Subverting British Justice

The ejection of the Law Lords from the House of Lords has moved still closer with the recent announcement that the new Supreme Court will be sited in Middlesex Guildhall.

And so is brought closer another step in the erosion of the UK's constitutional wellbeing.

The change is not being made because there is or has been any problem with the quality of judging or judicial decision making or any lack of judicial independence (far from it), but to correct the supposed failure of the British constitution to separate the judiciary from the executive and legislature, thought to be implicitly required by the Human Rights Act.

The trouble is that removing the Law Lords from the House of Lords removes them from the most independently minded part of our constitutional structure.

As members of the House of Lords, the Law Lords have an independent standing which will be denied them under a government minister. At the moment they can look to the House of Lords itself for protection in the event of a dispute or crisis. And while the principal Law Lord is the Lord Chancellor, himself an eminent professional lawyer, and the Speaker of the House of Lords, he has a status, role, and standing giving him an independence and influence quite unlike other members of the Cabinet, and as a matter of professional integrity, a personal interest in defending the judiciary. It is significant that in Lord Falconer, the current Lord Chancellor doing the hatchet job we have a placeman who does not match the personal and professional profile required for the Lord Chancellorship (but then he was never intended for such a role - it had supposedly been abolished in a press release).

Isolated from the Lords, and without a standing independent of their government department, and run by an ordinary Minister the judiciary's dynamics will change. Their selection will reflect political priorities far more than today - the selection panels can have no true independence from the politicians: our safeguard today is that the Lord Chancellor is not an ordinary politician. The change will affect the career calculations of our leading lawyers, and as the status of our senior judges is diminished, this will in future affect the quality of our leading judges. Above all, it changes the environment in which the senior judges will work, and makes them more vulnerable to political and bureaucratic pressure. It will not just be most senior judges who will be affected - any change in their status and independence will have a knock on effect on the judges below them: we are moving the whole judiciary to an inferior status, making it much more subject to the government, and isolating it from Parliament.

If the separation of powers is so important - how then can the system of drawing the government from Parliament, i.e. the legislature, be countenanced? The whole idea of applying a separation of powers to the UK is based on a misconception of our system of government. Perhaps the intention is in time also to remove the monarchy and elect an executive president?