The judges have gone to war against the government. They are absolutely right. The abolition of the Lord Chancellor, the latest act of constitutional subversion by this government of Jacobins, threatens to rob the judges of their independence and turn them into the catspaws of the Cabinet.

Because the Blairites have absolutely no understanding of or respect for history, they think the Lord Chancellor's post is by definition useless because it is ancient. And particularly since he wears funny clothes like tights and knee breeches. So they have abolished him, just like that. (Actually not just like that, since when Lord Falconer mutated into the Constitutional Secretary he found to his dismay that he was actually still the Lord Chancellor because the government had been too incompetent to grasp what needed to be done to abolish the post).

But the Lord Chancellor, as we have been hearing, is pivotal to the way this funny old country of ours guarantees our uniquely independent judiciary. And that is precisely because the post sins against the ark of the modernisers' covenant in that it represents both executive and judiciary. For even though the LC is a political appointment and member of the Cabinet, he is also a judge and has sworn a judicial oath. That means that he is bound to protect judicial ethics against the government of which he is a member.

In other words, the post represents a pragmatic British fudge, precisely the kind which characterises our once-wonderful but now pulverised constitution -- and which depends on something else which has now tragically vanished: the arm's length principle, the implicit understanding that there were lines which were never crossed even though they were not codifed. This was the principle on which our whole, informal, freedom-producing, life-enhancing, glorious constitution rested. And now it is being destroyed.

The Blairites claim that because the LC's post faces both ways simultaneously, it cannot guarantee independence unless its powers are separated. But of course, the precise opposite is true. This will bring the judges directly under the control of a government minister who has no other loyalty but to the executive.

The judges are right to fight this. But they are not wholly blameless for the fiasco. For they themselves have been muddying the waters for years by their judicial activism and wretched human rights obsession which have led them directly into the political arena. Having become increasingly politicised, they are therefore less able to make the case for judicial purity and freedom from political interference. But it has to be made nevertheless; and their very public opposition still packs a mighty punch.

Posted by melanie at November 7, 2003