Examination of Witnesses (Questions 122
- 139)
WEDNESDAY 17 JANUARY 2007
MR CHARLES CLARKE
Q122 Chairman:
Good morning and welcome. Thank you very much for coming; it is
much appreciated. Could I say that these proceedings will be televised
and perhaps I could invite you, Mr Clarke, to say, for the record,
who you are?
Mr Clarke: My name is Charles Clarke. I am Member
of Parliament for Norwich South. I have served in government in
various capacities, most recently as Home Secretary.
Q123 Chairman:
We know you have an opening statement because we have copies of
it. I think most members of the Committee have had time to read
it quickly but if you would like to repeat part or all of it you
would be extremely welcome.
Mr Clarke: Thank you very much, Lord Holme,
I appreciate that. Can I firstly say how pleased I am that the
Select Committee is holding this short inquiry and I am honoured
that you have asked me to give evidence to it. My deep concern—which
I have expressed previously—is that the current relationship
between the executive, legislature and judiciary is not as it
should be and that tensions between them could seriously erode
public confidence in the ability of the State to uphold the rule
of law in practice. Too frequently there are very public contradictory
judgments by senior ministers, police and judges which give rise
to confusion and a lack of confidence both within the criminal
justice system and in the public. I do want to make it clear that
I have the very highest regard for the two Lord Chief Justices
with whom I worked as Home Secretary, Harry Woolf and then Nick
Phillips. I believe that we had cordial and constructive personal
and working relationships and both maintain the highest levels
of personal and professional integrity. No concern which I express
implies any criticism of them or of our relationships. I particularly
want to emphasise that. The impact of the Human Rights Act, which
I strongly support, is generally positive. However its operation
sometimes appears to place the human rights of a suspected criminal
ahead of the rights of those threatened by that criminality, the
wider needs of the society or the consequences for society of
any particular decision. A good recent example of the last is
the Appeal Court judgments upon the cases of the Afghan hijackers
which successive home secretaries, including myself, have regarded
as a tacit invitation to terrorist hijackers. The underlying cause
of the problem is straightforward. It is that guilt for a criminal
act can only be proved after the act has been committed. This
means that arguments around the definition of intent, and how
to prove it indisputably, become central. In such circumstances
protection of the rights and liberty of a suspected prospective
criminal often seem to take higher priority than dealing with
the prospective criminal act however horrific. And, particularly
since 9/11, the threats of terrible crimes have been shown to
be real, notably in the case of the suicide attacks on July 7,
2005. Other threats have existed, and I have no doubt continue
to exist, and these give rise to wholly understandable public
concern. The huge pressure on the police and intelligence services
to prevent such attacks before they happen requires a variety
of techniques, some of which are criticised as an affront to basic
civil liberties, not least in Parliament, and in this House. This
is of course a legal minefield and a good recent illustration
is the Appeal Court judgment handed down on 1 August last year,
2006, the details of which I have given you. This case essentially
covered the extent to which the conditions set in a control order
made by the Home Secretary amount to deprivation of liberty under
the European Convention on Human Rights. The relevant legislation
was the Prevention of Terrorism Act 2005, which I took through
Parliament, and had been necessitated by a Law Lords judgment,
handed down the day after I became Home Secretary, which declared
that previous legislation to control some people suspected of
potential terrorist attacks to be unlawful in certain respects.
