He simply doesn’t get it

Charles Clarke (former Home Secretary) is in the news again this week, this time criticising the Law Lords for, he says, refusing to discuss anti-terrorism legislation with ministers:

Former Home Secretary Charles Clarke has condemned the “disgraceful” refusal of the Law Lords to talk to ministers about anti-terrorism laws.

Now, I don’t know whether they refused or not. If they did, I imagine they would have felt that it wasn’t their place as Law Lords – part of the judiciary – to interfere with the legislative process. (update – see below)

However, if I understand correctly, they would be involved in debating such legislation in their normal capacity as members of the House of Lords.

Or perhaps they think they could make better use of their time than to take part in a one-way debate.

The Court of Appeal ruled last August that using “control orders” to keep six terrorist suspects under a form of house arrest breached human rights.

Without any discussion, Mr Clarke’s successor John Reid had been told to “take another stab”, he told peers.

Mr Clarke said this was “incredible”, considering public fears over terror.

Well in my opinion that is incredible, because it seems a pretty childish way of putting it. It also seems pretty incredible that he thinks fear should overrule the decision of a court.

The Court of Appeal ruled – by the way, this was heard by three senior judges, one of whom was head of the judiciary in England and Wales, another the third most senior judge, and the other the most senior of the High Court – that the control orders should be quashed.

If the Home Secretary wanted to exercise his powers against the six men, he should think up a new set of obligations.

I suppose if you wanted to spin it as a flippant decision – or you know, those ancient grey-haired judges are really out of touch with the modern world and The Threat – you would use a phrase like “take another stab”.

If however you were a former Home Secretary truly concerned with what happened, and what could sensibly be done about it, you would read the High Court decision the Government decided to appeal, read the decision made by the Court of Appeal, and have a little think about whether or not all the judges involved had a point when they decided that keeping someone locked up 18 hours a day, electronically tagging them, the prospect that where they have been forced to live may be searched at any time day and night, and restricting their freedoms of movement and association, when they hadn’t been charged with any offences, was “incompatible with their right to liberty under Article 5 [of the ECHR]“, and that the Home Secretary wasn’t allowed under law to issue such orders.

A senior committee of Law Lords should be set up to discuss the general principles of new laws, providing ministers with better guidance, Mr Clarke told the Lords constitution committee.

Maybe, but would you listen Mr Clarke?

You were warned time and again by concerned citizens and Parliamentarians, for example the Joint Committee on Human Rights and the Newton Commitee, that such orders would fail in the courts for precisely the reason that they did.

You disagreed.

Mr Clarke, in your words you could not “accept that any of the control orders that have been made to date impose obligations on individuals that amount to a deprivation of liberty”.

You were wrong.

Clearly what Labour Ministers mean by ‘discussion’ and ‘debate’ is not talk and argue something out and reach an agreement or compromise. No, they mean that you should just agree with them.

He also said he thought the UK could leave the European Convention on Human Rights if public feeling increased that it restricted anti-terror efforts.

Sure, leave an international treaty on human rights. Hey, why not? After all, it only came about because of those little tiffs between 1914 and 1945.

Now what do you do about Article 5 (Right to Liberty and Security) of Schedule 1 of the Human Rights Act 1998? Repeal it?

“Dear proletariat public, you no longer have a right to liberty” ?

It had led to increased “tension” between ministers and judges, he told the Lords constitution committee.

No, you and your comrades increase tension between ministers and judges.

Don’t take my word for it – the Joint Committee on Human Rights (JCHR) for example criticised the Government for using the Human Rights Act as a “convenient scapegoat for unrelated administrative failings within Government”, and further that

Government itself was responsible for creating the public impression that in relation to each of the three highly contentious issues under consideration it was either the Human Rights Act itself or misinterpretations of that Act by officials which caused the problems.

In each case, very senior ministers, from the Prime Minister down, made assertions that the Human Rights Act, or judges or officials interpreting it, were responsible for certain unpopular events when, as we have shown above, in each case these assertions were unfounded.

Moreover, when those assertions were demonstrated to be unfounded, there was no acknowledgment of the error, or withdrawal of the comment, or any other attempt to inform the public of the mistake.

Back to the BBC:

Since the US attacks on 11 September, 2001, and the London bombings on 7 July, 2005, people had been “very exercised about whether or not we are preventing these crimes effectively”, Mr Clarke added.

Ministers have criticised several judgements on terror suspects.

Mr Clarke said one ruling by the Court of Appeal blocking the deportation of Afghans who took over a passenger plane had amounted to a “tacit invitation to terrorist hijackers”.

