TONY BLAIR’S administration has probably been more dominated by constitutional reform than any government since Gladstone’s. The relationship of the judiciary and the Government has been central to much of this change. The Prime Minister’s announcement that “the rules of the game” are changing, a remark apparently addressed equally to mild-mannered judges and firebrand foreigners, suggests that there is more to come.

The Human Rights Act presents a good example of how constitutional reform should be implemented. Conceived in opposition, gestated at leisure, it was born with care. The Government now operates in a rather different mode. The Prime Minister is impatient to do deals with a number of unsavoury regimes condemned by the Foreign and Commonwealth Office for systematic torture and abuse. His precise intention is not yet entirely clear. He may wish to amend the European Convention on Human Rights to qualify its absolute prohibition on torture: success seems unlikely. He may want to loosen the effect of existing judgments of the European Court of Human Rights. He will not get much support: the president of the Parliamentary Assembly of the Council of Europe, René van den Linden, found it “alarming” that a politician might be “undermining . . . judicial independence”. Mr Blair may want to amend domestic implementation of the Convention: it is difficult to see how this might work. Finally, he may just want to intimidate the UK judiciary: that would be unworthy.

Gladstone observed that the constitution of the UK depended “on the good sense and good faith of those who work it”. It is possible that we will enter a destructive conflict presaged by the bluster of David Blunkett’s assertion that he was “fed up having to deal with a situation in which Parliament debates issues and the judges overturn them”. The House of Lords judgment in the Belmarsh case was a brutal reminder of the crushing power of a judiciary in full cry. They thought that the Anti-Terrorism, Crime and Security Act 2001 was bad law and said so. The Government was forced to legislate again.

At the heart of this issue is a difficult balance, traditionally described by judges in the language of “judicial deference” and — in more modern terms — as ministers’ “discretionary area of judgment”. Judges accept the need to step softly when it comes to oversight of judgments that are more political than judicial. In practice, this can be a bit messy and unclear. We should build upon this understanding. It links to something else that would benefit from explicit formulation. What do we agree that Parliament cannot do, an issue recently explored in the context of Mr Blunkett’s attempt in 2002 to remove judicial supervision of asylum appeals? We need to find a contemporary formula that allows for what we would now agree is a proper balance between politicians and judges.

Furthermore, a blunt Blunkettesque assertion of parliamentary sovereignty avoids consideration of the way in which our parliamentary system creates a legislature dominated by the executive. Parliament has too little independence. The result is poor law-making. Whips stifle the role of the House of Commons. The House of Lords is restrained by lack of democratic legitimacy. Much legislation is simply too long. The Criminal Justice Act 2003, for example, has 330 sections and 38 schedules. Neither House could possibly scrutinise it properly. Some controversial proposals are withheld until the parliamentary procedure is almost complete. The celebrated Section 55 of the National, Immigration and Asylum Act 2002, which deprives failed asylum-seekers of income, was inserted only after the Bill had completed its initial passage through the Commons and committee stage of the Lords. Other proposals are given insufficient time. The Prevention of Terrorism Act 2005 was rammed through both Houses of Parliament in 18 days — so quickly that parliamentary printers could not keep pace with government amendments. Parliament needs to develop stronger ways of controlling the government of the day, even if it has a majority in the House of Commons.

Let us, by all means, enter into a debate about how the rules of the game need to change. But there is more than one game in play: we need further debate about reform of the constitution. Gladstone’s overwhelming constitutional concern, after all, was Irish Home Rule. All his considerable efforts came to nothing. Successful constitutional reform requires careful consideration. Progress is rarely achievable at speed and without a high degree of consensus, all too clearly apparent from the history of Ireland since Gladstone’s time.

A debate on the subject will be held on October 18 at 6.30pm with Michael Beloff, QC, Baroness Kennedy of the Shaws, QC, Professor Robert Hazell and Roger Smith, director of Justice, chaired by Lord Steyn. Details also on the website.

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