Tories see no need for legal reform
What would the Opposition do with our time-honoured judicial system? The answer is evolution, not revolution, writes Joshua Rozenberg, Legal Editor
In the first of his planned constitutional changes, Lord Falconer will go to the House of Lords on Monday to announce a new division of judicial responsibilities between himself and the Lord Chief Justice.
Fortunately, we shall not be left to guess whether Lord Woolf feels the judges have come out well from weeks of negotiations between himself and the current head of the judiciary. In order to respond to Lord Falconer's proposals immediately, the Lord Chief Justice has postponed the start of a three-day series of criminal appeals in Manchester.
But we should still beware of cosy deals among judges. If the Government's proposals are to become law, they must pass muster with opposition MPs. And in a policy paper launched today, two Tory front-bench spokesmen say that "as Conservatives who support evolutionary rather than revolutionary change," they intend to reject "Tony Blair's teenage radicalism".
Alan Duncan, who shadows Lord Falconer, and Dominic Grieve, the shadow attorney general, have known each other since they were Oxford undergraduates in the mid-seventies. On them now falls the task of persuading Lord Falconer to think again.
Mr Duncan sees no "intellectual rhyme or reason" in Government plans to abolish the Lord Chancellor, to replace the law lords with a supreme court and to create a judicial appointments commission.
Lord Falconer said on this page two weeks ago that judges should be ruling on laws, not making them. An appointments commission would make the process more transparent, he believes. And he insisted that modernising the system would enhance judicial independence.
"They seem to think that anything that's old is bad," Mr Duncan tells me. "They don't realise it may be old because it's good."
Mr Duncan and Mr Grieve take the view that the Government's changes would be disruptive and expensive, introducing change for no clear purpose. The question posed by Mr Duncan is whether the changes will do anything for better justice in Britain. He believes not.
Tories fear that the judges' independence is under threat. "The danger is that, in the criteria for judicial appointment, there will be qualities other than merit," Mr Duncan says.
He recalls Lord Falconer saying, in oral evidence this month to the Select Committee that monitors his department, that future judges should be "non-bland". What does that mean, he wonders? And what strikes him as "particularly sinister" is the idea that the judges should be reflective of the public as a whole. That, he believes, amounts to "politicising the judiciary, on the American model".
Ministers are offering the public a judiciary that they think people might find more attractive, Mr Grieve explains. "And that can only be done by a form of politicisation."
But, surely, the present structures are indefensible? If we were designing a system from scratch, we would never give a politician a seat in the highest court, with untrammelled power to appoint anyone he chooses to the judiciary. We would never give our most senior judges a role in making the laws that they would then have to apply.
Actually, says Mr Grieve, the present system is not so bad. "If it were, one would have expected the legal challenges to have been piling up over the past four or five years. That has not happened."
He concedes that the Lord Chancellor should cease to decide cases, something that has already been achieved without the need for legislation. But the holder of this ancient office should continue to take the judges' oath, he believes, and to sit ceremonially from time to time.
The Tories see the Lord Chancellor's Cabinet position as a brake on executive power. His symbolic role as "keeper of the Queen's conscience", thought to date back to 1587, has transmogrified into minder of the Prime Minister's conscience and guardian of the supremacy of the rule of law.
Turning to the law lords, the Tories reject the argument that there is no point in having senior judges in Parliament if they cannot speak freely in debates. "That's nonsense," says Mr Grieve. "Law lords and other judges also have to restrain themselves in what they say at dinner parties. They have coped with this over many decades."
There are plenty of part-time judges in the Commons, Mr Duncan points out. "We have MPs sitting as magistrates and Recorders. No one has ever accused a senior judge of acting politically in court." Not even Lord Hoffmann, Mr Grieve adds - though the law lord sat in the Pinochet case while disqualified because of his links to one of the parties.
Why, then, is the Government depriving the law lords and other senior judges of the opportunity to express their views effectively in Parliament? It is because the Government has no confidence in constitutional conventions, Mr Grieve believes. "Having broken all sorts of conventions over the past six years, they have persuaded themselves that anybody else's attitude to conventions is likely to be as cavalier as their own."
Is it safe to leave so much to convention? What if we were to have a Lord Chancellor who did not play by the unwritten rules?
Conventional safeguards are much more effective, says Mr Duncan. "When the tongues start wagging, and it's serious, you can act on things far more quickly than if you have a rules-driven system."
But what are the prospects of Opposition peers blocking the Constitutional Reform Bill when it returns to the House of Lords in the late autumn?
"It's touch-and-go, frankly, because the Lib Dems say they want a supreme court," says Mr Duncan.
But his shadow cabinet colleague believes that there is still scope for debate. "I think the Government has got a lot of persuading to do - first, that its model is right and, secondly, that it is necessary to implement this model as quickly as it wishes."
"The name and the notion of a supreme court are alien and add nothing to the system we have, which has been shown over time to work well," Mr Duncan adds. "A supreme court is essentially a body to adjudicate on whether something conforms to a written constitution. We don't have one."
People can see that the origins of the whole project are questionable, continues Mr Duncan. "The botched reshuffle and the absurd 'let's get rid of the Lord Chancellor - oh, crikey, we can't after all' moment have sown the seed in people's minds that this has not been thought through, and may contain dangers."
Not least, I suppose, the danger that building a new court - or even refurbishing an existing building - will take years and cost millions. As the shadow spokesman on constitutional affairs observes, nobody could be more familiar with this risk than the former minister for the Dome.
"You'd have thought that, when it comes to a building, Lord Falconer would have learned his lesson."