This Act was exhaustively debated in Parliament, not least by
many members of this Committee over a period of months with the
active engagement of many highly distinguished lawyers, and had
been the subject of historic all-night sittings as Lords and Commons
took different views. Once the Bill was enacted I, as Home Secretary,
made certain control orders with the benefit of the highest quality
legal advice from Home Office lawyers. These were the orders that
were then overturned at least in part by the Appeal Court, meeting
commendably—and I would say unusually—quickly after
the initial decision. Moreover their judgment at paragraphs 27
and 28 of the judgment rejected the suggestion that the Court
itself modify or direct the Secretary of State to modify, the
terms of the orders in order to make it comply with the Appeal
Courts interpretation of the European Convention. The Court stated
that the Secretary of State has (and I quote from the judgment):
"the power, should he decide, in the absence of a derogation
order, to make new control orders. . . . If the Secretary of State
decides to exercise this power, he will have to devise a new package
of obligations imposing controls on the respondents. This is an
exercise that the Secretary of State is very much better placed
to perform than the Court." I found this aspect of the judgment
incredible. After the most intense Parliamentary discussions,
followed by the Home Secretary's decision taken on the basis of
detailed legal advice, and then a series of legal actions up to
the Court of Appeal, the Home Secretary is then simply asked to
take another stab with no guidance whatsoever as to how the highest
Courts would view the legality of his complicated and difficult
decisions. In fact the Home Secretary then imposed new control
orders and then on 15 September last year petitioned for leave
to appeal against this Appeal Court judgment. Four months later
we await the Lords decision on this petition. More than five years
after 9/11 the legal and Parliamentary circus still moves on.
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. I therefore argue that it
is vital for the three constitutional arms—executive, legislature
and judiciary—to discuss the best way to act in the circumstances.
Such decisions should look for practical means of reaching a better
process of decision on these matters and should not address individual
legal cases. One possible outcome of such discussions might be
to agree a process whereby the senior judiciary gives a formal
opinion upon the extent to which proposals for legislation comply
with the European Convention before Parliament debates the Bill,
rather than possibly years later. I do not accept that the practical
meaning of "upholding the rule of law" and its impact
on the security of our society can be resolved only by the most
senior judiciary, the Law Lords. As the Appeal Court judgment
I mentioned earlier makes clear, 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. I regard it as disgraceful that no Law Lord is prepared
to discuss in any forum with the Home Secretary of the day the
issues of principle involved in these matters. The idea that their
independence would be corrupted by such discussions is risible.
In contrast as Home Secretary I was able usefully to discuss these
matters with Mr Luzius Wildhaber, the Swiss President of the European
Court of Human Rights in a way which could not prejudice the hearing
of any individual case. I strongly believe that the attitude of
the Law Lords has to change. It fuels the dangerously confused
and ill informed debate which challenges Britain's adherence to
the European Convention on Human Rights. It is now time for the
senior judiciary to engage in a serious and considered debate
about how best legally to confront terrorism in modern circumstances.
Thank you for the chance of making that opening statement.
Chairman: Thank you for that very
clear and very trenchant evidence which is an excellent way to
start our discussion this morning. Lord Woolf?
Q124 Lord Woolf:
I find myself in a somewhat embarrassing position. I am very grateful
to Mr Clarke for the generous remark he made about our personal
relationship when I was Chief Justice and he was Home Secretary.
However, we did have conversations, as he makes clear, and I would
be anxious to try to elicit a rather different reaction from Mr
Clarke because I think what he has said misunderstands the position
of the Law Lords. However, having regard to the fact that we had
had these personal conversations which were confidential, I feel
I would only do so if Mr Clarke is happy that I should do so.
Mr Clarke: I am very happy for that.
Chairman: Would you like to intervene at some
point?
Lord Woolf: If I may, yes.
Q125 Chairman:
Thank you for that. Could I start with the specific suggestion
you have made about the senior judiciary signing off, as it were,
on bills in terms of their compliance with the European Convention
at a time before parliamentary debate rather than years later?
This assumes, of course, that the judiciary are dealing with the
principle of legislation rather than with the practical effects.
Could you just explain how you think that might work?
Mr Clarke: The very real difficulty that is
faced is that at the moment the Secretary of State has to give
a certificate to Parliament on the basis of advice from his or
her lawyers about the compliance or otherwise of a particular
piece of legislation with the European Convention on Human Rights.
