by John McEldowney
The UK is undergoing a period of rapid constitutional change and innovation. The Labour Government elected in 1995, implemented a number of constitutional changes mainly because of election manifesto promises including: Devolution to Scotland, Wales, and Northern Ireland, a newly elected Mayor and London Assembly; the Human Rights Act 1998; partial reform of the House of Lords in 1999 and also the Constitutional Reform Act 2005, with the creation of a Ministry of Justice and the setting up of a UK Supreme Court.
The election of a Coalition Government in 2010, the first since the 1930s, has continued the process of reform but with an altered agenda from the Labour government. Coalition government triggered the novel introduction of a five year Fixed Term Parliament following the drawing up of a Coalition Agreement. The Agreement contained an amalgam of aims, objectives and policies that allows the Conservative Party, the largest political party in the House of Commons but with no overall majority, and the Liberal Democrats to form a government. This is likely to endure until the Summer elections in 2015.
Constitutional reform under coalition is very different from reform introduced by the Labour government. Unfinished reform of the House of Lords has had to be postponed until after the 2015 election. Similarly much needed electoral reform, including changes to constituency boundaries, has also been postponed. Most significantly is the debate about Europe covering EU membership and the influence of the European Convention on Human Rights. The latter has been the focus of a variety of different proposals ranging from the development of a UK Bill of Rights to proposals for an outright withdrawal from the European Convention on Human Rights. In particular, Article 8 rights are viewed as having a potential to expand into areas of social and economic as well as political policy making giving rise to some scepticism about democratic legitimacy. Growing concerns about UK courts being “bound” by Convention rights are discussed in R (on the application of Chester) v Secretary of State for Justice  UKSC 63. The reality is perhaps less threatening with the Human Rights Act 1998 limiting judicial obligations “to taking account” rather than being bound by Convention rights.
Re-balancing the relationship between the UK and the EU is proving increasingly politically messy. The United Kingdom Independence Party (UKIP), with a euro-sceptic agenda, is proving to be a “popular” political rival to the Conservative Party. This has yet to materialise in solid electoral success but the potential physiological of euro-scepticisms is likely to push the political agenda in favour of some form of independence from the EU. There is a strong likelihood of an in/out referendum on UK membership after the next election. The European Union Act 2011 creates innovative and various parliamentary mechanisms, including the use of referendum, to give more parliamentary control and citizen oversight to the UK’s relations with the EU.
A referendum is also planned for September 2014 on Scottish independence. This is an important milestone in devolution government and the impact of an affirmative vote for independence will have significance for the United Kingdom as well as EU membership for Scotland.
Constitutional change is also focused on reducing administrative burdens with legislation to cut “red tape” and deregulate many activities. Financial cuts across the public sector amounting to over 30% have created many changes in the role and function of the state. Reforms to the social security budget, the health service and higher directly payable education fees complete an adjustment to the role of the State in British society. More pertinent to constitutional lawyers are cuts in legal aid and proposals to change the rule of standing and reduce the use of judicial review. This is perhaps the most controversial proposal as it has the potential to disallow meritorious cases going to court because of procedural or financial hurdles. It is clear that recalibrating the relationship of the state to the ordinary citizen is a “work in progress.” The legal and constitutional culture of the United Kingdom is undergoing radical transformation with largely unpredictable outcomes and consequences.