Category Archives: British Constitution

Constitutional confusion Redux

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Despite some people making useful suggestions, elsewhere in the EU it seems all but impossible to shake of the spectre of that damned [tag]EU constitution[/tag]. Current European Union president Angela Merkel keeps on bringing the bloody thing up, repeating the same thing that has been said ever since the thing was rejected by the French and Dutch referendums back in the summer of 2005:

“The reflection pause is over. By June, we must reach a decision on what to do with the constitution”

Ignoring, of course, the fact that “we” (by which I mean the people of Europe, via the French and Dutch referendums) already have. If just one country rejected the constitution, it was to be thrown out and re-thought. That was the understanding. For the last year and a half, though, all the talk has been on how to get around this inconvenience, not on how to tackle the underlying problem: that the constitution was simply not what was needed.

However, rather than use her EU presidency to launch a fresh debate, Merkel instead has made clear that

“Broad general debate [on the constitution] is behind us”

She will, instead, launch a series of confidential talks with her counterparts amongst the political elites of the various member states to determine what they (the people generally least in touch with the real world and with public opinion) think is the problem – precisely what got us into this mess in the first place, in other words.

She has also stated fairly bluntly that she doesn’t think that more referendums are the way forward. So once again, the people will be refused a vote, and resentment will be allowed to build. Step forward French presidential hopeful [tag]Segolene Royal[/tag], who may have a few things to say about this:

“I want the French people to be consulted once again in a referendum in 2009″

Ah, how lovely. Another impass. Royal’s rival, [tag]Nicholas Sarkozy[/tag], may be on record as wanting to revive the constitution – but really it’s “a”, rather than “the” constitution that he’s after. He reckons (fairly sensibly, considering the current chaos and stagnation) that

“We should resort to a mini-treaty to achieve the most urgent institutional reforms”

So, with both of the candidates for the French presidency seemingly at odds with the German Chancellor, what hope progress?

It looks like the EU is heading once again into a period of stagnation, as those in favour of the existing constitutional treaty try to press ahead despite its rejection and multiple flaws, while those who are opposed to the present text – yet see the need for introducing some of the (in many cases, much-needed) reforms it was designed to bring in – try to put a halt to plans to revive the thing which, no matter how ill-advised in terms of the constitution’s own inability to do what it was supposed to do, will also be taken as yet another indication that Europe’s politicians couldn’t give a monkey’s for the opinions of the “citizens of Europe”. That way lies further alienation and resentment which, if not placated, could prove disastrous.

For a decent overview of the issues – and how these proposed discussions may impact on Britain (which seems to be keeping well clear of any of any constitutional negotiations, despite the potential for them to have a massive impact on the country) – check out today’s Q&A in the Independent (or, via Erkan, a slightly shorter one from the Financial Times a couple of weeks back).

Saturday update: Jerome has a roundup of UK reactions over at European Tribune. He has an interesting theory…

Why is Jeffrey Archer still a peer? (And another meme)

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A question that has been asked innumerable times, I know, but if dangerous driving is enough to lose you an MBE, merely a symbolic honour, surely convictions for perjury and perverting the course of justice should be enough to prevent one from being a member of the [tag]House of Lords[/tag], an honour which brings with it actual power?

And then, thanks to Martin Stabe (bastard…), below the fold lies another meme – five things you didn’t know about me:
Continue reading →

Blair and the death of society

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He really just doesn’t get it, does he?

“A new contract between the state and the citizen setting out what individuals must do in return for quality services from hospitals, schools and the police is one of the key proposals emerging from a Downing Street initiated policy review.”

Does he even get what the “social contract” is all about? It’s one of the fundamental ideas underlying the British political system, not to mention the birth of modern concepts of liberty and liberalism. Blair’s decision to bring it up – though in a deeply, almost offensively garbled manner – shows once again that his understanding of political theory is rooted firmly in the 17th century. And not the right bit, either: this is Hobbes, not Locke.

