Assessment
What, then, are we to make of the changes wrought during the Blair premiership? There are four generalisations that can be made. First, they
changed the contours of the Constitution but fell short of delivering
everything that was promised. Second, some of them had significant
unintended consequences. Third, they lacked coherence. Fourth, and
most significantly in terms of Blair himself, they were marked by a sense
of detachment from the Prime Minister. They are changes that will be
associated with Tony Blair but changes in which he invested little intellectual commitment.
Falling short
The effects of the changes on the Constitution were notable and, in combination, dramatic. Combined with British membership of the European
Communities in 1973, they constitute a constitutional upheaval unparalleled in modern British history. The period from 1970 to 2000, according
to Robert Stevens, ‘provided a practical and psychological transformation
comparable with the earlier constitutional revolution’ of 1640 to 1720.26
As he noted, there had been other major changes to the Constitution in
between, but they had been free-standing measures and not part of a
period of constitutional restructuring. The two terms of a Blair premiership had resulted in such a restructuring. Scotland had a parliament for
the first time in 300 years. The Human Rights Act added a major judicial
dimension to the Constitution, bringing judges more to the fore in the
determination of public policy. The devolution legislation had a similar
effect, since the higher courts became, in effect, constitutional courts for
the different parts of the United Kingdom. The second chamber was
transformed into a chamber of predominantly life peers, undoing several
centuries of history.
There were, though, problems in delivering the full raft of measures
promised in 1997. Some did not enjoy the wholehearted support of the
Prime Minister, the cabinet or Labour MPs. Tony Blair, like John Smith,
was not persuaded of the case for electoral reform. Paddy Ashdown has
recorded the extent to which he was willing to set up the Jenkins
Commission but not then to endorse its findings.27 The Freedom of
26 Robert Stevens, The English Judges (Oxford: Hart Publishing, 2002), p. xiii.
27 Paddy Ashdown, The Ashdown Diaries, vol. II: 1997–1999 (Harmondsworth: Penguin,
2002), pp. 120–4, 306–19.
Information Bill was a contentious issue in cabinet. The first minister given
responsibility for it, Chancellor of the Duchy of Lancaster David Clark,
wanted to go further than many of his ministerial colleagues and was outmanoeuvred in cabinet. (‘David Clark was sat on by Derry, by Ivor, by Jack,
by all and his white paper will be delayed until the summer is over’.28)
Responsibility passed to the Lord Chancellor, Lord Irvine, who achieved
passage of a far less stringent Act than he, and proponents of freedom of
information, had wished. The cabinet was divided over Lords reform,
Irvine favouring an all-appointed House29 and Blair, having previously
endorsed an elected chamber, coming down against election in 2003 but
then endorsing Jack Straw’s efforts to find agreement on a partly elected
House in 2007. Proponents of election, such as Peter Hain, were pitted
against advocates of an all-appointed House, such as John Prescott, John
Reid and David Blunkett.30 Few in government, other than John Prescott,
appeared to be enthusiastic about regional government. Prescott’s White
Paper in 2002 was a cautious document and it was not clear to what extent
powers were going to be devolved from central government as opposed to
sucked-up from local government.
The result was a constitutional settlement that was only partial and
that delivered on no particular approach to constitutional change. John
Smith had come closest to embracing the liberal approach to constitutional change, as advocated by Charter ‘88. Blair inherited the Smith
mantle, guarded over by Lord Irvine, and delivered on part of the agenda
but not all of it. Many aspects were seen as unfinished business, such as
Lords reform and a new electoral system, and others were seen as botched
or incomplete reforms, such as the Freedom of Information Act.
Unintended consequences
Many of the changes had effects that were not intended. Unintended is
not the same as unforeseen, as some critics did claim that some reforms
would invite trouble.31 The most significant problems arose in relation to
devolution and the Human Rights Act. The Labour Party had been persuaded to support devolution in the 1970s – though many in the party
continued to oppose it – and the motivation was to see off the challenge
from the Scottish National Party (SNP), which was emerging as the
28 Janet Jones, Labour of Love (London: Politico’s, 1999), p. 102.
29 Ibid., p. 139.
30 See e.g. David Blunkett, The Blunkett Tapes (London: Bloomsbury, 2006), pp. 445, 783–4.
31 See e.g. the CPC National Policy Group on the Constitution, Strengthening the United
Kingdom (London: Conservative Political Centre, 1996).
biggest threat to Labour north of the border. Devolution was ostensibly
justified on the grounds that, by allowing decisions to be made more
closely to the people, those in Scotland and Wales would not feel alienated as they had been by decisions taken in London. This was the basis of
the recommendations of the Kilbrandon Commission. As already noted,
the early years saw devolution bedding in without too many problems.