I did that on a number of occasions. To be candid, I was both
confident in the statement I was making but I was also doing it
on the basis of the legal advice I received from the Home Office
lawyers. If necessary the Attorney General could be involved in
giving further advice on that if that was thought to be advisable;
it happened in some cases but not in others. The convention was
that the essence of that advice could not be made public, even
to Parliament. Indeed, the fact of that lack of publicity about
that was a cause of parliamentary debate on a number of different
occasions. We have a state of affairs where that was done. We
then have the whole debate through Parliament with controversy
about whether the Secretary of State's certificate was or was
not valid taking a long period of time. Then you get at a later
juncture to a series of legal judgments based on the accuracy
or otherwise of the Secretary of State's statement about compliance
with the European courts. So you can have a process of literally
years going past before a higher court makes a judgment on whether
or not the Secretary of State's certificate is correct. How could
this be changed, because it seems to me a ludicrous state of affairs
if you go through an enormous parliamentary process with the most
distinguished lawyers in the land—mostly in this House—debating
this question and then there is a judgment made that a particular
certificate was not compliant. It seems to me the best way to
do it would be for a senior committee of Law Lords to make their
judgment on the Secretary of State's certificate right at the
outset. This would be a massive constitutional departure of course
because it would immediately introduce the judiciary into the
legislative process in some sense. I argue that that is the consequence
of the passage of the Human Rights Act and the consequence of
the fact that the Law Lords do take decisions on these matters
and it would be better to do it expeditiously right at the very
outset so if there were doubt that the Secretary of State's certificate
were correct amongst the highest lawyers in the land, that would
be made clear at the outset before the whole of the parliamentary
process rather than subsequently. Others may contradict me on
this, but I think I am right in saying that the current feeling
in the senior judiciary is that they should not participate in
Lords' debates on particular pieces of legislation generally if
there is any risk of them being seen to be partisan or drawn into
controversy about how the legislation might go. I quite understand
that. It relates to one of your questions about membership of
the House of Lords senior judiciary. However, it seems to me that
it is ridiculous to suggest that the senior Law Lords do not have
a part to play in this approach and I think that the kind of style
that I have suggested might help us better.
Q126 Chairman:
So the legal advice you were describing that you had as Home Secretary
was in respect of section 19, I imagine, of the Human Rights Act
which means that you have to make a declaration as minister that
the legislation is human rights compliant, as it were.
Mr Clarke: That is correct.
Q127 Chairman:
I suppose one could anticipate that one possible problem with
your formulation is that you might get a different judgment from
this panel, whoever they are, of Law Lords than that of your lawyers
who have given you the advice and presumably potentially including
the Attorney General that the legislation is human rights compliant.
Mr Clarke: Absolutely, but I would say that
it is better to have that right at the outset before Parliament
debates the whole question than going through the whole process
and then precisely the same thing happening at some point further
down the line where the Law Lords take the view, following legal
process, that the certificate was wrongly issued in the first
place. I think it would be better to have that right at the outset.
Classically these are narrow matters of judgment and the definition
of deprivation of liberty to which I have alluded in the opening
statement is a classic case of very narrow judgment. Some of the
Law Lords' judgments are very tightly cast; some of the parliamentary
judgments are very tightly cast. People of perfect integrity can
take different views about what this is, but it just seems to
me that getting to a resolution is important because otherwise
you have a scenario that goes on for years which can only give
rise to the view in the country as a whole that there is a game
being played here which does not play much part in their own concerns
about their own safety and security.
Chairman: I realise of course
this is simply a suggestion and I do not want to spend too long
on it, but we are very fortunate as a Committee not only having
a former Lord Chief Justice but two former Attorneys-General,
and I would like to bring in Lord Lyell and Lord Morris on this
particular suggestion. Lord Lyell?
