By Thomas Strathclyde
(Filed: 11/03/2004)
The Prime Minister and his faithful legal companion, Lord Falconer,
have only themselves to blame for the constitutional pit into which
they have dug themselves. They need to stop digging and do so fast –
in their own interests and those of the country.
†It all began last June, with an infamous press release. Number 10
suddenly announced that it had abolished the historic office of Lord
Chancellor, the voice of the judiciary in the Cabinet and the
protector of judicial independence, and was to boot the Law Lords out
of the Lords, where their presence is such an asset. Lord Irvine had
the integrity to resign rather than implement such ideas.
Enter Lord Falconer, a man with the eccentrically nihilistic ambition
to be history’s last Lord Chancellor. He grasped the poison chalice
Lord Irvine declined. The Minister for the Dome is to build an
unnecessary new Supreme Court. He claims he can do this for less than
£40 million. Wasn’t that the original estimate for the £430 million
Holyrood Parliament?
The abolition of the Lord Chancellorship and the building of a
Supreme Court are in keeping with a more recent government wheeze,
exposed in the Telegraph, to spend millions removing the Crown from
the Prosecution Service and renaming Her Majesty’s Prisons the
National Offender Management Service, a title not even Monty Python
would have dared invent.
There had been no call for any of these plans and no need for them.
Even Lord Falconer admits the senior judicial system we now have is
outstanding and that successive Lord Chancellors have fully upheld
judicial independence.
So where things work well and carry worldwide respect, why this mania for still more change on top of the maelstrom of constitutional
upheaval of the Blair years? I find it puzzling.
Surely there must be a better defence than Lord Falconer’s faintly
ridiculous argument that, while the system works well now, it might
break in future: “It works – so let’s break it.” I hope Lady Falconer
keeps the hammer safely under lock and key when she sees her husband eyeing the prize household clock.
Parliament has every right to look sceptically at these plans. The
Government points to a pamphlet from Justice a few years ago,
suggesting them. But there was nothing in its election manifesto. No
White Paper. No consultation with anyone before the botched reshuffle.
Both the Commons, through its Labour-dominated Constitution Select
Committee, and the Lords, by its vote on Monday, have said there must be scrutiny. A Bill can be carried over at the end of the session.
Scrutiny would not cause a Bill to be lost.
Government must now listen to Parliament, accept scrutiny and be
ready to accept the consequences, even if it means dropping some of
these discreditable and unnecessary ideas.
But there is another force at play – Labour’s inability to connect
with the institutions and conventions that underlie the subtle,
flexible and unwritten constitution that has given Britain domestic
peace and stability during 300 years of social change.
This is one of the unremarked fault lines in modern politics.
Conservatives, old Labour and many traditional Liberals have an
instinctive affinity for our ancient liberties, and the practices and
conventions that balance our constitution.
The neo-rationalists – New Labour and the Roundhead tendency among Liberal Democrats – lack any such affinity. They think offices such as the Lord Chancellorship are bad because they are old. They fail to appreciate they have become old because they are good.
The forces of change have had a good run; it would be wise for them
to pause and let what they have won bed down. It would be wise to
realise the constitution does not belong to one party or one group
within it.
There comes a point when those in Parliament, of all parties, who
believe no government has a right to ram through unilateral change,
irrespective of past undertakings or in the absence of any manifesto
authority, must be counted for what they believe in. These are not
arguments of mere academic interest or low politics, but of high
principle. They touch the bedrock of the way we are and will be
governed.
There is threatening talk of punishing the Lords. We hear of plans to
strip away our powers. We are told that, maybe next week, the
Government will act to throw out elected hereditary peers and create
an all-appointed House.
That would make a mockery, as Robin Cook rightly reminds us, of the
Government’s repeated manifesto promise to create a more democratic
House and its solemn undertaking to Parliament that the remaining 92
peers would “go only when stage two has taken place”.
Significantly, it takes us full circle. It was Lord Irvine who told
Parliament that the undertaking was “binding in honour” and Lord
Falconer who cites “changed circumstances” to dishonour it.
But, if such firm assurances can be so lightly abandoned, why should
Parliament trust any assurance from any minister, let alone the
umpteenth promise that Tony Blair truly, madly, deeply means to get
to real reform some day?
If Parliament lets Mr Blair get away with that and hands him his
political objective of kicking out the 92, then I will not hurry to
Ladbroke’s to lay a large bet against “changed circumstances”
overtaking whatever assurance Lord Falconer may give about long-term reform next week.
Frankly, I would not launch constitutional measures as my “flagships”
in the year before an election. I cannot be alone in thinking Mr
Blair might give a little more time to fulfilling his pledge to
provide everyone with an NHS dentist or cut violent crime.
Governments make their own choices of political priorities and are
judged on them. But they must understand the atmosphere that constant threats to the Lords, combined with flagrant breaking of
undertakings, are creating.
There is no need for conflict. Historically, the Lords has well
understood the boundary stones of our constitution. But, as yet more
of these are wilfully uprooted by this Government, then, as Monday’s
vote showed, the future becomes less predictable.
The House is within its rights to hold the Government to promises it
has made and question change for which the Government has no
authority. I know many in the Commons agree. However powerful any
government may be, Parliament is above it.
* Lord Strathclyde is Leader of the Opposition in the House of Lords