The 1997 Labour government’s constitutional reform programme: 25 years on

25 years have passed since the Labour election win of 1997, which preceded a plethora of constitutional changes, including partial reform of the House of Lords, devolution to Scotland, Wales and Northern Ireland, and the Human Rights Act. Tom Leeman summarises the contributions of three expert speakers (Professor Robert Hazell, Baroness (Shami) Chakrabarti and Lord (Charlie) Falconer of Thoroton) at a recent Unit event to mark the anniversary.

This year marked a quarter of a century since the victory of Tony Blair’s New Labour in the 1997 General Election on 1 May. Blair’s first government embarked upon a programme of constitutional reform, many elements of which, such as devolution, the Human Rights Act (HRA), and the status of hereditary peers in the Lords, still spark debate in the UK today.

To mark the anniversary and discuss the Blair government’s constitutional legacy the Unit convened an event with three expert panellists: Professor Robert Hazell, founding Director of the Constitution Unit, who supported the Cook-Maclennan talks on constitutional reform between Labour and the Liberal Democrats in 1996; Lord (Charlie) Falconer of Thoroton, who served as Lord Chancellor in the second and third Blair ministries from 2003 until 2007; and Baroness (Shami) Chakrabarti, who was Director of Liberty from 2003 until 2016. The event was chaired by Professor Meg Russell, Director of the Constitution Unit. The summaries below are presented in order of the speakers’ contributions.

Robert Hazell

Robert Hazell presented slides to summarise New Labour’s constitutional reform programme from their first election victory in 1997 until Gordon Brown’s resignation as prime minister in 2010. The reforms in Blair’s first term (1997-2001) were the biggest package of constitutional reforms in the twentieth century. They included devolution of power to assemblies in Edinburgh, Cardiff and Belfast in 1998; incorporation of the European Convention on Human Rights into domestic law in the Human Rights Act; and the removal of hereditary peers from the House of Lords.

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The Constitutional Reform Act 2005 led to greater judicial independence: politicians and parliament must continue to support it

As part of an ongoing inquiry, the Lords Constitution Committee has sought evidence as to whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Robert Hazell argues that the 2005 reforms led to greater judicial independence, a political achievement that requires continuing support from politicians and parliament.

The House of Lords Constitution Committee is currently undertaking an inquiry into the role of the Lord Chancellor and the Law Officers, in which it seeks to answer a number of questions, including whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Through written evidence, submitted with Professor Kate Malleson, I have attempted to answer that question. Our answers were based upon the main findings and conclusions of a three-year research project on the Politics of Judicial Independence, funded by the AHRC. The research explored the impact of the greater separation of powers introduced by the Constitutional Reform Act 2005 (CRA). Our principal conclusion – as explained in our 2015 book on the subject – was that judicial independence and judicial accountability have emerged stronger, not weaker; but that greater separation of powers requires increased engagement by the judiciary with other branches of government.

The changes made by the Constitutional Reform Act 2005

Until 2005 the head of the judiciary was a Cabinet minister, the Lord Chancellor. In an extraordinary breach of separation of powers, he could also sit as a judge in the UK’s highest court. The CRA removed the Lord Chancellor as head of the judiciary, handing that responsibility to the Lord Chief Justice in line with an agreement struck in the Concordat of 2004. The division of powers between the executive and judiciary was further refined in 2008 in a Framework Document for the management of the Courts Service (revised and updated in 2011 to incorporate the Tribunals Service). The CRA also created a new Supreme Court, and established the Judicial Appointments Commission.

The new politics of judicial independence are more formal, fragmented, and politicised

The old politics were informal, depending on regular meetings between the Lord Chancellor and senior judges; closed, in that these were virtually the only contacts between the judiciary and the government; and secretive, with both sides preserving each other’s confidences. They were also consensual and conservative, in that neither side wanted to change the system. The ‘new’ politics, by contrast, are much more formal. The CRA required more formal structures and processes to handle the relationships between more separate branches of government. We now have the Judicial Appointments Commission, Judicial Appointments and Conduct Ombudsman, and Judicial Conduct Investigations Office: all products of the CRA. The new formal processes include regular meetings between the judiciary and other branches of government, with the innovation of six-monthly meetings between the LCJ and Prime Minister, the introduction of regular meetings with senior officials in parliament, and annual appearances by the LCJ and President of the Supreme Court before the Constitution Committee.

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The continuing constitutional pressures of Brexit

Ahead of the launch event for their new book on the continuing constitutional pressures of Brexit, Oran Doyle, Aileen McHarg and Jo Murkens summarise the book’s introductory essay. They conclude that, five years on from the seismic constitutional event that was the 2016 referendum, it is clear that Brexit is exerting pressure on various aspects of the constitution, but it remains too early to tell the full impact of Brexit on the UK constitution.

The United Kingdom’s withdrawal from the European Union was clearly a development of major significance that affected the UK constitution and its three legal systems, and brought about a series of political crises. But the prolonged process of negotiating the terms of withdrawal and the future UK-EU relationship also imposed and exposed a range of other constitutional tensions and pressures. This is true not only in respect of the UK itself, but also for the EU – which experienced a major recasting of its external borders, a recalibration of internal decision-making dynamics, and challenges to core features of its constitutional order – and in particular for Ireland – which, by virtue of its geographic position and constitutional history, has faced unique political and constitutional challenges as a consequence of Brexit.

