My mother forwarded me and others in our family an email from the Our World Our Say campaign group, which is demanding a judicial inquiry into the recent war in Iraq. My response:
I support this, but only reluctantly.
The long-term consequences of judicial inquiries into the activities of the executive branch of the government is the politicisation of the judiciary. The OWOS letter itself mentions what the real problem is: the Parliamentary committees which ought to have been carrying on these sorts of enquiries have been "prevented" from doing their job; the real solution is to unprevent them.
The letter's criticism of the terms of reference of the Hutton enquiry is also unnecessary, and coupled in the immediately following sentence with the qualification of the term "judicial inquiry" with the phrase "full, independent", creates the impression that the author doesn't view the judicial enquiry process, or at least Lord Hutton, as independent. It thus sounds like a call for an enquiry by someone whose impartiality will still be assumed by the public by virtue of being a member of the judiciary, but who must simultaneously be more likely to be critical of the government than Lord Hutton. Ultimately, what's being asked for is for the judiciary to give voice to the political views of one side of the argument, and this isn't really affected by whether I'm reading too much into those four words. It is embarrassing that the United States, of all countries, actually has a better system for dealing with this problem than we do over here: Congressional enquiries.
Why can't we press for a Parliamentary enquiry?
Incidentally, there's a good paper on executive accountability to the legislative and judicial branches from an Australian perspective just out at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=462163 ... meanwhile in Iraq, the US has decided to divert resources from the hunt for WMD to the hunt for the normal weapons currently being used by the resistance.
The paragraph from the OWOS letter:
As voters and citizens we have the right to hold government to account. Two Parliamentary committees were prevented from conducting full investigations. The Hutton inquiry has mainly focused on the events surrounding Dr David Kelly's death. We need a full independent judicial inquiry into all the circumstances leading to our involvement in the Iraq war. The voters of the UK deserve...and demand nothing less!
Jack Roe's novel has turned up on my doormat; the packaging contains a signed customs declaration from his publishers in Australia, to the effect that the contents do "not contain any dangerous or prohibited goods".
.. but it's the middle of November. We had mince pies (and almost mulled wine) at the Flanders, Swann and Lehrer party on Friday (from whose lyrics the title of this entry is taken).
Today in the centre of Cambridge a ghastly premature Christmas songs/carols event took place at the Guildhall, attracting a small crowd. No-one really seemed to be enjoying themselves; people were just hanging around checking out the other people and wondering why on earth there was an American police choir singing Christmas songs in the middle of town - it wasn't clear whether this was the "switch on the lights" ceremony or a fundraiser or what. That someone who seemed to be the mayor was dancing with a character dressed as the Tin Man from Wizard of Oz did not seem to attract the derision it deserved.
It is to be hoped that a backlash against premature Christmas celebrations will kick in in a few years' time.
The Guardian has been covering the issue of a supreme court for the UK. This is part of package of judicial reform proposals advanced by Lord Falconer of Thoroton, previously Tony Blair's flatmate and minister for the Millennium Dome and ID cards.
The proposals concern, inter alia, the status of the Law Lords, and judicial appointments. Keeping judicial appointment apolitical and focused on judicial integrity is of critical importance, lest our judiciary go the way of America's. I am unsure whether the government's proposals are good or bad in this regard - their aims seem to include making the judiciary more "representative" of particular groups within UK society. Criminals constitute an important group within society, but are not so to be "represented" within the ranks of the judiciary, which strikes me at least as anomalous, but I can see how it might be justified.
The other "biggie" is the formal separation of judiciary and legislature, motivated by the "separation of powers" doctrine. I've never been a fan of the separation of powers idea, which was based on an 18th century author's misunderstanding of a foreign country's constitution. That foreign country was in fact England (the author was French), but of course England, now part of the UK, has changed: the country is formally democratic and the role of legislation and regulation is now extremely different in its impact on people's lives. There is little real distinction between legislation and administrative practice, to the extent that having a government minister sitting as a judge might almost be justifiable. Nevertheless some, including, I believe, Lady Justice Hale, have claimed that the case for separation is "unanswerable".
There are three answers which suggest themselves to me: the doctrine of separation of powers is a bad idea in the first place, or, it is a good idea, but should be outweighed by other considerations, or, whether or not it is a good idea, this doctrine is unoffended by the current arrangements.
To take the last argument first, it should be observed that in practice, Law Lords do not operate as part of the legislature. Some abstain entirely from proceedings in the Lords in its legislative capacity, and the others constrain themselves to a marginal advisory rôle which they would occupy whether or not they were formally members ex officio of this effectively unelected body. It is a distortion to claim that there is anyone ruling on legislation he helped vote into being in the first place (all Law Lords are currently male, so "he" is appropriate). In real terms, there is no substantive conflict; the conflict is only a formal one.
The real offence against separation of powers in the UK consists in the relation between legislature and executive, not legislature and judiciary. The only check on executive power is the confidence vote in Parliament (and the threat to use it). Opposition to a particular feature of a particular policy can only be achieved at the expense of bringing down the whole Government. The demands of responsible continuity of government, combined with the particular form (inchoate) legislative control of the executive happens to take in the UK, necessitate executive control of the legislature through tight party discipline and the whip system. The UK executive lacks the fixity of tenure secured by systems such as the American, and thus must subordinate the legislature to maintain itself in power, nor does the constitutional settlement provide for any judicial check on what legislation may emanate from this arrangement. It is the political temperament of society, and constitutional checks and balances in the detail of political arrangements, not separation of powers in the overall structure, which serve to protect the legitimate interests of individuals, community and society. If there is a relation between the three branches of government to be reformed in line with the separation of powers doctrine, it is not that between legislature and judiciary.