25/06/07 - Labour and the Erosion Of Our Freedoms.

Britains Constitution - Some Reflections

By Robert Buckland the Conservative Parliamentary Candidate for South Swindon.

I may not yet be forty, but there is no doubt that the British political system that was the subject of one of my “A” level courses just over twenty years ago has changed almost beyond recognition since 1997 to the extent that many of my written examination answers would no longer do.

New Labour has energetically done for the old order of things.  Those who agitated for change in those years ought to be rather pleased with “progress”. 

Scotland and Wales now have their own forms of government;  the European Convention on Human Rights has been incorporated into English Law; we have a Ministry of Justice and are approaching a real separation of powers between executive and judiciary.  Everything in the garden of liberal rationalism is lovely.  Or is it?  The Tory view of constitutional affairs is naturally far more pessimistic.   

British Conservatives have always believed in a constitution that stood entirely above and beyond the vagaries of everyday politics.  It is embodied by the concept of constitutional Monarchy. 

Our system of government evolved from the days of conquest and absolute rule, tempered by the fear of God.  It was refined by civil war and bloodless revolution.  It has been enhanced by universal suffrage, the ballot and boundary re-distribution.  In short, our system of government had matured organically, like a very good claret. 

Our party now brings together those of us with differing views about the quality of certain years, for example 1715, but there is a real understanding of the effectiveness of gradual change.  Our constitution was unwritten, sometimes self-contradictory.  It did not stand to reason, but that is why it worked.  The freedom of the people had been enhanced and safeguarded, but the very best of or traditions had been preserved.  That is how things used to be. 

To Conservatives, developments since 1997 have been unwelcome, hurried and dangerous.  They have seemed to be an end in themselves, with questions about practical consequences having been conveniently avoided.  This wrong-headed rationalist approach is leading to more constitutional confusion and less real freedom.  To Conservatives, the British constitution is in danger of looking rather like that of the USSR in the late nineteen thirties; looking rather good on paper but in reality, things being rather grim. 

To the policymakers of New Labour and their allies in the Liberal Democrats, constitutional reform has been a straightforward matter.  Their approach has been to deal with something looking anachronistic or odd by getting rid of it.  This approach reached its stunning climax when Tony Blair’s press office blithely announced the abolition of the post of Lord Chancellor during a Cabinet re-shuffle.  It was only when they realised that this position had been embedded within our system by statute and precedent that an undignified retreat was made.  Why this attempt? Was it to do with  New Labour’s dislike and distrust of full-bottomed wigs, woolsacks and braided gowns than anything else.  Or was it something more profound? 

The role of the Lord Chancellor has been at the heart of one of New Labour’s constitutional dreams, namely separation of powers.  This is where they seem to have nodded to the United States, finally putting right the anomalies that were famously overlooked by Montesquieu and adopting the wise methods of our American cousins.   As he was a member of all three branches of government, the Lord Chancellor was a constitutional embarrassment.  His role was far too powerful, dangerous, even.  

They did not stop to ask themselves the obvious question: was there in fact an abuse of power?  Bearing in mind the personalities of most modern Lords Chancellor (until Lord Irvine, of course), the answer is no.  Far from it, the role has been emblematic of the system of checks and balances that has ensured the workings of the constitution.    

There was another affront to separation of powers that concerned Tony‘s friends.  The Judicial Committee of the House of Lords (operating at an annual cost of £400,000) was the most senior level of the judiciary, yet there they were, sitting in the legislature’s Upper House and even taking part in debates!  Upon the basis of Lord Falconer’s frankly bizarre contention that the Law Lords should not be part of the lawmaking process, a new Supreme Court (estimated annual cost £50 million) is on its way. 

No longer will we enjoy the mature and helpful contributions of law lords, which have so often served to improve Bills before Parliament.  Most importantly, however, the contention that the Law Lords should not be part of the lawmaking process is, of course, incorrect.  

