Were New Labour’s constitutional reforms successful?
Catchphrase: “With the general elections coming this year, you must be wondering what happened the last time Labour was in government. And the question is, were they good at it?”
Introduction
With Tories polling at a record low and Labour leading by 27 points[1], a Labour government seems likely at the time of writing. What constitutional reforms passed under New Labour, were they successful, and will they persist with the next Labour administration?
New Labour
The Labour Party was founded in the 1900s as a culmination of trade unions and socialist movements born in the 19th century – to address the workers’ needs in an industrialising economy and to fight for their interests in Westminster.
Source- The labour list, ‘We should look to the example of Attlee and Wilson in these troubled times.’ accessed on https://labourlist.org/2017/01/luke-akehurst-we-should-look-to-the-example-of-attlee-and-wilson-in-these-troubled-times/
The post-war Labour Prime Ministers saw success in policy implementation, for example Attlee’s ministry overseeing the creation of the welfare state with programmes like the National Health Service[2] and Wilson’s ministry abolishing the death penalty and liberalising birth control and abortion laws[3]. From 1945 to 1997, Labour was in government for about 32.7% of the time[4], the remainder being held by the Conservatives. At that time, their appeal to the voters seemed to be frustration with the Tories.
In contrast to a united Conservative Party, the turbulence and in-fighting faced in the Labour Party from faction dominance between socialists and moderates, confused voters when they headed to the polls, especially in 1992 when Labour was polling over Major’s Conservatives and still lost.[5]
Tony Blair was elected as the MP of Sedgefield in 1983 and subsequently won the leadership election to become Labour leader in 1994 after the sudden death of his predecessor John Smith.
Picture credit: Matthew Polak/Corbis, accessed on https://www.theguardian.com/politics/2007/feb/15/labour.uk
In the run-up to the 1997 election, the Tories faced infighting over membership of the European Union against the backdrop of an economic crash known as “Black Wednesday” which compounded the voters’ fatigue after 18 years of Conservative rule.
Blair held a party conference to amend Clause IV of the party constitution from talking about things like “common ownership of the means of production…” to committing Labour to being a “democratic socialist party”, shifting away from socialist aspects in what is known as a ‘Clause IV moment’[6] which many saw as being the birth of New Labour.
This was Blair’s first step towards establishing himself as a similar candidate to his contemporary Bill Clinton, a ‘Third Way’ kind of politician that takes a more centrist approach who would appeal to moderate voters[7] and therefore expands his voter base amongst the public.
During the actual campaign, he dropped many socialist points like his predecessors did like “the needs of the worker” etc. and focused on soundbites that appeals to the masses[8]
“Education, education, education.”
“More jobs, more nurses…”
“Tough on crime, tough on the causes of crime.”
Labour formed the government with a 418 seat majority in the House of Commons with the largest landslide victory since the end of the Second World War.[9]
The Reforms
With a majority in Parliament, the new Labour government under Blair could easily pass any bills they want. We will focus on two of these constitutional reforms he managed to pass in Parliament.
The Devolution Acts
After the Acts of Union[10], Britain has functioned primarily as a unitary state where all of the power was concentrated in the Government and Parliament in Westminster.
Blair held a referendum on the issue for both Scotland and Wales and both nations voted ‘Yes’ for the establishment of devolved legislatures within their own respective countries, overwhelmingly in Scotland and by a narrow margin in Wales.
Thus, legislation was created to implement these changes to Scotland[11] and Wales[12], giving them devolved powers and control over certain policies like education and culture through the establishment of a devolved legislature, the Scottish Parliament and the Welsh Senedd.
The Troubles was a dark history in Northern Irish and British history, and sectorial tensions between Protestants and Catholics in the region arguably has not been fully resolved. Blair, upon signing the Good Friday Agreement[13], established the Northern Irish Assembly and Executive in 1998 and cooled political tensions.
