The third edition of Public Law was published by Oxford University Press in May 2017. This is the second in a series of posts by the authors, Mark Elliott and Robert Thomas, taking the 2017 election and Brexit as reference points and updating readers on recent developments in the field. These posts are based on updates first published by Oxford University Press in the book’s Online Resource Centre.
What are the possible constitutional implications of the outcome of the 2017 general election? There are various areas of the UK constitution that have been frequently debated as likely contenders for reform. These include, but are by no means limited to reforming the House of Lords and repealing the Human Rights 1998 and replacing it with a British Bill of Rights. As noted above, the Conservative party manifesto contained a commitment to repeal the Fixed-term Parliaments Act 2011. Furthermore, there is a long-standing issue of reducing the number of MPs in the House of Commons from 650 to 600 and the review of constituency boundaries. What are the prospects for these and other possible constitutional changes?
The wider picture
Before turning to specific issues of constitutional change, it is essential to look at the wider picture. In particular, three general points need to be borne in mind.
First, there is Brexit. Ever since the outcome of the EU referendum in 2016, much of the political focus and debate has centred upon Brexit. It has often been said that Brexit presents the UK Government with its greatest peacetime challenge and the most complex set of negotiations ever undertaken. It is impossible to underestimate or downplay the complexity and enormousness of the multiple challenges presented by Brexit. This topic will dominate political life for many years.
Second, following the 2017 general election, the authority of the Conservative government and the Prime Minister has been weakened considerably. The Conservative party remains in government because of its confidence and supply agreement with the DUP, but the Prime Minister failed to win an overall majority in the Commons. There has been speculation as to whether Theresa May will remain as Prime Minister until the next general election.
The third point to have regard to is that while constitutional issues are very important, there are many other equally pressing issues in British political life: the economy; public services, in particular health and education; the housing crisis; transport; and equality issues amongst others. In practice, such issues tend to weigh more heavily on voters’ minds than matters of constitutional reform.
The implications of all of this are clear: any government typically has only so much political capital to spend. There are only so many reforms that a government can pursue at the same time. The weaker a government is, then the less authority it possesses and the narrower the scope for implementing its policies. Indeed, the Government has already abandoned various manifesto commitments such as: expanding grammar schools; reforming social care funding (often referred to as the ‘dementia tax’); and rail electrification. The authors of that manifesto assumed that Theresa May would be returned to office with an increased Commons majority, an ambition which manifestly failed to materialise. In such a situation, the typical response of any government is to eschew long-term strategic planning, to focus upon the critically important issues, and to proceed on a day-by-day basis. In light of these points, the prospects for constitutional change outside of Brexit look slim. The British tradition of constitutional reform is that such reforms mostly tend to occur when they are in the interests of the Government of the day and when it possesses the ability to introduce such changes.
We now turn to consider specific constitutional issues. One such issue is reform of the House of Lords. In its election manifesto, the Conservative party had been notably unambitious on the issue of Lords reform: ‘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.’ Nevertheless, one aspect of Lords reform on which some progress might occur concerns the size of the Chamber. It is widely recognised that the House of Lords is too large and that a slimmed-down Chamber would be beneficial. In December 2016, the Lords unanimously agreed that the size of the Chamber should be reduced. Accordingly, the Lord Speaker’s committee on the size of the House was established to explore methods by which the size of the House can be reduced, commensurate with its current role and functions. The Committee is due to report in October 2017.
Reform in relation to the House of Commons looks unlikely. Although the Conservative manifesto contained a commitment to repeal the Fixed-term Parliaments Act 2011, this is unlikely to be a high priority for the Government. Indeed, one issue that illustrates the Government’s current grasp of the issues is provided by the review of constituency boundaries (see textbook, page 177). The Conservative election manifesto contained a commitment to continue with the current boundary review in order to introduce constituencies of more equal and to reduce the number of MPs from 650 to 600. However, on 6 September 2017, it was reported in the press that the proposal will almost certainly be abandoned because it would not attract sufficient support in the House of Commons. The issue is particularly sensitive amongst MPs for two reasons. First, the reduction in the number of MPs would have directly led to the ejection of some MPs. Second, the proposals have been heavily criticised by the Labour party as ‘gerrymandering’ on the ground that the reduction in urban constituencies would result in the Labour party losing more seats than the Conservative party. Political calculations concerning the strength of support within the Commons for the Government will be pre-eminent.