House of Lords cases set precedents that were, in the main, binding upon other courts.  Their Lordships, quite literally, make law.  In the ill-considered rush to Utopia, the Government are making sure that legislature and judiciary, embedded in their respective bunkers, will speak increasingly different languages from now on.  Most fundamentally, the notion of the Judiciary actually being a part of the concept of Parliamentary Sovereignty is something that seems to have passed New Labour by.  The concept of “The Queen in Parliament”, whereby the three limbs of the constitution were brought together, is being quietly buried. 

What is equally worrying is the use of these “reforms” to cover up serious erosions to our freedoms perpetrated by this Government.  The right to trial  by jury is being eroded, with Judge-only courts proposed for fraud trials.  Recent anti-terrorism legislation has paid scant regard to the obvious need to strike a careful balance between national security and individual freedoms.  The proposed National Identity Card and Register Scheme bring the “surveillance state” ever nearer.  It is as if the Government ask us to marvel at a splendid neo-classical façade whilst constructing a nasty concrete bunker within its new constitutional home. 

The current Lord Chancellor now calls himself the Minister of Justice as well.  Apart from its Orwellian overtones, the position and the new Ministry are quite simply, a botched job.  It took about six weeks to put it together, which is why prison administration is now in the same department as the judiciary, sentencing and criminal justice.  The warnings of senior judges from the Lord Chief Justice downwards have all been ignored. 

It would seem that Mr. Blair is more interested in currying favour with grey-bearded academics who spent much of the 1970s writing essays calling for such a thing.  Mr. Brown will no doubt see to it that the title of Lord Chancellor ends up on the shelf, rather like the President of the Board of Trade.  Let us hope at the very least that a Tory politician will dust it down and use it in future, rather like Michael Heseltine did when he went to the DTI.  More than that, let us hope that a future Tory Government will repair some of the damage.   

A good Tory, however,  will properly observe that once changes like these are made, it is difficult to repair the damage.  Nowhere is this adage more true than in the field of Scottish and Welsh devolution.  The creation of these bodies has fuelled the understandable resentment of many English residents to the extent that many advocate an English Parliament. 

Any proposal which involves more politicians should not be attractive to Conservatives, it must be said.  I believe that it is the question of finance and subsidy that lies at the heart of the tensions between England, Scotland and Wales.  Scots and Welsh politicians must understand that political autonomy will come at an eventual price, namely a wholly legitimate expectation by the English that increasingly, Scotland and Wales will stand on their own two feet financially.  English politicians should have the wisdom to realise that their large country will be better governed by strong city and county government, rather than by “Commons-lite”. 

Perhaps the strangest development of all was the Human Rights Act of 1998.  It is a fairly short and unremarkable-looking Act.  At a stroke, it incorporated notions of law and freedom that were dramatically different from those in English Law.  Freedoms and rights were now defined for the first time.  English liberty had been defined only by its boundaries, that is, by what we couldn’t do, as opposed to what we could do. 

Here was a piece of legislation that was a rationalist’s dream.  What better way of preserving our freedoms than by writing them down, they thought.  What better way of conferring more power upon un-elected judges!  With no Lord Chancellor to act as a check upon the judiciary, is there any way of stopping them from directly challenging and overriding Parliament’s authority?  Already, the Human Rights Convention has been used to dramatically alter the effect of important legislation (eg Section 41 of the Youth Justice and Criminal Evidence Act 1999).  Parliamentary Sovereignty is no longer what it used to be. 

It is against this background that today’s Conservative Party is considering the creation of a British Bill of Rights, amongst other constitutional safeguards.  New Labour’s new order (or should it be new chaos) forces us to consider concepts that would have seemed wholly alien only a dozen years ago.   It may well be that we will have to adopt the sort of approach to constitutional affairs that would have made Disraeli smile. 

Robert Buckland is the Conservative Parliamentary Candidate for South Swindon.

More articles like this can be found on the Conservative Liberty Forum Website: http://www.conservativeliberty.org.uk/

June 25th 2007