Free Life Commentary,
Issue Number 107
5th June 2003
Farewell to the Lord Chancellor:
A Brief Comment on the Continuing New Labour Revolution
by Sean Gabb
Brian Micklethwait has suggested that I should comment—no matter how briefly—on the announced abolition last week of the office of Lord Chancellor. Being the resident Jeremiah at the Libertarian Alliance, I suppose I have a duty to complain. So I will.
Last Thursday, Tony Blair reshuffled his cabinet. Those Ministers who had performed badly by his standards were dismissed. One of his main loyalists resigned under circumstances that have given rise to much private speculation. Mr Blair then moved some of his remaining Ministers around, and appointed a few more to fill up the gaps.
This is normal practice for a government as old and strained as this one now is. I have lived long enough to see it happen many times before. What makes it worthy of comment is the unexpected changes to the way in which the judiciary is managed. The Lord Chancellor was dismissed, and instead of being refilled, his office has been announced for abolition, its main functions being put out to commission or being eventually regathered into a Ministry of Justice. At the same time, the senior Judges are to lose their seats in the House of Lords and will be given their own Supreme Court over which to preside. The immediate reason is a political crisis for Mr Blair. I cannot know the details, but it is obvious that he is under severe pressure; and the changes may have been meant to draw attention away from the sorry fact that he is running out of loyalists, and that those he has are not very good.
The principle of the changes, though, is not bad in itself. In standard constitutional theory, the Lord Chancellorship is an anomaly. He is a Judge. He appoints all the other Judges. He is the Speaker of the House of Lords. He also sits in the Cabinet as a creature of the Prime Minister. The modern doctrine of the separation of powers—as most notably expressed in the American Constitution – was derived in the 18th century from observation by Montesquieu and de Lolme, among others, of the British Constitution. They plainly did not observe very well.
Of course, there is no reason for correcting an anomaly simply because it is. There is no reason to suppose that any of the potential conflicts of interest for a Lord Chancellor have produced actual evils. Even Lord Irvine, the last holder of the office, was never accused of political bias in his legal functions. He appointed judges with the traditional impartiality, and defended them against attack by his colleagues in the Cabinet. He was similarly impartial in his judgments.
This being said, the potential for conflicts of interest has been greatly increased in the past few years. The steady growth of judicial review since the 1950s, plus the Human Rights Act 1998 – plus the seizure of review powers over primary legislation in the Thoburn case of last year—have transformed the judiciary. Increasingly, the Judges of the civil law are no longer mainly doing justice between subject and subject, but are ruling on the legality of executive actions and even now on the constitutional validity of Acts of Parliament. Leaving the Lord Chancellorship untouched might be dangerous. Evils that in the past were potential, and that as such gave no reason for change, might easily soon become actual. Now that the evolution of our laws is taking us towards a Supreme Court—and bearing in mind that this is an entirely welcome evolution on liberal grounds—the time may already have come for making the Lord Chancellor into something less of a constitutional hybrid. I say this, even if it seems that the present changes have not received proper consideration.
My objection is not to the principle of reform, nor even really to its attendant lack of consideration—this lack can be supplied given reasonable discussion. My objection is to the change of names. There was no good reason to abolish the office of Lord Chancellor. The most fundamental legal reforms in English history were carried though during the third quarter of the 19thcentury. First, there was the fusion of law and equity. Then there was the setting up of a proper system of law reporting and the movement of the civil courts from Westminster Hall to the New Courts in the Strand. Then there were the Judicature Acts of the 1870s. These abolished the jumble of competing jurisdictions inherited from the middle ages that had made justice into an expensive lottery, and replaced them with a single High Court of Justice divided in its business on rational lines and with a codified procedure. In its substance, what the Government announced last week is nothing compared with this.
Yet, for all its radicalism, the Victorian reformers did all they could to preserve the old associations. Even if the substance was entirely replaced, the names of Queen's Bench and Chancery were retained. The New Courts were built to look old. Within a generation, I doubt if anyone but a legal historian really noticed what had been done. The present set of reforms is quite different in its regard for old associations. A few years ago, writs became claim forms and plaintiffs became claimants. There are proposals to stop the Judges from wearing their horsehair wigs. Now, there is to be no Lord Chancellor. The office has existed in England for at least 800 years, and began as a sort of secretaryship to the King. It is older than Parliament. Thomas Beckett was Lord Chancellor to Henry II. Thomas More was Lord Chancellor for Henry VIII. The office was satirised in Iolanthe. It has always been around in English history, and its holders have been some of the great men of English history. Even before the proposed abolition, the cumulative effect of these reforms has been to advertise a break with the past. Let another generation go by, and only a legal historian will be able to understand the mass of obsolete words contained in law reports from before the present century. Threads of continuity will have been snapped. The past will seem more of a foreign country than is needed.
