Parliament, during which the UK will, in all likelihood, leave the EU. Any constitutional proposals contained in the Conservatives’ manifesto are dwarfed in significance when compared to the constitutional implications of Brexit. The removal of the UK from the EU is in itself likely to have consequences for the British constitution of a once-in-several-generations magnitude, and those consequences will almost certainly take forms that cannot presently be fully predicted. That is not to suggest that the constitutional aspects of the Conservative Party’s 2017 manifesto are unimportant. But — like so much else — they fall to be understood against the uncertainties and complexities of the EU-withdrawal process that is now underway.