In its 2019 general election manifesto, the Conservative Party said that it would aim to restore public trust in government and politics. To do this, it said it would establish a constitution, democracy and rights commission and repeal the Fixed-term Parliaments Act 2011. The Government has also said it would introduce measures relating to the integrity of elections.
Constitution, democracy and rights commission
In the manifesto, the Conservative Party said that it would establish a constitution, democracy and rights commission to examine the “broader aspects of our constitution”. It said the commission would look at:
- the relationship between the Government, Parliament and the courts;
- the functioning of the royal prerogative;
- the role of the House of Lords;
- access to justice;
- the balance between the rights of individuals, national security and effective government; and
- judicial review.
This commission was announced in the December 2019 Queen’s Speech. However, in evidence to the House of Commons Public Administration and Constitution Committee in December 2020, Lord Chancellor Robert Buckland stated that this work would now be carried out in a series of independent reviews rather than in one commission. Mr Buckland stated that the Independent Review of Administrative Law, set up in July 2020, and the Independent Review of the Human Rights Act, which started in December 2020, were the first pieces of work in this series. Mr Buckland attributed this change of approach partly to Covid-19:
One of the determining factors that led us down this particular path was the importance, first, of what has happened since the election in terms of the Covid emergency and the potential for that to have, in effect, put back any work on these important issues until well into the parliament. Secondly, the benefits of having individual focused reviews involving people with particular expertise on specific questions.
The Independent Human Rights Act review will examine the framework of the Human Rights Act (HRA), how it is operating in practice and whether any change is required. The terms of reference outline two key areas that the review will scrutinise:
- the relationship between domestic courts and the European Court of Human Rights; and
- the impact of the HRA on the relationship between the judiciary, the executive and the legislature.
The Government states that it is committed to remaining a signatory to the European Convention on Human Rights.
The review panel has issued a call for evidence and has scheduled a series of public events to be held at universities across the UK. It aims to produce its report, which will be submitted to the Lord Chancellor, in the summer of 2021.
In his evidence to the House of Commons Public Administration and Constitution Committee, the Lord Chancellor stated that “other workstreams” would be announced to take forward other elements of the commission on constitution, democracy and rights.
Details of this work, including a potential review of the role of the House of Lords, have not yet been announced. In answer to a parliamentary question in June 2020, Chloe Smith, the Minister for the Constitution and Devolution, said that while looking at the House of Lords was a manifesto commitment, “any reform needs careful consideration” and the Government did not want to do this “in a piecemeal way”.
Repeal of the Fixed-term Parliaments Act 2011
In the December 2019 Queen’s Speech, the Government stated that “work will be taken forward to repeal the Fixed-term Parliaments Act”. This was also a manifesto commitment.
In December 2020, the Government published a draft Fixed-term Parliaments Act (Repeal) Bill. Announcing the draft bill, the Government said it would restore “tried-and-tested powers for bringing forward UK general elections” to “deliver on a manifesto commitment and prevent stalemates in Parliament from paralysing democracy”.
According to the Government, the measures in the draft bill would:
- repeal the Fixed-term Parliaments Act 2011;
- revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament;
- reaffirm the long-standing position that the prerogative powers are not reviewable by courts, providing legal clarity;
- ensure Parliament will automatically dissolve five years after it has first met; and
- make consequential amendments to pieces of legislation that make reference to the 2011 act ensuring their continued operation.
Alongside the draft bill, the Government published a draft set of principles that it said would “underpin the legal framework for dissolving parliament and inform what would happen in the event that a prime minister lost a vote of confidence”. The Government said that these principles are a statement of the conventions that were in place before the enactment of the Fixed-term Parliaments Act 2011 (“the 2011 act”).
A joint committee, composed of members from both Houses, was set up to consider the draft bill. The committee also had a remit to review the operation of the 2011 act, as provided for in the act itself.
The committee concluded that the 2011 act has several significant flaws and recommended it be changed. On the draft bill, the committee said that the Government’s approach to repealing the 2011 act is “clear, and properly encapsulates its intentions”. However, the committee highlighted two areas of the draft bill where improvements or clarifications could be made:
- The draft bill intends to “revive” the prerogative power of the monarch to dissolve parliament, which the 2011 act removed. There was some debate before the 2011 act as to whether this prerogative power was a reserve power (where the monarch has discretion and is not bound to follow the advice of ministers). The committee was of the view that it was a reserve power, and recommended that it be made explicit in the legislation that “dissolutions are ‘requested’ not ‘advised’ by prime ministers and may, in exceptional cases, be refused”. This is intended to preserve some check on executive power.