You see, the fundamental things that Blair’s missing are that

  • a) the social contract is a theoretical concept to explain the development of political subjugation and interrelationships, not a physical, legally-binding piece of paper of the kind he’d have us all sign
  • b) the social contract is not imposed upon the people by the state, but upon the state by the people, outlining just what government owes its citizens in order for them to continue to owe the government allegiance

Ignoring the royalist Hobbes (the interpretation of whose theories is, in any case, fraught with ambiguities), in the past, the concept of the social contract was generally advanced from below – the people giving away some aspect of their rights to the state, usually in return for guarantees from the state of protection, order and such like. When contract theory began to advance was usually at time of crisis – during and after the English Civil War, following the deposition of James II at the Glorious Revolution, during the French Revolution and during the American War of Independence. On each occasion, the concept of the social contract was used to demonstrate that the state had betrayed its side of the bargain, not that the people owed more to the state.

Of course, a written social contract could work fine, were – say – the state to agree that if it failed to provide adequate policing, schooling etc. then the citizens affected would no longer have any obligation to pay taxes. But the Blair version of the social contract is a complex and inconsistent beast that seems merely to heap yet more obligations on to the citizen, while removing responsibilities from the state based on the actions of individual citizens. At a glance, and assuming some logical consistency and, well, common decency and reciprocity within the plan, removing obligations from the state might sound like a good thing to some – small government and all that – but this is Blair we’re talking about. Please note the ominous words in that Guardian report,

“what is expected from citizens (beyond paying taxes and obeying the law)” (emphasis mine)

This is not about reducing the size and scope of state/governmental control, but increasing it – because nowhere is mention made of us mere citizens (well, subjects, actually) gaining anything new out of this proposed contract system.

In the original concept of the social contract, the benefits were obvious – peace and security rather than anarchy and chaos. The suggestions of what these new contracts could be made to do include conditions on access to the NHS, to education and even (implicity) to the police’s protection. Blair’s cunning concept of the contract is to reduce the state’s own obligations while increasing those of the people, so that it will be the people to blame when everything comes crashing down – for not upholding their end of the deal.

To an extent, this is a logical offshoot of Blair’s constant efforts to shift the blame throughout his time in office – be it Scottish and Welsh devolution (giving the new executives just enough power to be able to blame them when they cock it up, but not enough so that Downing Street can’t claim a hand in their successes), the localisation of public spending and law-making (again, enough power to blame the councils for tax hikes, but not too much so that central government can’t claim to be the source of beneficial reforms), the whole idea of allowing hospitals and schools to determine their own spending priorities and the like.

Tony has rarely been directly responsible for the failures of the last nine years – he’s always made sure there’s a slight buffer between him and having to take responsibility for his decisions. Even to the extent of (it would seem) trying to set up his mate Lord Levy as fall guy for the loans scandal, and ensuring his other mate, Lord Goldsmith, fixed his legal advice to support the Iraq war to allow Tony to simply say “but the lawyer said it was right, blame him”.

With this new cunning plan, however, (especially with the idea of “individual contracts between parents and schools” implying microscopic levels of detail), Blair would finally divest himself of all legal responsibility towards the people. Anything goes wrong, any public service fails to get delivered – “ah, but you didn’t abide by the terms of your contract”.

Once again, it seems, Blair needs to update his political philosophy library. Rather than this silly fixation with Hobbes, he should get up to speed with Locke, Rousseau, and the American Revolutionaries. Perhaps, most importantly, he should take heed of Proudhon:

“What really is the Social Contract? An agreement of the citizen with the government? No… The social contract is an agreement of man with man; an agreement from which must result what we call society.”

Because, as Rousseau pointed out, with the social contract what is created is a collective will and a collective, mutual responsibility:

“Each of us places his person and authority under the supreme direction of the general will, and the group receives each individual as an indivisible part of the whole”

What Blair is proposing, in forcing a literal, physical contract between the state and individual citizens, is a destruction of this collective obligation between citizens. He is proposing the destruction of society itself.

