The law may be an ass, but it used to be our ass

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The Independent Online
This government is not unique in regarding the law as a hostile force. Though modern cabinets contain a disproportionate number of lawyers - perhaps, indeed, because of it - the courts have in recent times been viewed as potentially dangerous territory.

Some years ago I was discussing the Burmah Oil case with Mr Peter Jay. In this case the oil company had been ordered by the wartime government to destroy its Far Eastern installations before the advancing Japanese forces could secure them. The company did as it was told. After the war it sued the government for compensation. By a majority of three to two, the House of Lords decided that Burmah Oil should be reimbursed.

Mr Jay, who had been a Treasury official before embarking on his other careers, informed me that his department was determined that not a penny of public money should go to the company, whatever the courts might decide. Accordingly - this occurred before 1964 when a Conservative government was in power - a Bill was framed to reverse the Lords decision retrospectively, so taking away from the company money which the highest court in the land had decided was its due.

The Bill was adopted enthusiastically by the incoming Labour administration. After some to-ing and fro-ing with the House of Lords, it was duly passed into law. On this occasion the Lords did not dig themselves in, as they were to do with a subsequent piece of retrospective legislation, the War Crimes Bill. This piece of retrospection was arguably the more vicious.

With the Burmah Bill, a company was deprived retrospectively of money to which the courts had decided it was entitled. With the War Crimes Act 1991, a number of old men were to be held liable for acts for which they could not have been prosecuted in the United Kingdom at the time they were committed. Evidently the Lords felt this measure to be the more objectionable, for the Parliament Act 1949, overriding their objections, had to be used against them.

It was the very first use of this Act, which cut down to one year the delaying power of the Lords from the two years of the Parliament Act 1911. Indeed, it was only the fourth Act overriding the Lords since 1911: the others having been the Welsh Church Act 1914, the Government of Ireland Act 1914 and the Parliament Act 1949. This insistence by the Commons on making the War Crimes Bill law - though all the cases brought under it so far seem to have collapsed - was largely the work of Lady Thatcher. All Prime Ministers and governments will breach the rule of law when it suits their purposes to do so and when they think they can get away with it.

Nor is this the first government whose ministers have had their decisions questioned, modified or reversed by the judges. By chance, I was with Anthony Crosland, the Education Secretary, on the very evening when a scheme of his for reorganising schools in Ealing had been rejected by Mr Justice Edmund Davies (later Lord Edmund-Davies). Crosland was furious. He said he intended to mount a personal campaign against the learned judge. He was clearly, Crosland said, the product of a privileged background and an English public school who knew nothing about the problems of ordinary families.

At this point I felt bound to contradict the minister in the interests of truth. "Nothing wrong with Edmund," I said, "except that he can be a bit pompous sometimes. Mountain Ash boy. Went to the grammar school there and then on to King's, London." This was entirely correct but Crosland took no notice, though he refrained from embarking on his campaign.

In the Al-Fayed case I have more sympathy with Mr Michael Howard not because (as it appears) he left the decision to his then junior minister, Mr Charles Wardle - for such decisions are his responsibility - but rather because the 1981 Act which governs British nationality leaves the decision to the Home Secretary alone, with no requirement on him to state his reasons.

No doubt Lord Woolf has made the procedure fairer in judging that Mr Howard ought to have given Mr Mohammed al-Fayed the opportunity to deal with matters that were being held against him. But that is not what the Act says the Home Secretary ought to do. We shall see what the Law Lords have to say about it (for Lord Woolf, as Master of the Rolls, is head of the Court of Appeal). The Government, by the way, is not only entitled to take this case to the Lords but right to do so in such an important area.

Quite different considerations are raised by Mr John Major's decision to "defy" the European Court on the 48-hour week. I put the word in inverted commas because it is difficult to see how Mr Major and his colleagues can defy the ruling in question. They can, admittedly, try to obstruct Community business at the inter-governmental conference and on other occasions until they retire hurt, as they did over BSE. But, if I am correct, the court's decision is part of directly applicable European law: that is, courts in the UK have to apply it as if it were part of our domestic law. Where the latter conflicts with the former, European law prevails. That was explicit in the European Communities Act 1972 and has been confirmed on numerous occasions subsequently, notably over the Spanish fishermen.

No government, not even Mr Major's, can instruct the judges about the line they are to take. What it can do is pass an Act of Parliament which the judges will apply. They will undoubtedly do this even with Mr Howard's Bill on minimum sentencing, which they strongly dislike. Mr Major could try to pass an Act reversing the European Court's ruling on the 48-hour week, much as Harold Wilson passed an Act reversing the Lords ruling on Burmah Oil. Somehow I do not think he will. For the Burmah case was entirely about British matters (though if it had come about today it is possible that the European Court or the Court of Human Rights would have intervened). The 48-hour week judgment is, by contrast, European. An attempt to reverse it by means of a statute would conflict with the 1972 Act and probably with the Single European Act 1986 as well.

Certainly it is a principle of our system of government that an Act in one year can overrule Acts of previous years. It happens all the time. But it is difficult to see how it can be applied to European legislation or court decisions. If Mr Major attempted to reverse the 48-hour ruling through an Act of Parliament - the only way he could try to reverse it - he would be contradicting the provisions of the 1972 Act. The courts might say that it would first have to be repealed comprehensively. This, in turn, would mean our leaving the European Community or Union, as it now likes to call itself. In joining the Community in 1972 we bound ourselves with a kind of fundamental law. This is European law as it exists at any given moment. We shall be released only if we leave the Community.

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