- The committee also drew attention to the “ouster” clause in the draft bill, which would seek to make the decision to grant a dissolution, the request for a dissolution and any related advice given by the prime minister to the monarch outside the scope of the courts. While some members of the committee considered this clause to be unnecessary or unjustified, “the majority [were] satisfied with the Government’s approach”. The committee’s report argued that “an early dissolution puts power in the hands of the electorate so, if an ouster is ever appropriate, it is appropriate in this case”. However, the committee recommended that “the Government considers whether a clearer and more limited approach to drafting the ouster might be as effective”.
The committee also stated that the Government’s dissolution principles document was “inadequate”. It put forward its own statements of the principles governing dissolution. The Government has yet to respond to the report.
Legislation concerning the integrity of elections
The Conservative Party’s 2019 manifesto stated that the party would “ensure that no one is put off from engaging in politics or standing in an election by threats, harassment or abuse, whether in person or online”. It also included several other measures relating to elections, which were also mentioned in the Government’s background briefing to the December 2019 Queen’s Speech. These included introducing a requirement to show identification at polling stations and removing the 15-year time limit on UK citizens living abroad being able to vote in UK elections.
Intimidating candidates, unduly influencing votes and imprints on campaign materials
In December 2017, the Committee on Standards in Public Life published a review into intimidation experienced by public office holders. In his introduction to the committee’s report, Lord Bew, the chair of the committee, stated that “a significant proportion of candidates at the 2017 general election experienced harassment, abuse and intimidation”.
The committee concluded that the current criminal law is sufficient to cover the full range of cases of intimidation and that no behaviour which is currently legal should be made illegal. However, the committee recommended that the Government consult on whether an offence “in electoral law” should be established. This would ensure that specific electoral sanctions would apply in cases of intimidation during an election period, to reflect the threat that intimidation of candidates and their campaigners poses to the integrity of elections.
Following this report, the Cabinet Office launched a consultation in July 2018. The consultation sought feedback on three proposals:
- a new offence in electoral law of intimidating candidates and campaigners during the election period;
- clarification of the electoral offence of undue influence; and
- extending the electoral law requirements for an imprint on campaigning materials to electronic communications.
In May 2019, the Government announced new measures intended to protect the integrity of UK elections. As part of this package of measures, the Government said it intended to introduce legislation to take forward the proposals in its 2018 consultation.
In a written statement in March 2021, Chloe Smith, the Minister for the Constitution and Devolution, stated that the Government would legislate to introduce a new electoral sanction of intimidation against those who participate in elections and who contribute to the political debate, including candidates and campaigners. The new sanction would provide that someone convicted of intimidating a candidate, future candidate, campaigner or elected representative would be banned from standing for and holding elective office for five years. The minister said that this legislation would be introduced “in due course”.
Chloe Smith also said that the Government plans to introduce legislation to take forward the other proposals in its 2018 consultation: requiring imprints on digital campaigning material, and clarifying and improving the offence of undue influence of a voter.
In 2014, the Electoral Commission recommended that voters in Great Britain be required to show photo identification before being issued with a voting paper. Voters in Northern Ireland are already subject to this requirement. The aim of the measure is to reduce the risk of someone voting in someone else’s name
The Government ran pilots of the requirement in 2018 and 2019. The Electoral Commission’s review of the 2019 pilot concluded that it did not cause administrative problems and most voters were able to show valid ID, but some found this harder than others.
The Labour Party has stated its opposition to the policy. Cat Smith, the Shadow Minister for Voter Engagement, has said that the Government does not have sufficient evidence that the measure would not disadvantage certain groups, stating that the Government is “turning a blind eye [as to] how this could disenfranchise ethnic minorities”.
At present, eligible British and Irish citizens can register to vote in parliamentary elections if they lived in the UK within the last 15 years. In its 2019 manifesto, the Conservative Party said they would remove this time limit.
In the March 2021 budget, the Government stated that £2.5 million would be made available “to remove the limit preventing British citizens who live overseas from voting after 15 years”.
Changing voting systems
In its 2019 manifesto, the Conservative Party said it supported the first past the post system of voting because “it allows voters to kick out politicians who don’t deliver”. In March 2021, the Home Secretary announced that the Government would bring forward primary legislation to “change the voting system for all combined authority mayors, the mayor of London and PCCs [Police and Crime Commissioners] to first past the post”. At present, these elections use the supplementary vote system.
A London Labour spokesperson opposed the proposal, arguing that the current system is fairer.
Cover image by Dominika Gregušová on Pexels.