Are all constitutional fictions dead?

Posted by Richard D North under 'Power To The People!' / Presentation or policy? on 18 November 2009

For hundreds of years, the british have accepted some very odd fictions as being valuable to good government. As these tumble – or shake a bit – one wonders if we are being as clear-eyed as we think.

Simon Heffer (in the Telegraph) and Anthony Howard (on Radio 4′s Today programme) both today (18 November 2009) poured a deal of scorn (in slightly different ways) on the Queen’s speech. (As in: why is it a good idea to have a nice old lady in a crown reading out horrid Labour’s suicide note, blah blah.)

Very few people bother to defend the old ways. Take how right Tony Blair turned out to be when he thought (one guesses) that abolishing the centuries-old office of Lord Chancellor and the House of Lords as home of the nation’s highest court could be done at a stroke and no-one much would mind.

Charles Moore (and a few old judges) minded, just as he disliked the way the new Speaker of the House of Commons wanted less mummery in the way he dressed. But few others do mind, and most probably more or less approve.

I find this sort of subject tricky. But the issues can have substance, and that is worth pointing out.

(1) The Queen’s speech
The Queen is notionally the head and font of all government, and her presence in the Palace of Westminster amongst her Lords and Commoners reminds us firstly that there are many parties to government and secondly that the nation is different (larger, more permanent) than any particular set of ministers.

(2) The Speaker
The Speaker owes his allegiance (as do we all) to the whole nation and to the state represented by the Crown though he may only do as the House of Commons dictates. He is dressed in a funny way to express his embodying the unchanging dignity of his office (just as a judge is).

The fact that the Lord Chancellor (ex officio, the most senior judge, and head of the judiciary, and chair of the House of Lords) was a political appointment served the purpose of ensuring that legal matters were at the heart of government deliberations.

The fact that some of the country’s most senior judges (the Law Lords) occasionally made the House of Lords the most senior court in the land produced the effect that the full might of the state was seen to be at the service of the law.

All of these cases produce fictions, and some might now be thought absurd. It seems that some effects (clothes, wigs, ceremonies) have gone from conferring dignity to evincing guffaws. That’s fair: styles change. It may even be that we can no longer use pretence as a way of bridging rather peculiar understandings – muddles and fudges.

Take the separation of the judiciary from the legislature. On paper, that makes sense and may turn out to work well. But the old way ensured that the tense negotiation between judges and politicians was encompassed pretty well within government. If we feel a need to move on, that’s fine. Nothing stays the same for ever. But let’s at least accept the merits of the old way. Let’s not kid ourselves that we are necessarily going to produce anything marvellous out of our new rationality.

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