Mike Gordon and Adam Tucker: Twenty Years On: Assessing the State and Legacy of New Labour’s Constitution

In such frenzied constitutional times – with only a general election resulting in a hung Parliament and a minority government and the start of Brexit negotiations to have kept public law scholars occupied in recent weeks – it is perhaps unsurprising that a significant anniversary passed in May with little acclaim. It has now been twenty years since the election to office of New Labour in May 1997. After years in the wilderness, this Labour government was elected on a manifesto of unprecedented constitutional ambition, and delivered a programme of reform which fundamentally changed the UK constitution.

As is well known, in its 1997 election manifesto, New Labour promised devolution, the Human Rights Act, reform of the House of Lords, elected city mayors, freedom of information, electoral reform, modernisation of the House of Commons, party funding reform, reinvigoration of local government and more. And while not all of these aspirations were realised (and others were subsequently added to the programme, such as the creation of a Supreme Court), it was a defining period in the development of the modern UK constitution. The twentieth anniversary of this election provides an ideal moment to pause and take stock after a period of rapid constitutional change. In particular, we think there are important questions to consider as to the state and legacy of the ‘New Labour constitution’ – the constitution, and indeed, the changed constitutional attitudes, resulting from the programme of reform implemented by the Labour governments led by Tony Blair and Gordon Brown.

The outcome of this period of reform is significant today for three reasons. First, the scale of substantive change, from devolution and human rights to judicial and Lords reform was near unprecedented, leading Bogdanor to call the result the ‘New British Constitution’ (2009). Second, the process of constitutional reform developed has been immensely influential: the idea of constitutional change as something which is pursued pro-actively, yet still in a relatively unsystematic manner, is reflected in the activity of the Coalition government from 2010-15, and Conservative governments from 2015. Third, New Labour’s constitutional legacy will surely shape the pressing challenges that lie ahead. By re-visiting and evaluating critically this constitutional legacy, we are therefore positioned to engage with questions as to the future direction of the UK constitution, from Brexit and human rights to potential change to the domestic union itself.

There are therefore key issues to consider relating to the substance, the process, and the legacy of the New Labour constitution, and engaging the full spectrum of constitutional principles: the separation of powers, governmental accountability, the role of Parliament, devolution, the rule of law, human rights, and democracy. And this is all at a critical moment for the development of our constitutional understanding. Indeed, that we are even talking about a constitutional understanding may itself be a consequence of the New Labour era, for this may have signalled a change in attitudes to the UK constitution which has been highly influential among all major political parties. The approach of New Labour may arguably have reignited a constitutional consciousness in UK politics – an understanding of our constitution which does not simply exist in all its exceptional, ethereal glory, but is tangible, imperfect, and can be deliberately altered and shaped.

It is possible that this change in constitutional direction has now stalled. The 2017 Conservative party manifesto was remarkable principally (from a constitutional perspective) for its explicit statements of what would not be done (such as lowering the voting age to 16, or completing reform of the House of Lords), or would be undone (such as repeal of the Fixed-term Parliaments Act 2011). Perhaps this is appropriate in the age of Brexit, both for practical reasons of limited governmental capacity to confront any other major issue, and also because it is a vision of a reversion to the mean which has become the dominant political narrative of the age.

The Labour manifesto, in contrast, was lacking in constitutional radicalism. Its modest constitutional proposals were either mainly speculative (like the promise to consult on the terms of reference for a constitutional convention) or well trodden (like ending the hereditary principle in the Lords). There was admirable innovation evident with respect to the methodology of reform in Labour’s proposal to establish a UK Constitutional Convention, but perhaps the openness of this proposal is itself a sign of a lack of imagination as to the kind of systemic reform that might be attempted. A commitment to pursue electoral reform was (for many, curiously) absent from the Labour manifesto, and although the Liberal Democrats remain committed to this most radical of reform proposals (along with all of their usual favourites, including the adoption of a codified constitution, establishing Home Rule for the four nations in a federal UK system, and major change to the funding of political parties) they also remain fatally unlikely to deliver it.