So, can we say that the Devolution Acts were successful? I’d argue, within the framework of ensuring equity and stability, yes.
Firstly, it allows for the nurturing of each countries’ different distinguished identities and cultures.
With a devolved legislature to handle devolved matters such as culture, they have more insights into any nuances and specifics that requires attention (like in this Welsh event)[14] which Westminster might lack in such as the establishment of numerous Welsh football leagues[15]. This lead to the flourishing in certain sectors like the aforementioned culture and tourism where more international tourists are exposed to each countries’ individual and unique traditions and customs that previously wouldn’t have been given priority in Westminster.
We need to talk about how it allowed the devolved governments to govern in an efficient manner which caters specifically to their respective countries. According to the Scottish government[16], “Scotland has performed well across a range of indicators since devolution” and closed the level of productivity between itself and the UK average by 90% and that “long-term pay growth has been highest in Scotland since 1997.” The newly formed Welsh government focused on creating a more “inclusive and consensual style of politics,”[17] and introduced the “first two devolved Welsh taxes” in 2018 according to the Welsh’s needs, in turn raising £2 billion for devolved expenses.
Photo credit: Unsplash
However, there are some flaws which I want to highlight from the Acts of Devolution.
Unfortunately, political instability seems to have not been done away with, as with these Acts, there are more hard-line nationalists calling for their own independence[18], especially within Scotland, since they saw devolution as a stepping stone towards that goal, and the resulting referendum almost throwing the UK into a constitutional crisis.
Even recently, Northern Ireland’s Executive has been facing deadlock[19] over the nationalists winning the 2022 Northern Irish Assembly election and both the First and Deputy Minister portfolios weren’t filled until February 2024[20].
Furthermore, having a more ‘autonomous’ devolved governments lead to inter-governmental tensions, especially if the ruling parties in Edinburgh, Cardiff, Belfast, and London are of different parties. These different governments want to handle crises in a different way – and lead to disagreements or even refusal to communicate[21]. Even recently, it was revealed that the former Scottish First Minister called Johnson a “f****** clown” over WhatsApp[22] over how he handled the pandemic.
Thus, more different opinions leading to more conflicts which are likely to ensue over instances of wanting more devolution or simply disagreeing with Westminster on how certain reserved powers are used – which again leads to more people wanting more devolution. That said, devolution has ensured that these countries maintain some sort of autonomy over their own citizens and state and issues in communication and policy cohesion with Westminster might be complicated during crises like Covid. Even the IndyRef movement in Scotland has been dying down due to growing apathy amongst the youth[23] and being generally satisfied with the status quo under devolution. I could therefore say that devolution, despite its flaws, is a success.
The Human Rights Act 1998
Before this Act came into force, British residents whose rights have been abused would hitherto travel to the European Court of Human Rights (ECtHR) in Strasbourg to raise these legal issues with the ECtHR – travel costs included.
This Act copy-pasted the Convention rights into British law which allowed British residents to have all of these legal procedures to be streamlined and heard within the UK essentially increasing access to justice for fundamental rights in Britain – allowing British judges to judge British citizens and uphold their rights[24].
The Act also compels future Acts of Parliament to be “..compatible with the Convention Rights,”[25] which encourages Parliament to not pass Acts which infringes on citizens’ rights and would act as a check on it. For example, this was used in the Ghaidan[26] case when the court decided that discrimination based on sexual orientation was impermissible under Convention rights.
Additionally, the courts have the ability to “…make a declaration of (…) incompatibility”[27] should any Acts come into conflict with Convention rights. This allows the courts to make sound their opinion on any Acts and could potentially influence how the government changes the Act itself. In Anderson[28], the Crime (Sentences) Act 1997 was ruled to be incompatible with the ECHR as it determined that sentences were only to be given by an independent tribunal and was eventually partly repealed by the Criminal Justice Act 2003.