Update: A Blair and Hobbes footnote

A passage from Chapter 15 of Jonathan Israel‘s superb Radical Enlightenment: Philosophy and the Making of Modernity 1650-1750 (Oxford University Press, 2001), on Hobbes’ conception of liberty – which bears some striking parallels to Blair’s apparent belief system:

“In Hobbes, liberty of the individual is reduced to that sphere which the sovereign, and laws of the State, do not seek to control: ‘the liberty of a subject, lyeth therefore only in those things, which in regulating their actions, the sovereign hath praetermitted’…

“All participation in the political process, the making of law, and forming of opinion is hence excluded. Hobbes indeed disparages the republican, or positive, concept of freedom… Such liberty he deems antithetical not only to monarchy but to political continuity and stability, accusing those addicted to such ideas of ‘favouring tumults’ and ‘licentious controlling the actions of their sovereigns’. The political liberty republicans extol he considers a ruinious illusion, a mythology manipulated by agitators and factions for their own ends, to undermine and weaken the sovereign.”

Replace “republican” with “liberal”, you’ve pretty much got Blair’s attitude…

Yay – more laws!

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As if it wasn’t enough to have spent the last nine years under the most legislation-happy government in forever (who love the idea of new laws so much they want to bypass parliament through the Legislative and Regulatory Reform Bill to enable them to make new ones on a whim), now they’re giving yet more people the power to make us criminals, this time local councils.

Unsurprisingly, one of the major planks of these proposals is the lovely idea of giving councils the power to impose yet more “on-the-spot fines” – also known as “summary justice”, but better described as “arbitrary injustice” thanks to the insane difficulty and expense of getting such impositions overturned on appeal.

This has been one of the on-going themes of Blair’s domestic policy throughout his time in office, be it ASBOs creating laws that can apply to individuals alone to the repeated attempts to bring in instant fines for drunkards causing trouble, with Bobbies marching the piss-heads to the nearest cash-point to exact their pay-offs (rather than target the non-uniformed muggers who used to have a monopoly on such actions of a Friday night).

And, of course, the great thing about giving councils law-making powers is that there is no second chamber in the council system, so any party with a majority at the Town Hall will be able to bring in pretty much whatever new laws it likes. This is, judging by Jack Straw’s recent proposals for House of Lords reform, is what our dear government would rather like at Westminster as well, as

“According to the leak, the proposals envisage a Lords reduced from 741 members to 450″

This would, of course, take the number of peers below the number of MPs, and reduce even further the ability of the upper House to do its job of deliberating over and scrutinising legislation from the Commons – something it remains incapable of doing even now, with almost 300 more members than Straw would like.

In turn, if the Lords’ ability to do its job is even further restricted, yet more legislation will start building up, yet more bad laws will make it through parliament intact, and the government’s calls for measures like the Legislative and Regulatory Reform Bill to “cut through the red tape” and “speed up the work of government” will seem ever more appealing. Plus, of course, there will be far fewer people in Westminster to raise concerns.

Until the White Paper detailing these new proposals to give councils the ability to make laws emerges – and is dissected by someone with a far greater knowledge of the legal system than I posess – it is hard precisely to say what the effect will be. The only thing that is certain is that, at a time when our jails are full to bursting and our criminal justice system so overburdened with cases that tabloid reports of criminals going free are a daily occurance, the last thing we need is yet more criminal offences.

But, of course, the major reason for these new laws will not be to make the average citizen’s life easier, but to top up the failing Council Tax system with yet more sources of non-tax revenue, just like parking tickets, “environmentally friendly” surcharges*, fines for not recycling, and proposals to turn off streetlighting to save cash while spying on householders in a bid to charge extra for collecting rubbish – making one wonder precisely what the DO spend our Council Tax money on if it’s not on essential, long taken for granted services like waste disposal and making roads navigable at night.

