Monday, April 03, 2006

Yet more dismantling of the constitution

No matter your opinions on having an antirely unelected former flatmate of the Prime minister as the head of the judiciary, the fact that the Lord Chancellor Charlie "the Lord" Falconer has today given up one of his office's most central roles is a tad worrying. As that BBC report notes,

"The title will continue but the post may in the future be filled by an MP who is not a lawyer. Presently, it has to be taken by the most senior lawyer in the House of Lords."
So we go from a situation in which the final say on legal matters is (supposedly, at least) taken by the person with the most experience and qualification so to do to one where any Tom, Dick or Harriet who happens to have sucked up to the head honchos of the governing party can set new legal precedents with little or no knowledge of how the system is supposed to work.

So now we get Baron Phillips of Worth Matravers, the Lord Chief Justice, taking over as head of the judiciary, effecitvely ending one of the few English traditions which can genuinely be claimed to have lasted for a thousand years. The Lord Phillips seems well qualified (certainly more so than did Charlie "drinking buddy" Falconer at any rate). But it's quite hard to tell what he stands for, having apparently never voted on any issue since being elevated to the Lords in 1998. He has, however, criticised the government over their handling of the BSE crisis, so there is at least some hope of a certain degree of independence.

But this is beside the point. When these plans were first announced there was a good deal of controversy, and rightly so. For such a serious alteration of the way the constitution works, you'd have thought they'd have a bit more discussion, and try to come up with a genuine solution rather than mere window-dressing. (Well, you would were you not used to the way this government conducts all of its constitutional affairs, at any rate).

Yes, we need an independent head of the judiciary, and this new set-up could be considered an improvement on what's gone before. But why are they introducing it before setting up an independent supreme court? The Constitutional Reform Act 2005, from which these changes stem, also states that the long argued-for supreme court will finally be set up. But the building to which the Law Lords are supposed to move will not be ready until 2008, and the new court has yet to be convened.

An independent head of the judiciary while both the head and the judiciary itself are still a part of the legislature smacks of the half-arsed 1999 reform of the House of Lords, getting rid of one problematic system but having nothing well thought out to replace it, and leaving us with a mish-mash arguably little better than the thing it is replacing. The only benefit is that instead of having a head of our legal system who has gained his position purely by dint of being mates with the Prime Minister, we have someone who should at least know what they are doing. Constitutionally, however, we are no better off, as the Law Lords remain installed in the Upper House.

Changing a part of the system a good two years before the rest is ready strikes me as a tad silly - like putting on your tie before your shirt. But if there's one thing you can't accuse this government of, it's paying due care and attention to constitutional reform... Legislative and Regulatory Reform Bill, anyone?

5 Comments:

Anonymous Anonymous said...

Blimey can you imagine the hoo ha there'd be if this happened on the day that the new Supreme Court first sat.

It would be like working in an office where the powers that be decided to change the computers, software and 'phones all on the same day - 'cos that'd be bound to work smoothly. Much more efficient don'tcha'know...my arse.

Nope. It's good to do these things gradually.

4/03/2006 03:55:00 pm  
Blogger Unity said...

Actually, NM, in the fullness of time this is going to be a change for the better.

Any anomalies in the role of the Lord Chief Justice arise not from his role as head of the judiciary but from the failure to complete reform of the Lords - once that is done and we have an elected or mostly elected chamber, the role of judges in the legislature will come fully to an end and we will have a proper separation of judicial and legislatie power.

The only shortcoming of the new Supreme Court is the absence of a written constitution which would empower it to strike down unconstitutional legislation.

Despite IDS's bleating at the time it was announced, this is good news.

4/04/2006 12:46:00 pm  
Blogger Nosemonkey said...

Anonymous - eh? Not sure I follow your logic...

Unity - The failure to complete the reform of the Lords is where ALL our current problems stem from. We haven't got a fully-functioning parliamentary system, so it's massively open to abuse. But an elected upper house? No way.

You're right on the lack of coherent thinking on the supreme court though - that's the whole point. Simply splitting the Law Lords off from the upper house, as seems to be the thinking at the moment, does nothing if they haven't got the genuine independence which comes with genuine power. Meanwhile the executive will remain firmly ensconsed in both houses of parliament, doubtless blathering on about how they're promoting separation of powers by booting the Law Lords off to the other side of Parliament Square.

The whole thing's a typically ill-considered Labour shambles. The fact they're buggering around with the head of the thing before they've even worked out the thing itself is yet more proof. I have little faith that the supreme court will be anything other than an ineffectual mess.

4/04/2006 12:59:00 pm  
Blogger Unity said...

We obviously differ on the matter of the composition of a second chamber.

There are two main problems with an appointed second chamber. First, rather like the US Supreme Court, it all too easily becomes an 'arms race' in terms of appointments - cash for peerages may be the straw that breaks the camels back on forcing through Lords reform but the real discredit lies in the fact that since 1997, Blair has created 100 Labour peers out of the 202 created in total, to the point where Labour is now the largest single party group in the Lords.

There's also little or no evidence I can find of Labour peers voting against the whip on government bills - in fact the only rebellion in the Lords of late have came when Tory peers ignored the whip on glorification of terrorism at the first attempt by the Tories to climb down on this issue.

Havign thought it through, my preference would be for a 75/25 elected/appointed split, with elections every five years, but only half of all elected members up for relection at any one time. Elections should be by PR on a regional basis using STV with open lists. That should give an elected component which solidly reflects the electorate at any given time.

As for the 25% appointees - these should be crossbenchers and subject to strict rules of qualification, for starters no one should be appointed to the second chamber if they have been a member of a mainstream political party or made/been party to a donation or loan to such a party within the 5-10 years preceeding their nomination for appointment.

Together, I think that should give a balanced second chamber.

Having said that, the key to Lords reform is not just what a second chamber looks like but what it does - I would be opposed to any provisions to limit the ability of the second chamber to delay legislation, in fact I would strengthen that ability somewhat, both by limiting the number of occasions on which the government could return a bill to the second chamber at third reading before it has to accept that the bill is stymied and needs to be reintroduced in the next session under the Parliament Act and also by empowering the second chamber, in that situation, to require that a full and open public consultation is carried out on legislation it blocks before it is reintroduced - if the Commons wishes to claim it has a clear public mandate for legislation it should be prepared to have it debated publicly and demonstrate that mandate before it returns it to the second chamber.

I would also make changes to the procedure under which
Minister's sign off on bill as regards their compatibility with the Human Rights Act - as we will have a Supreme Court, the one semi-legislative function it could provide reasonably would be to give a second opinion on legislation where questions of compatibility with HRA arise.

4/04/2006 04:44:00 pm  
Blogger Anoneumouse said...

Britain having a supreme court is an oxymoron isn't it. EU law is Supreme

4/04/2006 07:04:00 pm  

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