The rule of law in Blair's Britain

University of Queensland Law Journal, Dec, 2007 by Adam Tomkins

I INTRODUCTION

Blair's Britain came to an end in June 2007 when, after ten years and one month, Tony Blair stepped down as Prime Minister. His decade in office will be remembered for many things: for ending eighteen years of electoral wilderness for the Labour party, albeit only by re-branding it as 'New Labour'; for delivering unprecedented Labour majorities in the House of Commons; for the ruinous foreign policy misadventure in Iraq; for a curious and from no point of view altogether satisfactory combination of continuity and change in domestic public service reform; and for historic constitutional change. It is with this last feature that the present paper is concerned. Blair never wanted his legacy to be constitutional reform. He was never much interested in it and he inherited Labour's commitment to deliver important parts of it from his (Scottish) predecessor, John Smith. Had Blair felt able to escape from these commitments, it is likely that devolution, at least, would not have been delivered under his premiership. As it is, however, constitutional reform might turn out to be the single most positive achievement of his decade in Downing Street. That said, two caveats need immediately to be entered. First, only bits of the British constitution have been reformed: much remains largely as it was before. And secondly, it is not only under Blair that the British constitution has recently been reformed. Previous Prime Ministers, too, have pushed through particular policies of constitutional reform, albeit not to the same extent as during the Blair years (thus, Edward Heath took Britain into the European Union (as it now is) and Margaret Thatcher transformed the size and governance of the civil service, to give just two examples).

The highlights of Blair's constitutional reforms are as follows: (1) the Human Rights Act 1998, which incorporated most of the substantive provisions of the European Convention on Human Rights into domestic law; (2) the devolution legislation, devolving various combinations of legislative and executive power to Scotland, Wales and Northern Ireland (Scotland Act 1998, Government of Wales Act 2006, Northern Ireland Act 1998); (3) the Constitutional Reform Act 2005, which radically reduced the powers of the Lord Chancellor, transferring many of them to the Lord Chief Justice, which made some reforms to the appointment of the judiciary and which provides for the establishment of a new Supreme Court, currently due to commence operation in October 2009 (replacing the appellate committee of the House of Lords); (4) the House of Lords Act 1999, reforming the composition of the House of Lords through the removal of the vast majority of hereditary peers from Parliament; (5) the Freedom of Information Act 2000; and (6) the Greater London Authority Act 1999, creating a new Mayor of London and a new Greater London Authority. At the same time there have been reforms to local government, to the funding and conduct of political parties, to executive powers (see especially the Legislative and Regulatory Reform Act 2006), and to civil liberties (see especially the Crime and Disorder Act 1998, the Regulation of Investigatory Powers Act 2000, the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, the Asylum and Immigration (Treatment of Claimants) Act 2004, the Civil Contingencies Act 2004, the Serious Organised Crime and Police Act 2005, the Prevention of Terrorism Act 2005 and the Terrorism Act 2006). (1)

At the same time, further constitutional reforms have been effected through the judicial development of the common law. The decade from 1997-2007 saw a remarkable series of cases in which senior judges--inspired at least in part, no doubt, by measures such as the Human Rights Act 1998--handed down decisions that both complemented and furthered aspects of the legislative reforms just listed. We will encounter numerous examples in the pages that follow. Among the most important are R v Secretary of State for the Home Department, ex parte Simms (2) and Jackson v Attorney General. (3) We return to both of these in a moment.

This paper is primarily concerned with the collective impact of this body of reform--both direct and indirect--on one particular dimension of public law: namely, the idea of legality or of the rule of law. For the purposes of this paper, the 'principle of legality' or the 'rule of law' (4) mean simply the idea that the institutions and practices of parliamentary government are subject to legal controls and, in particular, are liable to judicial review by the courts. Underlying the argument of the paper is a straightforward and, I think, largely uncontroversial thesis: that in Blair's Britain the rule of law grew considerably both in its importance and in its reach. As Robert Hazell has recently expressed it, 'The judges would not admit it, but they have emerged immensely stronger' as a result of the statutory and common law constitutional reforms witnessed in Britain in the past decade. (5) This paper will not rehearse this argument again. (6) Rather, and proceeding on the basis of this argument, this paper explores two sets of questions. First, how has the growth in the rule of law manifested itself? What has caused it? Who has carried it out, for what motivations, and to what ends? And secondly, what, thus far, have been the achievements which may be ascribed to the growth in the rule of law?