Tony Blair trashed the constitution. Now we’re paying the enormous price
I have become increasingly concerned that Britain’s judiciary has become a self-perpetuating oligarchy. Here is a group of similarly-minded people from similar backgrounds who have a particular worldview and are resolute in protecting their own interests. Then there is the fact that we are saddled with an increasingly Left-wing legal establishment that has successfully tied British governments up in knots through judicial reviews, challenging policies on welfare and immigration and indeed the entire Brexit process.
Courts and lawyers had been accruing power during the 1980s and 1990s through the judicial review process – and the EU’s promotion of statute law over common law only added to the problem. But it was Tony Blair who made a bad state of affairs a whole lot worse. The policies he pursued as prime minister have made it considerably harder for elected politicians to get things done and put far more power in the hands of the unelected.
Until 2005, the Lord Chancellor held a special constitutional position not only as a Cabinet minister but also as the head of the judiciary and Speaker of the House of Lords. These were historic duties dating back to before Magna Carta.
In other words, he (and until my appointment as Lord Chancellor, it always had been a man) was a very powerful figure, playing a role in the executive, judicial and legislative branches of government. He sat in the Lords and was a practising judge, with many of his responsibilities involving the direct administration of the judicial system and the selection of judges. The independent judiciary maintained the common law principles of the rule of law. Ultimately, they were subordinate to the executive in Parliament.
The Constitutional Reform Act 2005 changed this by denuding the Lord Chancellor of much of this power. One of the justifications for this act of constitutional vandalism was a desire to fit in with the rights-based philosophy of continental Europe. The UK’s ratifying of the European Convention on Human Rights (ECHR) in 1951 ultimately gave rise to individual petitions being accepted in the UK. This created an alternative source of power to the sovereign Parliament. Blair then incorporated the ECHR into British law in 1998 through the Human Rights Act.
In removing the power of the executive to appoint senior judges, the Blair government created a new judicial appointments quango, and a Supreme Court in place of the Law Lords. The Lord Chancellor would still have to swear an oath to protect the independence of the judiciary, but all the associated powers were handed to the administrative bureaucracy. The net impact was to make the judiciary more of a self-appointing oligarchy and reduce levels of accountability.
As we have seen in everything from welfare policy to immigration to legal aid, this has made it harder for governments to deliver policies the public had voted for. The legacy legislation from the Blair and Brown administrations that we have failed to repeal – including the Human Rights Act and the Equality Act – have tied up the government in yet more red tape and given more powers to the courts and lawyers. All this means a key part of the apparatus of the government has become further removed from any sense of accountability.
We see the consequences of this most clearly in the case of illegal immigration. Time and time again, attempts to get tough on migration have been thwarted when lawyers have been able to take on immigrants’ cases, paid for through taxpayer-funded legal aid, usually after citing some article or other from the ECHR.
I am all for the UK asserting its sovereignty and leaving the convention, but I don’t believe that alone will solve the problem. We will not be able to fully sort out our borders until we have reformed the appointments and governance process of the judiciary.
It is vital that we restore democratic accountability to the judicial system in the UK. This means the abolition of the Supreme Court, dismantling the Judicial Appointments Commission, and restoring the Law Lords. The Lord Chancellor’s full role should be reinstated, including being head of the judiciary in England and Wales.
These constitutional arrangements were tried, tested and successful for centuries. Hopefully, in time, the experience of the last couple of decades, following Blair’s trashing of our precious judicial system, will come to be seen as a temporary aberration.
Liz Truss’s book Ten Years to Save the West: Lessons from the only conservative in the room (Biteback Publishing £20) is out now