But hey, if we expected government – be it local or national – to actually do things to the benefit of the citizens, then the vast amounts of money pumped into the NHS over the last few years would have produced definite improvements, rather than yet more ward closures and redundancies of medical staff. The billions spent on the wars in Iraq and Afghanistan would instead have been spent on increasing the budgets of MI5 and MI6, allowing for better prevention rather than mere provocation. The vast sums lined up to be spent on the ID card system (another revenue-raiser through the charges we’ll all have to pay not only when we’re first issued with our pieces of plastic but also every time our details change) would be spent on teacher training and improving school infrastructure. The ridiculous amounts spent on devolving power to Cardiff and Edinburgh would have gone on improving rail and other transport links between the UK’s three captials, making travelling around the country faster, easier and cheaper. The ridiculous amounts lined up to pay for the 2012 London Olympics would instead go on finally building Crossrail. The billions wasted on the failed NHS IT system would go on new wards, new hospitals, and training frontline staff.

As it is, our country – hell, probably pretty much every country – is, at all levels, being run by people more interested in personal profit than the benefit of the people. MPs award themselves ever more pay rises and allowances (current basic package, including average expenses, is c.£175,500) above the rate of inflation while the rest of us struggle by on an average national wage that makes it impossible to buy an averagely-priced home on a standard mortgage, while taxes rise and rise and additional charges spring up left, right and centre.

Gah. The whole thing irritates so much I could end up ranting on for ever and never reach a conclusion. So here endeth the lesson.

(* As much as I approve of charging people who drive 4x4s in cities more money, it’s not for any environmental reason, but because a) they take up more space, making roads narrower and more dangerous, and b) they’re generally speaking owned by people who can’t drive, certainly don’t need anything that large to ferry Tarquin and Jocasta half a mile to Prep School, and seem determined to knock me off my bike every time I cycle within a mile’s radius of a school. The bastards.)

John Reid ignores the law

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Erm… “John Reid will sanction the forced removal of up to 32 Iraqis today after telling the high court he would ignore any last-minute legal challenge to their deportation.”Yes, that’s right – the Home Secretary has announced that he will ignore legal challenges to his decisions.Yes, that’s right – the same Home Secretary who is in charge of the criminal justice system.

And that’s ignoring the issue of whether or not we should consider deporting people to a country plagued by indiscriminate daily violence and kidnappings, arguably in a state of civil war, with an inadequate policing and justice system, severely damaged infrastructure, which the Foreign Office advises against travel to, and which is so dangerous that previous deportations have had to sneak into the country on a roundabout route in chartered planes…

Cameron, constitutionalism and confusion

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Tories pledge ‘cheap, meaningless stunt’, otherwise known as David Cameron continuing to ride the civil liberties bandwaggon with the promise of a “US-style” Bill of Rights for the UK in place of the Human Rights Act.

There are a fair few problems with this plan – aside from the fact that Britain already has a Bill of Rights (even though the 1689 version has been amended countless times, promised Protestants the right to bear arms and banned Catholics from all sorts of stuff, hardly making it the bastion of toleration and liberty its fans would have us believe).

The major one, however, is that the reason the US Bill of Rights has actually guaranteed certain freedoms for our American cousins is that it was merged with the near-sacred US Constitution as the first ten amendments. To amend the Constitution is a major, major thing; even amending an amendment can cause some serious kerfuffle – witness National Rifle Association’s vehement defence of the Second Amendment’s “right to bear arms”.

The UK has no equivalent to the US Constitution. No piece of British legislation is sacrosanct in the same way, because the single fundamental of the British constitutional system (logically, as well as through legal convention) is that no parliament can bind another.

Without a US-style constitution – with so many checks and protections surrounding it that any amendments are incredibly hard to pass – any British Bill of Rights would, once passed into law, have no more chance of surviving and guaranteeing our rights than any other piece of paper passed by both Houses and rubber-stamped by Her Majesty. Remember the Human Rights Act, the failure of which has prompted this little PR exercise? Passed in 1998 and already both main parties are lined up in opposition to it, ensuring it will soon die a death. The same could (and probably would) happen to Cameron’s proposed Bill of Rights as soon as it got in the way.