Q128 Lord Lyell of Markyate:
Good morning, Mr Clarke. I think you were in the Home Office at
the time the Anti-Terrorism, Crime and Security Act 2001 came
through and the Football Hooliganism Bill. I hope it is not unfair
to say that actually it was very obvious on the face of the Football
Hooliganism Bill—which admittedly came in very quickly—that
the certificate of compliance was mistaken in a large number of
what many lawyers thought were rather obvious ways and indeed
clauses were dropped almost within hours of being challenged in
Parliament. The Anti-Terrorism, Crime and Security Act had very
grave defects on the human rights front in relation to lorry drivers,
for example, and you will be familiar with the case. I declare
an interest because I was involved in it. What I sympathise with
in your suggestion is that this would be in addition to either
pre-legislative or early legislative scrutiny, but you will recognise
the very great difficulty, given very proper separation of powers—which
I sometimes think is too formalistic—of putting those who
are actually going to have to judge the cases into a position
of taking an active part in the exact formulation of legislation.
Might what you seek to achieve be done by perhaps making available
the Home Office's advice to a committee of, say, retired Law Lords,
professors, former attorney generals and legal practitioners expert
in the area who could give guidance at an early stage as to pitfalls
which sometimes can become obvious or only too obvious later?
Mr Clarke: Lord Lyell, we have crossed swords
on the floor of the House and in committee on many occasions during
those moments and I am entirely familiar with what you say. You
are quite right that there was controversy about whether the statements
of the Secretary of State were correct or not. The only doubt—and
it is a serious doubt—that I would have with your particular
suggestion is that what you are actually suggesting is another
group of people who are eminent lawyers by some description or
another to advise the Home Secretary along with the legal team
he already has. I have no objection to that in principle, but
I do not think it would actually add to or solve the situation
since by definition those people would not have any greater authority
really than Home Office lawyers in that situation. Where you are
right in your criticism of what I said, of course, is that it
does draw the senior judiciary into a possibly compromised position
in relation to individual cases. I understand the point that you
are making in that regard and it is a very serious one. However,
my point is this: trying to continue to say that you have a total
separation between particularly the executive and the judiciary—but
even executive, legislature and judiciary—in the circumstances
of the Human Rights Act where judgments are being made does not
seem to me entirely sustainable. I went through the process in
my own mind—this may seem to you to be appalling—when
I was Home Secretary that if I was directed by the courts to carry
through decisions on the Afghan hijackers which I was absolutely
not prepared to do, would I do it? And what would be the implications
if I did not do it? Was I obliged as Home Secretary to carry out
a judicial ruling or not? This is a very difficult question. The
honest answer is "Yes", but if the answer is that I
am, as Home Secretary, obliged to carry out a judicial ruling,
however despicable I think it is and however dangerous I think
it is for the future security of the country, and I am the one
who stands in Parliament dealing with that situation, is that
an acceptable state of affairs? Actually I do not think it is.
On the other hand, if you give authority to somebody else to carry
out the judicial ruling of the Law Lords on, say, the Afghan hijackers
case, who would that person be? How would the power of the executive
be carried through? I say that these are all consequences of the
passage of the Human Rights Act which, as I say, I voted for and
I welcome and I support, but we should face up to them and that
does mean a degree of compromise on the separation of powers in
the way that I think needs to be done. I do not advocate my particular
small proposal in this as a solution; it may well be that there
are better ways of doing it than what I have suggested. The reason
why I focus so strongly on the need to have proper discussion
about these matters is that I do not think there is proper discussion.
I think the stance taken by executive, legislature and judiciary
on this is not working towards the common goal of establishing
a system which works well and smoothly and harmoniously.
Q129 Lord Morris of Aberavon:
I sympathise with you, Mr Clarke, in your concern for uncertainty.
My recollection is that the ministerial certificate of the compliance
of legislation with the Human Rights Act, the aim of that was
to ensure that there would not be uncertainty. Obviously your
lawyers—I have the utmost respect for them, I know many
of them individually—sometimes get it wrong and they have
been getting it wrong in the Home Office from time to time from
Michael Howard's days down and maybe earlier. Are there not practical
difficulties here if you have a panel looking at these matters?
