Burnham threatens to be the latest PM thwarted by Tony Blair’s deep state legacy

Even as I write, I sense the impatience of some readers. Few people are interested in process and, because of our media culture, we never blame civil servants, only politicians. You doubt me? OK. Can you name any of the officials involved in the only event at No 10 during lockdown that met the ordinary definition of a “party”, and which happened while Johnson was 40 miles away? Precisely.

We are governed, not by the carousel of party politicians, but by the permanent apparat. That apparat might not be partisan, but it does have corporate opinions. It is safetyist, interventionist, eco-obsessed, Europhile, high-spending, woke and invulnerable to public opinion.

We see its structural biases in every Whitehall ministry. Treasury officials ignore the dynamic effects of tax cuts. Home Office employees hate deporting illegal immigrants: it was their trade union that took the Rwanda scheme to court. The Education Department is slavering at the opportunity to replace Michael Gove’s knowledge-based curriculum with something less demanding and more anti-colonialist. The Business and Trade Department longs to sign up to EU rules. All subordinate their notional departmental goals to their twin ruling principles: net zero and DEI.

Even more radical was the Blairite juridical revolution. In 2003, seemingly from no higher motive than his dislike of the “men in tights”, Tony Blair announced that the Lord Chancellor would no longer control judicial appointments, and that a Supreme Court would be created. On paper, the Lord Chancellor’s role had indeed been anomalous. He was a member of all three branches of government: head of the judiciary, Speaker of the House of Lords and a member of Cabinet.

Yet, precisely because that combination was hard to justify, successive Lord Chancellors were meticulously neutral in their judicial appointments, promoting on merit. Once their function was taken over by a new Judicial Appointments Commission, the door was open to political favouritism, usually in the name of DEI, which eventually became formally recognised as part of the Commission’s remit.

Result? We now have a troop of activist judges who legislate from the bench. Labour ministers are as frustrated as their Tory predecessors by the determination of immigration tribunals to overturn repatriation orders on the flimsiest of pretexts. They are frustrated, too, at the readiness of courts to stop people building runways, power stations, even houses.

Eventually, Starmer himself, the very embodiment of a Doughty Street activist lawyer, came to see what was wrong: “For too long, blockers have had the upper hand in legal challenges – using our court processes to frustrate growth.” Naturally he, not the judges, took the rap.

Will his successor fare better? Is there any reason to expect Andy Burnham (assuming it is he) to break the pattern? Will he, like his predecessors, get in promising all sorts of things – welfare reforms, speedier deportations, more houses – only to find his proposals blocked by our bureaucracy and courts?

Not necessarily. He starts with advantages that his predecessors lacked. First, and most obviously, he will not discover the problem while on the job, since almost everyone in politics now recognises it. Second, because he is taking over from a Labour prime minister, he will not come to office convinced that every problem stems from Tory idiocy. Third, being Labour, he can more easily repeal the most problematic laws.

A Conservative ministry that set out to scrap the Equality Act or the Human Rights Act would be accused of bullying minorities. Labour would be trusted to remove the objectionable portions of those laws, perhaps replacing them with statutes that had similar names, but that did not give such huge powers to the deep state.

Will the incoming PM have the patience to do these things? Voters, as I say, are not interested in how to fix the plumbing; they just want results. But they won’t get results as long as courts can forbid North Sea drilling in which companies have invested in good faith, as they did when they halted the exploitation of the Jackdaw oilfield.

There will be little growth as long as judges can force local authorities and private companies into bankruptcy by inventing expansionist equal pay laws that go beyond any normal reading of the original statute. And that is before we get to truly challenging issues, such as taking benefits away from people whom ministers think fit to work.

The question, in short, is whether the next Labour leader will return to that party’s roots as a force for the dispersal of power away from remote elites. These days, those elites are not made up of dukes or bishops, but of quangocrats and judges who, while they might lean Left on cultural issues, will be just as much of a barrier to growth as under previous administrations.

The first test, I suspect, will be over the Chagos Islands fiasco, an example of what happens when human rights law is given primacy over every other consideration. Apart from Starmer’s Matrix Chambers and Doughty Street buddies, no one backs the deal: Labour’s benches were conspicuously empty every time some hapless minister was obliged to defend it.

Basic common sense will tell our next PM to scrape the barnacles from the hull – in other words, to drop a deal that requires us to raise taxes here so as to fund tax cuts in Mauritius. On the other hand, the standing apparat will continue to press for the handover, largely on what Roger Scruton used to call “down with us” grounds. Which way the new PM jumps will be an early indicator of what is coming.

[Source: Daily Telegraph]