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the years before 1997. To expand on each of these points, taking them in reverse
order: the Conservative Governments of 1970“74 and 1979“97 (under Prime
Ministers Edward Heath, Margaret Thatcher and John Major) were not
uniformly or dogmatically conservative of the constitution. On the contrary,
signi¬cant constitutional reforms took place during this time. It was under
Edward Heath, for example, that the United Kingdom acceded to the Treaties
establishing the European Communities (see the European Communities Act
1972). There has arguably not been a measure as reforming of the British
constitution as has the United Kingdom™s membership of the European
Community for more than a century. As we shall see in detail in chapter 5, mem-
bership of the Community has had a profound impact on our constitutional
arrangements, principles and understandings. From Mrs Thatcher™s time in
o¬ce, three sets of constitutional changes stand out: her reforms to the civil
service (especially the establishment within the civil service of ˜next steps™ or
executive agencies: see chapter 6); the way in which her Government™s extensive
programme of privatisation was accompanied by a novel system of regulation;
and her Government™s record on civil liberties, which saw both signi¬cant leg-
islation (such as the Police and Criminal Evidence Act 1984, the Public Order
Act 1986 and the O¬cial Secrets Act 1989) and internationally renowned activ-
ity in the form of the Government™s engagement in litigation (most notoriously,
but not only, in the ˜Spycatcher™ a¬air (above, p 13). (For a forthright overview,
see K Ewing and C Gearty, Freedom under Thatcher (1990)). Neither was the
constitution left untouched by John Major™s Government, as a glance at the
Criminal Justice and Public Order Act 1994, the Intelligence Services Act 1994,
the Asylum and Immigration Act 1996 and the Police Acts 1996 and 1997,
among numerous others, will show.
24 British Government and the Constitution


Despite the constitutional signi¬cance of these various measures, however,
the constitutional reforms that have occurred since 1997 are far more dramatic
than anything that happened in the quarter-century following Britain™s entry
into the European Communities. Nonetheless, even these reforms are patchy.
This is for at least three di¬erent reasons: ¬rst, it is di¬cult to discern an overall
constitutional vision that binds the reforms together; secondly, there are aspects
of the constitution that appear to remain stubbornly o¬ the government™s con-
stitutional reform agenda (reform of the monarchy and of the electoral system
for the House of Commons, for example); and thirdly, a number of the reforms
that have been attempted since 1997 have either been rather half-hearted or
have not worked especially well (reform of the House of Lords, regional devel-
opment within England, freedom of information and devolution to Northern
Ireland may all be examples, to varying extents). Let us examine each of these
claims a little further.


(a) No overall agenda? The coherence of constitutional reform
The post-1997 reform programme as a whole has been said to amount to ˜a new
constitutional settlement, which will be looked back on as the major achieve-
ment of the new Blair Government™ (Robert Hazell (ed), Constitutional Futures
(1999), p 1). This, with respect, is surely an over-statement. Whether constitu-
tional reform will in the future be regarded as the major achievement of the
Blair Government is not for us to judge. What we can say is that, no matter how
signi¬cant the various reforms, they do not amount to ˜a new constitutional
settlement™. On the contrary, there is a good deal of the present constitution that
continues to operate much as it has done for decades and decades (see further
below). It may be that we have an ancient constitution, newly reformed in part.
What we do not have is a new constitution. (For a contrary view, see A King,
Does the United Kingdom Still Have a Constitution? (2001).)
It would be better, perhaps, to think in terms of there having been discrete
constitutional reforms (in the plural) rather than a single programme of consti-
tutional reform. As Dawn Oliver suggests (in Constitutional Reform in the
United Kingdom (2003), p 3):

there has been no master plan . . . No coherent ˜vision™ of democracy or citizenship or good
governance or constitutionalism has informed the various actors who have brought about
the changes . . . The reforms have often been introduced as pragmatic responses to political
pressures and perceived problems, on an ad hoc, incremental basis.

