Peter Oborne

The scene is set for a long and bitter constitutional battle

The scene is set for a long and bitter constitutional battle

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Derry Irvine has not gone to pieces, as some former colleagues predicted that he would after being suddenly sacked as Lord Chancellor last June. Friends say that, if anything, he drinks less than he did in government and that his intellect is as sharp as ever.

Convention debars former lord chancellors from practising law after leaving office. This leaves Irvine with time on his hands. He sits assiduously on the back-benches of the House of Lords, always voting with the government. He voted with the government again on Monday night, but could not prevent the Constitutional Reform Bill plunging to defeat.

It is unlikely, however, that Irvine was greatly saddened. Friends say that he is horrified by the inept way ministers made their case, and is in any case privately opposed to most of the reform package. He would hardly be human if he did not take some pleasure in his successor, Lord Chancellor ‘Cheerful Chappie’ Falconer, making such a tremendous hash of things.

Monday was a humiliation for Falconer. A great deal was personally at stake for him. He had convinced Cabinet colleagues that the government should introduce this heavyweight constitutional legislation not in the Commons — as precedent seemed to demand — but in the Lords. ‘We were naive,’ sighed a minister on Monday. ‘We thought Charlie would be in a stronger position to do a deal with the judiciary. We thought he could talk turkey with the law lords.’

Falconer certainly tried to strike a deal. But he failed. Seven current and former law lords voted against the motion; not a single one for the government. Two former Cabinet secretaries voted against (though former Treasury permanent secretary Lord Burns, angling for the BBC chairmanship, was in favour). Afterwards Baroness Amos, even more out of her depth as leader of the Lords than she was as Foreign Office minister responsible for Zimbabwe, pathetically blamed Tory ‘opportunism’ for the defeat. Actually the crossbench peers, reflecting the full weight of the legal establishment, voted against the Bill by four to one, and caused the government’s downfall.

These constitutional reforms have been a shambles — if anything too weak an expression for the reckless and culpable way ministers have conducted themselves — from the very start. Tony Blair is trying to bring about reforms on a grand and historic scale: the abolition of the 1,000-year-old office of Lord Chancellor, the creation of a new Supreme Court and a new judicial appointments commission. Yet there was no preparation before these momentous changes were announced. Even an ordinary piece of government legislation tends to be preceded by green papers, white papers and widespread consultation among interested parties. It normally — though by no means invariably in the case of Tony Blair’s administration, as the tuition-fees fiasco shows — would be foreshadowed in an election manifesto.

Incredible to relate, none of this applied in the case of this constitutional reform package. The Lord Chief Justice was kept in the dark. So were the law lords and, incredibly, even the (then) Lord Chancellor Derry Irvine. The Cabinet secretary, Sir Andrew Turnbull, was not informed until 20 minutes before the announcement. In recent weeks, as he desperately sought to save his Bill, Charlie Falconer has claimed that the intellectual antecedents of his wretchedly thought-out piece of legislation stretched back for 20 years or more. Be that as it may, I have yet to meet anybody inside government who was not taken completely by surprise when the abolition of the Lord Chancellorship and the creation of a new Supreme Court were announced on 12 June last year.

Presumably the tiny coterie of advisers who cluster round the Prime Minister in Downing Street were responsible: chief of staff Jonathan Powell, Tony Blair himself, his political adviser Sally Morgan. Whoever was in on the secret knew very little about British constitutional law. The original proposal was to abolish the Lord Chancellorship almost at once, and replace the venerable post with a new secretary of state for constitutional affairs, based in the House of Commons.

This plan foundered at once. Blair, Morgan, Powell & co failed to grasp the fact that the Lord Chancellor had a unique place in the British system. A prime minister cannot simply get rid of it at will, as he could a culture secretary or a minister for agriculture. The functions of the Chancellorship are embedded in more than 500 pieces of primary legislation, and can only be dislodged by primary legislation.

It was only when this awkward and embarrassing fact was pointed out to Tony Blair that he called on Charlie Falconer to sort out the government’s mess. At this point Falconer had a number of choices. He could have gently abandoned the whole foolish enterprise. Instead he pressed on and landed up in last Monday night’s disaster.

The scene is now set for a long and bitter constitutional battle between government and the House of Lords, fought out on a scale not seen since George V was obliged to threaten the creation of new peers before the first world war. It is not simply Monday night’s Bill that is at issue. Next week the government is set to announce its long-delayed Lords Reform Bill, which will remove the remaining 92 hereditary peers and replace them with an all-appointed second chamber. This too will prove controversial, mainly because of the failure to move towards an elected House of Lords.

It is easy to see how Downing Street will try to manipulate the debate. It is already claiming to represent the will of the British people against the last remnants of a Tory establishment ossified in an outdated House of Lords. But grave issues of freedom and law are at stake. As Lord Woolf went a long way to acknowledging in his fine speech in Cambridge last week, the best person to defend the independence of the judiciary is the Lord Chancellor sitting in Cabinet. Thanks to the antiquity of his office, the Lord Chancellor possessed an enormous authority and command, outranking even the Prime Minister. The Secretary of State for Constitutional Affairs, with its Yes Minister title, will always be occupied by a young minister on the make. He will be no match at all for senior Cabinet ministers like David Blunkett, let along a home secretary with predatory ambitions on judges. At a time when ministers are flexing their muscles at the expense of the judiciary, this Constitutional Reform Bill is profoundly sinister. The other impression of the last week’s events is mind-boggling incompetence at the heart of government. Is it too late to save the post of Lord Chancellor and abolish ‘Cheerful’ Charlie Falconer instead?