On 7 July 2022, the House of Lords is due to consider the following question:

Lord Norton of Louth (Conservative) to ask Her Majesty’s Government what plans they have to appoint a cabinet minister with responsibility for the constitution.

1. Who in government has responsibility for the constitution?

Responsibility for the constitution sits with the Cabinet Office. The post of minster for the Cabinet Office is combined with the role of chancellor of the duchy of Lancaster, and the holder of this role is a cabinet minister. Their responsibilities include “oversight of constitutional advice”. The current post-holder is Stephen Barclay. A junior minister for the cabinet office has responsibilities which include “oversight of constitutional policy and enhancement, defending democracy and electoral law”. The current holder of this post is Michael Ellis. While he is not a cabinet minister, he does attend cabinet.

2. What is the UK’s constitution?

The UK’s constitution is not written down in a single document. Robert Blackburn, professor of constitutional law at King’s College London describes it as existing “in an abstract sense, comprising a host of diverse laws, practices and conventions that have evolved over a long period of time”. The constitution is regarded as a body of laws and conventions that determine the arrangements for the governance of the UK.

2.1 Constitutional monarchy

The UK is a constitutional monarchy. The principle that the monarch’s power is limited was first established in 1215 by Magna Carta. This set out the principle that the king was subject to the law as agreed with the barons he governed. Further documents, such as the Provisions of Oxford (1258), the Petition of Right (1628), the Bill of Rights (1689) and the Act of Settlement (1701), established the principles of the constitutional monarchy such as freedom from arbitrary arrest and punishment, the primacy of Parliament over the monarch’s prerogatives, and judicial independence.

2.2 Parliament and statute

The principle of parliamentary sovereignty is part of the UK constitution. Parliament is the supreme legal authority in the UK and can create or end any law. Generally, the courts cannot overrule its legislation and no parliament can pass laws that future parliaments cannot change. Parliament is made up of the House of Commons, the House of Lords and the monarchy.

Historically, the statutes, case law and conventions that make up the UK’s constitution have had no special legal status and can evolve over time. However, constitutional expert Daniel Greenberg has explained that recent judicial decisions have established a separate class of constitutional statute. The principal effects of recognising a statute as being of a constitutional nature concern the doctrines of implied repeal and judicial protection. If a statute is deemed to be constitutionally significant, a later statute can only destroy or alter it if there are express words or clear implications to that effect. In addition, judges take greater care to protect constitutional statutes from interference than they would other statutes.

Professor Blackburn describes some of the most constitutionally significant pieces of legislation (though the courts have not determined the significance of all of these) as:

  • the Parliament Act 1911 and the Parliament Act 1949, regulating the respective powers of the two Houses of Parliament
  • the Representation of the People Act 1918 (as amended), providing for universal voting and other matters of political representation
  • the European Communities Act 1972, making the UK a legal partner in the EU
  • the Scottish, Welsh and Northern Ireland devolution acts of 1998 (as amended), creating an executive and legislature for each of those three nations in the UK
  • the Human Rights Act 1998, establishing a bill of rights and freedoms actionable by individuals through the courts

In addition, the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 are considered constitutionally significant.

2.3 Conventions

Conventions play a significant role in the UK’s constitution. For example, in theory, the monarch can refuse to enact laws that have been passed by both the House of Commons and the House of Lords. In practice, however, convention dictates that they automatically approve any bill that has been passed by both Houses. The last time a monarch refused to give royal assent to a bill was in 1708. The fact that the role of prime minister exists, and that prime ministers are appointment based on their commanding the confidence of the House of Commons, is also a convention.

Conventions can evolve over time. For example, the application of the Salisbury Convention to coalition government’s bills was considered after the formation of the Conservative-Liberal Democrat coalition in 2010. The Salisbury Convention means the House of Lords gives a second reading to government bills that seek to implement manifesto commitments, does not subject them to wrecking amendments and returns them to the Commons in reasonable time. This is based on the idea that manifesto bills have a special form of democratic legitimacy because they have been voted for by the electorate. In 2011, the Conservative-Liberal Democrat coalition government acknowledged the convention did not operate in the same way while there was a coalition government. Two parliamentary committees both concluded that a coalition agreement made after an election did not have the same status as a manifesto. During the period of the coalition government there were attempts to block three government bills at second reading in the Lords, all of which failed.

For more information on the Salisbury Convention, see the House of Lords Library briefing, ‘Salisbury Convention: A decade of developments’ (13 December 2019).

2.4 Prerogative powers

Prerogative powers are executive powers that can be exercised by the monarch or their representatives without the need for legislation. Prerogative powers derive from the historical power of the monarch, therefore new ones cannot be created. However, prerogative powers can be repealed by legislation.

Most prerogative powers are either exercised by ministers or by the sovereign on the basis of constitutionally binding advice given by ministers. Powers the monarch exercises not on the basis of constitutionally binding advice are called reserve powers. In practice, reserve powers are often governed by constitutional convention. For example, there are strong conventions governing the appointment of a prime minister, which is a reserve power.

Reserve powers can exist in some circumstances but not others. For example, the prorogation of Parliament is not usually a reserve power, but constitutional scholars such as Professor Anne Twomey and Professor Sir David Williams agree that the monarch can refuse a prorogation if the government has lost or is about to lose the confidence of the House of Commons.

For more information about prerogative powers, see the House of Lords Library briefing ‘Prerogative powers of the Crown’ (13 December 2019).