On human rights, the Conservative manifesto stated that the Human Rights Act 1998 would not be repealed or replaced during the process of Brexit, but that the Government would ‘consider our human rights legal framework when the process of leaving the EU concludes’. The manifesto also confirmed that the UK would remain a signatory to the European Convention on Human Rights for the duration of the 2017 parliament. It remains to be seen what happens as regards domestic UK human rights legislation, namely the 1998 Act itself. But it is apparent that any attempt to repeal or replace this Act will face significant challenges. There would be strong resistance to this within Parliament itself. The Labour party is committed to retaining the Act, while there is strong support for the Act itself amongst some Conservative backbenchers. There would also be strong resistance from the devolved governments, who see the Human Rights Act 1998 as a fundamental piece of legislation. In light of such opposition, any attempt to repeal or replace the Human Rights Act 1998 is likely to founder on the basis of the current Government’s weak position in the House of Commons.
By contrast, the Government’s intentions as regards the status of the European Union’s Charter of Fundamental Rights are clearer. As currently drafted, the European Union (Withdrawal) Bill 2017 — the so-called Great Repeal Bill — proposes that the Charter will not form part of domestic law after the UK’s exit from the European Union. It remains to be seen what, if any, amendments are made to the Bill during its passage through Parliament.
The territorial constitution
Another important issue concerns the impact of the both the 2016 EU referendum and the 2017 general election result upon the possibility of Scottish independence. In the EU referendum, 62 per cent of voters in Scotland voted to remain in the EU. The Scottish Nationalist Party (SNP) government in Edinburgh had campaigned for Scotland to remain in the European Union. Following the outcome of the EU referendum, the Scottish Government has opposed a ‘hard’ Brexit lead by a Conservative Government in London. Following the referendum, it was widely expected that the Scottish Government would seek to have another referendum on Scottish independence — ‘indy ref 2’. The Scottish Government did indeed propose to hold a second independence referendum could take place either before or shortly after the UK exited the European Union on the ground that the vote to leave the EU is a material change of circumstance since the outcome of the first referendum on Scottish independence in 2014.
However, three developments have prompted the Scottish Government to re-think its position on a second referendum. First, the opinion polls have indicated that there is not a majority of Scottish people in favour of independence. Second, electoral support for the Scottish National Party has declined. In the 2015 general election, the governing party in Scotland, the SNP, won 56 of the 59 constituencies in Scotland. However, in the 2017 general election, the SNP lost 21 MPs – more than a third of its seats in the House of Commons – to pro-unionist parties such as Labour and the Conservatives. Third, Scotland faces significant issues of public finance and spending. In 2016-17, Scotland spent £13.5 billion more than it raised in taxes. This raises significant questions as to how an independent Scotland would be able to support itself without additional funding from the UK Government. Without reducing this difference between incoming taxes and outgoing spending, Scotland would have to raise taxes and/or reduce public spending. Such options are rarely attractive to the electorate as a whole and this may well affect support for Scottish independence.
In light of these developments, the Scottish Government has shelved immediate plans for a second referendum and is to focus on getting the best possible Brexit deal for Scotland. However, given that the principal goal of the SNP is Scottish independence, the issue is likely to re-emerge over the medium to long term.
Overall, the UK’s constitution is undergoing a period of considerable change and uncertainty. It is very difficult, if not impossible, to make predictions with any degree of accuracy as to what the UK’s future constitutional arrangements will look like. What, however, can be noted is that wide-ranging and complex issues such as Brexit and devolution are issues of high constitutional politics. They are informed as much by political pressures and forces as by matters of constitutional principle.