In The Politics of the British Constitution ((1999), ch 4) Michael Foley chroni-
cles how the leading advocates for each of the major planks of constitution
reform in the late 1990s were di¬erent from one another. Those pushing for a
Bill of Rights were not the same as those who desired to see Scottish devolution.
Those campaigning for greater freedom of information were not the same as
25 The British constitutional order


those who advocated reform of Parliament, and so forth. But it was not only
the identity of the campaigners that was di¬erent: the methods they used, the
reasons they set out and the eagerness of the Labour Party to accept the argu-
ment varied across each of the main areas of constitutional reform. It is well
known, for example, that the Labour Party was already committed to Scottish
devolution before Tony Blair become its leader (in 1994, following the sudden
death of John Smith) and that Mr Blair, while not himself free of reservations
about the desirability and attractiveness of Scottish devolution, felt that this
was one policy that he could not safely unpick “ especially, perhaps, while he
was doing battle with his party over ˜Clause IV™, the now removed provision of
the Labour Party™s constitution that committed it to public ownership (see
further Walker, ˜Constitutional reform in a cold climate™, in A Tomkins (ed),
Devolution and the British Constitution (1998), ch 5 and N Johnson, Reshaping
the British Constitution (2004)).
Nonetheless, it may be that a number of themes can be said to run through
the various post-1997 reforms. In her thoughtful account of constitutional
reform, Dawn Oliver locates three such themes at its core: democracy, citizen-
ship and good governance (Constitutional Reform in the United Kingdom
(2003), esp chs 2, 3 and 19). A number of constitutional reforms touch on
aspects of democracy. Electoral reform and reforms to the composition of the
House of Lords may enhance representative democracy, while devolution
and greater freedom of information may help to develop opportunities to par-
ticipate more e¬ectively in government (see further on democracy and the
constitution, chapter 2). While the electoral system used for elections to the
House of Commons has not been reformed since 1997, the ¬rst-past-the-post
system is no longer the only electoral system used in the United Kingdom:
elements of systems of ˜proportional representation™ are used for elections to the
Scottish Parliament, to the Welsh Assembly and to the European Parliament
(see further chapter 8). In 1997 the Government appointed an independent
commission (under the chairmanship of Lord Jenkins) to review the voting
system for the House of Commons (see Cm 4090/1998, discussed in chapter 8),
but its recommendations have not been carried forward, and this is an aspect of
constitutional reform that has not gone as far as campaigners wanted.
Citizenship “ or, at least, a certain liberal conception of citizenship “ may be
said to have been enhanced through the enactment of provisions that confer
new constitutional rights on individuals (and corporations). The Human
Rights Act 1998 and the Freedom of Information Act 2000 may be said to be
important in this regard (see too, in Scotland, the Freedom of Information
(Scotland) Act 2002, which, in some respects is rather stronger than the
Westminster Act). (For a critical appraisal of the ˜thinness™ of the human-rights-
based, liberal conception of citizenship, see Bellamy, ˜Constitutive citizenship
versus constitutional rights™, in T Campbell, K Ewing and A Tomkins (eds),
Sceptical Essays on Human Rights (2001), ch 2; for a more positive appraisal, see
D Oliver, Constitutional Reform in the United Kingdom (2003), ch 6). Britain™s
26 British Government and the Constitution


