Flawed judgment

The unfinished "reform" agenda isn't all that Tony Blair will bequeath his successors when he eventually goes. To say the British constitution is a mess is to say nothing new; that's its default position. What is new is knee-deep muddy confusion over the respective roles of ministers and councillors, their permanent officials and a growing army of "independents" standing in judgment on them without standing for office.

Labour ministers seem long ago to have given up thinking through what they propose; "joining up" is a joke. They create new bodies on a whim, then resist the logic of their existence. Last week, they rejected the finding of the independent Ann Abraham, who went far beyond previous understanding of the limits of the ombudsman role by criticising not just administration but pensions policy itself. But these same ministers applauded when the independent Standards Board for England and its adjudication panel, which they set up, passed censure on the conduct of a politician about whom they are still iffy - London's mayor, Ken Livingstone.

It's not just ministers, either, who extol "independence" but don't seem sure what they mean by it. The governor of the Bank of England - famously given its independence by Gordon Brown in 1997 - is resisting the diminution of bank employees on its monetary policy committee, on the grounds that the external independents who would replace them might not know enough.

Senior civil servants are at sixes and sevens, too. Lord (Richard) Wilson, the former cabinet secretary, is talking about "governance for government", which could mean subjecting ministers to the rule of (unelected) departmental boards. The draft code for the conduct of civil servants implies all sorts of ways in which a civil servant might refuse to do what a minister asks by reference to "independent" sources of judgment.

Elsewhere in Whitehall, there are deep misgivings over Brown's sudden realisation last autumn that Labour's opposition promise about the independence of the Office of National Statistics was nigh, 10 years on. If the ONS is genuinely independent, will the figures it chooses to collect be of any use or relevance to the business of government, which chops and changes, rightly, according to the dynamics of democracy?

Independence is a negative; it means not doing what you are told, finding instead some other source of motive or reason to act. What would impel "independent" public managers to get out of bed in the morning? Perhaps their replacement motivation would be unaccountability. The move to replace or hem in elected politicians by independents is a version of oligarchy or elite rule. Ombudsmen, commissioners and regulators know what's right intrinsically. They have authority by dint of who they are, not because they won it by persuasion and votes.

Already in local government there are umpteen ways in which a council officer can countermand or obstruct the will of elected members. So how, then, can council officers turn round and extol the special legitimacy of councillors, stemming from their democratic mandate?

But we can't trust them, the public keep telling pollsters, and they, the politicians, need cutting down to size. The point of "independence" is to bring to bear a higher quality of judgment than that which brute democracy serves up; the same principle underlies the operation of the courts, as long as judges are not elected. In the words of Richard Alldritt, chief executive of the impeccably independent Statistics Commission, "the virtue of true independents is that they face no perverse incentives, no need to woo an electorate".

Of course, independence is a bit of a sham. The legion of independent committees all have to have budgets, and independents do not select themselves - they are chosen. How many of them do we need? What if they start encroaching on terrain that ought to be policed by politics itself? The Livingstone case is an example. What he did or didn't say to a newspaper reporter shouldn't be judged by "independents"; it belongs in the realm of politics, to be debated and censured, as necessary, by his political opponents, who are always on the look out for ammunition.

Are we saying, about Blair, that the possibilities of rough, contestable politics have been exhausted and that the charges of sleaze or ideological deviation or whatever can't be brought and answered without the mobilisation of regulators, supervisors and commissions who, more often than not, end up further denigrating and diminishing politics in favour of the rule of the just?

· David Walker is editor of the Guardian's Public magazine