Needed: a new keeper for the nation's conscience
Cash for peerages, dropping the Serious Fraud Office inquiry into BAE-Al Yamamah, and the sacking of the parliamentary ethics watchdog because he had the audacity to criticise senior ministers’ conduct, says it all. When the interests of those with power are threatened, the upholders of justice are themselves attacked.
So who in future will have the independence and protected authority to speak out in defence of the nation’s integrity? I have a proposal to make to Gordon Brown.
The Lord Chancellor is widely seen as an anachronism who combines into one person executive, legislative and judicial power.
However, the original function of the office, a thousand or more years ago, is strikingly up-to-date and remarkably necessary: keeper of the Sovereign’s conscience. The Chancellor was there to prevent the abuse of power by the King (or more commonly, on the King’s behalf, to cut down over-mighty barons) and to provide an independent source of justice – through the Court of Chancery – for people who could not get it through the cumbersome and expensive common law.
Could we not restore the office to its traditional and resonant role? The Chancellor would cease to be a Minister and a member of the Upper House – after all, Thomas More was never a peer. He or she would be appointed by the Sovereign – and for once, this means by the Sovereign without advice from the Government of the day. He or she would serve for a fixed term, longer than a single Parliament, and would be removable only by a two-thirds majority of both Houses.
On leaving office, the Chancellor would be forbidden from taking up any paid appointment, as a guarantee of his or her integrity.
The Chancellor would be responsible for all judicial appointments, including the magistracy, but he or she personally would not act as a judge. That would mean that all judicial appointments were made by a totally independent person responsible only to the Head of State, not by a quango appointed by Government.
The Chancellor could also serve as the Sovereign’s legal adviser on matters of State – and Parliament’s adviser too. For example, the Chancellor, rather than Ministers, might make the declaration that Parliamentary Bills do or do not comply with the Human Rights Act. The Chancellor might advise the Sovereign and Parliament on fundamental questions arising from devolution or the EU, including interpretation of the EU constitution (if it ever arrives).
The Chancellor would advise the Sovereign and Parliament at their request on the legality of any act of State, including war. How much might we have been saved if that had happened before the Iraqi disaster!
This would also end the double anomaly of the Attorney General. He advises the Sovereign, but if the Sovereign wants alternative advice, he or she cannot seek it except on the advice of the Attorney General. He is accountable to Parliament, but denies Parliament the legal advice they need to hold him to account.
But most creatively, the Chancellor would re-invent the role of keeper of the country’s conscience. As such, he or she would take general responsibility for all the mechanisms in the British State which are intended to safeguard the people against wrongdoing or injustice – not only the courts and tribunals, but all the regulatory agencies, all complaints authorities, all forms of Ombudsman, all investigatory bodies, all Commissioners for special groups such as children.
He or she would not appoint all their members, but would have a power to intervene if their appointments systems, procedures or indeed outcomes were defective.
It would also be an excellent idea if the Chancellor could take final responsibility for the accuracy of all official information and statistics, to prevent manipulation to suit the powers-that-be.
He or she should also take charge of the Honours system, apart from political honours (though perhaps the latter should be scrapped). There would then be no cash for peerages scandal in future.
As the Sovereign’s official conscience, the Chancellor would act as a universal clearing-house for whistleblowers. Anyone at all who wished to report any ‘unconscionable’ act or abuse of power – whether in the public or private sector – could do so to the Chancellor. All such reports would be investigated under his or her ultimate supervision. They would also enjoy absolute legal privilege and the whistleblower would have immunity against any kind of penalty, unless the reports were frivolous, malicious or dishonest.
This office would have immense responsibility and authority. Totally independent of any vested interest, including government, the Chancellor could be a powerful protector of the law and good conduct when there is so much concern today about sleaze and cynicism about politics.
Why then end the Lord Chancellorship, as the Government is pledged to do, just when we need it most in modernised form?
(Originally published in Tribune)