It showed the judiciary “bears not the slightest responsibility for protecting the public, and sometimes seems utterly unaware of the implications of their decisions for our security”.

Another fatuous comment.

Again, a reading of the original ruling and the Court of Appeal’s decision refutes Mr Clarke on that front. No surprise there.

But if you can’t make time to read those rulings – although you be interested in reading about the Home Office’s procrastination in the latter – here is the JCHR again:

We welcome the Lord Chancellor’s unequivocal acceptance of the correctness of the original decision in the Afghani hijackers case as a clear application of the requirement of human rights law that prevents deportation where the person faces death or torture or “something similar”.

In our view high level ministerial criticisms of court judgments in human rights cases as an abuse of common sense, or bizarre or inexplicable, only serves to fuel public misperceptions of the Human Rights Act and of human rights law generally.

So Mr Clarke, I guess you don’t even listen to the Lord Chancellor. To be fair, it’s not just him – it’s Reid and Blair as well.

Mr Clarke said the public did not usually understand what disputes between judges and ministers were about.

He said: “What I strongly dislike is flailing around in a cloud of views of senior lawyers with different opinions and the difficulty of getting to a firmness of accuracy in that situation.”

Mr Clarke added that “the politicians, the ministers, the judges and the parliamentarians generally do understand the broad relations” between the judiciary and the government.

But, he said: “I think citizens don’t and find it very, very confusing when there are rows taking place”

Pretty much the fault of the people who misrepresent the judgements, such as politicians and some journalists.

Mr Clarke added: “The idea that judges are so eminent and right… that they are beyond criticism is one I couldn’t go along with.”

Er… no-one says judges are beyond criticism. Indeed there have been judges who have said the most extraordinary things: such as Judge Pickles, who gave a lenient sentence to a rapist on the grounds that the victim “asked for it” by wearing a skirt that ended above the knees and no tights.

Mr Clarke, what people are saying is that before you and your mates go shooting your mouth off it would help if you were accurate, rather than desperately trying to appeal to the gallery.

Update

There is also an article in the Independent. This contains a bit more detail than the BBC article.

Mr Clarke was giving evidence to the House of Lords’ Select Committee on the Constitution, as part of a “Short Inquiry into relations between the executive, the judiciary and Parliament following the Constitutional Reform Act 2005″.

Mr Clarke’s evidence is not yet online, but here are some quotes from the article:

He accused [the judiciary] of being “utterly unaware” of the implications of their rulings for national security and said it was “disgraceful” that law lords were not prepared to discuss the principle of new laws with the Home Secretary. He attacked the “legal and parliamentary circus” that left anti-terror laws in doubt more than five years after the 9/11 attacks.

Mr Clarke said: “I maintain that this is a ludicrous way of proceeding which dangerously undermines confidence in every aspect of the police and criminal justice system at a time when the public first and foremost seeks protection against terrorist threats.”

He said that the claims by law lords that they cannot discuss the principle of legislation without undermining their impartiality “fuels the dangerously confused and ill-informed debate” about the Human Rights Act.

No it doesn’t! What it shows is that the Law Lords have a great deal more respect than you have shown for the principle of the separation of powers.

The judiciary ‘interfere’ with the legislative process very rarely – for example, Lord Woolf publicly attacked the ‘ouster clause’ in the Asylum and Immigration Bill.

Mr Clarke made his forthright comments during an evidence session before the Lords Constitution Committee. He said that, as Home Secretary, he never publicly criticised individual judgments, but criticised his successor John Reid for breaking that rule.

However, Mr Clarke attacked the decision of the Court of Appeal to block the deportation of Afghan hijackers who took over a passenger plane, saying it amounted to a “tacit invitation to terrorist hijackers”.

He also cited the case of anti-terrorist control orders which were overturned by the Appeal Court without offering advice about how to make the orders comply with human rights law.

This demonstrates his misunderstanding of the system.

The reason the judges won’t offer advice is because the courts have decided that the Home Secretary is best placed to decide on the obligations that make up the control order.

The role of the court is to interpret the law and decide whether or not the obligations imposed by the Home Secretary are lawful.

Mr Clarke’s evidence is not yet online, but there are two interesting (uncorrected) transcripts online, consisting of discussion with three journalists specialising in law for the broadsheets, and with the Lord Chancellor, Charles Falconer – who says, “from time to time ministers do go too far … you should never do anything that undermines respect for the court system”.

Mr Clarke, please listen.