Section 4 of the HRA does have its flaws. When the courts make a declaration of incompatibility, it’s not legally binding. So, Section 4 won’t “affect the validity, operation or enforcement of the law.”[29] This could hamper the courts’ ability to effectively challenge potential breaches to human rights in the case of a rogue Parliament.
Furthermore, the HRA is just a statute subjected to the legal powers conferred by Parliamentary Sovereignty. Considering the concept of Parliamentary Sovereignty, Parliament has the absolute power to pass any law it wants to without interference from other bodies of government. The HRA, therefore, could be watered-down or even repealed by any future Parliaments, which came up as a controversial move[30] by recent Parliaments. Thus, there’s a possibility of future Parliaments repealing this Act and no courts could stop them from doing so from a legal point of view.
That being said, despite Section 4 not being legally binding, it has managed to influence amendments to existing Acts as mentioned above. And while Parliament has the legal ability to repeal this Act whenever it wants, it could be politically costly to their constituents in representative democracy where MPs are elected by the public and are therefore subjected to their scrutiny. Considering this, the HRA is considered a success in ensuring equity thus far in practice despite its challenges.
Continuation and Reflection
As with fundamental constitutional statutes like the Magna Carta and Bill of Rights 1689, I don’t believe that such important pieces of legislation would be repealed under either a Conservative or Labour government. The likely political backlash is too heavy and it (ideally) wouldn’t be in the best interest of either parties to want these types of laws to be repealed.
Rather, Labour should focus on improving other aspects of the Constitution such as electoral reform – the replacement of the ‘First-Past-the-Post’ system with Proportional Representation. Starmer, on paper, appears to me as someone with a steady hand who wouldn’t rock the boat and bring things under the control. Unfortunately, I’m not an oracle and the actions of a future Labour government are yet to be known.
Still, I hold optimism that the UK’s future would, despite all the troubles of today, still let them remain one of the most developed and internationally relevant states globally.
[1] YouGov, ‘Voting Intention: Con 20%, Lab 47% (23-24 Jan 2024)’ (yougov.com, 25 January 2024) <https://yougov.co.uk/politics/articles/48469-voting-intention-con-20-lab-47-23-24-jan-2024> accessed 26 Jan 2024.
[2] Rachel Reeves and Marvin McIvor, ‘Clement Attlee and the foundations of the British welfare state’, ‘Renewal: A Journal of Social Democracy’ [2014] PL 42
[3] Andrew Thorpe, A History of the British Labour Party (1st edn, Palgrave, 2001), 145
[4] UKGov, ‘Past Prime Ministers’ <https://www.gov.uk/government/history/past-prime-ministers> accessed 24 Jan 2024.
[5] Owen Hatherley, ‘If you must compare Corbyn to a past Labour leader, it isn’t Michael Foot’, The Guardian, (London, 27 December 2019) <https://www.theguardian.com/commentisfree/2019/dec/27/compare-corbyn-labour-michael-foot-neil-kinnock> accessed 26 Jan 2024.
