This government has it in for the House of Lords. First it gets rid of most of the hereditary peers and all their heirs, then it abolishes or emasculates the Lord Chancellor and proposes to replace the Law Lords with a "Supreme Court". Why?
There are all sorts of reasons - contempt of tradition, fear of independent thought, sheer self-importance, but most interesting are the public reasons: in the case of the hereditary peers, "democracy", and, in the case of the Lord Chancellor, the undesirability of a minister appointing judges. The reason for a Supreme Court has been less forthcoming, but it seems to have something to do with the perceived need for a "separation of powers".
The interesting thing about these reasons is that they are based on abstract doctrine. They are theoretical. Those who are suspicious of theory in politics, i.e., conservatives, praise Britain's constitution for working in practice rather than in theory, so you would expect them to be making a big noise, exposing the doctrinaire nature of the reforms and mounting a vigorous defence of our traditional institutions - but the Conservative Party seems powerless in the face of Blair's puerile derision of traditions he lacks the imagination to understand, and does nothing but complain about the way the reforms are carried out. If the Conservatives are too frightened of seeming "old-fashioned" to stand up for the Constitution, then it is all the more important that organisations such as the Conservative Democratic Alliance take a stand. So here is the case against the government's reforms of the Lords.
When something involving effort and risk is unnecessary, it should not be done. Constitutional reform always involves effort and risk, so it should be carried out only when necessary. The abolition or emasculation of the Lord Chancellor is said to be necessary to prevent a politician appointing judges. But why is it necessary to prevent that? Because, the argument goes, that is necessary to preserving judicial impartiality, an indispensable condition of justice. Only it isn't. A number of miscarriages of justice have come to light over the years: I may be wrong, but I don't remember even Michael Mansfield attributing a single one of them to the trial judge's political bias, let alone to his original appointment by the Lord Chancellor. So while the Lord Chancellor'sappointment of judges may compromise judicial impartiality, the fact is that it doesn. No method of choosing judges - not even an "independent committee" - is incorruptible, but the current system has the great merit that one man and one man alone is ultimately and clearly responsible, and his political bias is already well known, so any abuse of his power would be easy to detect. If such an abuse were detected, the Lord Chancellor and the Prime Minister who appointed him could be easily replaced. And since the Lord Chancellor has little power to alter judges' decisions, any abuse he was guilty of would be limited in its effects. So not only is the risk to judicial impartiality theoretical, but also there are adequate safeguards against even that theoretical risk.
Why, then, the reform? Nobody can see into the mind of the Prime Minister, but one explanation is that the European Convention on Human Rights, incorporated by Labour into British law, enshrines the "right" to a fair trial. But since there is no evidence that our system of appointing judges is producing anything other than fair trials, this is hardly adequate, unless you believe that rights are so sacred that everything must be done to destroy the chance of their ever being infringed - an impossible requirement, and one that in its distortion of governmental priorities infringes everybody's right to be governed well.
Let us look instead at the government's proposal to remove the Law Lords from the House of Lords and to set up a Supreme Court. The reasoning is that those who administer the law should not be involved in making it (an amusing argument from a government that, thanks to the aforementioned European Convention on Human Rights, has given judges more law-making powers than they have ever known) - an argument unmistakably derived from the doctrine of the separation of powers laid down by the 17th-Century French jurist Montesquieu in his great work L'Esprit des Lois and embodied in the Constitution of the United States, in which the executive (the President and his Administration), the legislature (Congress), and the judiciary (headed by the Supreme Court) have none of their personnel in common, with the exception of the Vice-President, who acts as Speaker of the Senate. The aim is to ensure that each arm of government acts as a check on the other - a sensible aim, but one that doesn't need each power to be entirely separate. On the contrary, in Britain, Cabinet Ministers's membership of the Commons makes them directly accountable to it and allows them to be outvoted within it, and the Law Lords, by virtue of their membership of the Upper Chamber, are able to contribute much-needed legal expertise to law in the making without having the numbers to overrule the rest of the legislative body. The Lord Chancellor's political role as a member of the Cabinet ensures that the executive can to a degree deter abuse of power by judges, just as the judges can subject the actions of the executive to judicial review. No power acts in an ultra vires way; the system works, and reform is unnecessary.
A true separation of powers, by contrast, would not work. As well as being separate, the powers must be equal, or else one of them would always be relatively unchecked - so bang would go the sovereignty of Parliament. If they are equal, then there needs to be some superior body that can decide disputes between them - and that body will be by definition unchecked, unless, perhaps, it is convened only on an ad hoc basis. In the United States, amendments to the Constitution require the agreement of the States' legislatures, which, on such occasions, form in effect an ad hoc electoral college; but in Britain we don't have any States, and there is no satisfactory equivalent. So quite apart from the insincerity of the government's invocation of the separation of powers - it has no intention of removing the Cabinet from the Commons, even a genuine attempt to implement the doctrine would be worse than unnecessary - it would be impossible.
