The Lightbulb Changers Are Going Out All Over England

by Esmerelda Weatherwax (June 2008)

A new magazine was launched in the UK this week – Standpoint. I am still reading my paper copy, in which there is a great deal to read, most of it so far very interesting and there is also an on-line version. Some articles are web exclusive, others are not available on line.

However one article, available in both formats, fits neatly with what has been exercising my thoughts this month.
The Mole writes in “Unfit for Purpose” about the Ministry of Defence. The phrase unfit for purpose is telling. The then Home Secretary John Reid damned his own department the Home office with the similar phrase “Not fit for purpose” two years ago. He, (I suspect Mole is a he but I don’t know for certain) writes:

I am often asked why the MOD makes so many strange decisions and seems to care so little about the welfare of its personnel. People are surprised to read about expensive computer systems that fail to pay service members their proper salaries — or pay them late. Some are shocked by the apparent dumping of severely wounded personnel from Afghanistan and Iraq into civilian hospital wards, remote from their regiments and families, or the massive contracts for systems that are delivered late and don’t work properly, or the strange failure to publicise genuine successes and minor victories achieved “against the odds” in Afghanistan and Iraq.

None of these scandals — or many others less well known — would surprise anyone who knows the MOD and what it has become.

Most people still believe that the MOD is essentially a military organisation. It is not. It is an organisation dominated numerically, culturally and structurally by civil servants and consultants, many of whom are unsympathetic to its underlying purpose or even hostile to the military and its ethos. You just have to spend a few days at the MOD before you realise that the culture there is not just non-military, but anti-military.

That is one reason why so few of us (except for the chiefs of staff) regularly wear our uniforms to the office. Officers who desire a career in politics or the Civil Service try to seem as civilian as possible, and soon start speaking in the consultants’ jargon favoured by the “fast-track” Civil Service.

I once attended a meeting of MOD civil servants about “outsourcing” parts of the military. I was out of uniform. My colleagues were keen on outsourcing as much as possible; I argued that stripping out logistics and other capacity from the armed forces is dangerous — it means no longer having cooks and technicians who can be handed a weapon and told to fight. I asked the people around the table, “Who actually loves the military in all this?” There was an awkward silence. So I repeated the question in different form: “Who is putting the military requirement first?” One of the civil servants, a woman on the “fast track”, actually giggled. I reiterated that this was a serious question and noted that I was the only service person present. There was then great embarrassment as no one in the room had realised beforehand that I was a serving military officer. I probably wouldn’t have been invited if they had known.

The MOD has slipped from being one of the top five ministries to one of second or even third rank. Moreover, even if our top generals wanted to oppose some aspect of defence policy, they would find the MOD’s structure is now rigged so that civil servants increasingly come between them and the government.

Back in the late 1980s things were very different. It was only two decades since the Admiralty, Air Ministry and Ministry of War had been folded into a combined HQ. In those days there was broadly a one-to-four ratio of civilian to military personnel. On any project you would have one member of each service, plus a “scientific civilian”.

After that two doctrines came into play — “jointness” and “equivalency”. Together they drove out specialised military professionalism and brought in a new managerial, non-specialist cadre of civil servants.

Worse still, the civil servants who now dominate the MOD are a different breed from those who staffed it in the 1980s. In those days there were still many civil servants who had served in the Second World War or Korea, or who had at least done national service. They respected and understood the armed services; they believed an effective military was important and had usually learnt essential skills of leadership and management. They were loyal to the Queen (then the head of the Civil Service), to the Civil Service itself and to its code, and to the service arm they were working for. They have all gone. (It was a vicious cull that left one particular friend in dire straits. --EW)

Their successors tend to see the services as a tiresome anachronism, peopled by unsympathetic, old-fashioned social types. For many of them the MOD, with its part-time minister, is merely a stepping stone to greater things. . . Cost-cutting at the MOD comes at the expense of the uniformed services. That is partly because military officials are more expensive: the civilian equivalent of a colonel is paid less. But it is mostly because military people get in the way and ask awkward questions.

Mole concludes,

Increasingly one gets the impression that the civil servants don’t care if the forces are broken — their careers will not be affected. But it may also be that some civil servants and a body of politicians, from both Left and Right, would actually be happy for the military to be broken in Iraq and Afghanistan. Then they will have truly achieved the Europeanisation of Britain’s armed forces along the lines of a purely defensive “UK Defence Force”. War will somehow have been abolished — until, of course, it returns at a time of our enemies’ choosing.

I mentioned earlier my interest in Cherie Blair’s memoirs. Charles Moore wrote this in The Telegraph two weeks ago covering an area I have been pondering.

As Cherie Blair reminds us, New Labour contains a great many lawyers.

Cherie is one, and Tony is another.

In her memoirs, Mrs Blair reveals that when she took up with Tony, she was already two-timing boyfriends. One of these, she says, was one John Higham, who is now a QC. On Thursday, Mrs Blair apologised to Mr Higham.

