ONE OF MY FAVOURITE books is John Millar’s
Historical View of the English Government; it was first published in 1787, the year of the United States Constitution, just before the French Revolution. Millar had been appointed Professor of Law at Glasgow University in 1761, at the height of the Scottish Enlightenment. He was a friend of the leading figures, including James Watt, David Hume and Adam Smith.
Millar developed an evolutionary theory of the spread of liberty. It has never been so aptly summarised as in Tennyson’s description of England: “Where freedom slowly broadens down from precedent to precedent.” Millar defined his own question: “Was it by accident, or by design, or from the influence of peculiar situation, that our Saxon forefathers, originally distinguished as the most ferocious of all those barbarians who invaded the Roman provinces, have been enabled to embrace more comprehensive notions of liberty, and to sow the seeds of those political institutions which have been productive of such prosperity and happiness to a great and populous empire?”
If one accepts the validity of Millar’s question, three issues arise. Millar is concerned with institutions; the character of institutions determines their outcome in terms of freedom and justice. He believes that institutions grow from “seeds”; he uses a botanical rather than an engineering metaphor to describe constitutional development. He makes “the diffusion of liberty through a multitude of people” the objective of constitutional reform. Not just liberty, but liberty for the many.
In the past 12 years we have been living through a period of exceptionally rapid constitutional changes; they started with the ratification of the Maastricht treaty, and continued with devolution to Scotland and Wales and attempted devolution to Northern Ireland. They have included the partial exclusion of the hereditary peers from the House of Lords, perhaps to be completed shortly. A highly contentious new constitution for Europe is still under discussion. Today the House of Lords will be giving a Second Reading to the Constitutional Reform Bill, which proposes a radical restructuring of our system of justice. This has been a huge meal to gobble down so quickly.
It would, I think, worry any historian who is concerned with the philosophy of constitutional development. Strong institutions develop over time; revolutionary changes are much more vulnerable. Since 1787 the United States has indeed been able to maintain a written Constitution, though after a terrible civil war, and Britain has maintained a reformed parliamentary monarchy. France, however, has had the Terror, three monarchies, two empires, five republics, a directorate and Vichy, making 13 regimes in just over two centuries. That is not a good record for radical reform. If one looks at the constitutional changes of the past 12 years in Britain, some, like the restoration of the Scottish Parliament, seem well bedded in history and public support, but others do not.
Successful institutions grow like trees; they cannot simply be erected, like the Eiffel Tower. They acquire their authority over time. Take, for instance, the post of Lord Chancellor, which the Prime Minister has decided to abolish, as a matter of convenience arising from a bungled reshuffle of his Cabinet. No one knows when the office was first created. However, it certainly goes back to the period of Anglo-Saxon government.
The authority of the Lord Chancellor, which places him in the House of Lords above the non-royal dukes, and gives him his seat on the Woolsack, goes back to a statute of Henry VIII of 1540, which has never been repealed. In 1787 Millar could already write: “The longer these great officers had been established, they rose to higher degrees of consideration.”
The authority of the office has weighed with prime ministers, with Cabinets with judges, with the public, and of course with those who have held it. It is a national and international asset. It has been used to defend justice. Yet this invaluable institution is to be discarded, as a matter of convenience. The Lord Chancellor will be succeeded by a so-called Secretary of State for Constitutional Affairs; he will be a junior member of the Cabinet, may sit in either House, and need not even be legally qualified. He will be a political weakling.
This has already had its effect. Whatever else we might do in the House of Lords, we have always treated the Lord Chancellor with extreme respect, and he has treated his own office with respect. Now the Lord Chief Justice, Lord Woolf, refers to the new Lord Chancellor, Lord Falconer of Thoroton, as “a cheerful chappie”. He could not and would not have dismissed any previous Lord Chancellor with so flippant a phrase. Yet Lord Woolf was not wrong. Lord Falconer has devalued his own office by his plans to destroy it. Why should anyone treat such a figure with respect? The Constitutional Reform Bill proposes to abolish an office which has earned more than a thousand years of public confidence. That is more than one can say of the office of prime minister. The Bill also proposes to abolish the House of Lords as the ultimate court of appeal and replace it with a Supreme Court, with the same judges, which will cost £50 million, or probably more, and is not desired by a majority of the law lords themselves.
Both proposals are designed to change the balance between the Government, the legislature and the judiciary, which is the central balance of any constitution. It is not clear who is supposed to benefit. Will the judges be stronger, with more independence, more like the US Supreme Court? Or will they be weaker, less independent, more threatened by ministerial pressure? The proposals have not been thought through.
The Cabinet reshuffle itself seems to have been precipitated by Lord Irvine of Lairg, as Lord Chancellor, resisting David Blunkett, as Home Secretary. David Blunkett had been angered by judicial reviews of Home Office decisions; Lord Irvine defended the judges; Tony Blair sided with Mr Blunkett. On this reading, the Bill could expose the judges to a highly authoritarian Home Secretary, without the defence of the Lord Chancellor or the House of Lords. On the other hand, some of the lawyers who support the changes are looking forward to more judicial reviews, and a powerful US-style Supreme Court with greater freedom to interpret rather than adjudicate the law. These are contradictory purposes which have not been clarified.
The Bill does not enjoy any consensus of support between parties, among judges and lawyers, in the media, in academic opinion or among the public. Yet it is plainly of the very highest constitutional importance; it concerns our system of justice and our national liberty. It would create a statutory amendment to our partially unwritten constitution.
There have been only 26 amendments to the US Constitution in two centuries, of which the first ten were in 1791. The procedures required to carry an amendment, such as the amendment on marriage that President Bush is now proposing, are that it must be proposed either by two thirds of both Houses of Congress, or by two thirds of the states, and ratified by three fourths of the states. This means that any amendment is hard to carry. It has given the US Constitution unique stability. By the American standard, Mr Blair and Lord Falconer are acting with indecent and unconstitutional haste.
Tonight the Lords will vote whether to refer the Bill to the weak grand committee procedure or to a select committee. The motion for a select committee will be proposed by a very experienced judge, Lord Lloyd of Berwick. I hope his motion will be supported. It is necessary to develop British procedures for giving due consideration to constitutional changes, particularly to changes of this magnitude. An unwritten constitution has the advantage that it can be adjusted in order to meet new needs; it has the flexibility of an evolutionary form. Its weakness is that it can be abused. This Bill is an abuse.
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