Has Constitutional reform in the UK since 1997 made a difference? 1997 saw the political landscape of the United Kingdom changing radically with Labour’s landslide victory , the greatest since 1945. Led by Tony Blair, the party promised an ambitious programme of constitutional reforms which they themselves claimed would lead to “the most ambitious and far reaching changes to the constitution undertaken by any government in this century” (Hazell, Sinclair, 1999, p42)These reforms were also pioneered by Gordon Brown when he became Blair’s successor in 2007.
While some of these amendments were successfully implemented others were abandoned or were watered down greatly. Also, the planned reversal of many of these reforms and other amendments made by the recent coalition Government must also be deliberated , however, as the coalition Government has only been in in power two years it is harder to see if they have had any real effect yet .
Therefore this essay will focus on the constitutional reforms made by New Labour and will discuss that while they have made a difference, the impact has been limited and far less radical than they first proposed. Perhaps the greatest challenge to the pre-1997 constitution was the plethora of legislation which provided for devolution. Under the Government of Wales Act and the Northern Ireland Act, the national assemblies were granted certain devolutionary power, whereas in the case of Scotland, under the Scotland Act, the nation was given a parliament.
While the powers granted to each state vary , there has been a clear impact made on both the Westminster model of parliament and the constitution. This is particularly the case in Scotland, which was granted the executive powers once held by the Scottish secretary and can legislate on devolved issues such as health and education. Scotland also holds tax-varying power, yet these are minimal and are capped at 3%.
Many argue that devolution has transformed the Parliament in Westminster into a quasi-federal institution: a Parliament for England, a federal Parliament for Northern Ireland and Scotland, and a Parliament for primary legislation for Wales( Bogdanor ,2004, p.257), which, if true, would be a clear challenge to the current Westminster model. However, another issue arises from this point, one of representation known as the “West Lothian Question” (a term named after the West Lothian MP Tam Dalylel).
This anomaly looks at a political imbalance in which Scottish and Northern Irish MPs are able to vote on matters which do not concern their constituents when English MPs cannot vote on Scottish or Northern Irish issues, which have been devolved to their respective parliaments. While devolution was established as a solution to the apparent lack of legitimacy in the non-English parts of Scotland, it now seems to have transferred the legitimacy question back to England. Another constitutional issue arising from devolution is that the sovereignty of parliament has been challenged.
However, this is not the case as if a power has been devolved, it has not been lost. It has merely been retained in a different format and can be recalled at any point in time. None of the nations have independence and Westminster retains power in relation to defence, national security and other important issues. Therefore while Devolution has clearly changed the political structure of governance in Britain, Westminster still retains its sovereignty.
However, devolution has clearly made an impact woth National Parties now holding a majority in Scotland and increasing in popularity in Waled. Prior to this Scotland was Labours heartland, however, in the 2011 elections, a vast number of seats were replaced by SNPs MPs indicating that……. The human Rights Acts of 1998 has been coined the cornerstone of the new British constitution (Bogdanor 2009, p62) as it gives the country something very similar to a bill of rights.
It enshrined, in statute, the unlawfulness of a public body contravening sixteen key rights laid down in the European Convention on Human Rights. Prior to this, Britain and Ireland were the only members of The European council which did not incorporate these provisions. The human rights act is different to many other constitutional amendments in the sense that it doesn’t aim to tackle any particular subject are within the law, instead marking a change in the relationship between the individuals and the state. However it must be considered as to whether this particular amendment has made any real difference.
Despite section 1 making rights contained in the ECHR legally enforceable and section 2 of the HRA requiring UK courts to UK courts to take into consideration decisions of the European Court of Human Rights when considering human rights issues, the court decisions are not binding. If judges cannot construe a statute in accordance with the convention then they cannot set it aside, they can merely make a declaration of incompatibility which requires specific notice provisions to fulfilled. Also, ministers and parliament are under no obligation once a declaration is made, they may introduce an amendment or repeal the offending provision if they choose to do so.