post-1997 rights legislation has strongly privileged civil and political rights over
economic and social rights, an ˜imbalance™ that has been condemned by writers
such as Ewing (˜Social rights and constitutional law™ [1999] PL 104; see also
C Fabre, Social Rights under the Constitution: Government and the Decent Life
(2000)). The rights which are incorporated into UK law by the Human Rights
Act comprise the following: the right to life; freedom from torture, inhuman or
degrading treatment; freedom from slavery or servitude; the right to liberty and
to security of the person; the right to a fair trial; freedom from retroactive crim-
inal law; the right to respect for private and family life; freedom of thought, con-
science and religion; freedom of expression; freedom of peaceful assembly and
association; the right to marry; freedom from discrimination; the right to
peaceful enjoyment of property; the right to education; the right to free elec-
tions; and freedom from the death penalty. Social and economic rights, such as
the right to work, the right to a decent wage, the right to social security or other
welfare provision, the right to adequate health care and the right to housing,
and so forth, are not included.
˜Good governance™, says Oliver (above, at p 47), comprises the following
values: ˜openness and transparency™; ˜appropriate mechanisms of account-
ability™ (whether ˜political, legal, public or auditing™); ˜appropriate provisions
to maximise the e¬ectiveness of government™; ˜encouragement for public
participation™; and ˜constitutional arrangements™ that promote ˜legitimacy™,
˜trustworthiness™, ˜reliability™, an ˜absence of corruption™ and ˜respect for
human rights™. This is a far-reaching list, and it is not clear that all of these
objectives can simultaneously be achieved. Some would argue, for example,
that accountability or enhanced public participation may in some instances
make government less e¬ective, not more so. Others would object that this
is simply a wish-list, ¬ne for the ivory tower but impractical “ implausible,
even “ as a basis for the conduct of the sometimes necessarily dirty business
of government. Can an e¬ective national security policy, for example,
successfully be run on the basis solely of the values listed here?
This said, it is clear that perceived de¬ciencies in the decision-making
processes of government have motivated a number of arguments for con-
stitutional reform. The issues are perceptively analysed in C Foster and
F Plowden, The State Under Stress (1996); see also C Foster, British Government
in Crisis (2005).
It may be claimed that a further theme underpinning constitutional
reform “ ideally, if not always in practice “ is that of the revival of Parliament.
The House of Commons has reformed a number of its more archaic working
practices (eg, in allowing some bills to be carried over from one session to the
next, instead of having to be started afresh: a reform mainly of bene¬t to
the government). Acting on recommendations from its Modernisation
Committee for strengthening the scrutiny of legislation and extending oppor-
tunities for debate, the Commons has introduced procedures for the regular
programming of bills and for debates to be held in the ˜parallel chamber™ of
27 The British constitutional order


Westminster Hall. Such reforms as these may help to make the House more
e¬ective, but some argue that more radical change is needed if the House is to
realise the accountability of a government that grows increasingly centralised
as well as more rami¬ed in its organisation and expansive in the range of its
operations (see eg, Tomkins, ˜What is Parliament for?™, in N Bamforth and
P Leyland (eds), Public Law in a Multi-Layered Constitution (2003), ch 3).
The Hansard Society Commission on Parliamentary Scrutiny examined the
role and working of Parliament in its report, The Challenge for Parliament:
Making Government Accountable (2001). The report acknowledged that
Parliament alone cannot guarantee accountability and noted that ˜an array of
independent regulators, commissions and inspectors responsible for moni-
toring the delivery of government services now exists outside Parliament™
(cf too the regulators overseeing the work of privatised utilities, on which see
the House of Lords Select Committee on the Constitution, Sixth Report: The
Regulatory State “ Ensuring its Accountability, HL 68 of 2003“04). The central
theme of The Challenge for Parliament was that Parliament ˜should be at the
apex of this system of scrutiny™, providing a framework for the activities of
the numerous other interrogatory and scrutiny bodies and using their inves-
tigations ˜as the basis on which to hold ministers to account™. The report™s
forty-seven detailed recommendations (the majority relating to the House
of Commons) were aimed at fostering a culture of scrutiny among MPs.
The Commission believed that select committees should be ˜the principal
vehicle for promoting this culture of scrutiny and improving parliamentary
e¬ectiveness™ and that Parliament (like the Scottish Parliament and the
European Parliament) should become ˜a more committee-based institution™.
The report™s recommendations were designed to extend the reach of the
committees to the remoter agencies and outposts of government and make
committee scrutiny more systematic and rigorous. The Commission insisted,
however, that the chamber of the House ˜should remain the forum where
ministers are held to account for the most important and pressing issues of
the day™. (For commentary, see Oliver, ˜The challenge for Parliament™ [2001]
PL 666; see further chapter 9.)
Conversely, it is frequently claimed that a key theme underpinning a number
of the post-1997 reforms has been signi¬cantly and substantially to enhance the
constitutional power and authority of the judiciary, such that it is now to
the courts (rather than to Parliament) that we should look to take the lead
responsibility in seeking to hold government to account. Regardless of whether
we should express the position in terms as bold as these, what is clear “ to
opponents and supporters of enhanced judicial power alike “ is that the consti-
tutional power and authority of the courts has increased markedly in recent
years (and not only since 1997). While reforms such as the Human Rights Act
may not have caused the growth in judicial power, they have certainly
contributed to it (these matters are considered throughout this book: see, in
particular, chapters 2, 5, 10 and 11).
28 British Government and the Constitution