In other words, without a fundamental overhaul of the entire British constitution, there is no way that anything can be legally guaranteed for more than the lifetime of a single parliament. Even then, there can be no legal bind on any politician to stick to a particular policy position, so all we would have to go on is their word…

In other words, Cameron’s “Bill of Rights” idea is meaningless window-dressing. All he actually needs to do is amend the Human Rights Act – a process which would take far less time and cost far less money than the lengthy consultations and parliamentary debates the passing of an entirely new Act of Parliament would necessitate. (A process, in fact, that would take little more than an afternoon, should Labour manage to pass the Legislative and Regulatory Reform Bill…)

Does Cameron genuinely believe in the whole civil liberties thing? Yep, I think he probably does – as long as he remains in opposition, at any rate. Is he approaching the problem in the right way? Not so far. Bells, whistles and shiny baubles are all very well and good, but no matter how pretty your ideas may look and sound, they have to actually WORK.

Sadly, however, Cameron is not yet in a position to propose the one route that would allow the UK to come closer than it ever has to giving its citizens inviolable rights (something no British subject has ever really had) – because that route is via binding international treaties, and most easily achievable through the European Union, adding an EU layer on top of the Council of Europe’s European Convention on Human Rights. But, aside from the generally anti-EU stance of most Conservatives, the likelihood of Cameron being able to achieve anything in Europe if he continues with his apparent plan to move Tory MEPs out of the European Parliament’s largest grouping is minimal to say the least. Still, perhaps he has a plan there too (.pdf).

What IS Cameron’s game? He’s been knocking around long enough now that I should have a definite take on the guy, but I simply can’t work him out.

Tony Blair – mediaeval madman?

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You have to get 43 paragraphs into his speech on anti-social behaviour (“ASB”, apparently) before you get to what he’s really getting at.

Unfortunately, most journalists seem only to have made it to paragraph 38, where he mentions (among many other reasons, all to do with the shifting nature of social relations and structure during the last century – although most of them actually started with the dawn of the industrial age) “mass migration”.

Some sections of the press, skimming through, seem to think this means he’s blaming crime on immigration in yet another attempt to pander to the tabloids. He’s not. At least, not really.

Blaming crime on newcomers and darkies may be populist for some sections of society, and may provoke others into blind rage, but the real worry is Blair’s categorical statement that he supports “summary justice” – also known as “arbitrary justice”, more properly described as “punishment based on accusation, not evidence”:

“Because we care, rightly, about people’s civil liberties, we have, traditionally, set our face against summary powers; against changing the burden of proof in fighting crime; against curbing any of the procedures and rights used by defence lawyers; against sending people back to potentially dangerous countries; against any abrogation of the normal, full legal process.”But here’s the rub. Without summary powers to attack ASB – ASBO’s, FPN’s, dispersal and closure orders on crack houses, seizing drug dealers assets – it won’t be beaten.

“That’s reality. And the proof is that until we started to introduce this legislation, it wasn’t beaten”

That’s right, folks – “anti-social behaviour” has been “beaten”. He continues:

“Without the ability to force suspected organised criminals to open up their bank accounts, disclose transactions, prove they came by their assets lawfully, you can forget hitting organised crime hard. It won’t happen.”

Yep – sod evidence, sod the rule of law. Sod legal rights that have been established for centuries and survived riot, rebellion and revolt in tact.

The really odd thing, however, is that near the start of his lengthy speech (though soon countered with statistics suggesting a severe decline in law and order since the 1950s), Blair insists that crime has gone down since 1997 and seems to acknowledge that public fear of crime has risen disproportionately to the overall crime rate. In other words, that the problem is all perception, not reality. He argues first that there is no crisis, then uses the same non-existent crisis to propose fundamental changes in the way this country works.

He again repeats ’97′s mantra “Tough on Crime, tough on the causes of crime”, yet dismisses all explanations of causes – from the “criminals are evil” brigade on one extreme to the “crime is caused by poverty and desperation” lot on the other.

In fact, Blair seems to have no idea what causes crime whatsoever. Which is fair enough, in many ways, as it’s bloody complex. You’d be an idiot if you thought you could explain the thing. Which means you’d also an idiot to try and tackle its causes if you have no idea what those causes are.

So it’s only appropriate that the causes of crime get not a single look-in during Blair’s speech. No appeals to improved education, to fostering community relations (no mention of the Respect Agenda either – remember that?), to providing opportunities that may give alternatives to crime.