[6] Aisha Gani, ‘Clause IV: a brief history’, The Guardian, (London, 2015) <https://www.theguardian.com/politics/2015/aug/09/clause-iv-of-labour-party-constitution-what-is-all-the-fuss-about-reinstating-it> accessed 26 Jan 2024
[7] John Ezard, ‘Blairism, noun: very difficult to define’, The Guardian, (London, 2000) <https://www.theguardian.com/politics/2000/aug/05/uk.labour> accessed 26 Jan 2024
[8] Kiran Stacey, ‘‘It was electrifying’: the inside story of Labour’s 1997 election landslide’, The Guardian, (London, 2023) <https://www.theguardian.com/politics/2023/oct/05/it-was-electrifying-the-inside-story-of-labours-1997-election-landslide> accessed 26 Jan 2024
[9] House of Commons Social and General Statistics Section, “General Election Results, 1 May 1997” <https://www.parliament.uk/globalassets/documents/commons-information-office/m15.pdf> accessed 26 Jan 2024
[10] Union with Scotland Act 1706, Union with Ireland Act 1800
[11] Scotland Act 1998
[12] Government of Wales Act 1998
[13] “The Belfast Agreement: An Agreement Reached at the Multi-Party Talks on Northern Ireland”, <https://assets.publishing.service.gov.uk/media/619500728fa8f5037d67b678/The_Belfast_Agreement_An_Agreement_Reached_at_the_Multi-Party_Talks_on_Northern_Ireland.pdf> accessed 26 Jan 2024
[14] “Event Wales: A Major Events Strategy for Wales”, <https://www.gov.wales/sites/default/files/publications/2019-06/event-wales-a-major-events-strategy-for-wales-2010-to-2020.pdf> accessed 26 Jan 2024
[15] Welsh Government, 'JD Welsh Cup' <https://cups.cymrufootball.wales/welsh-cup/> accessed 2 February 2024
[16] Government of Scotland, “After Brexit: The UK Internal Market Act and devolution”, (gov.scot, 8 Mar 2021) <https://www.gov.scot/publications/brexit-uk-internal-market-act-devolution/pages/10/#:~:text=Scotland%20has%20performed%20well%20across,gap%20is%20now%20around%201%25.> accessed 26 Jan 2024
[17] Senedd Cymru, “History of Devolution”, (senedd.wales, 7 Dec 2020) <https://senedd.wales/how-we-work/history-of-devolution/> accessed 26 Jan 2024
[18] Andrew Black, 'Scottish independence: Referendum to be held on 18 September, 2014' BBC Scotland (Edinburgh, 21 March 2013) <https://www.bbc.co.uk/news/uk-scotland-scotland-politics-21828424> accessed 26 Jan 2024.
[19] Shawn Pogatchnik, ‘Northern Ireland in 2024: A land of misery’ Politico (Belfast, 19 January 2024) < https://www.politico.eu/article/no-government-elections-more-money-northern-ireland-belfast-crisis-inflation-pay-rise-protests/> accessed 26 Jan 2024.
[20] Judith Cummings, ‘Sinn Fein first minister a defining moment in Northern Ireland’ BBC Northern Ireland (Belfast, 3 February 2024) https://www.bbc.co.uk/news/uk-northern-ireland-68167477 accessed 6 Feb 2024.
[21]Elliw Gwawr, ‘Covid: Boris Johnson refused talks with Drakeford and Sturgeonl’ BBC News (Cardiff, 11 October 2023) accessed 2 Feb 2024.
[22] Adam Forrest and Zoe Grunewald, ‘Sturgeon called Boris a ‘f****** clown’ over ‘utter incompetence’ in handling Covid, WhatsApps reveal’ The Independent (London, 25 January 2024) accessed 26 Jan 2024.
R&WS Research Team, ‘Scottish Independence Referendum & Westminster Voting Intention (9-11 January 2024)’ (redfieldandwiltonstrategies.com, 12 January 2024) < https://redfieldandwiltonstrategies.com/scottish-independence-referendum-westminster-voting-intention-9-11-january-2024/> accessed 26 Jan 2024
[24] Stephanie Palmer, ‘The Human Rights Act 1998: Bringing Rights Home”, “Cambridge Yearbook of European Legal Studies” [2017] PL 125
[25] Human Rights Act 1998, s 3 (1)
[26] Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30
[27] Human Rights Act 1998, s (4)
[28] R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46
[29] Liberty, ‘How the Human Rights Act Works’, <https://www.libertyhumanrights.org.uk/your-rights/the-human-rights-act/how-the-human-rights-act-works/> accessed 28 Jan 2024
[30] Anita Mureithi, ‘Here’s what you need to know about the ‘Rights Removal Bill’ (Open Democracy, 24 June 2022) <https://www.opendemocracy.net/en/bill-repeal-human-rights-act/> accessed 24 Jan 2024.