As you have said, judgments are frequently on a narrow basis dealing
with the facts. Here they would be asked to opine on the hypothetical.
Are there not difficulties there? Secondly, would there not be
difficulties in that they would be debarred subsequently from
considering the matter in their formal judicial capacity and you
might get one answer from one set of eminent Law Lords and another
answer from another set in the same way as your lawyers have got
it wrong so far as the court is concerned?
Mr Clarke: That is fascinating. Thank you very
much for that, Lord Morris. In one case different lawyers take
different positions; in other cases the Home Office lawyers get
it wrong. I do not think that is the case. I think all of these
people—Home Office lawyers, Law Lords—take their different
positions on the issues and to say that one of them is right (in
quotation marks) is only true in the sense that there is a final
court which makes a final decision, but it does not mean that
the earlier judgments made either by lower courts or by particular
lawyers advising the Home Secretary or by the Attorney General
or whoever are necessarily in some sense wrong; it just means
they have made a different judgment on the issues that were there
before getting to the final court. Judgments have to be made and
I would say that the earlier you get to a final judgment the better
it is for good governance. I say that provisional judgment at
the beginning with the Home Secretary and then going through the
Commons debate, the Lords debate and then tested through various
processes of the hierarchy of the courts is not a very good way
of doing that on these kinds of questions. The reason I gave the
example I did in the opening statement is that this question of
what is the deprivation of liberty—what is meant by deprivation
of liberty when you are talking about a control order in the context
of the European Convention—is obviously a very serious question
and one which occupied a lot of time. However, at the end of the
day, I think saying there is a right or wrong judgment about what
adds up to a deprivation of liberty is difficult and that is why
I highlighted the paragraph in the Appeal Court judgment which
said that this is an exercise that the Secretary of State is very
much better placed to perform than the court precisely because
there is not an absolute answer of what is a deprivation of liberty.
What I am saying is that it is better to get to a final judgment
of this, of what will be legally sticking, insofar as you can
achieve it as early as possible and as directly as possible. That
is what I think you can do. On the debarring point, I do think
that is a point of substance and a substantial criticism of what
I propose. I do not know whether some device somewhere between
what Lord Lyell has said and what you have said, Lord Morris,
and what I have said might be possible whereby there was some
judicial committee of some kind which was made up of very, very
senior lawyers indeed but people who are not actually current
Law Lords or something of that kind, but whose decisions would,
by hypothesis, be given great weight by the Law Lords when a judgment
on a particular case arose. That is why I argue for some kind
of process of discussion of these questions because it may well
be that the debarring issue rules out, as it were, what I particularly
propose, but I am certain that getting to an early decision in
front of the country as to what the law is on these matters is
a much higher priority than simply allowing due process to go
on for often years in an unsatisfactory and unconcluded way.
Q130 Lord Morris of Aberavon:
What about putting bells on the ministerial certificate, making
it firmer and stronger.
Mr Clarke: That could be a way of doing it,
but there needs to be some buy-in by the judiciary to the ministerial
certificate, if I can put it like that. If many senior lawyers
regard Home Office lawyers as congenitally wrong (I know you do
not, Lord Morris, from your initial remarks, but some do) then
it would be better to get to a state of affairs where we were
in a different position of the authority of that ministerial statement
from the outset.
Chairman: We have a lot of questions
we want to ask you in a relatively limited period of time so I
am just going to take two more quick questions from Lord Peston
and Lord Bledisloe on the specific suggestion which I do not want
to labour to death because, as I say, it is only one part of your
submission.
Q131 Lord Peston:
All I am looking for is a little bit of clarification because
looking at your statement and what you have since talked about
you seem to be discussing two different things at the same time.
