By Janet Daley
(Filed:
18/06/2003)
Does anyone in this Government know what a constitution
is? Or what it
actually means to bring about "constitutional" change? The
word seems to
have figured significantly in much of the political chaos of
recent
weeks.
First, we had a wildly contentious draft European
constitution dismissed
as a bit of mundane housekeeping. Then we had a
shambles of a Cabinet
reshuffle, into which "constitutional reform" was
thrown as a half-baked
gloss.
I heard Jack Straw on the Today
programme yesterday expressing sarcastic
bemusement at the fact that many
Tory frontbenchers who are now
demanding a referendum on the proposed
European constitution had opposed
a referendum on the Maastricht Treaty,
"even though that was more
radical". Does he not realise that a treaty is a
treaty and a
constitution is something else altogether?
A constitution
is nothing less than the foundation and raison d'jtre of
a state. Growing up
in America, a nation of displaced people whose only
common bond is their
adherence to the principles enshrined in their
Constitution, one learns to
revere the document as the ultimate
authority for all political action.
To say that something is "unconstitutional" is to put it beyond the
pale
of legality and political morality. So far as I can tell, Tony
Blair
seems to think that "constitutional" change simply means an
abandoning
of some historically given arrangement: an administrative
alteration of
a fundamental kind.
Coming from a country that has never
had a written document as the basis
and justification for government, he
seems to have no sense at all of
the immutable nature of this project he is
undertaking: that a
constitution, properly understood, invents (or
re-invents) a nation.
So he talks glibly of creating a "US-style Supreme
Court" as if he could
simply bolt on to British political culture what he
sees as an
auspicious bit of Americana. But, as every American schoolchild
learns,
the Supreme Court exists to interpret the Constitution. That is what
it
is for. It is an integral part of the system of checks and
balances
outlined by the Constitution itself.
It is certainly not, as
many people on his own side have pointed out
rather tartly, independent of
politics. All those Labour backbenchers
who are still chuntering about how
George W Bush stole the presidency
with the help of a "Right-wing" Supreme
Court are deeply unimpressed by
Mr Blair's infatuation with Washington
judicial arrangements.
(Presumably if the Supreme Court had given the White
House to Al Gore,
they would be enthusiastically onside.)
Supreme
Court justices are nominated by the executive branch and vetted
by the
legislature. That means that, if, as is frequently the case, the
Senate is
controlled by the opposition party, there is one hell of a
political ruck
over the appointments put forward by the White House. As
often as not in
recent years, the argy-bargy has been between liberals
and conservatives
(over abortion, for example) rather than being a
party-line division.
Somehow I cannot see Mr Blair providing a mechanism in which
the
Opposition would have such power to cancel out the decrees of a
sitting
executive. Not if his speech yesterday, in which he cast the prospect
of
Tory revival as a wicked cataclysm rather than simply a
political
alternative, is anything to go by.
Mr Blair and his friend
Lord Falconer, who still seems faintly startled
to find himself Lord
Chancellor, are now quietly dropping the "US-style"
tag from their reform of
the judiciary. They say that the Government is
determined to create an
independent body for appointing judges that will
be untainted by political
influence, which sounds like a reasonable and
attractive proposition.
But who will appoint the appointers? And why is their own Home
Secretary
busily saying the opposite? He wants judges who are more - not less
-
accountable to the electorate, which has to mean either to the
voters
through direct election or to their elected representatives
in
Parliament. Either way, that is the opposite of being
"politically
independent".
Mr Blunkett, too, sounds credible and
persuasive. There is a case for
saying that, in a democracy, all institutions
(particularly the criminal
justice system, which is so essential to civil
order and personal
security) should be answerable to the people. But how can
the Government
believe both these things at once?
Labour spokesmen are
getting themselves more and more tangled up in
every broadcast interview
about the status of the judiciary, the nature
of democracy and its
relationship to justice. I heard one of them say
desperately that "democracy
and justice are entirely separate things".
Um, no - not entirely separate,
surely.
Perhaps he was confusing democracy with "populist sentiment" and
justice
with the particular judgments of the courts. No one has yet figured
out
a flawless way to make the judicial system democratically
accountable
without turning it into a species of tawdry political life in
which
district attorneys run for office (as they do in many parts of
America)
on their record of successful convictions.
What Lord Falconer
would appear to favour is enforced social engineering
in court appointments.
In an interview at the weekend, he said: "We
obviously need a diverse
judiciary that reflects society." He was "very
keen" to see a higher
proportion of female, black and ethnic minority
judges.
But if these
appointments are to be made by a body over which the
sitting government has
no political hold, how could this ambition of his
be fulfilled? And what is
the relevance of his opinion on the matter?
This is the kind of question
that a real constitution sets out to
answer, but then a real constitution
would inevitably put limitations on
Mr Blair's power and that is not the name
of this game at all.