The dedicated reformer will object that the sovereignty of Parliament only makes the legislature unchecked, and a written constitution will somehow fill the power vacuum if Parliament's authority is curtailed. But the traditionalist has a reply, viz., that Parliament comprises two chambers, selected on different principles, with neither having much influence on who is appointed to the other, and these chambers act as a check on each other - or at least they used to, before one member of the Lower House, the Prime Minister, was given the power to appoint virtually all the members of the Upper. Here the abstract doctrine of the separation of powers comes up against the abstract doctrine of "democracy", and we come to the expulsion of the hereditary peers. Was this necessary?
It was said to be necessary for the sake of democracy, but this prompts not only the obvious question whether the present appointed chamber is any more democratic than the previous partly-hereditary one, but also the deeper question, apparently never asked by the government, why democracy itself is necessary. For it is not an end in itself. It is a way of ensuring that the people can be governed for only a limited time by governments they do not want a way of ensuring freedom from tyranny. Since the Queen invites whoever can command a majority in the elected House to form a government, the presence of hereditary peers in the Lords did nothing to prevent the people from getting rid of governments they disliked and nothing to foster tyranny. It was, therefore, in no important sense undemocratic. Insofar as it allowed an independent voice in the legislature, the hereditaries owed their position neither to patronage nor to popularity, it was a bulwark against elective dictatorship by the Commons.
This will not satisfy anybody who wants every member of the legislature to be elected, but again, this is not something that democracy requires. For, thanks to the Parliament Acts, the elected House can overrule the unelected one, which, therefore, cannot lord it over the people. If anything, democracy would have been better served by leaving the composition of the Lords alone and increasing its power of delaying bills from a year to the life of a parliament, thus giving the electorate, at the next election, the final decision between Lords and Commons. But for all its noises about democracy, the government never even considered that.
The democratic argument fails, but there is always "modernisation", the government's fallback argument for any otherwise indefensible constitutional meddling. This is nothing more than the prejudice of neophilia, that anything new is better than anything old. There is no reason in this prejudice; there is reason in the opposite prejudice, since whatever is old must in some sense have stood the test of time. Some old institutions have features with no obvious use - take the Lord Chancellor's wig and breeches, but these add colour, character, and a sense of ceremony and history, which do more to legitimise a Constitution in the minds of the people than any amount of nonsense about "efficiency", by reminding us that our Constitution is more than the creature of our present masters' whims, it is the product of our unique and glorious history.
The government's reforms of the Lords are unnecessary, their justification is spurious and insincere, their full and consistent implementation is impossible, and they threaten the legitimacy of the Constitution. For all these reasons, they are wrong, and the Conservative Party should have the courage to say so.
RURAL SOUTHERN ENGLAND IS IN DANGER OF DESTRUCTION
says Henry Campion
In recent weeks, the people of South East England have been dismayed by announcements from John Prescott concerning a massive expansion of the housebuilding programme (a programme originally set by John Major's Government in 1996) and the creation of regional assemblies which will eventually supplant democratically-elected county councils.
Back in 1996, Major announced that some 4 million new houses would have to built across England by the year 2016 -- with the bulk of the development taking place in the already congested South East. Conservation organisations, such as the Council for the Protection of Rural England, had successfully lobbied against many such schemes, and it seemed to be clear that CPRE had won its argument in favour of the protection of greenfield sites. But now the goalposts have suddenly been moved.
Fixated on the notion that somehow "public sector workers" must be provided with "affordable housing" and generally unsympathetic to the countryside anyway, Blair's Government (like Major's just six years ago)has announced another "10-year plan" for new development. For some time, this Government has been moving away from the idea that "brownfield" sites must be considered before the greenbelt and countryside can be singled out for new estates and new towns. It seems a strange position for an administration supposedly devoted to the idea of "affordable housing", as specially-developed schemes in towns - close to where people work and convenient for shops, transport and amenities - would be much more sensible than the construction of an entirely new town 50 or 60 miles from London. However, ministers seem determined to forge ahead with the building of generally featureless, standardised estates (inevitably made from cheaper, non-local materials) throughout our countryside.
To Prescott, and indeed to his Tory predecessors, the countryside is essentially just an empty space. The fact that it has its own network of communities, architectural style - not to mention its delicate balance of wildlife and plantlife - is as nothing to the grim-faced, function-is-everything economists, planners, politicians and developers of our time. And so the countryside is faced with a major battle for its identity. Historic landscapes such as the South and North Downs, the Weald, the hauntingly austere Kent marshes, the gentle greenery of the Home Counties immediately around London - all are fair game in the building lottery.