One is the general principle or the general question: "Does
this piece of legislation comply with the European Convention
et cetera?" and it seems to me that you, as Home Secretary,
can do nothing but go with what your lawyers tell you and you
can tell Parliament that and then Parliament proceeds on that
basis. It may well be you need better lawyers to help you. That
is the general question, but your actual concern, listening to
you and looking at your opening statement, does not really seem
to be about the general question, it is about the application
of the general scene in the specific case. That is what is troubling
you, am I not right? Whatever we do it seems to me in a specific
case the courts can come up with an answer that the Home Secretary
does not like.
Mr Clarke: Of course, and I accept that completely,
Lord Peston. At the end of the day the courts must be independent
and must make their judgment on the situation and may well take
decisions which any given executive or Home Secretary does not
like. Of course that is right. What I disliked strongly when I
was Home Secretary—and dislike strongly now—is the
sense of flailing around in a cloud of different legal opinions
from different people all purporting to be very senior lawyers,
in fact being very senior lawyers but with very different opinions,
and the difficulty of getting to a firmness of accuracy in that
situation. I do not believe the answer is, quote, "better
Home Office lawyers" because firstly I think that the current
Home Office lawyers are a very good and highly professional team
with a strong record of success. Also I do not see how you would
really get to that in a better way. What I am angry about—which
is reflected in my submission—is the total refusal of the
Law Lords in any way to exchange even a word on any of these matters.
Lord Woolf may clarify what their thinking is on these matters,
although we have actually talked about it in private as well.
I think it is disgraceful.
Q132 Lord Peston:
You will see that I am talking as an amateur, but even if the
Law Lords were willing to talk to you early on, surely when it
came to a case before them they would have to start de novo
anyway, and if someone put their hand up and said, "You told
us something different last time", they will say, "Well,
last time was last time and this is this time". I still do
not see how the problem gets solved.
Mr Clarke: Let me be very clear. I am positively
against, in the strongest terms, any idea of any Home Secretary
talking to Law Lords—or indeed any other lawyers—about
particular cases. I think that would be quite the wrong way to
go about it and would breach a large number of principles. The
place for that is in the courtroom, through the proper procedures
and rules of the court. I am absolutely clear about that and I
have never had any view different from that on any case whatsoever,
including the cases which I was dealing with immediately we came
in. What I do think, however, is that there are serious issues
of principle here and the issue of the difficulty of dealing with
these matters before a criminal act has been committed which would
benefit from serious discussion. I think it is bad that that serious
discussion does not happen. Parliament has a lot of discussion
about it, some of it well informed and some of it not. As Home
Secretary I had very substantial discussions about it with my
counterparts in other countries trying to deal with these issues,
in the United States and elsewhere, who faced very similar questions.
I would receive deputations from Canadian parliamentarians, Australian
parliamentarians, all trying to get to grips with the problem
of how we deal with that with broadly similar approaches, but
not with the senior judiciary in Britain. I just think it is an
extraordinary gap.
Q133 Chairman:
I think Lord Bledisloe has had his point answered so what I would
like to do is to move the questioning back to some of the larger
contextual issues. The Government of which you were a leading
member introduced the Constitutional Reform Act and quite explicitly
one of the aims was to have greater separation of powers than
has been the case historically. We now have greater separation
of powers between the executive, the judiciary and Parliament
than we have had hitherto. I suppose the question is, in the absence
of a written or codified constitution, do you think there is clear
understanding on the part both of the general public and of decision
makers like yourself of what the respective roles are of the ministers
and judges. Do you think people understand what their respective
parts are in the constitutional process?
Mr Clarke: I think the players—the politicians,
the ministers, the judges and the parliamentarians—generally
do understand the broad roles of the different categories. I think
citizens do not and they find it very, very confusing when there
are rows taking place between different parts of the system. I
think there is a real doubt, even amongst those who do understand
it, about the extent to which common goals are shared and what
are those common goals between the different arms of government.
