The page of the Conservative Manifesto which most alarmed supporters of the status quo was page 48. And the part of this page – which dealt broadly with constitutional matters – that alarmed them most was at its end. We refer to the long paragraph that promised a “Constitution, Democracy & Rights Commission” “in our first year”.
It explained that this commission would examine the Royal Prerogative, the House of Lords, the courts, judicial review, and access to justice for ordinary people. It would also “update the Human Rights Act and administrative law”.
That first matter, the Royal Prerogative, was clearly a reference to “Miller Two” – the Supreme Court judgement that sunk Boris Johnson’s prorogation plan, conflating as it did so the legislature with Parliament as a whole, and thereby arguing, with supreme constitutional illiteracy, that the monarch is not part of Parliament.
Needless to say, our reading of that judgement is controversial – and so therefore was the section about the proposed commission on page 48. Which has a consequence: namely, that the commission was, from the start, what the Australians call “a tall poppy”. It was exposed to critics who would want to scythe it down.
There were further complications from the Government side, once the dust had settled on last December’s election victory. For putting together the commission turned out to present all manner of difficulties which for whatever reason were unforeseen at the time of its invention.
First of all, which items from this rich menu should its members select? It’s no secret that Dominic Cummings is not exactly a fan of the way in which judicial review works. Consider his convulsive reaction to the Court of Appeal’s decision in February to suspend the deportation of criminals to the Caribbean.
He was reported to have described this to officials as “a perfect symbol of the British state’s dysfunction”, adding that there must be “urgent action on the farce that judicial review has become”. But what if the putative commission went haring off first after another quarry – Lords reform, say?
Those expert on Parliamentary reform might not be knowledgeable to the same degree on justice access, say. People who have studied the Royal Prerogative may not have mastered judicial review. The commission members might not be able to agree what dishes to select; too many diners spoil the broth.
ConservativeHome cannot be sure which of Cummings, various SpAds, Munira Mirza, different advisers and Robert Buckland came up with the Commission idea. But we hear that the manifesto commitment is dead and that there will be no such commission – this year or any in other year.
Downing Street and Ministers will resist this take, of course. They will explain that there will be lots of mini-commissions, ranging across the same constitututional, political and legal turf. So the commission hasn’t really been scrapped, you see. Just re-invented in other forms. Hmmm.
At any rate, the principle is clear. If you want a commission on judicial reform, “available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”, then select members whose area of expertise is the law.
Which doesn’t mean only such people. But there is no reason why intelligent lay members should also be experts on how the Lords or Commons works. Meanwhile, the UK’s relationship with the European Court of Human Rights is the elephant in the constitutional room – one on which not just page 48 but the entire manifesto was silent.