Today the Lord Chancellor. Tomorrow the monarchy?
Published in: Daily Mail
What does a frustrated radical do when all his ideas for transforming present-day society go pear-shaped? Why, he reaches for an ancient tradition and abolishes that instead.
The centrepiece of Tony Blair's farcical reshuffle was his decision to abolish the post of Lord Chancellor. The fact that this post is 1400 years old would have cut no ice at all. Indeed, it would merely have made the case for getting rid of it 1400 times stronger.
Anyone who defends the Lord Chancellor's post against abolition is to be dismissed as one of the 'forces of conservatism' standing in the way of progress and modernity.
In fact, the proposal reveals once again this government's lethal combination of arrogance and ignorance. People might think the Lord Chancellor is pretty irrelevant: a bloke in fancy dress who doesn't seem to do much except walk backwards in front of the Queen and get into trouble buying expensive wallpaper.
The previous incumbent, Lord Irvine, was undoubtedly a hopeless minister. But the removal of not just the man but his office is another matter altogether. The problem is that the role straddles government, judiciary and legislature which should be kept separate. But removing this anomaly is far from straightforward.
We are being told the changes are intended to strengthen the independence of the judiciary. But when politicians cross their hearts and swear repeatedly that this is their purpose - as Lord Falconer did yesterday-- it's time to start counting the spoons.
This most centralising of governments has never bestowed independence upon anyone. And since the Home Secretary is locked in mortal combat with the judges over sentencing powers, the idea that the judges are to get more autonomy is simply incredible.
Instead, it is far more likely that the proposed judicial appointments commission, which will appoint the judges, will become an instrument of political control over their selection. If commission members are appointed by the government, it will be packed with tame placemen, in the same way that this Prime Minister has abused his powers of patronage to bring other institutions to heel.
And anyway, there has never been so much as a whisper of political cronyism in the Lord Chancellor's appointments. We actually have the most independent and least politically corrupt judiciary in the world, in sharp contrast to countries where legal and political powers are formally separated.
For our odd and messy unwritten constitution, which rests so much on everyone accepting certain conventions and backing away from conflicts of interest, actually works.
Unfortunately, Lord Irvine was far too cavalier with these conventions. He sat as a judge, for example, on cases in which the government arguably had an interest. He also abused his office by soliciting party donations from barristers whose promotions he held in his hand.
There is doubtless a need to reform the Lord Chancellor's role to stop this kind of abuse from happening. And there is also a good case for taking the Law Lords out of Parliament altogether and establishing them as a separate supreme court.
But wholesale abolition of the Lord Chancellor starts to unravel our whole constitutional tapestry. For this ancient office -more senior in the pecking order even than the Prime Minister - occupies a central position in the design.
The Queen is reported to be furious that she was not consulted about the move. It is hardly surprising that she should be so concerned about its implications for the monarchy itself. For the Lord Chancellor is the representative of the Queen in Parliament.
As the Keeper of the Great Seal of England, he is the custodian of the symbol of the monarch's authority as a constitutional sovereign. With the abolition of the Lord Chancellor, who will henceforth be the trusted steward of the Great Seal? Or will Mr Blair consign that to the dustbin of history as well? And can the monarchy then be far behind?
This kind of concern is anathema to New Labour, for whom symbolic traditions have at best merely decorative appeal, and for whom the only constitutional validity derives from elections. But the importance of the Lord Chancellor's role lies in its acknowledgement that the public interest resides beyond party politics - the very thing that Mr Blair, who thinks he is the public interest, wants to stamp out.
The judges and Lord Irvine are themselves in part to blame for this axing of yet another of our constitutional checks and balances. The judges have undermined their own claim to independence by becoming steadily more politicised. The Lord Chief Justice, Lord Woolf, has previously strayed into politics with his strictures against imprisonment.
Today, he is due to speak in the House of Lords on the Criminal Justice Bill, on which he is expected to be critical. He is able to speak in Parliament by virtue of his role as one of the most senior members of the judiciary. If judges use this platform to make political speeches, they can't expect politicians to take them seriously when the judges insist on maintaining their independence from politics.
The main reason for the judges' increased politicisation, however, has been the Human Rights Act, which has allowed them steadily to undermine government policies. The Act has also provided impetus for the abolition of the Lord Chancellor, since its guarantee of hearings by an 'independent and impartial tribunal' sounded the death knell for a Cabinet minister who was also head of the judiciary.
This is, of course, especially ironic since the person who brought in the Human Rights Act was none other than Lord Irvine, who has now bitten the dust in a vain attempt to protect the independence of the judiciary he headed.
Like the proposed commission to appoint the judges, the Human Rights Act was also an illustration of New Labour's belief that conventions should be swept aside and replaced by formal codification.
The unwritten British constitution produced concepts of liberty and the rule of law far superior to countries with codified constitutions. But the radicalism of New Labour depends on a 'modernising' agenda which means tearing up these traditions.
Not only is this dangerously wrong, but it is hasn't even been thought through. Just as with the abolition of the House of Lords, the government has swung the demolition ball of prejudice at the Lord Chancellor - and then realised it hasn't got the faintest idea how to replace him for the better.
Doing so without consulting either the Queen or Parliament reveals the dangerous extent to which Mr Blair now perceives himself to be the country's supreme leader. He can ride roughshod over our constitution without any discussion. But as with the House of Lords, it is only when the detail is examined that the intellectual and political bankruptcy of the plan itself becomes all too apparent.
Lord Falconer is now a part-time, unpaid Lord Chancellor. Instead of abolishing himself, he should tell his good friend Mr Blair to stop mucking about with the constitution and start repairing the incompetent shambles that now afflicts virtually the whole of public life - and of which this reshuffle was but the latest extraordinary example.