I think that that is where discussion would be beneficial. I regarded
it as my responsibility as Home Secretary to do what I could to
try to uphold the basic constitutional structure of the country
and therefore I would try never—and I think I never did—to
criticise police decisions or CPS decisions or judicial decisions
simply because I thought that if, as Home Secretary, I started
getting into second guessing how a police operation had gone or
how poor judgment was made I would have the risk of bringing into
disrepute those decisions and, as in most of the cases we are
talking about, my own information would inevitably be far less
than those who were actually taking the decisions. I thought it
was invidious to do so despite a great deal of pressure, particularly
from the media, in certain circumstances. I think that is important.
I think I was, in taking that decision, doing the correct thing
but slightly overstating the fact that there was a common purpose
because actually I am not convinced the common purpose between
judiciary, executive and legislature was as strong as it needed
to be.
Q134 Chairman:
There does seem to be palpable tension between at least the executive
and the judiciary. Do you think it is possible that your former
colleague, John Denham, got it right when he said that this seemed
to be an emerging constitutional crisis? Do you think that is
accurate?
Mr Clarke: In spirit yes. I do not like the
word "crisis"; I do not think it is a very helpful word
for anything because we live through a terrible, dramatic crisis
just about every 24 hours in some way or another. I would not
use the word crisis but I do think that if you took a slightly
softer word like "tension" I think there is a constitutional
tension which is not properly resolved and which it would be beneficial
to resolve and leads to demeaning things being said all over the
place which ought not to be said, and I think the essence of my
position is to face up to this new situation. This is not something
which goes back in history; the Human Rights Act is a specific
construct of this Government as is, as you say, the Constitutional
Reform Act. Both of them I think are correct steps. I supported
both of them and do support both of them, but they have consequences.
What I would say is that the consequences of those forms of legislation
just need to be thought through and worked through in a very specific
way.
Q135 Chairman:
I suppose what I am pushing you on a bit is that the logic of
separation of powers in constitutions that have separation of
powers as we now do partially is that tension is good; tension
is not intrinsically a problem because that is one of the points
of having separation of powers. The issues which are addressed
in your opening statement which you are trying to raise with us—and
we much appreciate it—are issues partly of communication
and partly of mechanisms of dealing with a tension which I suppose
you could argue is constitutionally appropriate and inevitable.
Mr Clarke: Only up to a point. There are a large
number of mistaken understandings of what the meaning of the Human
Rights Act is for the operation of particular parts of the state.
There are a lot of examples of this that crop up, sometimes in
the Home Office, sometimes in local government, sometimes in the
police as various assertions are made—often inaccurately—about
what the Human Rights Act means for the way in which you conduct
your business in a particular area of life. That leads to public
concern about the way that decisions are taken on the executive
side. I would say that getting clarity about the legal position
on all these things is very important. Immigration is a classic
example. The whole of the operation of the immigration system
in the past few years has been beset by doubts about what can
or cannot be done about the state in relation to particular individuals
as legal cases are taken to the highest levels. I do not in any
sense say that those legal cases should not be taken to the highest
level, they should, but I do say that some kind of basic common
understanding of what the law is is pretty important.
Q136 Chairman:
One of the practical questions which emerges from this is the
extent to which it is appropriate for there to be discussions
and contact between the government and the judiciary, which is
something you raise in your submission. I have to say that I for
one am rather confused about this. In the most recent spat it
was said that there was not proper contact between ministers and
the judges and you deplore the fact that Law Lords are not prepared
to discuss issues of principle with you. Lady Scotland wrote a
letter to The Times saying that ministers do meet the judiciary
regularly; there are constructive meetings which ensure there
is a regular dialogue between them. This is not the regular dialogue
you are talking about; you are talking about sort of principal
summits, are you?