He had protested: "I have never been out with Cherie Blair".

It turned out that the "John" she referred to was somebody else. An error crept in when the index was compiled, and Mrs Blair did not spot it. Easily done, I suppose, when one's life is so full of lawyers. But, given the dangers of litigation, it might have been a good idea to check which future QC you had slept with before going to press.

Anyway, Tony first met Cherie because of another lawyer, Derry Irvine, their head of chambers. In his speech at their wedding, Lord Irvine described himself as "Cupid QC". When Tony became Prime Minister, Cupid QC was duly made Lord Chancellor.

The Blairs fell out of love with Derry, however. In her memoirs, Mrs Blair recalls how he drunkenly ransacked her flat until he found a hidden bottle of "exceptionally good, exceptionally old, exceptionally expensive" wine, which he then drank without permission. In 2003, Lord Chancellor Cupid was relieved of his post by Tony Blair.

There then happened one of the strangest episodes in the constitutional history of Britain. For a gripping description, read the speech delivered in Jersey last week by the Lord Chief Justice, Lord Phillips of Worth Matravers.

In our jurisdiction (England and Wales) the Government announced in 2003, without consultation, that the Lord Chancellor would be abolished. The Queen had not been asked for her views on the abolition of her closest advisor. No-one had consulted the then Lord Chief Justice, Lord Woolf. So concerned was he by the proposed changes that he delayed his retirement by twelve months to lead the judiciary on a long and problematic negotiation with the government over the proposed content of the Constitutional Reform Bill. This resulted in the Concordat, setting out the basic principles under which the judges and executive will relate to each other. Much of what was agreed is in the Constitutional Reform Act, and where it isn’t we refer to the concordat.

The abolition was announced on a Thursday evening. I didn’t see or read the news that evening and didn’t buy a paper on the Friday morning. I got to my desk and wondered why my colleagues looked shocked and bemused.

“You can turn your computer on”, I was told, “but no work is to be dispatched until we have further orders.  Lord Irvine is packing his belongings at this very moment - his retirement is immediate. Space is being cleared for Lord Falconer to move into over the weekend. His job is to abolish himself within the year. From today we are the Department for Constitutional Affairs”. 

What do we do? Our boss said there was only one thing for it; a rare but welcome pub lunch for the whole team.

It was no surprise that the abolition of the Lord Chancellor did not succeed. Some opponents resisted the abolition of an office older than democracy, older than Parliament, older than Magna Carta and older than the Norman Conquest.

Others thought that the Lord Chancellor was needed to speak on behalf of the judiciary in government. Others, perhaps even more practically, identified that the ancient office was enshrined in statute. Under the Regency Act of 1937, for example, the Lord Chancellor is one of five people who participate in determining the capacity of the Sovereign to discharge his or her duties. The Lord Chancellor has hundreds of other statutory obligations and these could only be changed by primary legislation.

Agreement was sought by the Lords. The Lords weren’t in a cooperative mood. The Lord Chancellor survived but with radically altered powers. He is no longer the Speaker of the House of Lords. For the first time in history, the Lord Chancellor is not a member of the House of Lords. Jack Straw is a commoner. He is not President of the Courts of England and Wales.
He is prevented from sitting in the Appellate Committees of the House of Lords2 and the Privy Council. He has been stripped of all judicial functions and so of course is no longer the Head of the Judiciary.

Charles Moore continues,

Mr Blair, Lord Phillips reminds us, decided to abolish the office of Lord Chancellor altogether. It began, some scholars believe, in 615. The Lord Chancellor gradually became the chief minister of the King. He took charge of the King's law court. As this evolved into Parliament, he presided over the House of Lords. In later times, he became a Cabinet minister and head of the judiciary. He accumulated hundreds of statutory obligations, including to the monarch and the Church. It was an important, ancient, complicated thing, like our constitution itself.

But Mr Blair announced abolition without consulting, or even telling the Queen, or the judiciary.

"Untune that string," says Shakespeare, "and hark what discord follows." It turned out that what Mr Blair intended was literally impossible. The roles of the Lord Chancellor were too deep-rooted. Instead, only some of them were replaced. The office tottered on, emasculated.

The big point of principle in Mr Blair's mind was what is known as "the separation of powers". It was against Human Rights, he considered, for the head of the judiciary to be a Cabinet Minister. In practice, the Lord Chancellor had long been the spokesman of law within politics, rather than the imposer of politics upon law, but he was cast aside all the same.

The Lord Chief Justice was made head of the judiciary instead, but still he was kept in the dark. In January last year, Lord Phillips recalls, he read in The Sunday Telegraph that there would be a new Ministry of Justice which would run the courts, possibly compromising their independence. No one had told him. As a result, he made an "unusual" public statement about this.
"Unusual", in judge-speak, is a very big word indeed.

