There's one law for Euro-sceptics ...

Click to follow
The Independent Online
For those of us who occasionally ask who rules Britain, the past few days have been utterly fascinating. A series of judgments and announcements, notably on powers of detention and workers' rights, confirms the limited power of British ministers and the rising influence of their new rivals in Francophone towns and domestic courts.

Should the rest of us defect to the Euro-sceptical revolt? Certainly not - not in the second paragraph, anyway. Let us cool down and start instead with the question of who decides how long young killers should be left in jail.

The European Commission on Human Rights has declared that the Government has breached the human rights of two teenage killers, Abed Hussein and Prem Singh, because their time in jail will be determined by a politician, the Home Secretary, rather than by the courts. The issue now goes to a European court in Strasbourg.

It has clear implications for the more sensitive issue of how long Robert Thompson and Jon Venables, the 11-year-old killers of James Bulger, will serve. After being petitioned by the dead toddler's family, Michael Howard raised the minimum period of detention to 15 years. Lawyers for Thompson have been given leave to challenge Mr Howard in the High Court.

The reactions could have been pre-scripted by anyone with the vaguest interest in politics. On ITN's News at Ten on Monday night Mr Howard was in full-outrage mode: "In these matters, I actually think that it's right that the Parliament of this country should be sovereign, so were this decision to stand, I hope it won't, in the European Court of Human Rights, I think it raises very serious questions indeed."

We know what this means, don't we? It is the battle-cry of Euro-scepticism, the call to arms. And there could not be a more rousing or clear-cut example of bureaucratic interference, could there? The matter could hardly be simpler, could it?

Oh yes, it could. For though this episode tells us a lot about what is happening to our political system, it has nothing to do with Brussels and little to do with Parliament. The European Commission on Human Rights was the invention of the Council of Europe in the late Forties and was intended to banish forever the nightmare of state criminality from which the Continent had emerged. Despite the suspicion and hostility of the Attlee government, Britain was the first country to ratify it, in 1951. S o much for recent federalist plots.

And although the powers used by Mr Howard and challenged by the commission derived from the 1991 Criminal Justice Act, they were hardly an example of parliamentary power. These were executive powers, exercised personally by the minister. Often, "our sov e reign Parliament" turns out to be a useful populist fig leaf for ministers who otherwise spend much of their time trying to ignore or patronise it. In this case two political traditions are in conflict: one is constitutional and based on fundamental righ ts; and the other is ours.

It doesn't follow, though, that the choice is to embrace federalism or return to our good old ways.

Back in 1974, Lord Denning described the Treaty of Rome as being "like an incoming tide: it flows into the estuaries and up the rivers; it cannot be held back". And in the 20 years since he spoke, so the waters have flowed (carrying not a few Spanish trawlers with them). But tides eventually gurgle back again. It is their nature. With the single and hugely important exception of the single currency, the evidence is that the federal tide is receding throughout Europe.

As it does it will leave our political landscape much altered. It will probably leave us with stronger rights, not weaker ones. For the other half of the story of these recent cases is the rise of the judges. Both the Bulger case and the part-time worke r s' cases are among hundreds of examples of how British judges are becoming more heavily involved in public policy. It amounts to a quiet revolution affecting vast swathes of government activity.

The importing of European thinking about human rights and the legislation of the EU have accelerated this trend, but did not cause it. "Judicial review" comes from changes in the rules of the Supreme Court, the appointment of a new generation of judges, the rise of pressure groups and the long period of one-party rule. But a revolution it undoubtedly is: in the year that Lord Denning made his comment about the tides there were 160 such cases. Last year there were 2,886.

The big picture is that the old order, appealed to by Mr Howard as "the sovereignty of Parliament" is being washed away. Noiselessly, remorselessly, political power is being dispersed. It is going to European institutions, of course, but also to British judges, to bureaucrats, to the markets and to private corporations. It has also gone to journalists - Mr Howard is under fire for hurriedly banning rehabilitation "holidays" for mental patients after an article in the Sun.

In this new world the traditional political leadership cannot assume that voters feel an automatic sense of loyalty to the old institutions. There is a competition going on for our support, a weird sort of political market.

When Michael Portillo was forced to back down over rights for part-time workers, his position was in many ways similar to Mr Howard's, though the law concerned derived from the EU, not the convention. But though the employers' organisations were on his side, the general view seemed to be as clearly against him as it was in favour of Howard.

This emphasis on the decision, not the decision-maker, is natural: most of us are not constitutional lawyers and we tend to think more about the effects of decisions than who made them. If "Europe", or scarlet-jowled judges, give us rights and improve our lives, then we will be in favour of them.

For most people, good institutions are ones that seem to work and produce benign results; and bad ones are ones that don't. To believe otherwise is a profound political mistake. Institutions and individuals who want to retain authority have to realise that these days it's payment by results. And this is why so many of the anti-European Tories (not all) are misguided in their tactics and thinking.

Yes, Parliament has been undermined by the EU. But it has been damaged more by its own inability to pass effective and workable legislation, by the behaviour of some of its members and by its generally supine attitude to the executive. Yes, ministers have lost powers to Brussels. But they've lost more authority still by making bad decisions, by incompetence and (Mr Howard) by refusing to take any responsibility when things go so spectacularly wrong, as they did at Whitemoor prison.

After all this time it is delightful to discover that ministers are worried about democracy, and parliamentary accountability, and so forth. There is a case for serious worry about the democratic deficit in the EU but, if it's a sincere worry, it cannot

be disconnected from the democratic deficit in the UK. So will ministers now follow where their own logic leads and join the broad movement for proper political reform? When they do, I will enlist as a Euro-sceptic. Readers who think this will happen aresaluted; and reminded to leave a little something out for Father Christmas.

Comments