Thursday, 28 December 2006

More on "the separation of powers"

Gosh, the highly-placed character of the people who email me about this blog since I started posting comments on certain others! Anyway, in addition to laughing until I cried at their utterly unprintable responses to the Blair Bashi post below, I have, by a request which I doubt that I'd be thanked for calling "popular", written up into a full-length article my thoughts on "the separation of powers", mercifully an obvious impossibility in a monarchy:

Where, exactly, is the "scandal" in the dropping of the investigation into BAe and Saudi Arabia? At the very least, it is as nothing compared to John Major’s appointment of Jonathan Aitken (whom I freely accept is a changed man these days) as Minister of Defence Procurement on the direct orders of the Saudi Royal Family. Remember that? Some of us do.

Is it a Labour Government’s defence of the skilled, high-wage, high-status jobs of the British working class that is "scandalous"? I should say that it was just surprising, and a bit late in the Blair day. And I write as one who, in principle, would ban entirely the sale of arms abroad, provided that the Government had already fulfilled its responsibilities to the relevant section of the citizenry by diversifying its employment accordingly while fully preserving its skills, wages and status.

But we long ago chose to get into bed with the House of Saud, and we have bizarrely become even more intimate with them (of all people) since 11th September 2001. So now we must lie not only in that bed, but in that embrace.

And do any of you believe that foreign policy, defence policy, or even the jobs of our own people (fellow-citizens, fellow-voters, fellow-taxpayers) should have no bearing on these matters? If so, then you should clear off to the Liberal Democrats, if anywhere. You are in no sense conservatives, nor in any sense Socialists, nor really in any authentically British political tradition at all.

Which bring me to Kirsty Walk on Newsnight. She practically had kittens over this "breach" of "the separation of powers". Had she heard that term on The West Wing, or Sex and the City, or Pimp My Ride, or something? When will she be demanding that all Ministers resign their seats in either House, that the Law Lords renounce either their peerages or their seats on the bench, and so forth? "The separation of powers"? I ask you! What next? "The separation of Church and State", "breached" at some Royal event or something?

But Ms Wark was not alone. They were all at it. Has anyone who is allowed on the BBC ever heard of the Law Lords? Or of the Home Secretary’s role in determining sentences? Or of the numerous quasi-judicial functions of Ministers? Or of the fact that all members of the Executive are required to be members of the Legislature? Or of the fact that the judges make the whole of the Common Law?

This "separation of powers" line was also put about when the position of Lord Chancellor was abolished overnight in favour of something apparently sketched on the back of a beer mat. But the House of Lords is still chaired by someone in much the same outfit, which was actually presented by Blair as a serious, and even conclusive, argument for abolition. It is just that Baroness Hayman is not the Lord Chancellor. But so what, from that point of view? Meanwhile, there is still no Cabinet Minister accountable to the House of Commons either for the major front-line public service that is the Court Service, or for the enormous Legal Aid budget of public money.

Like the other examples given above, the office of Lord Chancellor was often described as an "exception" to "the separation of powers". Quite apart from the fact that such a doctrine cannot, by definition, admit of exceptions, so that their very existence disproves the doctrine itself, there do seem to be an awful lot of these "exceptions", and they do seem to matter rather a lot.

In reality, the "powers" have never been "separate", nor can they ever be so. One of them has to win in the end. In Britain, we have decided that it is to be Parliament, and thus the elected House of Commons within Parliament. Would we rather that the Prime Minister always had the last word? Or that, as in the United States (among other places) an unelected judicial body of lifetime appointees could simply rule that any matter it liked was "constitutional", and thus reserved entirely to itself? This is why, as is their wont, judicial theorists and constitutional lawyers habitually engage in more than a spot of wishful thinking where "the separation of powers" is concerned. They wish to see an American-style krytocracy in this country.

The wretched Human Rights Act has been a major step in that direction. But mercifully, we still have instead the supreme legislative, executive and judicial authority of the Crown (i.e., of the nation embodied, regardless of party or anything else), exercised either by Parliament itself or by Ministers drawn from and accountable to Parliament. Within Parliament, the House of Commons has come to be elected by universal adult suffrage and, since the Parliament Act of 1911, to be supreme.

The Crown is the ultimate contradiction of the Franco-American, and in no sense indigenously British, theory of the separation of powers. And it is thus the ultimate guarantee that the United Kingdom (and each of the 15 countries with which we share the Crown) will remain a democracy, unlike either absolutist and historically coup-plagued France, or krytocratic America, to name but two.

One really would have expected the sort of people who present our major broadcast news programmes, or who are interviewed thereon with regard to these matters, to understand such things. I should have been genuinely baffled that they did not, had it not been for the fact that, waiting for Newsnight to come on in one of these non-Question Time seasons when everything interesting seems to happen, I caught the end of something called Coupling.

The characters spoke with middle-class London accents, but the thing itself seemed to be set in New York, or at least in the city of Friends and Will & Grace. They even used American, rather than British, phraseology. Such, I suspect, is the world that the BBC newsroom inhabits, utterly unrecognisable to the rest of us.

"Separation", indeed.


  1. Where is Voice of Reason when you need him?

  2. I could not bring myself to investing any time into reading this thread which was cut and paste from his others anyway.