Tuesday, March 09, 2004

How to have a constitutional crisis: advice!

1. Somebody has to be unnecessarily arrogant.
2. Someone else has to be unreasonably stubborn.
3. Both have to develop severe target fixation.
4. The whole must involve the institutions society sets up to prevent these occasions.
5. Stir.

So - all these have now been followed, and we have a crisis! Now, the Ranter would like to offer some useful hints as to how to beat back the nonsense both parties to the crisis will offer in the next few days. Because they will. David Blunkett has already been snarling about "unelected judges blocking the will of parliament". Various conservative types have predictably pomped that it is outrageous, unthinkable etc to tamper with ancient institutions of blah without even consulting the Queen (unproven, AFAIK) blah blah. The conservative response to the constitutional reform bill should remind us of one thing: much of it is a good and honest idea. The lord chancellorship is a weird beast - an unelected legislator who is also a judge and an equally unelected minister - and it is overdue that it changes. But the deep purpose of the bill is not that. We all know that it is a quick fix to "complete" House of Lords reform without doing anything scary, difficult or democratic. The rest has been included as a sweetener. And this is the problem - the basic project has gone badly wrong.

The Government will appeal to a crude understanding of democracy as identical with a parliamentary majority. This may be described as the "will of parliament", "democracy", "the voice of the people". It is untrue. Democracy does not mean the absolute power of whoever had majority support up to five years ago in entirely different circumstances. On that understanding, the government might declare an end to elections - it has a majority! - and force it through by the Parliament Act, and we should all be expected to clap. Where is our protection against the government, or against the ultra vires actions of its agents, between elections? In Parliament? Only given a minimal majority. A working majority means no effective protection. Anything over 50 means we have to rely on the courts. Why? Here Blunkett will say that judicial review is only recent. What of it? The doctrine that the Crown itself is as subject to the law as its subjects is first stated in Magna Carta. Like any legal principle, it is meaningless without an operational tribunal of judgement with the executive power of redress. If Mr. B means what he says, he believes in fake rights, fake law. You can have impressive rights in law, but no redress should he wish to violate them. And this is very foreign indeed. The raison d'etat has no status in the British constitution - all power stems from law.

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