Local people have consistently shown themselves to be against rash and insensitive building - building for the sake of it. And they have been able, until now, to influence the planning process through access to their Borough and County Councils. Yet it is the Government's intention to restrict this process of accountability, believing that its own statistics and demographic predictions are the only elements in the equation which could ever really matter. Inflexible "targets" are the order of the day, in other words: Whitehall orders development, development is enacted. But the control and democratic deficit does not stop there.
Very soon, we will be seeing more of the embryonic "regional assemblies" which will "represent" newly-created and entirely synthetic regions. For example, the "South East Region" (an officially recognised region of the European Union) will have the power to act as a mini-government - largely rubber-stamping and imposing the diktat of Brussels and Whitehall on the former Kent, Sussex, Middlesex, Buckinghamshire and Oxfordshire. It is the Government's intention for the obscure and unrepresentative - and largely appointed - regional assembly to control the building schemes which will scar the landscape of Southern England. And there will be very little that you or any of the conservation groups can do about it.
The Government of Tony Blair is largely an urban clique which has little sympathy, let alone empathy, with the countryside. Indeed, its "rural regeneration" supremo, Lord Haskins, is a man who thinks that Prince Charles's pro-organic campaigns and anti-EU sentiments are damaging the interests of the population - denying us all the cheap food which we all want and need. Yet it is the "cheap food" mentality, with its emphasis on imports, industrialised farming and tasteless food, that is contributing to a dead and dying countryside, and the destruction of British farming.
It is ironic indeed - and annoying for British farmers - to have watched his lordship on a recent BBC programme wandering around a French rural market, enjoying the fresh, local, products of French family farms. But then again, we cannot expect consistency from our politicians!
Haskins, Prescott, the hunt ban, the Foster Bill, Tony and Cherie jetting off to Tuscany instead of even thinking of spending a holiday in Britain -there really is a sense here of an elite which is somehow against rural Britain, which likes the countryside in terms of its capacity to provide ministers with quiet cottages, with Chequers and Chevening, but rather wishes that the rest of it would just go away.
Today, not content with ruining the local economy and making it impossible for local young people to stay and work in their village or district, this Government wants to build all over the shires. Just what will be left half a century from now? And as our cities become hellish, crime-ridden, architecturally repulsive, uncared-for and unfit for decent habitation; as immigration and asylum-seeking grow to ridiculous and unsustainable proportions, it is inevitable that the pressure on housing stock and on the countryside will grow.
What is needed is not a "10 year plan", or a ludicrous, largely "open-door" immigration policy which merely adds to the conundrum - or a state of affairs which just allows acres of derelict land in urban areas to remain undeveloped and unused. What is badly needed is a serious, truly democratic approach to countryside and development problems.
The future shape of policy must not be left to irresponsible developers, money-makers or power-crazed politicians obsessed with the purely temporary and immediate. It must be made by local people, conservationists and those architects who are prepared to create pleasant living space for future generations.
The official Conservative Oppositon cannot be relied upon to protect our countryside or articulate the feelings of its disenfranchised population. Just where were the Tories when the Ministry of Agriculture was invading farms, slaughtering healthy herds (the result of "computer errors" by MAFF officials) and turning rural Britain into a place stalked by fear, suspicion and despair? Just where is Duncan Smith today as we face the possible banning of hunting - a move that will have ramifications for a host of other country sports, including fishing? Why is he in Sweden on fact-finding tours about drugs, when he should be standing shoulder to shoulder with Britain's farmers and rural communities? Is the concept of "gay rights" and "being inclusive" toward urban minorities more important than the defence of our rural heritage - our agricultural and countryside foundations?
The Conservative Democratic Alliance - the true oppositon - campaigns for the restoration of British farming, for penalties to be put on supermarket chains which do not adequately promote or represent British agricultural produce. The Alliance demands a complete halt and rethink in relation to the insane housebuilding programme for South East England.
We also seek to preserve - in perpetuity - the magnificent and irreplaceable countryside of England, its birdlife, wildlife and botany. Rural Britain is the embodiment of our national identity -the Downs in wartime, the Slad Valley of Laurie Lee's childhood, the Lakeland of Wordsworth, the Fenland skies which haunt the music of Britten and Vaughan Williams. It must not and cannot be lost.
Labour philistinism and Tory indifference could destroy this heritage forever...but we will block their path - every step of the way.
Henry Campion is a conservationist and countryside campaigner