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- guardian.co.uk, Sunday December 7 2003 00.20 GMT
As with tuition fees, the first impression is that Left-leaning people should be behind the Government for once. The office of Lord Chancellor, which Blair wishes to destroy, is a constitutional monstrosity that mangles up what should be the separate branches of the legislature, executive and judiciary. Reformers have been calling for its abolition for decades. Now Tony Blair is giving them what they have always said they wanted. As for the Government's plan to remove the last hereditary peers from Parliament, what could be finer than the long overdue extinguishing of the last sparks of aristocratic rule?
And yet, and yet... Labour supporters are despondent while the Government's opponents are filled with righteous fury. The splendidly named Lord Justice Judge came as close as a sober and learned lawyer could to calling Blair a Nazi. ('Hitler came to power by getting a significant popular vote, then subverting the constitution,' he noted, darkly.) The Lord Chief Justice, Lord Woolf, didn't go quite as far as Judge Judge. He confined himself to saying that the times were like the seventeenth century, when 'a lot of judges lost their heads' for defying the state and suggesting that Ministers wanted to stop the judiciary 'protecting the public from governments exceeding their democratic powers'.
As for the peers, all co-operation between Government and Opposition has broken down in the House of Lords. Last week, the Tories and the Liberal Democrats forced through a complaint against the Queen's Speech for only the second time since the Second World War. They talked of broken promises and treachery; of Britain going from aristocracy to quangocracy without the intervening stage of democracy. Their Lordships promise a guerrilla war. And although it seems faintly absurd to imagine the peerage as freedom fighters, a demoralised government can expect to be harried at every turn.
Behind this and the other crises of what may be the last days of Tony Blair lies the capriciousness of his administration. Even if Lord Hutton finds that the Government had every right to complain about the BBC's coverage of the Iraq war, Alastair Campbell's determination to break the butterfly of the Today programme on the wheel of the Whitehall machine was the act of an obsessive. Even if the Prime Minister is a better friend to working-class taxpayers than his hypocritical backbenchers, his declaration last week that there would be no compromise, when there has to be a compromise, was the act of an isolated leader suffering from an acute case of bunker fever.
The coming constitutional crisis is no different. Caprice and panic explain it. In most democracies, changing the constitution is the work of years. There are long debates and referendums before a consensus is reached. The decision to abolish the 1,400-year-old office of Lord Chancellor came from nowhere in June. There was no debate in the Cabinet or in Parliament. One minute Lord Irvine, the Prime Minister's former pupil master, was Lord Chancellor and saying there was no need for change, the next he was out, to be replaced as Chief Chum by Lord Falconer, the Prime Minister's former flatmate and a supporter of abolition.
The haste and secrecy of the change explains the judiciary's fears. The Lord Chief Justice may appear to be a bewigged hysteric when he intimates that he fears being led to the Tower, but he only learnt that Falconer was to be the last Lord Chancellor minutes before the change was announced.
He isn't necessarily being paranoid when he frets about judicial independence. Lord Irvine was its sole supporter in Cabinet. David Blunkett and others attacked him as an anachronism, but not for the reasons given by generations of legal reformers. It wasn't the fact that a politician was in charge of a judiciary that bothered them, but the fact that Irvine wasn't political enough. In the summer Blunkett let it be known that he wanted someone with 'political nous' to run the legal system; someone who would stop the judges passing awkward verdicts that restricted the Government's strenuous efforts to fill the prisons and kidnap the children of asylum seekers.
Last week, we had the elevating spectacle of Her Majesty's Secretary of State telling his critics that he 'couldn't give a toss' about their complaints that he had prejudiced the trial of a terrorist suspect. (Blunkett described him as 'a very real threat to the life and liberty of our country', even though the man hadn't been charged, let alone convicted.) Earlier, he had declared that he was 'fed up with having to deal with a situation where Parliament debates issues and judges then overturn them'. Before that, he told the Police Federation that he wanted 'judges who help us and help you to do your job'.
In Whitehall, Lord Irvine was denounced with one of the most biting insults in the New Labour lexicon. His department, it was whispered, was the prisoner of 'the producer interest'. It thought its job was to protect judges from political interference, rather than force them to keep pushing the prison population ever higher by giving the coppers the rulings they wanted.
To concentrate on Blunkett, however, is to miss where the responsibility lies. Every Home Secretary over the past decade has been attacked in the liberal press in articles headlined 'Is This the Worst Home Secretary Ever?' - usually written by me. (The answer is always 'yes', by the way.)
But Blunkett is not the source of the venom, he is only repeating what the Prime Minister says. Hardly anyone noticed that Tony Blair's speech to this year's Labour Party conference had a wide authoritarian streak. The criminal justice system must be more concerned with the guilty going free than the innocent going to jail, he said. The Home Office must be free to deport asylum seekers without judicial interference. Such sentiments may not make Britain the Nazi Germany of Judge Judge's imagination, but they don't make it a recognisable liberal democracy either.
In his attitude to the judiciary, as much as in his attitude to the BBC and his backbenchers, Blair shows an impatience with fetters on power. Listen carefully enough and you can almost hear the PM cry: 'Do you know who I am?'
In this cold climate, it's best to be wary of the warm words of the powerful. We're told that, with the Lord Chancellor gone, more women and more members of ethnic minorities will be appointed to the bench. It sounds smashing, but you ought to have learnt by now to be suspicious of the new elite when it talks of equality. Political correctness can be the handmaiden of authoritarianism. If more women and members of ethnic minorities are appointed to the judiciary, who will they be? Will they be prepared to stand up to Ministers? Will they have the strength of character to ignore the howling media?
A preference for diversity over democracy is the last liberal justification for the 'reform' of the House of Lords. Once again, the capriciousness of this Government explains the opposition. Until a few months ago, the Tories thought they had a deal: the remaining hereditary peers could stay in Westminster until there was an agreement on what should be done with the Lords. The deal was torn up overnight.
Suddenly, the largely Tory peers were to be turfed out, and the House of Lords was to be filled with appointees. Lord Strathclyde, the Tory leader in the Lords, believes that the Government was panicked by the thought that the peers would insist on New Labour having a referendum on the European Constitution - an embarrassment that could be avoided only by culling them. He can't prove the charge, but it does fit the pattern of the past year, of sudden flashes of temper from men in a bunker lashing. To be sure, the Government will be able to say that more women and more members of ethnic minorities will be appointed to the Lords, but the question which women and which members of ethnic minorities will hang in the air.
I started this piece by saying that maintaining and extending power was New Labour's first concern. But the realities of power in all other mature democracies require that Parliaments or Senates have democratic legitimacy, that leaders listen to their supporters and that judges have the right to intervene when the law is being broken. The paradox that Blair may be unable to resolve is that his determination to maintain and extend his power may destroy him.
