How far have the reforms of the Blair Governments addressed weaknesses in the UK constitution?

This Governmental view of the constitution exposes the highly centralised nature of power within the UK government. Under this paradigm, the party that manages to win a small majority is afforded great power in terms of legislating and governing. Unlike in the written constitutions of other countries, the British constitutional structure does not maintain a doctrine of limited government, separation of powers, or formal checks and balances. The legislative powers of the Parliament and the executive powers of the Prime Minister are essentially fused together. Since most governments of the day have support of majority of the Commons, the government does not have any formal checks on its legislative power. On top of that, a strong whip system within the parties in the Parliament made it difficult for MPs to vote out of party line and provide a meaningful parliamentary check on the executive government. This weakness in the constitution has led Lord Hailsham to famously brand the UK government as a system of “elective dictatorship”. This over-centralisation as not prohibited by the constitution allowed the central government to override the wishes of the local governments, as in the case of the sale of council houses in the Thatcher administration. During the long unbroken period of Conservative rule, the executive maintained a firm hand of the British government and – in the eyes of the critics – the constitution appeared to be reduced to ‘what the government could get away with’.

Empirical View

The third view of the constitution is the Empirical view, which posits that the Governmental view is inadequate in identifying the limits on the government by external groups such as the EU, the media, pressure groups, and financial organisations. This view sees the constitution as in a state of constant change, a result of various different situations and contexts at any given time. As there are no set amendment procedures to change the British constitution as in the American system, a single Government can radically change the procedures and precedents the British constitution. The many constitutional reforms by the Blair government can be seen to expose the potential insecurity and vulnerability of the British constitution.

Pressure for Change

Many issues arose in the 1970s and 80s that demonstrated more specific weaknesses in the constitution. Scandals such as the Guildford Four and the Maguire Seven undermined the confidence in the police and the courts as two sets of people were convicted wrongly and later acquitted after they had served time in prison. The Ponting affair and the Westland affair brought attention to the relationship between civil servants and ministers as the constitution provided no guidance on how civil servants should behave if a minister asks them to conduct unethical acts. Privatisation of industries and the creation of quasi-governmental organisations blurred the distinction between private and public spheres of activity. Increased activism by trade unions prompted controversy on the extent the government could or should control interest groups. The European Court of Human Rights frequently ruled against Britain on civil liberties cases, and membership to the EU challenged the concept of parliamentary sovereignty as exampled by the Factortome case. Groups like Charter 88 and the Democratic Audit campaigned for constitutional reform. Increasing pressures finally led to the sweeping constitutional reforms of the Blair government in 1997.

The year 1997 was a year of profound change for the British constitution. Indeed, the greatest legacy of the Blair government is considered by many to be its enactment of constitutional reforms. In the words of the Labour government, these reforms led to “the most ambitious and far reaching changes to the British constitution by any government in this century.” These changes attempted to address the weaknesses in the UK constitution by legislating for the reform of the House of the Lords, the reform of the judiciary, the Human Rights Act, and devolution.

Reform of the House of the Lords

One major change that was announced in the Labour manifesto in 1997 was a radical reform of the House of the Lords, an unelected body that had considerable leverage in the Parliament. This was done in two steps: first, the hereditary element of the House of Lords was removed; second, the existing body was reviewed to examine alternative options for the composition of the Lords.

As a result of compromise between the ministers and Lord Cranborne, the Tory leader in the Lords, the House of Lords Act removed 90% of the hereditary peers while only 10% (92 peers) remained in a transitional chamber. The eventual goal was the abolition of all hereditary peers and the 1999 Act states in section 1 that: “No-one shall be a member of the House of Lords by virtue of a hereditary peerage” and those excepted from the rule will remain so “until an Act of Parliament provides to the contrary”. 

The second step on reforming the composition of the House of Lords proved to be the stalling point for the government. A Royal Commission headed by Lord Wakeham reported in January 2000, recommending a chamber of 550 members, most of whom to be appointed by the Appointments Commission, and about 20% of the members being elected to represent regions. Yet, this was heavily criticised by all parties. A Joint Committee in 2001 attempted to resolve the issue and ended up presenting the Parliament with seven options to choose from – fully appointed, 20% elected, 40% elected, 50% elected, 60% elected, 80%, and fully elected. All of the options were defeated in the series of confusing votes in 2003, and all other subsequent attempts at resolving this issue were not implemented.

Though there have not been further reforms in the House of Lords concerning its composition since 1999, the Act was a drastic departure from the British constitution insofar that it challenges the hereditary right of the ruling elites that existed for roughly 800 years. Although the power of the Lords had been on decline since 1911, it was the Blair reforms that really addressed the weakness present in the British constitution that was identified by the Classical Liberal View of the constitution.

Reform of the Judiciary

In 2005, the Constitutional Reform Act further modified the House of Lords to address the judiciary element in the Upper Chamber. It was deemed contrary to the principle of the separation of powers to maintain the Law Lords and the functions of the Lord Chancellor. The Constitutional Reform Act addressed four important areas: asserting judicial independence, reforming the Lord Chancellor, establishing a Judicial Appointments Commission, and creating a new Supreme Court.

Most importantly, the Constitutional Reform Act enshrined in law the duty on government ministers to uphold the independence of the judiciary. Specifically, clause 4 of the Act deals exclusively with the guarantee of continued judicial independence in the part of the Lord Chancellor. Section 4.5 explicitly states: “The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.”  Throughout the Act, there are explicit clauses that guarantee judiciary independence by barring government ministers from trying to influence judicial decisions.

