Power of Attorney

Congratulations to Gordon Brown on appointing a new Attorney General, contrary to the clamour of those chatterers who hold, quite rightly, that the office breaches their precious and pernicious theory of "the separation of powers".

Will that theory's proponents 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? Have they 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 all but name (and apparently now entirely - Brown has not even named a titular one), 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.

"Separation", indeed.

And lest such views be branded "anachronistic", or even "right-wing", they are in fact the simple application of The First Attlee Test: if Attlee (not to say Bevan, a staunch Unionist among so much else) could make something constitutional work, then it is beyond me why, say, Blair or Brown would feel any need to change it.

The same applies to ceremonial: these things are changed because those changing them have given up on, if they ever really believed in, fighting against want, ignorance, ill health, squalor, and avoidable war. They have given up on, if they ever really believed in, defending the best conservative values both against the Whiggish "free" market, and against the Jacobinism, Marxism, anarchism or Fascism into which that Whiggery drives its millions of despairing victims.

If there had been, say, a Human Rights Act or a Supreme Court in the 1940s, then it seems certain that there would have been no nationalisation, even with compensation (which compensation was quite right, I might add), nor any incorporation of private and charitable hospitals into the NHS, without which there would simply have been no NHS. These measures would have been presumptiously struck down in the courts. That equally important consideration is The Second Attlee Test.

But the office of Attorney General passes, as the office of Lord Chancellor passed, both Attlee Tests with flying colours.