This is a clear limitation of the act, as while it seems to enshrine certain rights to all individuals of the state, these rights may not in fact be compatible with current law, something only the parliament has the power to amend, with the judiciary having very little influence, being able to only overturn secondary legislation. Reinforcing this limitation is section 6 of the act which makes it unlawful for all public bodies to act in a way which is incompatible with rights in the convention, yet “an act” does not include a failure to introduce legislation that is compatible.
However, Bogandor believes that the “principle of the rule of law, as embodied by the human rights act, may be coming to supersede the doctrine of the sovereignty of parliament” (2009, p74). His opinion stems from judges outcry to the 2001 Anti-terrorism, Crime and Security Act, which allowed indefinite detention without a trial for those who were considered a Threat to National security. The judges believed that while it was not for them to dispute what constituted as an emergency, the 2001 act went beyond action that was required for an emergency.
In response, the Government established new legislation in the form of the Prevention of Terrorism Act 2005, which replaced detention with system of control orders. The pressure put on parliament by the human rights act has clear challenges to the constitution, namely in relation to the sovereignty of parliament. However, it seems that when considering how it has effected members of the state, it does not effect them to such a great extent as was intended by the act itself. In 2006, David Cameron renewed his pledge to “reform or failing that, scrap” the human rights act, believing it should be replaced with a British bill if rights that should enshrine key constitutional rights.
Thus it seems that the Human Rights act has indeed had great constitutional implications to the UK, with the judiciary playing a far greater role than ever before when protecting the rights of citizens, however, the sovereignty of parliament is still in place despite the pressure on it. The 1997 Labour manifesto promised radical reforms to the House of Lords, who they believes should not be chosen on a hereditary basis. The modifications they proposed comprised of two main aspects, removing hereditary peers and undertaking a review to remodel the existing body.
The first step was the a white paper in 1999 which in turn become the House of Lords bill and eventually The House of Lords Act. In reality the reforms contained within the act were limited with 92 hereditary peers remaining, due to a compromise being made between Labour and the conservatives. The rationale behind this was that there were no firm plans set in place to determine the composition of the chamber once the bill passed. In response to the second plan for reformation, the Wakeham report was conducted however, none of the recommendations were adopted.
There has been no reform as of yet to increase the accountability and democratic legitimacy of the upper chamber, with all the peers still being appointed. However, it must be noted that these are the most major reforms made to the upper chamber since 1911, which removed the right of lords to veto a bill going through the commons.
Thus while the 199 act did indeed remove the majority of hereditary peers, the second house is still democratically illegitimate, something which Labour promised they would amend. The coalition Government has essentially abolished plans for any immediate changes to the house of Lords with the conservatives opposing reformation, reiterating the idea that the modernisation aspect of constitutional reforms has had a limited effect.
While majoritarian Governments tend to employ single-member plurality systems, however, in Labour 1997 manifesto, the party committed to hold a referendum on the voting system for the House of commons. A reform committee was established in 1998 which proposed that a new Proportional representational system named Alternative vote should be considered. AV brought to light several constitutional challenges as it would significantly lessen the two main parties grip over parliament (J Mitchell and B Seyd, Fragmentation of the party and political systems p 100) However, this referendum never took place under the Labour Government.
There was however, a referendum carried out by the coalition Government in 2011, asking voters if they would like SAV to replace Plurality vote. The final result was The final result put the Yes vote at 32.1% and the No vote at 67.9%. While no electoral reform has taken place as Westminster it is indeed the case that Scotland , Northern Ireland use forms of proportional representation in their parliaments, as do elections to the European parliament.
Thus it would seem that there has been little reform in relation to the electoral system of the UK as only the devolved parliaments currently use forms of PR and these elected representatives only represent a minority of the population. It can therefore be seen that Constitutional reforms since 1997 have indeed had an impact on the United Kingdom, however, not to the extent that the Labour Government advocated at the time. The effects of amendments can be seen throughout the country today, especially in the form of devolution, which some argue has created a quasi-federal state, challenging Britain’s unitary status.
Courtney from Study Moose
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