http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2003/06/18/do1802.xml

A real constitution would clip Blair's wings

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.