Mr Clarke: What I really think is with the Lord
Chief Justice and the Home Secretary—certainly with Lord
Woolf and with Lord Phillips—there was a regular exchange
as a situation arose to talk about issues that might arise. Lord
Phillips invited me to attend the Sentencing Guidelines Council
at one point to discuss what they were doing and we had a meeting
with some senior judiciary as well. Not only do I believe that
those contacts were beneficial, I think they were cordial and
positive. None of them discussed any particular case at all at
any time because it would have been quite wrong to do so, but
I thought it was a perfectly appropriate way of proceeding and
it seems from Baroness Scotland's letter that I am sure it is
to that type of exchange which she is referring in the letter
you have just cited. My particular point is about the Law Lords
explicitly with whom there is no exchange of view at all as far
as I am aware and I think that is wrong. I think there should
be a routine discussion which is moderated by the Lord Chief Justice
and in my experience that has worked reasonably well. I do not
know how it works now; I do not know how it worked in the period
before I was doing it. Certainly for my part I have no complaint
to make and I think the two Lord Chief Justices I dealt with were
both principled and had integrity but were also open-minded to
discussing what needed to be discussed.
Q137 Chairman:
The debate you called for in your own Evening Standard
article last summer involving the senior judiciary about how best
to legally confront terrorism and so on, in a perfect world, were
you able to write the scenario that you believe would work, how
could such a debate happen?
Mr Clarke: I think it could be either informal
or formal; either in a room like this or even informally at social
occasions and so on (but I would prefer it to be formal). It should
be with an agenda about the issues of the day in a general way.
I was frequently invited to dinners at the Inns of Court where
I was told that if I was nice enough to wear the appropriate white
tie and clothing I would be able to meet a Law Lord and touch
his hem and discuss matters if I behaved myself appropriately.
I decided not to take up any of those very nice invitations because
I did not think that met what I was talking about. What I was
talking about was a substantive discussion about these very, very
important issues. I think they have taken on a much greater significance
since 9/11 and then 7/7 because people are very, very exercised
about whether or not we are preventing these crimes effectively.
There have been calls—Michael Howard made a call at one
point—for us to leave the European Convention on Human Rights.
Serious politicians have made those calls. I said to the President
of the European Court, the Swiss judge, that I thought that was
a very serious issue and I know he very much appreciated the work
that Lord Woolf was doing for the European Court on precisely
those matters. I said that you could end up with a state of affairs
where we end up leaving the European Convention as a result of
public pressure. I believe that very seriously; I think it is
completely underestimated as a possibility. I can easily see it
being something that happens because if the court, in upholding
human rights, is not seen to protect the public, then the public
will say "No thanks".
Q138 Lord Rowlands:
You have repeatedly said to us "the consequences of the Human
Rights Act", when that Act was being prepared and developed
within Whitehall and between ministers, were any of these consequences
anticipated? Were any of them thought through or was it a question
of surprise?
Mr Clarke: I do not think it was a question
of surprise. I was not personally involved in the discussions
around the Human Rights Act; I was either not in government or
in Education at that time. I am certain that all of this was thought
through at great length.
Q139 Lord Rowlands:
Why does it appear that everybody is surprised by the consequences?
Mr Clarke: I do not think it is a question of
surprise; I think it is a question that as you pass legislation
it then has to be implemented in the new circumstances as it comes
through. The logical conclusion of saying that we do not quite
know how this relationship will work out five years down the line
is that you do not do the legislation in the first place and I
do not think that would have been right. There is no doubt in
my view that patriating—if I can put it like that—the
European Convention has been a positive thing for the operation
of the judicial system in this country and the legal system and
has made it more efficient for the individual potential petitioners
and so on. All of that has been positive, but there are consequences.
To what extent could those consequences have been foreseen? I
do not think I would have foreseen the extent of questioning of
Secretary of States' certificates that there has actually been.
I certainly would not have seen the deprivation of liberties as
sharp as they are, and that is a direct consequence of 9/11 which
had not happened at the time.
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