Examination of Witnesses (Questions 140
- 159)
WEDNESDAY 17 JANUARY 2007
MR CHARLES CLARKE
Q140 Lord Rowlands:
So it is more 9/11 rather than perhaps the human rights legislation
that has changed the forum.
Mr Clarke: It is the human rights legislation
in the context of 9/11. I have no doubt that 9/11 has made an
absolutely dramatic impact on all of this. The legislation which
was overthrown the day after I became Home Secretary was brought
in by the then Home Secretary, David Blunkett, in response to
9/11 and the Prevention of Terrorism Act was then an attempt to
correct that and all the subsequent terrorism legislation goes
back to 9/11. And why? While you could live with the consequences
of people preparing crimes if they were not gong to be so serious
and therefore not worrying too much about how you stop crime if
it was not terribly serious, if it was blowing up people and possible
atrocities of even greater scale than 9/11 the civil societies
could not accept that you did not do your very, very best to catch
the people and stop the people who were potentially committing
those crimes. That is exactly the territory we are in with control
orders and the rest of it. All of that is a direct consequence
of 9/11. I think it might have been as well after 9/11 for the
senior judiciary and Parliament and the executive to talk together
about how all of us together dealt with this new environment that
had arisen post 9/11.
Q141 Lord Goodlad:
Mr Clarke, to what extent do you think the Human Rights Act has
changed the balance of power between the judiciary, Parliament
and the Government?
Mr Clarke: I think it has definitely shifted
the balance of power towards the judiciary. I think most people
were conscious of that when the Human Rights Act was passed and
most people thought that was by and large a good thing because
the judiciary is generally, by the country as a whole, held in
high regard. I do not wish to reverse that shift; I think that
shift has happened and I think that shift has, broadly speaking,
been beneficial. What I simply say is that the consequence of
that change in balance of power is that the judiciary needs to
engage itself in some of the principle discussions about how we
operate.
Q142 Lord Goodlad:
The Joint Committee on Human Rights recently criticised what it
described as "very senior ministers" for making "unfounded
assertions about the Act" and using it as "a scapegoat
for administrative failings in their departments". Do you
think that ministers are doing enough to counter the so-called
myths about the Human Rights Act which seem to appear fairly regularly
in the popular press?
Mr Clarke: I think they are doing quite a lot
to try to do it, but it is very difficult. I think the remarks
which the Joint Committee made and which you have quoted relate
to the period after I was Home Secretary rather than the period
that I was Home Secretary. I certainly think that more can be
done publicly but it is more serious than that. What it is is
the uncertainty that many people who have to carry out decisions
at a wide range of different levels have about how they will or
will not succeed in winning support for their judgments in the
courts when they are challenged as they inevitably are by people
who seek to challenge them, as Lord Wilson said in a piece he
wrote for the papers yesterday. In the Home Office you are dealing
with a large number of people who do not want to be compliant
with what you do and will use any technique that they can to try
to turn it over, including a wide range of legal techniques. If
there is uncertainty about the way in which judgments will go
then people change their conduct to try to protect themselves
against the consequences of being thought to have behaved illegally.
That is why I give that example in my opening statement that I
do. The Home Secretary has taken a decision about these new control
orders but with absolutely no guidance whatsoever as to whether
he is behaving legally at all. It is absolutely outrageous. That
is the experience which runs right through the whole of the people
trying to take the decisions in many parts of the Home Office.
That is why I tried as Home Secretary to give as much clarity
as I could about what the law was so that then the people who
had to operate that law—thousands of people—knew how
to do it in a correct way, and they did.
Q143 Lord Woolf:
There is obviously here a difference of view of what is the proper
thing for judges to do in certain circumstances. Myself and my
successor—and I believe my predecessor—had no difficulty
in deciding that there were things that it was absolutely proper
to discuss with the Home Secretary when they are Chief Justice
because chief justices are responsible for the working of the
criminal justice system as a whole. Do you accept the Law Lords
are in a different situation because they have no responsibility
for the working of the criminal justice system as a whole except
insofar as they have to give decisions which have an impact on
the criminal justice system?
