– Harry Dyson (LLB Law, Newcastle University) firstname.lastname@example.org
Constituents being able to sack their own MP, televised trials, Scottish independence, and prisoner’s rights to vote; these are all constitutionally significant changes that have been proposed. The Government have shown little in the way of support for any of these, and in the case of Scotland outright opposition. The Government should exercise caution in passing any constitutionally significant legislation and take a hard look at constitutional reform implemented by New Labour.
With our Constitution being more complex and ambiguous than Starbucks’s tax return, how did New Labour fare in their plight to modernise it? An un-written constitution is a wonderful thing, it facilitates modernisation and social change. However the reforms since 1997 have shown both the positives and negatives of an un-written constitution. New Labour’s reforms principally advocate one message to any government aiming to reform; partisan politics have no place in such a process.
The House of Lords have been a thorn in the side of the Labour Party since the days of Ramsay Macdonald, and in 1999 New Labour fought back. The main weapon in Blair’s arsenal being the House of Lords Act 1999. The casualty of this fight against the Lords was unfortunately the relationship between the two houses, which was unwittingly reshaped. The creation of life peerages and the reduction of hereditary peerages to just 92, as pledged in their manifesto, aimed to be more proportionate of Parliament therefore Labour wielding more power. However this unwittingly granted the Lord’s a slither of the one thing that could make them more powerful; legitimacy. Thus the Lords started to challenge their constitutional role, starting with constitutional conventions. That very same year Lord Strathclyde boasted that the convention that the Lords would not veto secondary legislation was ‘dead’. Lib-Dem Lords went as far as to openly oppose the Salisbury convention! Labour’s partisan legislation thus unwittingly inspired a train of thought advocating the Lords vetoing manifesto pledges – counter-productive for both our democracy as a whole and for the Labour Party. The 1999 Act was short sighted and failed to protect conventions which are key to our democracy. Lesson one; stay well clear of partisan party politics.
A question that will haunt Tony Blair forever; did New Labour get anything right? The Human Rights Act 1998. This radical constitutional change was carried out very well. The 1998 Act incorporated most of the Human Rights Act into our law. However it did so while protecting the holy grail of constitutional theory; Parliamentary sovereignty. Dicey advocates Parliament is not ‘politically sovereign’ – It would be almost impossible, politically, to repeal the HRA without a suitable replacement. However legally Parliament could repeal it whenever they pleased. The Act allows the court simply to file a declaration of incompatibility if new legislation breaches the convention. So Parliament could in theory legislate contrary to every article in the ECHR. Despite this the ECHR is seemingly obeyed, for example the Belmarsh case. Here it was held the Anti-Terrorism Crime and Security Act 2001 incompatible and Parliament swiftly amended it as appropriate. The Act may have appeared moderate by having such limited court power, however understanding of Diceyan theory explains why this approach works well. New Labour exercised the caution and restraint here that was missing in their Lords reform. Lesson two; respect Dicey.
Maintaining the separation of powers is an underlying theme throughout Labour’s reform. The Constitutional Reform Act 2005 removed the Law Lords from the Upper Chamber and removed the Lord Chancellor’s judicial functions. This stripped Blair’s old friend and mentor Lord Irvine of the role of speaker of the Lords – a welcome modernisation. This constitutional reform, in contrast to Lords reform, although not escaping criticism, showed almost apolitical legislation. Any future constitutionally significant legislation will have to, in order to benefit the country, be somewhat apolitical in nature. Lesson Three; to coin a phrase used by Ramsay Macdonald in 1929 – reform should ‘put country before party’.
Allowing prisoners to vote may seem a fresh liberal approach, and yet another chance to throw around the term ‘human rights’, however it should be looked at with both foresight and caution. Lords reform is a prime example. I wouldn’t go as far to suggest that the ‘criminal vote’ would have a significant impact on British politics – however how would the political parties win this vote? If this would cause a lean in policies ever so slightly towards prisoner friendly policy, is this something we can allow? Despite the fact Labour may benefit from a prisoner vote, perhaps it should follow Blair’s stead in the case of the Lord Chancellor and put country before party.
Televising trials is also a risky proposal. The media already have an unwelcome influence on trials, especially given the lack of anonymity for defendants (Operation Yewtree being a prominent example), should we really be welcoming more? The possible political influence also shouldn’t be underestimated, as we have seen before in the Venables case. Labour’s reforms were successful because of their maintaining of the separation of powers – keeping politics out of the courtroom. Once again caution has to be exercised. In the meantime Mr Pistorius will be making for interesting viewing.
Scottish independence would easily dwarf Labour’s efforts in terms of constitutional reform. The unintended results of relatively minor Lords reform should be a huge warning shot to politicians on both side of the debate. Should Scotland vote for their independence it will prove to be the biggest ever test of a Government’s ability to implement constitutional reform.
Whatever your political persuasion one thing is clear; the Government of the day need to take extreme care in even the most moderate of reforms. New Labour’s efforts were on the whole beneficial for our country, however they highlight the need for foresight and caution. Scotland’s bid for independence is currently the biggest threat to our constitution, the changes it would force could have very unpleasant results in the long term for our constitution. However what is for certain is that a yes vote on the 18th of September would make for a very interesting couple of years for Public Law students and commentators.