Spinning the constitution

Prime minister Tony Blair’s shot-gun announcement of major British constitutional reform has caused uproar.

Without consultation of Cabinet, the civil service or the Houses of Parliament, at 5.45pm on 12 June the government announced the abolition of the post of the Lord Chancellor – the figure in charge of the maintenance of the judiciary, who, by sitting in the House of Lords and the Cabinet, binds together three sections of state. The Lord Chancellor’s Department would be replaced with a Department for Constitutional Affairs.

In essence, these reforms will separate the judiciary from the legislature and executive. A new Supreme Court will be set up as the highest court in the land, to replace the House of Lords; and judges will no longer be able to sit in the Lords. An independent commission, rather than the prime minister, will appoint judges.

Some have argued that these reforms show Blair as a bold reformer, finally separating the powers and taking the British legal system into the modern age.

But these major reforms were hashed together rather than carefully planned. There was confusion about the division of responsibility between the new department and ministers for Scotland and Wales; there were no proper guidelines or timetable for setting up the Supreme Court or the appointments commission; jobs that had been abolished were re-created the next day because of the discovery of some legal stipulation.

In reality, these proposals show up New Labour’s ‘modernisation’ as a shallow PR exercise. Blair reforms mean casting off things that look staid and old, and giving the impression of moving towards something exciting and new. The trouble is, he seems to have little interest in how the old works before he decides to change it – and little sense of what he wants for the new.

It is true that the ties between the British legal and political systems is an anomaly among democracies. In most places there is a clear separation between those who make the law, and those who interpret it. This is a result of Britain’s unusual political history. With some notable exceptions, reform has tended to occur through incremental shifts and deals between parties, rather than through radical breaks. Over time, institutions like the monarchy and the House of Lords have lost real political power without ceding much of their formal role. And the legal system separated from the legislature (all peers used to be able to sit as judges, even if they knew nothing about the law), without cutting all of its formal ties.

But this was as much a strength of the British ruling-class as it was a weakness. They were the arch reformers, the arch doers of deals and negotiators of interests. The historical survivals of ancient traditions tended not to obstruct the business of government, but they did confer it with an extra legitimacy by rooting it in the past, by representing it as something solid and enduring. And the tacit understandings between different interest groups allowed British rulers considerable flexibility to make decisions and negotiate among themselves.

Why has Blair suddenly taken a knife to these long-standing ties?

It is certainly not out of any respect for the independence of the judiciary. The government is constantly entering into spats with judges – and home secretary David Blunkett is currently attempting to limit judges’ sentencing powers on serious cases, such as murder.

Nor is it because there is a clear vision of what a new political and legal settlement should look like. There have been no negotiations to try to work out a deal between the different groups affected by the reforms. The shape of the Supreme Court and the commission for appointing judges will reportedly be decided in a consultation in the summer – at one press conference, the prime minister’s official spokesman fell back on assuring that everything would become clear ‘in the fullness of time’ (1).

Lord Falconer has been appointed temporary Lord Chancellor, to oversee the shift to the new Department of Constitutional Affairs – but he has seen both his and his department’s jobs chopped and changed over the past week.

This whole affair has the classic hallmarks of a New Labour spin exercise. According to reports, Blair began serious negotiations with a close team of advisers and political allies about 10 days before the reforms were announced. ‘It was all so rushed and chaotic’, said one Whitehall official (2). It seems that arrangements were hastily put together – and designed primarily for their effect. Perhaps it was thought that abolishing the Lord Chancellor would make Blair look like a bold reformer, bravely taking Britain away from stuffy tradition and towards a sparkling future.

The government soon realised that spinning hospital waiting lists is one thing – spinning the constitution is another thing entirely. There are checks and balances and formalities that cannot just be rushed over for the sake of the headlines. The question of how the judiciary relates to the legislature is something that concerns all the major institutions in British society. Trying to force through a patchy changes agreed by a small clique could only breed chaos.

The government seems not to have thought through the most basic implications of its decision. Number 10’s announcement had to be changed at the last minute, when somebody realised that it was actually not possible simply to abolish the Lord Chancellor’s post without legislation (3). A civil service representative later pointed out that this would actually be quite difficult, as there were references to the post of Lord Chancellor in more than 500 statutes (4).

And the day after the announcement, the House of Lords had to demand Lord Falconer’s attendance at the Lord Chancellor’s Procession. Downing Street had not realised that a rule dating back to 1660 meant that Falconer had to attend and sit on the Woolsack, or the Lords could not function (5).

There has been uproar. The head of the bar council, senior civil servants, the House of Lords, MPs, and all sections of the press have added their criticisms of the government’s hash job. The Commons Speaker, Michael Martin, made the unprecedented call on Tony Blair to make a statement to the Commons explaining himself.

Confusion reigns about who is responsible for what, and where authority lies. The Scotland and Wales offices have been integrated into the new Department for Constitutional Affairs, but there is no room in the building. After complaints, it was announced that the posts of Welsh and Scottish minister would only be half-abolished: two ministers would retain this title as half of their job. But it was left unclear whether these ministers would be subordinate to Falconer, or his cabinet equal.

This constitutional mess, though, is less a sign of Blair’s arrogance, than of his isolation. Some have claimed that he decided not to discuss the issue with Cabinet because he could not trust them not to leak the story. He doesn’t seem to have the trustworthy contacts in other institutions to carry out the necessary negotiations for such a major reform – or the reliable advisers to help him avoid the obvious holes in the road.

There are many good ways that the British constitutional system could be reformed. Because it is largely the result of gradual negotiations between different groups in the British elite, the whole system is riddled with anti-democratic blocks that obstruct the exercise of popular will. Reform could start with the abolition of the monarchy, for example, and move on to annual elections of MPs and the mass election of judges.

But Blair’s moves towards modernisation are likely to benefit nobody. Times columnist Simon Jenkins said that Britain is starting to look like a ‘banana republic led by a monkey’. What we are seeing is a constant churn of ill-thought-out initiatives rather than a purposeful programme of reform. And rather than making the system clearer or more accountable, these measures will end up further undermining the authority and coherence of the state – and breed confusion in lords, commoners and populace alike.

Read on:

Wigged off, by Jon Holbrook

Renovating ‘upstairs’, by Josie Appleton

(1) Press briefing, 13 June 2003

(2) Blair’s botched revolution, 15 June 2003

(3) Blair’s botched revolution, 15 June 2003

(4) Senior civil servants up in arms over shambolic reshuffle, 16 June 2003

(5) Blair’s botched revolution, 15 June 2003