(b) Constitutional continuity
In the excitement of the early years of the Blair Government™s reforms, it was
easy, perhaps, to get carried away. In the introduction to their edited collection
of essays, Constitutional Reform (1999), Robert Blackburn and Raymond Plant
stated, for example, that ˜taken as a whole, the parameters and range of subjects
a¬ected [by the Government™s plans in the ¬eld of constitutional reform] cover
virtually the entire terrain of our constitutional structure™ (p 1). This was never
the case. There are, in fact, signi¬cant aspects of the British constitution
that remain largely untouched by the post-1997 reforms. These include the
monarchy, the prerogative powers of the Crown and the relationship between
Cabinet and Prime Minister (see chapters 6 and 7); rule- and law-making by the
government “ delegated legislation and such like (see chapter 7); the United
Kingdom™s relationship with the European Union, and the impact of EU law on
the constitution (see chapter 5); and the relationship between the House of
Commons and the House of Lords, which has not been substantially altered
since 1911. The great constitutional statutes of the past continue since 1997 as
they did before to shape the constitutional order of today: Magna Carta, the Bill
of Rights 1689, the Act of Settlement 1701, and so on. As we shall see through-
out this book, were we to con¬ne our attention to events and laws that occurred
or have been passed only since 1997 it would result in our having an extremely
odd “ and untenable “ view of the constitution. It is essential that students and
scholars of the constitution grasp the venerable and the continuing, as well as
the new and the changing, elements of our constitutional order. To privilege
either over the other would be a serious error. (For recent literature that explains
aspects of the importance of the past to an understanding of the contemporary
constitution, see eg, E Wicks, The Evolution of a Constitution (2006) and
A Tomkins, Our Republican Constitution (2005), ch 3; for those who like their
constitutional history in a European setting, R van Caenegem™s Historical
Introduction to Western Constitutional Law (1995) is peerless; for a more
classical treatment, the starting place remains FW Maitland, The Constitutional
History of England (1908).)


(c) Fate and future of constitutional reform
Not all the constitutional reforms cited above have been implemented fully or,
indeed, successfully. Some have been apparently abandoned (such as reform to
the voting system for elections to the House of Commons). Some have been
started but not carried through to completion (such as reform of the composi-
tion of the House of Lords, although in February 2007 the Government brought
forward fresh proposals in this area (Cm 7027)). Some were diluted by the
Government before they were brought into force, much to the anger and dis-
appointment of campaigners (the classic example is freedom of information,
where the Government™s initial proposals would, if enacted, have led to legisla-
29 The British constitutional order


tion substantially more ambitious than the 2000 Act was allowed to be: see the
Government White Paper, Your Right to Know (Cm 3818/1997)). Some have col-
lapsed as a result of popular rejection (such as plans for regional assemblies in
England). Some have had to be recrafted, following criticism of the original
arrangements (such as Welsh devolution: see the Government of Wales Act
2006, replacing the Government of Wales Act 1998, discussed in chapter 4). And
¬nally, some have been subject to the disappointments and vicissitudes of polit-

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