Instead, he focuses exclusively on how best to ensure criminals (both proven and suspected) are punished. And this is punishment as deterrant, not punishment as rehabilitation.

In other words, having again used the line about “fighting 21st century problems with 19thcentury solutions”, Blair is proposing a return to pre-19th century solutions, where punishments were vastly disproportionate to the offence.

Blair’s vision of justice is a medieval one – inflict so much harsh retribution on people who you think have failed to abide by the law that all live in terror of the power of the state, and only the most desperate or depraved resort to crime – only to be met by a system of justice that allows little or nothing in the way of defence (hence his mention of “curbing… the procedures and rights used by defence lawyers”). The summary justice apparently approved of by Blair is little better than branding, trial by combat, or throwing suspected witches into a river.

Ah, but how silly of me:

“Each time someone is the victim of ASB, of drug related crime; each time an illegal immigrant enters the country or a perpetrator of organised fraud or crime walks free, someone else’s liberties are contravened, often directly, sometimes as part of wider society… if they [suspected terrorists] aren’t deported and conduct acts of terrorism, their victims’ rights have been violated by the failure to deport.”

Of course – the needs of the many outweigh the needs of the few… (A twisted utilitarianism, Tony? I thought you’d already rejected the 19th century’s contributions to the way we look at the world?)

But then comes the admission – hidden way down in the middle of the speech – of what the real thinking is here:

“even if they [suspected terrorists] don’t commit such an act or they don’t succeed in doing so, the time, energy, effort, resource in monitoring them puts a myriad of other essential task at risk and therefore the rights of the wider society.”

In other words, to save time and – especially – money, it’s better to punish the innocent.

With such brilliantly logical thinking, why not just shoot everyone in the head at birth? That’d prevent them from committing any crimes and save a lot of time, energy, effort and resources and all…

Legislative and Regulatory Reform Bill 2

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Following my earlier highlights, check out Spyblog on the second day -

“If you thought that yesterday’s debates on controversial Legislative and Regulatory Reform Bill were difficult to follow, then today’s list of Amendments is even more obscure.”What is clear is that since all the Government Amendments were ‘programmed’ or ‘guillotined’ to be dealt with yesterday, somehow, as if by magic, the one Government amendment which we saw as a partial concession, New Clause 26, which would have prevented the Human Rights Act 1998 from being amended or repealed , by Order, and which would partially have prevented the new legislation from being used to self-modify itself, has been dropped!”

Hello? Any proper journalists out there? You guys should be all over this.

Update: It’s passed. 259 votes to 213. It’s now up to the Lords and then a united front alliance of the Tories and Lib Dems in the Commons on the third reading. After that, a stroke of a ministerial pen is all that stands between us and dictatorship. Hyperbolic? No, not really.

Legislative and Regulatory Reform Bill debate highlights

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Late with this, but there was some top-notch attempted liveblogging of yesterday’s parliamentary debates over the Legislative and Regulatory Reform Bill over at the Save Parliament Blog – attempted, because the whole thing was typically impenetrable, and is continuing today.

A brief selection of some of the better points raised from the earliest stages of the debate, which came from MPs from all parties (at least, of the 40 or so who bothered to turn up). The whole thing is worth reading though:

John Redwood (Con): “Can he tell the House what kind of measures he will want to bring forward for repeal or amendment under these clauses, as his predecessor seemed to find it difficult to give us a list of examples?”David Howarth (Lib Dem): “new clause 19… subsection (3) would still allow the Government to remove by secondary legislation the right to jury trial. Jury trial might be considered to impose ‘a financial cost’ on employers or to be ‘an administrative inconvenience’ to a number of different bodies.”

David Heath (Lib Dem): “This is very early in the debate and in his ministerial career, but I urge him not to fall into the trap that his predecessor fell into when discussing the Bill, which is simply to assert that something will not happen or that he could not conceive of it happening or that it is not the Government’s intention for it to happen, rather than actually expressing in statutory form that it cannot happen…. although the Minister may be absolutely convinced that he has no intention of using the Bill for an inappropriate cause, a future Government may”

David Howarth (Lib Dem): “The problem all along with clause 3 is that it is drafted in subjective form�what matters is what the Minister considers to be necessary, and the Minister might consider the abolition of jury trial to be necessary to achieve a ministerial objective.”