Mr Clarke: I do accept what you said, Lord Woolf,
but I think the final qualification in what you said is a very
important one. The impact of the decisions of the Law Lords is
absolutely immense as, by the way, to give a different example,
is the impact of the decisions of the European Court. The Chahal
judgment about terrorism in the European Court is something which
has reverberated throughout our legal system for a long period
of time and the British Government is now trying to challenge
it. The question is, can the Law Lords distinguish themselves
from the impact of their judgments? I think that is a very, very
hard and difficult question.
Q144 Lord Woolf:
If I may, Lord Chairman, through you, probe this a little bit
further. What amounts to detention is at the heart of the decision
of the Law Lords which struck down certain decisions you made
as a control order. The Human Rights Act requires certain steps
to be taken if there is going to be detention. What I am going
to suggest to you is that it would be obvious to the Law Lords.
What you were wanting to ask them about would be very dependent
on the facts of the particular case because the requirements that
you imposed in your control order can change with every detainee.
Mr Clarke: That is true, but let me put it a
slightly different way, Lord Woolf. My predecessor and then I
struggled after 9/11 with the issue of what do you do about people
who you feel certain are seeking to commit a terrorist act but
you cannot prove it? That is the core of the issue. Control orders
emerged because of the failure of the previous regime as judged
by the Law Lords to be discriminatory as between UK and non-UK
nationals.
Q145 Lord Woolf:
Which in fact over-ruled a decision of mine to the contrary.
Mr Clarke: I am well aware of that. The
point I am making is that what then happened—I can say from
personal experience—home secretaries (my predecessor with
whom I discussed this, my successor with whom I have discussed
it), their legal advisors, other senior government ministers were
thinking the whole time, how can we deal with these people whom
we know to be real threats and keep them under control legally?
The key question is "legally" because all of us would
wish to operate the rule of law. I remember very well a civil
servant coming into my office after the Law Lords' judgment, the
day after I was appointed, saying that maybe we are going to have
to return to this idea of control orders. People had plenty of
doubts about whether it would be the most effective regime. In
the last day or so we have seen some excellent examples of that.
That seemed the only alternative given the previous decision of
the Law Lords to rule out what we were doing. All I am saying,
Lord Woolf, is that some proper discussion about what might or
might not be legal would be a very helpful thing to do because
we have spent five years since 9/11 without getting to a system
that works.
Q146 Lord Woolf:
You are then putting the Law Lords in a position where they have
a discussion with the Home Secretary behind closed doors as to
what will or will not do and when the case comes before them with
the same issue there are two parties involved, the persons who
are subject to the control order as well as the Home Secretary
and they know that the judges have been talking behind their backs
without them being present on the very issue which the Law Lords
are going to be deciding. The Law Lords have the responsibility
of being the final arbiters on law on the particular facts.
Mr Clarke: I understand, but then the consequence
of that line of thinking is that the Law Lords are, in the purest
sense of the word, utterly irresponsible for the outcomes of their
decisions and for the security of society. If the Law Lords are
prepared to say that is the case then okay, but that is not how
it seemed more generally.
Q147 Lord Woolf:
The Law Lords' responsibility surely—I think you would accept
this—is to be the final arbiters of the law on particular
facts.
Mr Clarke: I am not sure. That is what I was
trying to say about the question of the responsibility to uphold
the rule of law. I think the question of where does the responsibility
lie for upholding the rule of law in the country is a big, mega,
constitutional issue—it is actually at the heart of what
your Committee is investigating at the moment—and I simply
say that for the Law Lords to say, "That is not really much
to do with us; all we have to do is look at any particular case"
I think is a bit rich (if I can put it like that). Actually the
Law Lords' judgments, their outcomes on individual cases, have
a massive impact on the way in which the system then operates
throughout the whole of the rest of the system.
Q148 Lord Woolf:
Can I say straight away that I accept there is a problem; you
are quite right to identify a problem. Do you think it helps to
condemn the Law Lords who are applying the conventional approach
in very strong language, language which you then extend to the
Court of Appeal, when they are performing the normal role which
judges are required to perform? The Court of Appeal quite obviously
were leaving it open for you to make a control order because they
accepted that you can have a lawful control order—Parliament
has given the authority—but in order to decide whether it
is lawful or not there have to be two things. First of all there
has to be a control order made and that is the Home Secretary's
job; secondly, it then has to be assessed whether he has got it
right or wrong.
