Comment: Here's to Mr Tony Blair, a man of his word

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The Independent Online
IT was the week when people began to tot up Mr Tony Blair's broken promises. There is to be no Bill to prohibit foxhunting, on which a free vote had originally been on offer. There is not even to be government time for Mr Mike Foster's Private Member's Bill such as Lord Jenkins gave to various measures in the 1960s when he was at the Home Office. Tobacco company sponsorship is to stay for motor racing but not, it appears, for other sports.

On animal testing for cosmetics it is difficult to know what precisely the Government's position is. Last Thursday Lord Williams of Mostyn, who used to be a Mr Moneybags at the Bar, appeared on our television screens sternly denouncing the cosmetics companies as if he were about to send them down for a long spell. Closer inspection reveals that what the Government has is a voluntary agreement, nothing more.

All these matters arouse strong feelings in some people. I dislike hunting but should hesitate before making it illegal; see no reason why cosmetics should be tested on animals when humans would perform the function better instead for a small consideration; and believe that tobacco companies should be treated in exactly the same way as any other lawful commercial organisation. None is a matter of great political significance.

Charging for university tuition fees, by contrast, undoubtedly is. On this New Labour has broken its word too. Mr Blair's defenders say he is resolved to terminate the comfortable arrangement, an old theme of the Tory free marketeers, whereby the working classes paid for the privileges of the middle classes and for their pleasures as well. Another way of putting this is to say that Mr Blair is set on creating the Means Test State, where formerly free public services will be charged for on a sliding scale depending on the recipient's income and circumstances.

There is one area, however, where Mr Blair has not broken his word. That is constitutional reform. We have already had the referendums for Scotland and Wales. In the Welsh referendum my own native county of Carmarthen swung the result in favour of an Assembly (I should have voted against if I had been given a vote). But it had the incidental effect of concentrating Mr Blair's mind on the referendum about the single currency. So close was the Welsh result that he parted company with Mr Gordon Brown and, while having an escape hatch, put off any European referendum for five years. He will live to regret it when the Europeans attack sterling, as they surely will in time, and we shall be left with the traditional Labour financial crisis.

Still, at the moment I want to applaud the Prime Minister, though not too noisily, for sticking to his word on constitutional reform. Not only is devolution set on its course. We also have a Human Rights Bill, incorporating the European Convention into United Kingdom law. Last week it had its second reading in the Lords rather than the Commons, where it will be considered in due course.

In his preface to the White Paper accompanying the Bill, Mr Blair listed the other constitutional items: an elected Mayor of London; freedom of information; a referendum on the voting system for the Commons; and reform of the Lords. My own feeling - I may turn out to be wrong - is that the foxhunting classes will notch up another victory over the last item. If Mr Blair wanted to reform the Lords he should have started straightaway, for it will be a ferocious business, more bloody by far than any foxhunt. Nevertheless, let us give credit where, so far, it is due. Lord Irvine of Lairg and Mr Jack Straw do not always see eye to eye; or this is what we are always being told. Even so, with the Human Rights Bill they have between them managed to square the circle of parliamentary sovereignty.

In fact - or, rather, in law - Parliament no longer is sovereign. We ceded sovereignty in the European Communities Act 1972. This provides that European law overrides even an Act of Parliament. Our courts have recognised this in a case involving Spanish fishermen. But what our courts cannot do is override one of our own Acts of Parliament. So when Mr Straw's Slaughter of the Firstborn (Miscellaneous Provisions) Bill duly passes through all its stages and receives the Royal Assent, it becomes part of the law of the land.

At the same time it would contravene Article 2 of the European Convention. The High Court or the Court of Appeal could then make what is to be termed a "declaration of incompatibility" which could itself be challenged in the courts, if the government so wished. Such a declaration, if upheld, would not itself have the effect of changing the law, which would continue to apply. But the White Paper claims it would "almost certainly prompt the Government and Parliament to change the law".

Well, we shall see about that when the time comes. Oddly enough, Lord Irvine said in a recent interview that he wanted to escape from the climate of antagonism between judges and ministers which existed under the previous government and was epitomised by the periodic dressings-down administered to Mr Michael Howard. Mr Straw has so far proved luckier or shown better judgement than his predecessor; perhaps it is a mixture of both. Mr Howard was rebuked or reversed for acting unlawfully, as were other ministers. Mr Straw is liable to receive the same treatment. But the judges have now been given an additional instrument in the European Convention. It will show extraordinary forbearance on their part if they do not make use of it.

The Bill envisages, however, that the Government will fall in obediently behind the judges' interpretation. It lays down that, irrespective of whether a decision has been arrived at by a UK court applying the European Convention or by the European Court of Human Rights itself, a minister can employ an accellarated procedure to satisfy the courts. He can do this by correcting the offending legislation not through an amending Act but through a ministerial Order. The Order will be subject to approval by both House of Parliament, except where the need to amend the legislation is thought to be urgent, when it will operate immediately but expire after a short period if not approved by Parliament.

We can take it for granted that the new House of Commons will do what the Government wants. We cannot assume so easily that the old House of Lords will do likewise. Clearly the need for approval of an amending Order by both Houses raises the possibility of a conflict between them which the Parliament Acts restricting the power of the Lords do nothing to resolve.

This supposes that the Government will introduce an amending Order or Orders, changing legislation which has been duly passed by Parliament, simply because the courts think it ought to do so. But governments do not readily take to being told what to do, especially when they have a majority of 177. The slippery doctrine of the mandate is liable to be invoked. It is one thing for ministers to be told they have broken the law; quite another for them to be informed that legislation is contrary to the European Convention and accordingly has to be changed. I congratulate Lord Irvine, whose Bill this is, or so it says on the cover. But I foresee some lively times ahead.

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