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 13th and 14th 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/))