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Boris Johnson Plans to Change the Constitution to Allow Government to Operate Outside the Law

Boris Johnson will seek sweeping changes to the British constitution to allow a future Tory administration to potentially operate outside the law.

Speaking on Newsnight, Lord Falconer said that the plans outlined in the Tory manifesto were designed to ensure that any future Conservative government would not be constrained by the courts should it attempt to once again break the law as it was found to have done after the prorogation of parliament earlier this year.

Asked on the show whether he thought changing the constitution in this way was an “abuse”, Conservative MP Tobias Ellwood refused to comment, stating that the matter was one for the Justice Secretary.

Under the title of “Protect our Democracy”, which contains the level of alarming rhetoric seen from the Tory hard-right and Brexit Party about constitutional obstacles to Brexit, the manifesto states that a Conservative Government will “look at” the entirety of the British political and legal framework, including the “relationship between the Government, Parliament and the courts”, “the Royal Prerogative” and “the role of the House of Lords”.

The manifesto also pledges to remove fixed-term parliaments for the “paralysis” they have caused, make major changes to boundaries that critics believe is a cynical move to ensure Labour gain fewer seats in the future and rewrite human rights laws to “balance the rights of individuals, our vital national security and effective government.”

“The failure of Parliament to deliver Brexit – the way so many MPs have devoted themselves to thwarting the democratic decision of the British people in the 2016 referendum – has opened up a destabilising and potentially extremely damaging rift between politicians and people. If the Brexit chaos continues, with a second referendum and a second Scottish referendum too, they will lose faith even further. It is only by getting Brexit done that we can start the necessary task of restoring public trust in government and politics.”

Conservative Manifesto

After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people”.

Conservative Manifesto

Pledging is to create a “Constitution, Democracy & Rights Commission” in the first year of a new Conservative ministry, the manifesto also pledges to ensure that judicial review “is not abused to conduct politics by another means or to create needless delays”.

Judicial Review is essential to democracy and allows individuals or organisations to challenge a decision or action by a public body. It ensures that the Government acts within the law.

Conservative opposition to judicial review is long-standing and precedes Brexit, consultation papers being issued in 2012 and 2013.

“In my view judicial review has extended far beyond its original concept, and too often cases are pursued as a campaigning tool or simply to delay legitimate proposals”

Chris Grayling, 2014

The Conservative Government being found to have acted illegally in attempting to trigger Article 50 and prorogue parliament have amplified calls on the Government benches for Parliament to divest itself from judicial review. These calls have opened the way for blocking political challenges or even taking unilateral decisions outside the powers of the law.

The suggestions that the Tory government could end judicial review become all the more frightening in the context of further plans unveiled earlier this year in the “Memorandum concerning the Delegated Powers” and Withdrawal Agreement Bill.

The withdrawal legislation ramps up the so-called “Henry VIII powers” which would give ministers the power to change or repeal laws without parliamentary legislation, the powers being focused on Northern Ireland where restrictions as to what can be amended by the powers do not apply.

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