However, by the time Tony Blair announced his departure, the political
situation in Scotland and Wales was unravelling.
The SNP saw a surge in electoral support in 2007 and emerged as the
largest party in the May elections to the Scottish Parliament: the party,
under Alex Salmond, formed a minority administration. Labour also lost
its majority in the National Assembly for Wales. The problem of relations
between Whitehall and the devolved bodies was exacerbated by the fact
that the government had not sought to keep in good working order the
mechanisms that had initially been created, such as the Joint Ministerial
Council (JMC), to deal with possible conflict between the different
administrations in the UK.32 The government was thus ill-prepared for a
period of potentially strained relations. The changing political situation
occurred against a background of survey data showing that people in
England were not overly wedded to keeping Scotland in the Union. An
ICM poll in November 2006 found that 59% of English respondents
favoured Scottish independence; 48% also wanted to see Wales and
Northern Ireland separated from England.33
The Human Rights Act was to be the cause of tension between the
executive and the courts. The most significant clashes occurred over antiterrorism legislation. In December 2004, in the Bellmarsh case, the House
of Lords held that powers in Part 4 of the Anti-Terrorism, Crime and
Security Act 2001 breache
d Convention rights. The government achieved
passage, after some difficulty, of the Prevention of Terrorism Act 2005,
which was designed to meet the court’s objections. During passage of the
Bill, the Joint Committee on Human Rights queried whether its provisions for control orders, empowering the Home Secretary to restrict the
movement of particular individuals, also fell foul of the ECHR.34 In two
cases in 2006, Mr Justice Sullivan held that control orders breached
32 See Constitution Committee, House of Lords, Devolution: Inter-Institutional Relations in
the United Kingdom, Second Report, 2002–03, HL Paper 28.
33 P. Hennessy and M. Kite, ‘Britain Wants UK Break Up, Poll Shows’, Sunday Telegraph,
26 November 2006.
34 Joint Committee on Human Rights, Prevention of Terrorism Bill, Tenth Report, 2004–05,
HL 68/HC 334.
Convention rights. He said that he had taken into account protecting the
public from acts of terrorism, but ‘human rights or international law
must not be infringed or compromised’.35 (The same judge later held that
nine Afghans who had hijacked a plane in 2000 could remain in the UK.)
In August 2006 the Appeal Court upheld the ruling in respect of the
second case involving six control orders.
Each of the decisions was attacked by ministers. Following the
Bellmarsh case, Foreign Secretary Jack Straw claimed the law lords were
‘simply wrong’ to imply that detainees were being held arbitrarily and
said that it was for government to decide how Britain could best be
defended from terrorism. In August 2005 Tony Blair announced new
powers to combat terrorism and declared that ‘the rules of the game are
changing’: should legal obstacles arise, ‘we will legislate further including, if necessary, amending the Human Rights Act . . . and apply it
directly in our own law’.36 Home Secretary John Reid and his predecessors, Charles Clarke and David Blunkett, were also among those criticising the decision of the judges. The Lord Chief Justice, Lord Phillips of
Worth Matravers, felt the need to defend the judges – he emphasised that
the judges were doing their job of applying the law and enforcing the rule
of law: ‘It is the law that has changed.’37 The Lord Chancellor, Lord
Falconer of Thoroton, also felt the need to defend the judges and, following a review of the Human Rights Act by his department,38 the Prime
Minister conceded that it would not be possible to amend it.
The relationship was further complicated in May 2007 with the creation of a Ministry of Justice. Senior judges were concerned about the
effect on the independence of the judiciary, not least in terms of protecting the budget of the courts and ensuring that their views were heard in
government. The Lord Chancellor, Lord Falconer, engaged in discussions
to reach agreement with the judiciary on protecting its position, but
when Tony Blair left office he did so at a time when relations between
executive and the courts were notably strained, and with his Home
Secretary, John Reid – speaking at a G5 summit in the USA on 11 May
35 A. Travis and A. Gillan, ‘New Blow for Home Office as Judge Quashes Six Terror Orders’,
The Guardian, 29 June 2006.
36 Prime Minister’s Press Conference, 5 August 2005, www.number-10.gov.uk/output/
Page8041.asp.
37 Constitution Committee, House of Lords, Meeting with the Lord Chief Justice, Fourteenth
Report, 2005–06, HL Paper 213, Q59.
38 Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act
(London: Department for Constitutional Affairs, 2006), www.dca.gov.uk/peoples-rights/
human-rights/pdf/full_review.pdf.
