Democratic Restraints - 21st August 2011

Gadzooks! Is there no end to these emails: it’s August, after all, people are supposed to take a break. Last week my inbox was stacked full of emails complaining about the courts being too lenient with rioters, but this week Fordingbridge has, on the contrary, risen in email indignation at the very harshness of the sentences. The only common thread between these two sets of emails is that they both blame me for it. Those few who do not appear to blame me personally, do so by implication, by laying blame at the door of the Government of which I am a supporter.

Let me make it clear again, one of the strengths of our constitution –or one of its annoying frustrations, depending on which way you look at it- is what we call the ‘separation of powers’ by which the courts are independent of the government and Parliament. It is simply not in the gift of elected politicians to tell magistrates and judges what sentences to hand down. We can huff and puff until we are blue in the face but it won’t make a blind bit of difference.  A moment’s thought would tell us that there is wisdom in this judicial independence. Our liberties would not long endure if politicians could order the police whom to arrest and order the courts how long to imprison them for.

Of course every now and then, driven to distraction by liberal judges, Parliament will lay down a mandatory sentence in statute for a particular offence. By and large, however, judges enjoy a fairly broad discretion as to the sentences they hand down.

This judicial independence is not unique. There are other institutions that retain independence of central government and freedom of action. Such has been the concern about the erosion this independence in the post war period that the coalition Government has agreed an agenda to diminish its own power as the central government and to enhance that of independent institutions. This has started with Parliament itself. In the past the chairmen and members of parliamentary select committees -set up to hold the Government to account- were themselves appointed by the government. In this Parliament, for the first time, they have been elected by back-bench MPs. In the Past the parliamentary time table was exclusively in the gift of the Government. In this parliament, for the first time, a back-bench business committee has been set up to choose its own subjects for debate.

In the recent past the greater part of local government expenditure was ‘ring fenced’ by central government, So that local government was told exactly how to spend the funds distributed to it. That ring fencing has now been removed. Whitehall calculates the needs of local authorities on the basis of all sorts of requirements from road maintenance to social care, but it is now up to the elected councillors to decide how to actually spend it. This can be very frustrating for ministers because they have given up the power to tell councils what to do. They have reduced themselves to spectators shouting from the touch line at the players on the field. For example, ministers have urged councils to reduce their own expenditure but to maintain the grants that they distribute to voluntary organisations and charities which are providing social services.  It is galling for ministers to watch this advice being ignored as such grants are cut, but administration and executive salaries are not.

This agenda of pushing power and decision making away from Westminster and Whitehall to other institutions closer to the communities that the decisions will affect, is about to be given a very significant impetus by the Localism Bill which is currently going through Parliament. All this accords with my own political instincts. My prejudice is that governments, on the whole, do not do things well, and therefore the less they do the better. There is a difficulty however, it relies on a relatively well informed and sophisticated electorate. If voters inundate their MPs with emails demanding something be done about this or that, for which government does not have responsibility, then MPs will be justified in arming themselves with the power to control whatever it is. If central government is to be blamed for everything anyway, it may as well enjoy the luxury of screwing things up for itself.