A critical assessment of the claim that New Labour committed ‘constitutional vandalism’ during their time in office between 1997 and 2010.
The Labour Party introduced many reforms to the British Constitution during its time in office between the years of 1997 and 2010, under the leadership of Tony Blair and Gordon Brown. The Labour Party was re-elected under the ideological umbrella known as ‘New Labour’ and became known for its modernisation and reform of the political system, with many of the measures introduced still present today. It could be argued though, that many of these reforms were mostly changes for changes sake and that they were unnecessary and simply aligned nicely to New Labour’s sense of modernisation; without having an important political meaning. As Hassan argues, “…none of it added up to a systematic critique of the ancient regime, let alone the emergence of a ‘new politics’. All of these limitations were evident before Labour began to go into reverse and engage in constitutional vandalism…” (Hassan, 2010). The removal of the position of Lord Chancellor is a perfect example of this sense of constitutional vandalism, as it was a reform that arguably had little political significance. Furthermore, there was a feeling within the Labour party that much change was needed in order to re-shape the political system in their vision; with critics labelling the subsequent reforms as uncoordinated. The Labour Party inevitably felt this way because it had been out of power for so long, therefore New Labour showed more willingness to change the constitution than any other government since 1918 (Toye, 2004). Nevertheless, the process of devolution and the introduction of a UK Supreme Court are two examples, along with many others, of logical and modern steps forward for the constitution. Indeed, there was a great deal of support for many of the New Labour reforms as they were seen to comply with constitutional traditions due to their incremental and tailored nature (Straw, 2010). This essay will critically assess the New Labour constitutional reforms with respect to whether or not they were truly needed and conclude that they cannot be described as constitutional vandalism due to their effectiveness and relevance at the time.
Many of New Labour’s constitutional reforms could be best described as vandalism, with one of the most suspect being the removal of the position of the Lord Chancellor. This was a post which was largely unchallenged and posed no threat politically, yet the forces behind New Labour decided that it had to go. Part of New Labour’s political quest was to begin modernising the country from all aspects; with constitutional reform being of paramount importance. The position of Lord Chancellor therefore, it would seem, simply did not fit in with this modernisation process. It could be argued that this reason alone is not enough to justify its removal and here lies the argument as to whether New Labour are guilty of committing constitutional vandalism. The Lord Chancellor had many duties and was responsible for the administration of justice, appointing judges and protecting human rights (Bogdanor, 2009). Therefore, many Conservative backbenchers opposed the reform because of a fear that it would bring judicial independence under threat (Anon, 2004). This was because the position was not to be fully removed; rather it was repositioned to give the government more control. The post of Lord Chancellor became aligned with the secretary of state for justice and certainly lost a noticeable amount of political significance as the two positions were now one and the same (Bogdanor, 2009). One of many example of this would be when the Lord Chancellor was stripped of his duties as the presiding officer of the House of Lords, following the constitutional reform act of 2005 (Bogdanor, 2011). However, New Labour did have relevant justification for the reforming of the Lord Chancellor because it was, according to Beech, “…a measure which was viewed to be a response to the growing desire to increase the separation of powers between the judiciary and the executive thus ensuring compliance with Article 6 of the ECHR on judicial independence” (Beech, 2000, p. 86). The separation of powers, outlined by Montesquieu, are critical here as the party felt that the position of Lord Chancellor did not fit securely within any of the three branches of government. Rather, the Lord Chancellor had had responsibilities in the executive, the judiciary and the legislature but now only resides within the executive, leaving advocates of reform to argue that the credibility of the constitution, along with the separation of powers, now remains fully intact. Nevertheless, the reform of the Lord Chancellor’s post is a great example of New Labour’s disregard for the constitution, even if the plans were backed up by logical argument.
However, larger efforts to condemn the Labour Party with the tagline of constitutional vandalism came when New Labour announced that it was to enact a process of devolution that would see England, Scotland, Wales and Northern Ireland partially separated. The Conservative MP’s who opposed devolution argued that the process could signal the end of the centralisation of the UK and could force countries such as Scotland into full independence. Furthermore, the process could undermine Parliament as Little explains, “from a Scottish perspective at least – the viability of classic, Diceyan parliamentary sovereignty as a meaningful constitutional doctrine will be called into question in the years to come” (Little, 2004, p. 540). Parliamentary sovereignty is enshrined within the UK constitution, while the process of devolution attempts to strip the powers of Parliament by transferring them to devolved institutions. This is deeply unconstitutional and could be seen as an example of New Labour’s constitutional vandalism. On the flip side it could be argued that measures such as devolution could in fact help keep the UK together, as it offers a compromise to countries demanding more power and prevents them from turning their intentions to full independence. As Beech argues, “… devolution has not necessarily strengthened support for Scottish independence” (Beech, 2008, p. 84). Therein lies an example of asymmetrical autonomy, as power can now vary between the devolved institutions in order to best adapt to the demands of the given country. Another justification for New Labour’s actions on devolution is the fact that it was a promise the party needed to fulfil following its manifesto pledge (Dorey, 2008). Devolution was a key part of their 1997 manifesto, as Flinders explains, “Devolution to Scotland, Wales and Northern Ireland had always been intended to be a central part of the ‘new politics’—‘new’ in the sense that it would be based on a more balanced, consensual and less adversarial political culture.” (Flinders, 2007, p. 111). Devolution was seen as a substantial stride in the Labour party’s modernisation program but also, due to their pre-election promises, a failure to deliver the radical reform would have been a political disaster (Marsh, 2007).