2007 – calling for a change in human rights legislation to protect people
against terrorism. The law, he declared, needed modernising. ‘We need
leadership to do this. It can’t be left solely to the lawyers.’39
There were also problems with the Freedom of Information Act. Not
all ministers and MPs appreciated its effects. In 2007, senior Conservative
MP David Maclean achieved passage in the Commons of a Private
Member’s Bill to exempt parliament from its provisions. The ostensible
reason was to protect the privacy of MPs’ correspondence with constituents; critics claimed it was in order to prevent continuing publication of MPs’ expenses. In May 2007, Trade and Industry Secretary Alistair
Darling wrote to the Lord Chancellor asking for the legislation to be
reviewed: in his view, it did not sufficiently protect policy advice to ministers.40 As Philip Cowley records elsewhere in this volume, reform of the
House of Lords produced behavioural changes that were unexpected.
The Political Parties, Elections and Referendums Act 2000 failed to put an
end to concerns over party funding. Very few mayors were elected: where
they were, electors frequently elected someone outside the political mainstream. Not only were the generation and passage of some of the measures of constitutional reform far from smooth, but neither were the
consequences.
Lacking in coherence
The reforms listed in the 1997 manifesto were individually significant
and, in combination, had a notable effect on the contours of the British
Constitution. Those measures, however, were not grounded in any clear
view of what type of Constitution Labour wanted to create for the United
Kingdom. There was no coherent approach to constitutional change
embodied in the manifesto and hence no reference point for the particular measures that were introduced. They were essentially disparate and
discrete measures, with little thought given to the relationship between
them and how they fitted into a view of constitutional change.
Ministers avoided attempts to get them to identify a coherent
approach. Responding to a debate in the House of Lords in 2002, Lord
Chancellor Lord Irvine of Lairg conceded that the government did not
have an all-embracing definition of a Constitution and argued that it
39 ‘Reid Urges Human Rights Shake-up’, BBC News Online, 12 May 2007, http://
news.bbc.co.uk/1/hi/uk_politics/6648849.stm.
40 ‘Minister Wants “Secrecy for MPs”, BBC News Online, 24 May 2007, http://news.bbc.
co.uk/1/hi/uk_politics6689031.stm.
proceeded ‘by way of pragmatism based on principle, without the need
for an over-arching theory’.41 He enunciated three principles:
The first is that we should remain a parliamentary democracy with the
Westminster Parliament supreme and within that the other place the dominant partner. Secondly . . . we should increase public engagement in
democracy, developing a maturer democracy with different centres of
power where individuals enjoy greater rights and where government is
carried out closer to the people . . . Our third principle is that the correct
road to reform was to devise a solution to each problem on its own terms.42
The first two of these principles were not necessarily compatible in
determining clearly where political power should reside and the third was
not so much a principle as a get-out clause. The confused approach was
reflected in practice: on devolution, power was to be given to Holyrood,
but ‘Blair told Irvine that he did not want a plan that seemed in any way to
impinge on Westminster’s ultimate sovereignty’.43 It was not the basis for
identifying precisely where the government were going.
Irvine, however, was arguably the only member of the cabinet with a
clear interest in constitutional affairs. When he left government in acrimonious circumstances in 2003, there was no one to continue his work.
Responsibility for constitutional affairs was never drawn together within
the remit of a single cabinet committee. Irvine’s successor was appointed
to head a new Department of Constitutional Affairs (DCA), but that
remained essentially a Lord Chancellor’s Department, a fact implicitly
conceded when it was transformed in 2007 into a Ministry of Justice.
When it existed as the DCA, not all constitutional issues fell within its
remit: though junior ministers in the Scotland and Wales Office were in
the DCA for pay and rations, they answered to the relevant Secretaries of
State. In 2006, responsibility for Lords reform moved from Lord Falconer
to the Leader of the House of Commons, Jack Straw. There was thus no
clear institutional framework for addressing the Constitution qua
Constitution and, after 2003, no one within government with a clear
interest in doing so. What constitutional measures that were introduced
after Irvine’s departure were very much free-standing measures, reinforcing the apparent fragmentation of the nation’s constitutional arrangements. When it came to having a coherent view of constitutional change,
there was no leadership from the top.
41 House of Lords Debates, vol. 642, c. 691 (18 December 2002).
42 Ibid. , c. 692.
43 James Naughtie, The Rivals (London: Fourth Estate, 2001), p. 176.
Detachment
The 1997 reforms were promised by Blair but not originated by him.
They owe more to John Smith and Lord Irvine than they do to Tony Blair.
Smith, as we have seen, embraced a wide-ranging agenda of constitutional change. As Anthony Seldon noted in his biography of Blair, Irvine
was ‘committed to fulfilling Smith’s legacy’.44 He was assiduous in seeing
measures through,45 though not always to the extent he would wish, and
BLAIR’S BRITAIN, 1997–2007 Page 20