Executive stress

With an increasingly powerful executive seemingly able to bundle controversial legislation through parliament at will, Roger Smith asks whether it is time to address the nature and substance of our constitution

A week may be a long time in politics, but it is short for constitutions. Constitutional reform tends to move slowly – like glaciers before global warming. This usually makes the subject unattractive to politicians. However, ministers of the current government have provided honourable exceptions.


Thus, we have the Human Rights Act 1998, the Constitutional Reform Act 2005 and now the prime minister’s grim warning – seemingly addressed to constitutionally minded judges every bit as much as to bomb-toting jihadists: ‘The rules of the game are changing.’


As a result, the ship of state looks headed for the rocks of a full-blown constitutional crisis. Charles Clarke is reportedly miffed that the judges have declined his invitation to address them on his various concerns. David Blunkett was only stopped at the last moment from appropriating the Court Service within the Home Office. Tony Blair wants, effectively, to rewrite the European Convention on Human Rights (ECHR) to allow the repatriation of undesirables without judicial consideration of whether they might be tortured. This being politically impossible, he would like the judges to conspire with him to rewrite the effect of the convention.


The judges are clearly getting more and more exasperated. The House of Lords is in no mind to display undue judicial deference to the executive – witness its eight-to-one trouncing of the government’s flagship anti-terrorism legislation.


Some elements of the forthcoming clash may actually be desirable. After all, independence of the judiciary provides one index of the health of a society. At the opposite end of the extreme, 13 of Hitler’s judges and judicial figures were themselves tried at Nuremburg, charged effectively with the display of insufficient autonomy.


On the whole, however, it is surely better to avoid destructive constitutional conflict.


Some areas of tension can be anticipated and removed. The Constitutional Reform Act has allowed Lord Falconer to transform the old fuddy-duddy Lord Chancellor’s Department into the Department for Constitutional Affairs. Alas, he also shows little interest in continuing to represent the interests of the rule of law within government. These have rather gone by the board and the results are becoming clear. It is unlikely that Lord Chancellors of recent memory – Hailsham, Mackay or Irvine – would have encouraged the government’s proposal to oust judicial review of asylum appeals.


Furthermore, ministers must recognise that the Human Rights Act has let the genie out of the bottle. It is not clear that legislation could now be successful in any attempt to mandate the judges to allow any deal with Algeria that the prime minister cares to make. And, more widely, ministers should learn to bend their heads to the requirements of proportionality, just as they have been led by the development of judicial review to submit to the demands of rationality. This need not involve major confrontation or even deep invasion of powers for which ministers are democratically accountable. It just means that they should, for example in anti-terrorism legislation, justify any restriction of civil liberties on the grounds that it is the minimum required by the circumstances and allowable under the broadly agreed norms of the ECHR.


More widely, we, as lawyers, need to recognise that the Human Rights Act is a measure that is better understood by us than any other group in society. Schoolchildren are still being fed – and politicians peddling – crude constitutional understandings based on Diceyan notions of absolute parliamentary sovereignty. It is time to absorb a bit of Montesquieu and recognise the benefit of a separation of powers. We might then recognise that Mr Bush’s constitution gives him considerably less power than Mr Blair’s.


Here’s a thought: our executive has too much power. For example, it responded to judicial defeat on anti-terrorism by ramming through the Prevention of Terrorism Act 2005, legislation with profound consequences for civil liberties, within 18 days from beginning to end. Whatever you think of the measures themselves, this haste looks pretty unworthy. Fundamental principles of criminal justice were overturned by what became the Criminal Justice Act 2003. This was so long that, with more than 300 clauses and nearly 40 schedules, it just could not be properly scrutinised. Parliament needs to be more effective.


The constitution has become unbalanced; it needs urgent consideration. Practitioners are probably as reluctant as politicians to consider long-term and seemingly abstract issues like the constitution. It is, however, the time to do just that.