The inns of court are set to flow with fine wines

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BY THE time the Pinochet affair is over, it will have bought pipes of vintage port in the Temple and cases of finest old chateau-bottled claret in Lincoln's Inn. The flags (of Spain, Chile and the Union) will flutter with the bunting in King's Bench Walk. Whoever turns out to be the winner - General Pinochet, Mr Jack Straw, the mysterious Spanish judge who began the proceedings - at least the legal profession know they cannot lose.

The Home Secretary has so far received an excellent press. He has even been described as a future leader of the Labour Party whose prospects would have been disturbed had he arrived at the "wrong" decision (that is, a decision to send the general home). Any politician who appears on television or whose name gets into the papers is liable to be described as a future leader of his party.

Mr Straw is exceptional in that the claim is being made contemporaneously rather than after some catastrophe terminating his political career. True, not even the silliest writer has yet described Mr Ron Davies as a former future leader of the Labour Party. But perhaps the time will come, after a few years have passed.

The time has certainly come for Mr Jonathan Aitken. Hardly a week goes by when he is not described in the public prints as "at one time considered a possible future leader of the Conservative Party". Oh no he wasn't. He was considered an independent-minded backbencher and a charming rogue. When Mr John Major unexpectedly made him responsible for defence procurement in 1992, he was thought to be taking a risk. When he promoted him to the Cabinet as Chief Secretary in 1994, he was believed to have lost his wits.

No more was Mr John Profumo thought of as a future Tory leader before the scandal of 1963. He might have got into the Cabinet, just about: but the picture of him succeeding Harold Macmillan or, indeed, anyone else is ludicrous.

Mr Straw has not fallen as Mr Aitken and Mr Profumo did. He is unlikely to. He gives the impression of being a prudent character, though you never know. But he was not being talked about as a future leader till the Pinochet affair happened. The only people who are doing the talking are writers who ply their trade far from Westminster.

He has so far stuck to a consistent line: that he will follow the law and take his decisions on quasi-judicial rather than on political grounds. He has deviated from standard practice only once, in a laudable direction: with the decision, he published his reasons.

The phrase "quasi-judicial" has received a good deal of learned legal analysis over the years. The consensus seems to be that we should be better off without it, because it is confusing. But what is involved - or supposed to be involved - is reasonably clear. The minister follows precedent, on which he is advised by his civil servants. He does not consult other ministers, including the prime minister. He receives submissions from both sides. He tries to behave not as a politician seeking personal or party advantage but as a servant of the Crown earnestly trying to locate the balance of the public good.

As we know, "the public good", sometimes varied to "the public interest", presupposes all kinds of political assumptions and moral preferences. Mr Tony Benn's notion of it would be very different from, say, Lady Thatcher's; though, curiously enough, their views about what would constitute proper private behaviour would probably coincide over 90 per cent of the area.

It is not only in extradition cases that ministers have to arrive at decisions of this kind. Whether you call them quasi-judicial or exercises in ministerial discretion is largely a matter of taste. The most important are taken by Mr Peter Mandelson as President of the Board of Trade. Indeed, Mr Mandelson possesses powers of terrifying extent over references to the Monopolies and Mergers Commission, the functions of the Office of Fair Trading and much else besides. He can propose or dispose, accept or reject. This has nothing to do with Mr Mandelson. The same powers were exercised by Mr Michael Heseltine and his predecessors, a consequence of what Parliament has passed, principally an Act of 1973.

Mr Mandelson has just decided to refer Mr Rupert Murdoch's proposed purchase of Manchester United to the MMC. Various Mr Worldly Wisemen thought he would not do this on account of Mr Tony Blair's wish to retain Mr Murdoch's good opinion or, at any rate, not to do anything that might incur Mr Murdoch's disapproval.

Nor was this incorrect prediction wholly cynical or lacking in evidence from the past. Sixteen years ago Mr John (now Lord) Biffen, Secretary for Trade, should clearly have referred Mr Murdoch's acquisition of the Times to the commission but refused to do so on the spurious ground that the Sunday Times, which Mr Murdoch already owned, was losing money. As Woodrow Wyatt tells us in his Journals:

"I reminded Rupert during the evening [of 14 June 1987] how at his request and at my instigation she [Margaret Thatcher] had stopped the Times acquisition being referred to the Monopolies Commission though the Sunday Times was not really losing money and the pair together were not."

This political decision went unmarked by the courts. But over the past 30 years they have, through the development of judicial review, been increasingly ready to modify or overrule the decisions of ministers. In the last phase of the Conservative government, scarcely a week went by without Mr Michael Howard's being on the receiving end of a rebuff from the Court of Appeal. Ministers became quite cross, saying publicly and in private that the judges were getting above themselves and that it was they, the Conservatives, who had been elected by the people.

The then Opposition were content to sit back and enjoy the show. In government, they were not nearly so approving of judicial activism. I remember Anthony Crosland raging when he was Education Secretary and Mr Justice Edmund Davies had delivered a judgment which was not to his liking on comprehensive schools in Ealing. Crosland announced his intention of attacking him because he was clearly the wealthy recipient of a private education. When I pointed out that the learned judge was the product of Mountain Ash Grammar School, Crosland became even more annoyed.

So far, however, the Government has enjoyed remarkable indulgence from the judges, whether because they are anxious to give new ministers a fair wind or because those ministers are unusually law-abiding souls is difficult to say. What we can say is that it will not last for ever. Mr Straw, for one, is certain to be challenged, whatever he decides.

When the Human Rights Act (which applies to Northern Ireland as well) comes into force, the scope for judicial intervention will be increased. Inevitably, judges will become figures of public controversy, as Lord Hoffmann now finds himself over his and his wife's connections with Amnesty. Their political preferences and affiliations will be scrutinised as are those of the judges of the US Supreme Court. No matter: whatever happens there will be ever more abundant supplies of fine old French-type wines in Lincoln's Inn and the Temple.

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