Labour's plans for the judiciary betray a lack of thought

The Blairites have as much enthusiasm for thought on constitutional matters as slugs do for salt
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The Independent Online

Governments ought to find remedies for failure, rather than meddling with success. They ought to deal with difficulties, not create them. Those might seem points of such banality as to be hardly worth stating. But anyone who believes that should examine this Government's plans for the judiciary.

When it comes to history, Tony Blair knows little and cares less. The post of Lord Chancellor has existed for almost a millennium. In that time, the office has acquired many complicated functions, not least the Speakership of the House of Lords. Abolition would require complex legislation. It would even require thought.

But the Blairites have as much enthusiasm for thought on constitutional matters as slugs do for salt. That is why, 24 hours after it was announced that the post had been abolished, the new Lord Chancellor, Charlie Falconer, took his seat on the Woolsack in a borrowed wig.

Lord Falconer has now produced a Bill that would abolish the Lord Chancellorship, evict the law lords from the House of Lords and turn them into a Supreme Court, while establishing a new method of judicial appointments. On 12 February, there was a debate on those proposals in the House of the Lords. It is worth looking up, for it was a good debate. In the courteous language of the Upper House, speaker after speaker tore the Government's plans to pieces. These were the experts speaking. Lord Hoffmann - of Pinochet fame: no Tory he - was perhaps the most eloquent. But in a succession of distinguished speeches, a weight of knowledge, expertise and hard thinking was brought in bombardment.

That should have been the end of the matter. In the bad old days, when the hereditary peerage gave the Tories a built-in majority in the Lords, so it would have been. In that era, the Tory whips had an adage; the quickest way to go down to defeat in the Lords' division lobbies was for a minister to lose the argument in the Chamber. I doubt if any minister ever lost an argument as comprehensively as Lord Falconer did on 12 February. There was a resounding message from the House: "Think again."

That is not how this Government works. They do not believe in thinking once, let alone again. So today, Charlie Falconer will not think again; he will merely try again.

There is a counter-proposal from Lord Lloyd, a retired law lord, to remit the whole matter for detailed consideration by a select committee. Lord Falconer will resist this, which is not surprising. The sole argument which he can muster in favour of his Bill is that though the present system works well, it might go wrong in the future, so why not change it now? That is hardly likely to stand up to months of scrutiny.

It is true that if a Third World country were devising a new constitution, no one would advise it to allow a politician to appoint judges and also to sit as a judge in the highest court, whose members were part of the legislature. But Britain is not a Third World country. We are not devising a new constitution. We have arrangements which have been tested and refined over long evolution and which have a further merit. As Charlie Falconer acknowledges, they work.

The Lord Chancellor is a hybrid; a party political appointment who is also head of the judiciary. But all recent Lord Chancellors have treated their judicial responsibilities conscientiously and impartially. Among the judicial appointments made by James Mackay, the last Tory Lord Chancellor, was Stephen Sedley, probably the most left-wing figure ever to be appointed a judge in Britain. Lord Chancellors and their officials take great trouble to appoint and promote on merit and to safeguard the independence of the judiciary. In future the final recommendations on judicial appointments would come from a Secretary of State in the Commons: a relatively junior member of the Cabinet, no doubt hoping for further advancement. He would not be a political-judicial hybrid. He would be a pure politician.

It is not clear how this could either improve the quality of judges or safeguard their independence. At present, the law lords cost the taxpayer less than £200,000 a year, apart from their salaries. Lord Falconer would give them a new building, which would probably cost £100m to build, millions a year to run. That is a lot of money for a thoughtless reform.

Last year, in evidence to a Commons committee, Derry Irvine said: "We are a nation of pragmatists, not theorists, and we go quite frankly for what works." Unfortunately, he was speaking only for himself and not for the Government of which he is no longer a member. It is to be hoped that their lordships will now force Lord Falconer to discharge an essential duty of government, however unpleasant he may find it. Lord Falconer must be made to think out his proposals.

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