Of course, if the era of the New Labour constitution has stalled, this may be for very different reasons, and have very different implications, depending on the perspective adopted. For example, on the one hand, this may be a sign that the New Labour constitution is approaching completion, and UK politics has moved beyond addressing challenges to its constitutional organisation. Yet on the other hand, perhaps its ethos of reform has been so fundamentally absorbed that the New Labour arrangements are becoming recontested – on this view, the constitution may have sown the seeds of its own undoing.

Perhaps less dramatic interpretations are instead justified. Yet regardless, the twentieth anniversary provides an ideal moment to consider a range of important questions concerning the state and legacy of the New Labour constitution. In light of the broader context sketched above, we suggest they include the following:

How far is the new settlement a stable order? When assessing this, should we (or can we) distinguish between the further substantive changes that might be anticipated to the UK constitution’s norms (for example, to the devolution arrangements) and the structure of the constitution itself?
Has the New Labour approach and attitude to the constitution been entrenched? Or was it of its time, and could a new age of domestic constitutional conservatism be ahead?
To what extent have we seen the constitutionalisation of the UK constitution? Have the activities of the UK’s political institutions prompted and/or legitimised a change in constitutional approach by other actors, judicial or local?
Has the New Labour era brought the UK into convergence with the dominant model of codified constitutional design, or have its idiosyncratic characteristics been preserved?
Can we still speak of a UK constitution, after devolution?
How successful has the period of reform – begun by New Labour, continued by others – been, both in terms of its execution and its outcomes? Against what principles or markers can we (or should we) assess this?
What direction might the UK constitution take next? What change has been missed out or messed up? Does Brexit show the deep endurance of UK constitutional ideas, or the sheer emptiness of the UK’s constitutional form?
Given the result of the 2017 general election, might we be tempted to reassess the resilience of the New Labour constitution? Or is this to read too much into the failure of a Tory manifesto premised on the unpicking of key elements of the settlement to attract support?
Are we in general too keen to emphasise the continuities of the constitution, rather than the disjunctions between different constitutional ages? Does this preoccupation mean we underestimate both radicalism and disorder?

No doubt further questions of equal importance could also be imagined. Yet what is clear is that the scale and significance of the changes made to (and by) the New Labour constitution, and the range of profound issues posed for the future, mean that a collaborative approach will be essential to even begin to assess the UK’s constitutional experience.

To begin these conversations, on 13^th and 14^th July 2017, we will bring together, in Liverpool – geographically at the heart of the UK – leading scholars to explore the boundaries of the New Labour constitution, and to ask, against this backdrop, what constitutional changes the future might hold. In so doing we aim to enhance our understanding of one of the critical constitutional periods the UK has experienced: interrogating specific areas, evaluating the constitution as a whole, ensuring an assessment of the New Labour constitution which is deep and detailed, while also facilitating debates which help us understand the constitution in new ways.

The conference will therefore be a forum in which new knowledge of the New Labour constitution is established, while generating fresh insights concerning perennial constitutional questions, including: the status of core components and classic principles, the development of political architecture which is contested or in flux, and the implications of the methodology of constitutional reform pioneered and potentially embedded by New Labour.

Twenty years on, the time is right to look back at the New Labour constitution. In doing so, we can begin to assess its state and legacy as the UK moves into another era of profound constitutional transformation.

For the full conference programme and registration details, see HERE.

We are very grateful to the British Academy / Leverhulme Small Grants Scheme for funding this event.

