Alan Watkins: Oh, how they must wish this fox had fled

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From time to time, not very often these days, I have appeared on television programmes constructed round Prime Minister's Questions. The preliminary bit is always devoted to a discussion of what questions are likely to come up. This, I must confess, has always struck me as a somewhat pointless exercise, because we have to wait only a few minutes to know for certain what the questions will be. The preliminary talk usually serves to illustrate what bad guessers most people are. Perhaps that, after all, is the point of it.

From time to time, not very often these days, I have appeared on television programmes constructed round Prime Minister's Questions. The preliminary bit is always devoted to a discussion of what questions are likely to come up. This, I must confess, has always struck me as a somewhat pointless exercise, because we have to wait only a few minutes to know for certain what the questions will be. The preliminary talk usually serves to illustrate what bad guessers most people are. Perhaps that, after all, is the point of it.

Still, if I had been asked, shortly before midday last Wednesday, what question Mr Michael Howard was likely to bring up, I should have replied unhesitatingly: fox-hunting. And I would have been wrong. Instead Mr Howard asked about the failings of the Child Support Agency and about policemen who were required to complete a foot-long form after stopping anyone in the street. They were perfectly good questions, but Mr Tony Blair managed to convey, as he usually does, that all the trouble had started under the previous Conservative government and that now, through Herculean exertions of mind and body, his own administration was slowly bringing matters under some kind of control.

The previous week, Mr Howard had asked about some fraud allegedly perpetrated by email. Mr Blair pretended to be horrified, not so much by the fraud as by the allegation. In particular, the charge that it had been carried out by email was the cause of special offence. Why, Dame Edith Evans playing Lady Bracknell could not have been more dismissive. Emails, indeed! What would the right honourable gentleman be thinking of next? It was, Mr Blair said, preposterous. It gave one some idea of the depths to which the Leader of the Opposition was prepared to sink. In fact, as the most cursory perusal of the daily papers will show, frauds are carried out by email virtually every hour. But in the crude terms imposed by PMQs, the exchange was "won" by Mr Blair.

He would not have found fox-hunting so easy to deal with, but Mr Howard did not ask him about it. I do not care greatly for the activity myself. It is not a straight libertarian issue, any more than, say, halal or kosher slaughter is a simple question of religious toleration. I have always found the practice of "digging out" not only cruel but unsporting, for if the poor old fox has reached home base it is surely entitled to raise two claws to the pursuing huntsmen without fear of further molestation?

Even so, there is a fanaticism about some of the activity's opponents which (to bring in Lady Bracknell again) reminds one of the worst excesses of the French Revolution, with Sir Gerald Kaufman as Robespierre. It is worth remembering, however, that on Thursday Mr Blair's backbenchers were prepared to play along with him to the extent of giving him the shorter of the two periods of delay for which he was asking. This would, at any rate, have been long enough to postpone the abolition of hunting until after the general election. It was this which was Mr Blair's primary concern. And it was the House of Lords which refused to play along with Mr Blair, led by the fox-hunting Lady Mallalieu (whose father, the Labour MP and journalist J P W Mallalieu, once played scrum-half for Oxford). "'Twere well it were done quickly": that was their lordships' motto for the occasion. The result is that, by March, fox-hunting will no longer be a legal activity in this country. By the end of the evening, judged by his television pictures, the Prime Minister seemed to have turned a delicate shade of grey. Indeed, he went on to speak hopefully of "legal challenges".

All modern governments affect to despise the courts, composed as they are of elderly gentlemen in wigs who make Prince Charles look a radical figure. Politicians lose no time in pointing out that it is ministers who represent the will of the people. What they really represent are civil servants and bright young advisers who have managed to turn their pet proposals into government policy, but no matter. Mr Howard himself was a leading exponent of this approach when he was Home Secretary and his decisions were being overturned monthly in the High Court.

Mr Jack Straw, in the same job, took the same line; while Mr David Blunkett has adopted it with more enthusiasm than anyone of recent times. Almost the sole tradition of Old Labour which this government has maintained is that, despite the Human Rights Act, judges are not to be trusted. But here was Mr Blair, virtually welcoming the possibility of a challenge to the legislation in the courts!

The challenge would take two forms: an appeal to the Human Rights Act and a questioning of the Parliament Act 1949. It was the latter which Mr Speaker Martin invoked on Thursday evening. As the Lords had rejected the most recent delaying amendment, the Act restores the original Commons position and overrules their lordships. It provides for a delay of just over a year from that original Commons position. The 1949 Act replaced a delay of just over two years which had been laid down in the Parliament Act 1911 to secure the passing of Lloyd George's radical Budget.

But the second Act, of 1949, used its own provision - of the one-year-plus delay instead of two-years-plus - so as to get itself passed. Hence the argument that the 1949 Act is not a proper statute at all. There is, however, no suggestion that the 1911 Act is invalid. There would still be the power to override the Lords, but it would be after two years-and-a-bit, not one. The most eminent exponent of the view that the 1949 Act is not a proper measure is perhaps Lord Donaldson. As Mr Justice Donaldson he had been chairman of the Industrial Relations Court in Edward Heath's time. Owing to his unpopularity in Labour circles - though he had done his job perfectly competently - the Labour Lord Chancellor, Elwyn Jones, refused to promote him to the Court of Appeal, as he deserved to be. That was left to Margaret Thatcher, who later promoted him to be Master of the Rolls.

My guess is that the Donaldson view will not prevail. Nor, equally, will a challenge under the Human Rights Act, for in framing the Act Lord Irvine was careful to preserve the sovereignty of Parliament, while allowing the judges nevertheless to find that a measure was indeed a breach of the Act. Paradoxically, however, this is not a matter - as it usually is - of a tyrannical government forcing a measure through come what may. It is a case, rather, of oppressive backbenchers forcing their views on a weak government which would have been happier if this particular fox had been allowed to get away.

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