As Labour supporters gather in Liverpool this weekend, it will not escape delegates that we are, in all likelihood, at least halfway through the current Parliament. As such, it is a useful time to take stock and see what the party has achieved.
Labour went into the 2024 general election promising a relatively modest set of constitutional fixes: Lords reform, a new Ethics and Integrity Commission (EIC) to prevent sleaze, a House of Commons Modernisation Committee, votes at 16, resetting relationships with the devolved institutions and strengthening rules relating to political donations. Many of these look on track for delivery, although sometimes in a rather low-fat form.
Rather than, for example, establishing a statutory EIC with regulatory teeth, the government has effectively been accused of rebranding existing mechanisms (such as the Committee on Standards in Public Life). A Commons Modernisation Committee was appointed, but few imagine that the government will ever give parliament control over its own agenda (an innovation recommended as far back as 2009).
Andy Burnham is advertising much more radical reform
On the question of Lords reform, the government’s approach looks particularly cynical. Labour removed the right of hereditary peers to sit and vote, but it omitted to introduce the retirement age it promised in its manifesto and has not given the House of Lords Appointment Commission statutory powers to reject unsuitable appointments. Polling conducted last year highlighted that the public was more concerned about the size of the Lords and prime ministerial patronage. Sir Keir Starmer used his period in power to introduce 148 new Labour peers.
This is a real shame. The House of Lords does much of the heavy lifting in parliament, scrutinising and revising the half-formed legislation that emerges from the Commons, often with an expert eye. Pragmatic reform would have done much to safeguard the future of the institution. Instead, Andy Burnham is promising more sweeping changes to turn the second chamber into some kind of ‘senate of the regions’. Whether the public really wants another chamber of elected politicians remains to be seen.
While the current list of reforms has been both modest and self-serving (although Labour may come to regret the idea of votes at 16 given the fragmented state of British politics), Andy Burnham is advertising much more radical reform. In addition to an elected second chamber, he is also promoting the idea of electoral reform, further devolution and even a written constitution, which would preclude his ideas being easily unpicked in parliament by a future administration.
As a constitutional pragmatist, I look on many of these proposals with a degree of alarm. We are still living with the consequences of Tony Blair’s constitutional innovations, for good or ill. Do we really want the extremes of British politics (perhaps the Greens or Restore Britain) holding the balance of power in parliament? Do we believe that our fractured nation can be healed around the structure of a new constitutional settlement? Thankfully, Burnham remains somewhat constrained by Labour’s 2024 manifesto and so one can only hope that such questions are for another day.
Yet what the Prime Minister has been unable to avoid are those constitutional questions which simply occur during the course of a parliament. These are not always high-profile matters which can be sold to the public as ways to improve their lives. But they often highlight the ways in which government works (or so often fails to work).
One of the more interesting changes, following Burnham’s arrival in Downing Street, was the issuance of revised ‘legal risk guidance’ by the new Attorney General, Ellie Reeves KC. This was explicitly set out as a way of providing more ‘solutions-focused advice’ and is designed to make clear that ‘a decision or policy is only unlawful where no tenable legal argument exists to support it’.
This replaces the risk guidance issued by Lord Hermer KC in 2024 and appears to reflect a growing concern that compliance with the rule of law is quietly transforming into a risk of rule by lawyers. Whether it is enough to prevent the government from slipping into another quagmire, like its proposed Chagos Islands deal, is far from certain.
A further and potentially significant change is the government’s approach to the ECHR. While Labour has been very clear that it has no desire to leave the Convention, it is also having to grapple with the way that it has been interpreted by the courts – particularly in immigration and asylum cases.
As I have argued previously, the proposed change in approach to Article 8 ECHR claims (family life) put forward in the immigration and asylum bill currently before parliament is nothing more than tinkering at the margins. Rather more significant is the fact that Reform and the Conservatives appear to have shifted the terms of debate on the ECHR. Once, the incorporation of the ECHR into UK law through the Human Rights Act was seen as one of Labour’s great achievements. Now, it is more often seen as a problem to be resolved.
So, at half-time, what does Labour’s scorecard tell us? The party has made some progress, but much of its constitutional programme has been modest, partial or politically convenient. The second half may be rather more consequential. Burnham would like to open the door to a much more radical constitutional settlement. The irony is that, despite Labour’s huge majority, he is currently constrained by his lack of an electoral mandate. Yet the pressures surrounding the ECHR, devolution and the future of parliament will not disappear.
Labour will need to think deeply about these issues. As the saying goes, reform in haste, repent at leisure. For a government that came to office promising to restore trust in politics, the scorecard at full time may ultimately be judged less by the number of reforms it passes than by whether it leaves the machinery of government working better than it found it.
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