That is my objection. It may seem trifling to argue over words and appearances, but these are part of our national identity. These are part of what of what it means to be an Englishman. They help to tell us who we are and what we were. Had our history been as unfortunate as that of most other European countries in the 20th century—and usually before—it might not be bad to advertise a break with the past. Throughout the old Soviet Empire, for example, I can think of no objection to the renaming of towns and streets during the 1990s, to the pulling down of statues and to the restructuring of the functions and the names of political institutions. But, as I keep insisting, the most important protection of English liberty is the apparent continuity of our institutions. Take away our grounds for conservatism, and we are left with a set of new institutions that may have a splendid future, but which are now too evidently new to attract the unthinking loyalty that is their surest source of strength.
I could be wrong, but I believe there is a conspiracy among our political masters to destroy our national identity and with it our ancient freedoms. I say I could be wrong because I remember the absurd conspiracy theories put forward in the 1980s by the opponents of Margaret Thatcher. Socialists like Ruth Levita and Martin Jacques claimed there was a coherent project to bring about a "free market and a strong state". Except there was little actual freeing of markets, this was an accurate description of what happened in the 1980s. It was, however, an unintended consequence. Thatcherism was never a coherent ideology, but was instead a muddle of quite separate ideologies. There were the free market libertarians, the traditionalist conservatives, the middle way social democrats, the social authoritarians. These all got part of what they wanted, though in a pretty random way, and the result was the toughened big government machine that New Labour eventually inherited.
Perhaps the same reductionist analysis can be applied to all that has been done since 1997. Perhaps there is no New Labour project. Certainly, there is no unity within the Government on the main issues of the day. We have seen them fall out over the war with Iraq and the Euro.
But while I could be wrong, I do believe there is more here than just a set of unintended outcomes. This is a government above all of philosophes. For all it has put up taxes and increased the burden of regulations, this is not a socialist government. Considered in themselves, many of its acts have been rather liberal—always granting that many other have not. It passed the Human rights Act. It accepted the judicial coup announced in the Thoburn judgment. It has been no more friendly in practice to the claims of the European Union than the Conservatives were in office. It has tried to reform the public services on market principles—and if it has failed in this, it is because of a deference to vested interests and a lack of economic understanding for which it may be fairly blamed but not denounced.
The general problem is that the New Labour turn of mind is frankly contemptuous of the past. Mr Blair's "forces of conservatism" speech in 1999 was an accurate expression of how these people regard the English past. They want a New Britain, and regard all that is left of old England as an embarrassment to be cleared away as soon as possible. Some New Labour people, I accept, have the fairest intentions. I have eaten with these people. They often have more sympathy for libertarian concerns than Conservatives have ever had. But many of their seniors are malevolent. They have no liking for liberties whether ancient or modern. They want a politically correct police state and a corporatised economy. Ordinary people are to have the appearance of freedom, but little of its substance, and the world is to be made safe for an elite of politicians, big businessmen and their pet intellectuals. What joins these different factions is their contempt of the past. And this is fatal to the benevolent strain within New Labour. By ripping up every old association on which they can lay hands, our masters are turning a nation into a frightened mob. They may be doing to us what the revolutionary governments did to France after 1789. And, while the men of 1789 had some excuse for not understanding the consequences of their remodelling, their modern successors have no excuse.
I note with surprised approval that the Conservatives have rejected the abolition of the Lord Chancellorship. They have decided to leave their existing system of shadow portfolios, complete with a shadow Lord Chancellor. They seem committed to undoing the abolition once they are back in office. I am glad. Generally speaking, I have been reasonably impressed by the Conservative performance over the past few months. The strategy of revival that I thought I could see in the spring and summer of last year has re-emerged, and this time in opposition to a much weaker and more discredited Government than was the case last year.
© 2003 – 2017, seangabb.
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