3. Proposed constitutional changes

3.1 Dunlop review: Recommendation for a secretary of state for intergovernmental and constitutional affairs

On 4 July 2019, the government commissioned Lord Dunlop to conduct an independent assessment to consider “whether UK government structures are configured in such a way as to strengthen the working of the union, and to recommend changes where appropriate”. The government argued that a review of arrangements was necessary because of the repatriation of powers after Brexit and the subsequent increases in the powers devolved from the UK government to other administrations.

The report, published on 24 March 2021, made recommendations in six different areas: the machinery of government; civil service capability; spending; intergovernmental relations; public appointments; and communications.

On government structure, the report recommended that the government create a new great office of state in the cabinet entitled secretary of state for intergovernmental and constitutional affairs. This post would have responsibility for the “constitutional integrity of the United Kingdom”. The report said that the new secretary of state should speak in cabinet for the constitution and “take a holistic view across the UK, arbitrating between other ministers”.

In response to the report’s recommendation on government structure, the then minister for the Cabinet Office and chancellor of the Duchy of Lancaster, Michael Gove, said that responsibility for constitutional integrity fell to his office but that “individual secretaries of state also have a critical role in representing the distinctive voices of and interests of Scotland, Wales and Northern Ireland in Whitehall and in cabinet”.

3.2 Constitution, democracy and rights commission

The Conservative Party’s 2019 general election manifesto contained a commitment to establish a constitution, democracy and rights commission to develop proposals to “restore trust in our institutions and in how our democracy operates”. The manifesto said the commission would examine issues such as the relationship between the government, Parliament and the courts; the functioning of the royal prerogative; the role of the House of Lords; the Human Rights Act; and the process of judicial review.

In December 2021, the parliamentary under secretary of state at the Ministry of Justice, James Cartlidge, confirmed to the House of Commons that the government was “committed to the broader aspects of the constitution”, as pledged in the manifesto. However, Mr Cartlidge said that because of the broad range of areas involved the government was taking the work forward through a range of workstreams rather than a single commission. He said this would enable it to “ensure all policy development is given the utmost consideration”.

Mr Cartlidge highlighted that the Judicial Review and Courts Bill, which received royal assent on 28 April 2022, gave effect to the government’s manifesto commitment to improve judicial review processes and that work to reform the Human Rights Act 1998 was ongoing.

3.3 Human Rights Act 1998 reform and new bill of rights

In December 2021, the Government published plans to reform the Human Rights Act 1998 (HRA).

The HRA brought certain rights and freedoms of the European Convention on Human Rights (ECHR) into UK law. The ECHR is Council of Europe treaty that set minimum standards for protecting human rights. The basic human rights of the ECHR are set out in the HRA and include the right to life and right to a fair trial, amongst others. The Council of Europe is not part of the European Union but is a separate international organisation that promotes human rights, democracy and the rule of law.

Proposals to “revise and replace the HRA with a bill of rights” were contained in a Ministry of Justice consultation, ‘Human Rights Act reform: A modern bill of rights’, that ran from 14 December 2021 until 19 April 2022. This said the new bill of rights would do several things, including:

  • retain all substantive rights under the ECHR and HRA, with some rights (such as freedom of expression) being strengthened under the new bill, and others (such as the right to trial by jury) being added
  • enable UK courts to apply human rights in a UK context, taking account of UK common law traditions and judicial practice as an additional consideration to the case law of the European Court of Human Rights (Strasbourg Court)
  • provide greater clarity regarding the interpretation of certain rights, such as the right to respect for private and family life
  • make sure that the UK courts are not required to alter or interpret legislation contrary to Parliament’s clearly expressed democratic will
  • safeguard the protection of the right to life and the absolute prohibition on torture, confirming that people should not be deported to face torture (or inhuman or degrading treatment or punishment) abroad, whilst ensuring that other rights in the HRA could not be used to frustrate the deportation of serious criminals and terrorists
  • introduce a permission stage for human rights claims to ensure “spurious cases” do not undermine public confidence in human rights

The government said the aim of the bill of rights would be to strike a balance between individuals’ rights, personal responsibility and the wider public interest. It said the reforms would help to “reverse the mission creep” of human rights laws being increasingly used for a wider range of purposes. However, it emphasised that the UK would remain faithful to the basic principles of human rights. It also said the UK would remain a party to the ECHR and continue to respect its international obligations to uphold human rights and democracy across the world.

In response to the proposals in the consultation, the Joint Committee on Human Rights said it disagreed with the government’s plans:

We are concerned that the proposals and their consequences run counter to three central principles of human rights law. Human rights are universal; they apply to everyone. Human rights are fundamental and require special protection within the domestic and international legal order. Human rights must be able to adapt to stand the test of time, as the common law does. We do not think a case has been made for replacing the Human Rights Act with the British bill of rights in the form proposed by the government.

The government published its response to the consultation on reforming the HRA in June 2022. In its response, it set out its plans under the following headings:

  • respecting our common law traditions and strengthening the role of the UK Supreme Court
  • restoring a sharper focus on protecting fundamental rights
  • preventing the incremental expansion of rights without proper democratic oversight
  • emphasising the role of responsibilities within the human rights framework
  • facilitating consideration and dialogue with Strasbourg, while guaranteeing Parliament its proper role

For more information about reforming the HRA, see the House of Lords Library, ‘Reforming the Human Rights Act 1998’ (8 February 2022).

Cover image by Edd Allen from Pixabay.