If the Prime Minister did want to understand the British constitution, he would have to go back a lot further than 1,400 years, the supposed origins of the lord chancellorship. He would, indeed, have to go all the way back to Latin. The word constitution comes from the Latin words for "stand" and "with", and that is what it is; something that helps us stand together.
It follows that the constitution of an ancient country could never be fully written down. The British constitution is not a mere matter of law. It derives from tradition, custom and temperament: from the history of centuries and millennia. As such, it is continuously evolving, with a steady flow of new wine into old bottles. But this is evolution, not revolution, which is how the less favoured nations of continental Europe tend to alter their constitutions. Revolutionaries also go in for written constitutions, as if you could ever abstract a nation into a document. With the sole exception of the US version, written constitutions have a further defect. Being on paper, they are easy to tear up.
Apropos tearing up, we in Britain have had our problems in recent years. Our revolutionaries did not burst forth with barricades and blooded banners; they arrived from Islington in chauffeured limousines. But they were just as destructive. Although Tony Blair had no emotional links to the old Labour Party, he was tainted by that national self-hatred that is a disfiguring characteristic of so much of the Anglo-American intelligentsia. If Britain was in conflict with foreigners, he assumed that Britain was in the wrong. If some agency of government had deep roots in the past, that was a sufficient reason for discarding it. To him, British history was merely something to apologise for. Mr Blair also had a covert, overarching constitutional agenda. By merging us into Europe, he wanted to turn Britain into another country; we British would no longer be able to stand together with ourselves.
In the interim, he had some tricky questions to deal with. The Scots wanted devolution, which would create an awkward relationship between Edinburgh and London, and there was also the problem of the House Of Lords. It was natural that an incoming left-of-centre regime should be unhappy about a second chamber based on the hereditary peerage and should wish to revisit the question of Lords reform.
But for trivial reasons devolution and the Lords were not regarded as difficult matters. Previous generations of able politicians had failed to solve them. The Blairites had the answer. In earlier days, governments had let themselves be bogged down because they had been wet enough to try to think through complex questions before legislating. Mr Blair and his colleagues did not make that mistake. They decided to act first and think later, as they did when they incorporated the European Convention on Human Rights into our domestic law.
There was only one problem; we are still waiting for the thinking. The House Of Lords is in confusion and there is still no answer to the West Lothian question, so named because Tam Dalyell was the MP for that constituency when he asked it: why should Scottish MPs be able to vote on health and education in England when English MPs cannot even ask questions on health or education in Scotland? No government would now dream of appointing a health secretary in the Lords. It should be equally unthinkable for him to sit for a Scottish constituency, as John Reid does.
The nearest the Blair Government came to tackling the West Lothian question was in a comment from Derry Irvine. The best way to answer the question, he said, was to stop asking it. His Lordship may now have realised that complex questions outlast arrogant ministers.
And arrogant governments. The Blairites' approach to constitutional matters was epitomised in the latest reshuffle, the most botched of all time. Previous reshuffles may have included curious choices, but when they were all over, we at least knew who held what post. Not this time. We were told that the lord chancellorship had been abolished. Within hours, Lord Falconer of Thoroton had kissed hands as Lord Chancellor and received the Great Seal. We were also told that the offices of Scottish and Welsh Secretary had been abolished and that their powers would be exercised by Charlie Falconer. Not so, protested Alistair Darling and Peter Hain: we shall speak for Scotland and Wales. The confusion is delightful, and will continue.
But the botch gets worse. There is an argument for a ministry of justice as in many continental countries, so as to bring the whole of the justice system, including criminal legislation, under one purview. There is a further argument in a British context. The Home Office is a failed department. It presides over an asylum policy that is on the point of collapse. It controls a prison system that is often an expensive way of reinforcing inadequates in their inadequacy and of making bad men worse. It is in charge of a police force that is still good at catching murderers and major drug traffickers, but is hopeless when it comes to the massive numbers of lesser crimes that cause so much misery. Nor is there any reason to believe that the Home Office is adequately equipped to deal with the threat of terrorism. Then again, there may simply be a case for a better Home Secretary than David Blunkett.
Mr Blunkett has shown no interest in tackling the chronic failures that beset his department. His sole concern is populist gestures, and he has decided that the judiciary is an easy target. A wily fellow, he is trying to construct an anti-judge coalition of liberals and tabloids. Liberals object because most judges are male, public school and Oxbridge; the tabloids, because they do not sentence like Lord Goddard. In the middle, chuckling at his own cunning, is Mr Blunkett. He still has the reputation of possessing more moral depth than the average Blairite, but it is undeserved. He is just like the rest: interested only in cheap applause and easy headlines.
There is nothing much wrong with either the judiciary or the way in which it is appointed. It may be an anomaly to have a politician - the Lord Chancellor - appointing judges, but there is nothing wrong with anomalies if they work. The present system resists politicisation. It was a Tory Lord Chancellor who made Stephen Sedley a judge, although he is a notorious ultra-lefty, and whatever complaints can be made against Derry Irvine, he did not let politics influence his appointments, any more than Lord Falconer will. Charlie Falconer, who should not be blamed for the Dome - that was Michael Heseltine and Tony Blair's fault, will be a better Lord Chancellor than Lord Irvine. The Lord Chancellor's department is in a continuous process of canvassing QCs and judges about future appointments, and that is as it should be. Only lawyers and judges have the expertise to judge judges.
The new constitutional department will solve none of the problems that afflict the Home Office and the penal system. Forget 1,400 years; it will be lucky to last for 1,400 days. There was only one conclusion to be drawn from the reshuffle - though it should have been apparent from Mr Blair's entire record on constitutional change: this Government lacks all direction.Reuse content