Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 122 - 139)



  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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