There were of course a number of other constitutional reforms which could be viewed as being necessary, or at least positive, changes to the system. New Labour is responsible for the creation of the London assembly which houses an elected Mayor of London, a position which enjoys a mandate from the public (Bogdanor, 2009). The London Mayor is responsible for the policy strategies of London, an example of this being the congestion charge introduced by the first London Mayor Ken Livingstone. Despite this particular policy coming in for criticism, the post itself is seen as an effective addition to the political system and is also effectively held to account by scrutiny of the London assembly (Bogdanor, 2009). The Freedom of Information Act implemented in 2000 reflects New Labour’s view of a liberal and free society and is surely a positive step for the UK constitution. The act allows the public right of access to any important and revealing information held by any public body, thus allowing for an increased chance of scrutiny. Nevertheless the act has come in for criticism regarding a few details and loopholes which subsequently still allow some information to remain closed off from the public, leaving many interested parties disappointed (Coates, 2000, p. 87). Notably, a ministerial veto of the act can ensure information is not displayed to the public; this was used most prominently to deny public access to the cabinet minutes regarding the Iraq war. Issue was also raised with regards to the cost of the system, with similar questions being asked of the planned UK Supreme Court. Introduced in 2009 under the leadership of Gordon Brown, the Supreme Court was a radical change to the constitution which, although expensive, provided the judicial branch of government with more credibility and authority. Bogdanor summarises, “The decisions of the Supreme Court are absolutely final” (Bogdanor, 2009, p. 85). All this meaning that the independent body of the Supreme Court has judges who are accountable to no one (Bogdanor, 2009). First introduced by the Constitutional Reform Act of 2005, the Supreme Court ensured that pressure was taken off the judicial branch of the House of Lords; leaving it as the highest court available for civil cases.
Shortly after being elected in 1997, the Labour Party announced the independence of the Bank of England, with Tony Blair and Gordon Brown being the only members of the whole party who knew of the radical change. As Toye summaries, “The shift in Labour’s economic priorities was symbolised by the decision to transfer the power to set interest rates from the Treasury to a new Bank of England Monetary Policy Committee” (Toye, 2004, p. 21). Although deemed as the correct decision in hindsight, the change could be interpreted as reckless and uncoordinated and therefore could be argued to fit with the definition of constitutional vandalism. The incorporation of the European Convention of Human Rights could not however and could be likened to the Freedom of Information Act in that it adheres to New Labour’s sense of equality and social democratic position. Moreover, New Labour was attempting to distance itself from old Labour traditions by leaning more towards a sense of collective individualism, with the incorporation of European Human Rights just one part of this (Klug, 2011). It is ironic that the Conservative Party often labels New Labour’s reforms as constitutional vandalism and yet, now in power, has kept all except the one concerning human rights, the one which arguably rejects the idea of constitutional vandalism the most. There are however, some New Labour reforms which can be questioned on the constitutional vandalism front but also in terms of legitimacy. The House of Lords Act makes changes to an institution centuries old, successfully removing all but ninety two hereditary peers from the upper house (Thorpe, 2008). The reform left behind a sense of positive vandalism which was felt by most within the Parliamentary system. The Act faces credible attack however when looking at who replaced the old lords, with many of the new lords, aptly labelled ‘Tony’s cronies’, being revealed as close advisors of Blair; this it could be argued, is even more alarming for democracy. Another area of reform which sparks much debate is that of the voting system. This was perhaps an example of attempted constitutional vandalism by New Labour, as it looked set to reform the voting system from first-past-the-post to proportional representation following its 1997 manifesto pledge to perform a referendum. However, having introduced proportional representation to the devolved institutions of the UK and to the European Parliament and having commissioned the Jenkins report, the party’s opinion changed somewhat, with Tony Blair claiming that a more in depth debate was needed. Beech offers up a cynical position, “The determining factor for most frontbench Labour politicians has not been the democratic merits or demerits of various electoral systems, but rather the benefits that a particular system might offer the party at election time” (Beech, 2008, p. 77).
In conclusion, it could be argued that New Labour is guilty of committing constitutional vandalism due to a number of factors concerning their reforms. The removal of the Lord Chancellor could be seen simply as change for changes sake, while the unconstitutional process of devolution was enacted due simply to a promise the party had made itself whilst out of power. Furthermore, the party was seen to be almost playing around with their policy on electoral reform, while some reforms could not only be described as constitutional vandalism but also that they failed to deliver their purpose due to some compromises. On the other hand, most of New Labour’s reforms are still present today with most performing effectively. The Freedom of Information Act and the Incorporation of European Human Rights certainly show a step forward for the UK constitution and align with New Labour’s vision of equality. Whilst the position of an elected Mayor of London and the introduction of a Supreme Court show how the country was efficiently modernizing under New Labour. Ultimately, although some reforms might have initially appeared rash, New Labour was committed to change and had introduced a new way to govern in an attempt to modernize the country and the constitution (McAnulla, 2006). Therefore the constitutional reforms cannot be described as constitutional vandalism due to their contemporary relevance and to New Labour’s decade of success which followed them.
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