Ken Clarke (Con): “Although the new clause is well-intended, its terms are still amazingly broad. Am I right in believing, looking at subsection (3), that these powers could be used to abolish a tax, to relieve an interest group or trade from a burden of taxation, or to abolish a crime, to make something lawful that was previously unlawful under the criminal law? Those may be very desirable things, but they are subject to more safeguards than consultation and Select Committees. They should be subject to parliamentary debate, before any such step is contemplated.”

Mark Fisher (Lab): “Does the Minister accept that a burden on one group in society may well be a freedom for another group? I do not understand how the interpretation of subsection (3) of the new clause would relate to, for instance, employment rights. From the point of view of the employer, which may be the state or a private company, employment rights are undoubtedly a burden on efficiency and productivity. According to my reading of the new clause, it would appear that employment rights could be removed by order of a Minister.”

Edward Garnier (Con): “The great thing about Report is that one can have these to-ing and fro-ing debates. That is important and I am grateful to the Minister for entering into the debate in that spirit. This point is most important. We are dealing with primary legislation that gives a Minister huge powers to make legislation. If the Minister is telling me that I, as a representative of my constituents, will have to rely on some as yet unformed Select Committee to exercise its judgment in a way that would be helpful to me and my constituents, that is extremely worrying. He must surely be able to understand that the making of criminal law should be dealt with here, right the way through every stage.”

As I say, read the rest…

A constitutional note to Tony Blair

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The way the British system works is that the legislature makes the laws, and the judiciary then applies them. If, as head of the executive (and therefore the person responsible for ensuring that new laws that pass through the legislature are well-written and clear in intention) you fail in your duty of providing good laws, then blaming the judiciary for applying them in the way set out in the legislation you are responsible for having drawn-up is pathetic buck-passing.

In other words, Tony, if the Human Rights Act is flawed (which it arguably is), then it is not the judges’ fault – it is yours. And after nine years of successive bad laws having been orchestrated by you and your government, one might argue that rather than reforming the judiciary it is instead time to make changes to the executive which has given the judges so many bad laws to apply. Starting at the very top.

It is certainly not an indication that new laws are necessary, when it is in fact perfectly feasible – not to mention significantly faster and cheaper – merely to amend the laws which you cocked up when passing in the first place.

With such a basic lack of understanding of the British legal system you have to wonder just how our dear Prime Minister ever managed to qualify as a lawyer.

Update: Forgot to mention – the Legislative and Regulatory Reform Bill remains one of the very worst of all Blair’s bad laws – even after the supposed concessions. Its broad wording and lack of any real specificity, backed up as this is by government assurances that the bill will not be used in dangerous ways when passed (without incuding any such safeguards in the wording of the bill itself) are typical of Blairite legislation. Judges, when faced with such vague legislation, have no choice but to interpret it to the letter. So despite the assurances, the judiciary would have no choice but to back any minister who decided unilaterally to abolish elections or the right to trial as, thanks to the current vague wording of the bill, this would be entirely within the law.

Blai’s bad legislation (again)

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Tony Blair: “I’m crap at drawing up legislation – so what we need is even more legislation that I’ll draw up to counter the bad legislation I passed a few years ago!“Labour’s latest slogan: If in doubt, chuck more laws at it until it goes away.*

* Warning, though having been tested against terrorism, protestors, criminals, foreigners, and the entire population of Great Britain, tactic has yet to prove even slightly effective…

Buried news

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Today’s elections mean it’s a good time to bury stories, and as such, details of the government’s amendments to the Legislative and Regultory Reform (Abolition of Parliament) Bill have trickled out of the Cabinet Office. The full text of the amendments can be found here (.pdf) – they are most likely worthy of close examination…

Yet more dismantling of the constitution

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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?