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866   11 November 2003   

I do not think of myself as "conservative", or "a conservative" - but when it comes to defending the creative ambiguities of an unwritten Constitution, I get quite starry-eyed.  I know that, given the historical debris of the powers "around" the Monarchy, it would be a deeply contentious task to have to hammer out - expressis verbis ( = in precise words...) - what they meant, and how they were to operate, in all foreseeable consequences.  The technique of unwritten legal reasoning is to divine anew, upon each occasion that demands it, the "principles" which are to be applied to the case, by careful study of precedent, by reading of the runes.  One then, having derived a coherent contemporary statement of such principles, proceeds to apply them to the case in hand.  This approach allows for gradual changes over time, in the perception of relationships.

It is, intellectually and practically, a totally different process from the interpretation of written statutory provisions, which have to be adopted, and crystallised, at one point in time - a specific week, a specific day, a specific hour.  Now - I understand enough about Continental jurisprudence to know that one usually comes up with very similar conclusions.  But the English method allows great room for flexibility, ingenuity - indeed, creativity, in the evolution of new legal reasoning, to suit new circumstances and new cases.

And this is what is bugging our Judges, over the sensible proposal to replace the Lord Chancellor and the House of Lords with a new UK Supreme Court.  Even the great liberal Lord Woolf is concerned.  The Lord Chancellor - almost always a barrister, like themselves - has stood guardian for centuries over the independence of the judiciary.  True, his ambivalent constitutional position (Barrister-in-politics, at the very top) has offended against every known doctrine of the separation of powers, from Montesquieu through to Dicey.  But it has worked: although nothing has been written down, we still enjoy a remarkable tradition of judicial independence, of distance from the Executive, which has enabled UK Judges to make a distinctive contribution to the evolution of English law.

Many of the Judges do not oppose the proposed change, either to a Minister of Justice or to a conventional UK Supreme Court.  But they are all fussed about the mechanisms which will, for future generations, guarantee the independence which the regime of Lords and Lord Chancellor has in practice delivered.  They fear the emergence of a US system, where Presidents can (in spite of all constitutional safeguards) steer the Supreme Court in either conservative or liberal directions, as appointment follows appointment.

Those are legitimate concerns.  Precisely the same concerns would arise, if there were to be a wholesale abolition of the Monarchy, as recommended this week by Tony Benn, writing in The Guardian.  My sympathies lie with the Judges, and the Government will have to work very hard indeed, to overcome their legitimate concerns.

As for Tony Benn and the Monarchy, I still favour the systematic stripping of powers (e.g. of the Royal Prerogative power to wage war) without total abolition.  I would allow the institution to remain, while ensuring that it was politically emasculated.  I think the Monarch represents a very useful nebbish, a constitutional zero, which by its very existence performs a valuable political function...

867  17 November 2003  

Right Direction
Wrong Principle

Alan Milburn has attacked the polarisation of “State” and “private sector”.  He argues that “the voluntary sector” should become “the third leg of the stool” in public service provision.

He is partly right.  But he is also partly wrong, and he makes a very significant mistake, as many Labour Ministers do (and he is, after all, trying to get back into the Ministerial fold, after his misjudged withdrawal…)

For Milburn fails to distinguish between the voluntary sector proper (where “volunteering” and “volunteers” are critical, both for funding and management) and the informal salaried not-for-profit sector, which does not rely on volunteering for its support. 

The "voluntary sector proper" will never be a satisfactory, reliable, partner in the provision of public services.  And the reason is a sound one: most volunteers are motivated by the firm belief that they are giving their time and money for the achievement of objectives which are not being or which cannot be provided by the "State sector".  For unpaid volunteers, personal motivation is critically all-important - and if volunteers come to believe that they are merely being used as cheap labour by the State, the springs of voluntary motivation will very quickly run dry. 

The growing "informal public sector" is quite different.  It is a small trading sector (in education, health, public recreation, community care, minor transportation projects) but its ranks will be swollen by the community interest companies (CICs), to be permitted under new company legislation promised for 2004.  These are trading companies dedicated to public service objectives (many of them registered charities), without any distribution of profits, and perfectly capable of becoming a major and diverse factor in public service delivery, as Alan Milburn has outlined.  They do not rely on volunteers, and pay their way in the labour market.  Their ethos, their corporate style, their corporate values, are all consistent with those of the mainstream public sector, and they can offer reliable, flexible partnerships both to local authorities and to central-government agencies.

If he intends to finger only this small growing sector, Alan Milburn is on the right track.  But woe betide him if he gets back into the Cabinet, and tries to dragoon the great British army of volunteers into being the handmaidens of State enterprise.  He will quickly kill the geese that lay a lorra golden eggs - but who are determined to decide for themselves where and when they lay them.

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