In the same stream of thought, the position of the Lord Chancellor was greatly modified. The role of Lord Chancellor previously encompassed being the head of the Judiciary, Legislature and Executive – a flagrant breach of the ideal separation of powers and a position that may not conform to the requirements of the European Convention on Human Rights. Though the original Constitutional Reform Bill introduced in 2004 called for a complete abolition of the post of Lord Chancellor, this caused such controversy that it was agreed to only modify the functions of the post. The Act thus transferred the judicial functions of the post of Lord Chancellor to the President of the Courts of England and Wales. The Lord Chancellor continued to be a member of the Cabinet but no longer sat as a judge. The Lord Chancellor’s responsibility for appointing judges was also taken over by the Judicial Appointments Commission.

The Judicial Appointments Commission is an independent commission, responsible for selecting candidates to recommend for judicial appointments to the Secretary of State for Constitutional Affairs. This allowed for a much more transparent and modern appointments system that ensured that merit will remain the sole criterion for appointment.

Finally, the Act also provided that the 12 Law Lords in the House of Lords be moved to constitute a separate Supreme Court. The new, independent Supreme Court replaces the Appellate Committee of the House of Lords with its own independent appointments system, its own staff and budget, and its own building. Though it is too soon to ascertain the effects resulting from this change, there are a few expected implications. First, the new court is likely to develop a significantly different mix of cases it selects for hearing. Instead of commercial, tax, and private law cases, it is likely to take cases of more constitutional importance: human rights cases, cases on privacy, cases on the British relationship with Europe, and devolution cases. Second, once the court takes these more interesting cases, it will have a much higher profile, leading to more discussion on its decisions. There will be more reporting of the judges in court and their influence on the outcomes. Finally, all this will stimulate much greater interest in who the judges are and how they came to be appointed, leading to greater political involvement and democratic accountability in the judiciary. 

The Human Rights Act

In 1998, the Blair government introduced the Human Rights Act, which incorporates a version of the European Convention of Human Rights (ECHR) into British law. This addressed the question of practical limits imposed by external actors on the UK constitution as identified by the Empirical view of the British constitution. The Human Rights Act was specifically designed by the government to not breach the principle of parliamentary sovereignty but simultaneously protect the rights and freedoms of UK citizens. Ministers are strongly obliged to state that a piece of legislation is compliant with the ECHR before it is passed. More significantly, ECHR allows judicial review by making it possible for the judiciary to rule primary and secondary legislation as ‘unconstitutional’ or in contravention of the Charter.

Yet, in the aftermath of the July 2005 bombings in London, Tony Blair famously declared that the rules of the game had changed. In the summer of 2006, both Labour and Conservative leaders vehemently attacked the Human Rights Act, echoing tabloid outrage at the court decision overruling the deportation of nine Afghan hijackers. Blair ordered a review of the Act; Cameron went so far as to propose a complete scrapping of the Act and replacing it with a British bill of rights.

Despite these criticisms, the HRA has not been a disaster. Lord Falconer concluded in the government review that overall the HRA had a beneficial impact on UK law and policy-making. The dire predictions of floods of cases and judges running wild have been proved to be false. In the few cases where judicial review has occurred, the government has taken remedial action in every case, by repealing or amending the offending provision. The implementation of the Human Rights Act has involved a partnership and dialogue between all three branches of government and each has its own part to play. The constitutional reform of enacting the Human Rights Act has addressed the weaknesses of the constitution as identified by the Empirical view by defining the British relationship to Europe, a supranational influence. It has also partially addressed weaknesses as recognised by the Governmental view by providing a formal check on the legislature and the executive by the judiciary.

Devolution

Since 1997, the government has begun a process of devolution for Wales, Scotland, and Northern Ireland. Scotland gained its own Parliament and administration in the form of a cabinet and first minister under the Scotland Act of 1998. The areas within the domain of this new parliament include health, education, police, social work, and independent taxing, which are comparative to the powers of a state in a federal system.

The Government of Wales Act of 1998 established a smaller and less influential body than the Scottish equivalent; this was largely due to less demand in Wales than in Scotland for its own parliament. The Welsh Parliament has no rights to primary legislation but can alter secondary legislation.

Devolution of power to Northern Ireland was more difficult and it was only after delicate negotiations and steps toward disarmament that the Ulster Unionists agreed to sit down in government with Sinn Fein. The Good Friday Agreement of 1998 provided an important clause to create a separate assembly in Northern Ireland and this body holds a wide range of legislative and executive powers to a level similar to that of Scotland.

Reforms of devolution pursued by the Blair government have helped deal with the weakness of the British constitution in respect to over-centralisation of power as identified by the Governmental view of the constitution. The autonomy given to the regional governments have not broken up Britain but instead have produced new structures of dependency within the British system of government. Though devolution has created weaknesses of each own as exampled by the West Lothian problem and the alleged threat to parliamentary sovereignty, it has been successful to a certain extent by releasing power to regional governments.

Final Remarks

It is evident that the Blair government has attempted to address the major weaknesses in the pre-1997 constitution. The anachronistic elements of the House of Lords were modified; the judiciary was made independent; the Human Rights Act provided room for judicial review and defined the British relationship with Europe; and devolution was set on track. Yet, the process of constitutional reform is far from complete. The government must still wrestle with the problem of the Upper Chamber in determining the composition of the Lords. Significantly, the first-past-the-post electoral system, deemed to be unrepresentative, has not yet been reformed. The new powers given to the judiciaries must be fine-tuned and given more public attention. Devolution is a yet unfinished process and weaknesses it has thus presented to the constitution must be addressed as well. The reforms of the Blair governments addressed weaknesses in the UK constitution by starting ambitious modifications. Though these first steps were great progress, more must be done to further strengthen the British constitution by following governments.

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