To quote the Lord Chief again,

The Government’s appetite for constitutional change was not satiated by the Constitutional Reform Act in 2005. In 2007 it was announced that we were to have a new Ministry. The Ministry of Justice would subsume the responsibilities of the Department for Constitutional Affairs.

It was to deal with constitutional affairs, civil and administrative justice, the judiciary, the courts, legal aid, the judiciary and the administration of justice. But there was also to be responsibility for prisons, offender management and criminal justice policy, which had been Home Office functions.

The judiciary were concerned that this was a constitutionally significant change to the machinery of government. One department was to uphold the rule of law and the independence of the judiciary and yet the same department would also have responsibility for criminal justice. That Department would have one pot of money from which to fund the court system, and the prisons. The judiciary was concerned that the Department would rob Peter to pay Paul. Peter being the judges and Paul being the prisons. Would the Department be able to prioritise the administration of justice whilst dealing with criminal justice policy?

The Constitutional Reform Act 2005 makes the Lord Chancellor the guardian of the independence of the judiciary. It was feared that this principle would be compromised by these, so called, machinery of government changes. It was intended that the role of Lord Chancellor would be performed by the Minister of Justice. Thus the Lord Chancellor would be required to lead on the government’s criminal law policies.

The first I or the then Lord Chancellor, Lord Falconer, learnt of the creation of the Ministry of Justice was when we were reading our Sunday Telegraphs on the 21st of January 2007. Once again the government had not consulted on a key constitutional change. The handling of the abolition of the Lord Chancellor was brought to mind. No guarantees of the protection of the independence of the judiciary were given. There was no promise to protect the administration of justice within the new Department.

Once again we embarked on negotiations with the government. These negotiations remained on-going at the time the Ministry of Justice came into being on the 9th of May 2007. Lord Falconer and the Prime Minister refused to accept that the proposed changes were anything more than a machinery of government change.

I felt so strongly on these developments that I made a public statement highlighting my misgivings. This was unusual and came to the attention of the Constitutional Affairs Committee of the House of Commons. They concluded that the Ministry of Justice was indeed a major constitutional change. They criticised the Government for underestimating the concerns of the judiciary insofar as they related to the changes to the roles and responsibilities of the Lord Chancellor. The Committee concluded it was a unfortunate that the creation of the new ministry seemed to have been a fait accompli as early as January 2007.

Charles Moore concludes,

There was a huge row, which eventually resulted in a deal. The minister responsible for smoothing ruffled wigs was Jack Straw, who is now the Lord Chancellor. And guess who, under the new system, is the guardian of judicial independence in government? The Lord Chancellor!

Before New Labour, judicial independence was guaranteed by a Lord Chancellor who, being a judge, knew something about it. Now it is guaranteed by a “Lord” Chancellor who is not allowed to be a judge, but is a career MP, who therefore knows (and cares) little.

Previously the Lord Chancellor was a political appointment only in that he (there has not been a woman in modern times yet, and there is some disagreement as to whether Eleanor of Aquitaine took on that responsibility during her period as regent) came from the ranks of the party that formed the government. But he came as a respected senior member of the legal profession and in many ways he was beyond politics. It was an honour and a vocation. The Lord Chancellor's Department was never overtly political. The Lord Chancellor was never "reshuffled". He left office before the government changed only for reasons of ill health or suchlike and was then replaced. Jack Straw is just another politician, running (or not) just another department. I read today (1st June) a suggestion that the Deputy Prime Minister should be an Englishman, to balance the Prime Minister, a Scotsman, and that Jack Straw is the man for the job. So who would be slid into the post of Secretary of State for Justice (and Lord Chancellor) in his stead? Whoever is nearest when the music stops presumably. 

The joke doing the rounds is that previously there was one department, the Home Office “not fit for purpose”. By splitting the Home Office and putting half with another department the nation can have two departments “not fit for purpose” for the same money.

Which is where I come in. Or more accurately, go out, of the Department which I have always referred to here as the Department of Lightbulb Changers after 31 years.

New blood, ie young people who are not encouraged to have the old fashioned attitudes of loyalty and public service described by Mole above are now preferred and financial savings had to be made. Two birds could be killed with the one stone and this spring a large number of us, all with 20-35+ years experience were given compulsory early retirement, to be replaced by junior officers who will be expected to conform to diktat while being paid peanuts.

I worked under some memorable Lord Chancellors. I was too junior and new for Lord Elwyn-Jones to be anything other than a distant figure, although senior colleagues spoke well of him. Lord Hailsham was a steady influence for many years. Lord Havers was not in post long due to ill health. I regret never meeting Lord Mackay because I have never heard a bad word about him – he seems to have been a consummate gentleman. Lord Irvine was exacting and thorough with an eye for the tiniest detail. Lord Falconer was not the pliable ex-flatmate of Tone that was feared. I think the most charitable thing that I can say about Jack Straw is that the problems of the Prison Service side of the Ministry and, shall we say, the wider issues of government leave him little time for the Administration of Justice.

And me? I’m enjoying the rest.
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