Dr Mike Gordon and Dr Adam Tucker, Senior Lecturers in Law, Liverpool Law School, University of Liverpool

(Suggested citation: M. Gordon and A. Tucker, ‘Twenty Years On: Assessing the State and Legacy of New Labour’s Constitution’, U.K. Const. L. Blog (4th Jul 2017) (available at https://ukconstitutionallaw.org/))

5Comments

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Danny Nicol on July 4, 2017 at 9:32 am

I think the input of more raw politics would spice up the discussion. New Labour is the subject-matter but what about the discrediting of New Labour, as exemplified by the results of the last three general elections and rise of Corbyn and the Corbynistas? Wasn’t New Labour’s object above all the consolidation of capitalism, including by constitutional means, and how successful was that? How did New Labour reforms dovetail with the Blairite transformation of the Party rule book, which after all is part of the constitution too? For a rather super analysis, see Peter Mair, “Partyless Democracy” (2000) 2 March-April New Left Review. Good luck with the conference!
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  Mike Gordon on July 6, 2017 at 10:56 am
  
  Thanks Danny – these are great and important questions. We certainly want to ensure the political dimension(s) of the New Labour project – and the impact of this on the kind of constitution and constitutionalism that was pursued – are part of the conversation. And we do have at least a couple of papers that we think and hope will push us in that direction…
  
  We see this event as the start of some work on the nature of the New Labour Constitution, and definitely view this as part of the picture – as you suggest, how could the political really be separated from the constitutional in any event! Point taken and much appreciated anyway, and it’s something we hope will feature in discussions at the conference, and in the work that follows.
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John Morison on July 5, 2017 at 9:54 am

This initiative is certainly to be welcomed: the Blair/Brown years brought perhaps the greatest change to the formal edifice of the UK constitution since the time of Oliver Cromwell. It is to be hoped that the conference will find time also to consider the wider task of constitutional and democratic renewal which the New Labour Governments were less successful in addressing (See 25 JLS 510). The implications of not tackling the deeper issues of the constitution are perhaps only now becoming apparent.

Some might say that the conference seems a little light on devolution and the new structures which have transformed government beyond Westminster. Certainly there does not seem to be much on the Northern Ireland Peace Process, which is undoubtedly the most sophisticated piece of constitutional engineering of that era and perhaps its most sustained success. Reference is made to the conference location in Liverpool as being at the geographical centre of the UK. While Liverpool is a great city, and a wonderful venue for such a conference, the actual geographical centre of the UK is quite a bit further north and west in the Irish Sea, off Morecambe Bay. Perhaps this geographical misapprehension is really a result of a wider confusion that persists in constitutional thinking, especially at this time of Brexit, and which see UK constitutionalism as really being about the English constitution.
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  Mike Gordon on July 6, 2017 at 11:20 am
  
  Thanks for this John – we can see that coverage of devolution may look a little light, but this isn’t intended to signal it is of less significance, simply a consequence of limits of time, space and other practical considerations – such was the obvious scale of the New Labour constitutional programme, you could readily organise an event on almost any individual reform, and trying to incorporate as many issues as possible across the board (and while not overlooking some things that are not as headline grabbing as devolution) was a real challenge!
  
  We do think devolution is such a critical issue it will permeate the discussion of many other topics – both substantive and structural – but we are keen to get more direct reflection on this too, as the project develops beyond this initial conference into future work. The feedback is much appreciated anyway – as is the cautionary point (with which we fully agree with) about being wary of UK constitutionalism simply collapsing into English constitutionalism. After both New Labour and Brexit, the importance (but also challenges) of thinking about the constitutional architecture of the UK as a whole couldn’t be much clearer.
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Audit 2017: How democratic is the basic constitutional law of the UK? : Democratic Audit UK on October 23, 2018 at 12:13 pm

[…] Where is the UK constitution now? This is not a straightforward question to answer, given the constitution is still changing, and further change is to come. Nevertheless, there remain particularly important questions to consider concerning the manner in which we have changed the law of the constitution. New Labour had no overarching vision to structure the constitutional reform programme it carried out, and this may explain why a systematic approach has subsequently proved elusive. The constitution that New Labour produced is one that we think about explicitly, and are prepared to change in a proactive way. But if the goal of constitutional ‘modernisation’ simply becomes an end in itself, rather than directed to achieving other values, we can end up (and perhaps, to some extent, have ended up) lacking the ability to work out exactly what has been successful, and where further efforts must be targeted. […]