In The Brexit Challenge for Ireland and the United Kingdom: Constitutions Under Pressure, recently published by Cambridge University Press, scholars based in the UK and Ireland explore a wide range of constitutional, legal, and political issues affecting both countries which have arisen out of Brexit. These include questions of territorial governance within the UK, the renewed prospect and implications of a united Ireland, the use of constitutional referendums, the impact of Brexit on political parties, executive-parliamentary relations, and the role of the courts and law officers in constitutional disputes.

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The government’s proposed Constitution, Democracy and Rights Commission: what, why and how?

meg_russell_2000x2500.jpgalan.jfif (1)The Conservative Party manifesto promised a ‘Constitution, Democracy and Rights Commission’, but as yet little is known about the government’s plans. Meg Russell and Alan Renwick reflect on what such a Commission might look at, and how it might go about its work. They conclude that a long-term perspective is important, so that the Commission is not just ‘fighting the last war’ over Brexit. Given the fundamental nature of the questions that may be asked, citizens should be fully involved.

Page 48 of the Conservative Party manifesto committed the government to establishing a ‘Constitution, Democracy and Rights Commission’ within its first year. This could have a far-reaching remit, covering ‘the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people’, plus the operation of the Human Rights Act. Creation of such a body is clearly an ambitious enterprise, with potentially long-lasting effects – but, as yet, very little is known about the government’s plans for the Commission. This post first explores the ‘what and why’ of the Commission: which issues might it need to address, and what is the motivation behind it? Second, we consider the ‘how’: specifically, in terms of how the public could and should be involved.

What will the Commission review, and why?

The list of topics potentially ascribed to the new Commission is long, and covers some absolute fundamentals of the constitution. While the UK has seen much constitutional change in recent decades – most obviously Labour’s post-1997 programme, which included devolution and Lords reform, and the subsequent Constitutional Reform Act 2005 which established the Supreme Court – these developments involved no formal review of the core relationships between different constitutional branches. Indeed, Labour’s programme was often criticised as piecemeal, and for failing to go back to first principles. In some ways, a review of these fundamentals is therefore refreshing. But questions such as the proper balance of power between government, parliament and courts, and the role of the monarchy are also extremely big, complex and delicate.

So why are such challenging questions being asked now? This is where the Commission’s potential role gets more troubling. The UK has recently witnessed an exceptionally turbulent period in constitutional terms, with the referendum vote for Brexit followed by a significant struggle over its implementation. Particularly during 2019, tensions ran very high between government and parliament, with the Supreme Court becoming involved via the prorogation case. That these tensions helped motivate the proposed Commission seems clear from other words in this section of the manifesto, which suggest that ‘The failure of Parliament to deliver Brexit… has opened up a destabilising and potentially extremely damaging rift between politicians and people’. Leaving aside the question of which parliamentarians exactly were responsible for blocking Brexit, this statement highlights how concerns about the most recent period (including the Supreme Court’s role) have driven some on the Conservative side to seek reform.  Continue reading

Graham Gee and Kate Malleson: Judicial Appointments, Diversity and the Equal Merit Provision

This is posted on behalf of Graham Gee and Kate Malleson and originally appeared on the UK Constitutional Law Association Blog.

One of the changes introduced by the Crime and Courts Act 2013 was to amend section 63 of the Constitutional Reform Act 2005, which provides that the Judicial Appointments Commission (JAC) must select candidates for judicial office ‘solely on merit’. Schedule 13 of the 2013 Act clarified that making selections solely on merit does not prevent the JAC from recommending a candidate on the basis of improving diversity on the bench where there are two candidates of equal merit. This is variously known as the ‘equal merit’, ‘tie-break’ or ‘tipping point’ provision and derives from s 159 of the Equality Act 2010. After a consultation exercise last summer, the JAC last month published its policy on how it will implement the equal merit provision. In this post, we draw on research conducted as part of an AHRC-funded project on The Politics of Judicial Independence to explain why the JAC’s policy is disappointingly cautious, limits the prospect of further progress on diversity and offers further evidence of what we believe is the excessive judicial influence on judicial appointments 

Context

We begin with some words of praise for the JAC. Since its creation in 2006, the JAC has inter alia devised: robust processes that have for the most part identified suitably qualified candidates of good character; addressed problems that were an early feature of those processes (e.g. delays); and over time has fostered the confidence of the key stakeholders (i.e. ministers, judges and practitioners). It has done this all of this whilst becoming a leaner and more efficient operation in an age of increasingly scarce public resources. Between 2009-10 and 2014-15, its budget is projected to have fallen from £7.6m to £4.85m, its staff from 105 to 67, and yet the number of recommendations for judicial office that the JAC has made has risen from approximately 450 to 750 a year. These are important accomplishments that have helped to secure the JAC’s position on the institutional landscape, something that was much less certain around 2008-09 when the then Lord Chancellor, Jack Straw, considered abolishing the JAC and either bringing appointments back in-house or delegating more responsibility to the senior judges. Much credit is due to the leadership team of Christopher Stephens as Chair and Nigel Reeder as Chief Executive, who since 2011 succeeded in fostering much more constructive and cooperative relationships with the JAC, the senior judiciary and the Ministry of Justice.

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