Mr Clarke: As has been going on for five years
with the Law Lords making a set of judgments about whether the
Home Secretary gets it right from time to time. I am critical
of the Law Lords, Lord Woolf, it is quite true. I hope I am not
critical of the Appeal Court; I feel the Appeal Court has behaved
completely correctly.
Q149 Lord Woolf:
You are referring to the particular judgment in the Afghan case.
Mr Clarke: The Afghan case and also the statement
in the Appeal Court judgment that this is an exercise the Secretary
of State is very much better placed to perform than the court
(which I agree with, by the way). The fact is that the consequence
of that is that the Home Secretary or the state or whatever government
can never get it right in those circumstances. It simply cannot
get it right.
Q150 Lord Woolf:
It cannot be sure of getting it right.
Mr Clarke: All I would say is that governments
over the last five years have utterly failed to get it right in
the eyes of the Law Lords. That is the state of affairs. There
are Law Lords who have made judgments which I think are completely
incomprehensible, a very small number of them but they have. The
fact is that I think it is a duty on people who are making immensely
important decisions of this kind to engage in public discussion
about the impact of their decisions.
Q151 Chairman:
Of course this discussion assumes slightly that Parliament is
passive between the executive and the judiciary when in fact Parliament
has spent a lot of time and angst on trying itself to define what
is not just lawful but is appropriate as a reaction to this. There
are three parties to this.
Mr Clarke: Yes, and in particular the House
of Lords, because it has such a high participation of senior lawyers,
is a major participant in that discussion which is not under the
heel of the government of the day and of course we have seen in
the debate on these matters a great deal of exchange between both
Houses. Lord Woolf is quite right to rebuke me, I do not wish
to go down a course of advancing a slanging match between various
aspects of the system, but, to be honest, I do not see how one
can get to a proper discussion about this unless one acknowledges—as
I think there is—that there is a real issue to be addressed.
I deplore particular statements by particular ministers attacking
particular judgments as I deplore particular statements by particular
judges attacking government for particular policies. I do not
think that helps. I am not a minister in this I would point out
and I was not the Home Secretary who then re-issued the control
orders in this particular case, and I would not give evidence
in this way were I Home Secretary. However, I think you asked
me to give evidence as a former Home Secretary from my observations
and I feel entitled so say that in this way because I think it
is important that these issues are developed.
Chairman: We have a few other
questions we would like to ask in a relatively short time. Baroness
O'Cathain?
Q152 Baroness O'Cathain:
In answer to a question from the Lord Chairman on the Constitutional
Reform Act you said that you were under a great deal of pressure
from the media. Ministers from time to time respond publicly in
the news media to particular judgments. How significant a factor
are the media themselves in determining the decision of a minister
to speak out? Can you describe for us the process by which a decision
is taken to make a public comment in response to a case?
Mr Clarke: As I say, my practice—and I
do not think I will be found wrong in this although my recollection
may not be perfect—was not to comment on particular judgments.
I thought, as Home Secretary, I should not comment on particular
judgments. I do not think that it is right to do so, as I did
not comment on particular judgments to prosecute or not to prosecute,
or particular police actions or whatever. In my case the process
by which a decision was taken to make public comments was straightforward
because I sought not to make public comments despite very substantial
pressure from the media on many occasions. The current Home Secretary
has made some comments about particular judgments. I cannot answer
your question because I do not know by what process it happened,
nor can I say to what extent he was influenced by the media in
so doing. I do not think it was the right thing to do and I do
not think he should have done it. Equally, I do not think the
judges' cases—there was a case in The Times on Saturday
of a judge criticising the Government in terms of the criminal
orders—help the whole process either. I think there should
be a self-denying ordinance on all parts.
Q153 Baroness O'Cathain:
As a supplementary to that, you did say that part of the problem
was that the greater public just do not understand what Parliament,
the executive and the judiciary are doing, but do the media help
or hinder a greater understanding of the function of the courts?
Mr Clarke: Fundamentally hinder it, but I qualify
that criticism with this very important point. The public concern
about terrorism is real and substantial. The public concern about
whether individuals are protected in the public against violent
criminals or mentally ill criminals or whatever is absolutely
real. I do not think it is at all surprising that the media should
try to illustrate that point, nor do I think it is unreasonable
for them to do so. It is our obligation to provide protection.
These are exactly the areas where the human rights issues are
very profound. They are exactly the areas where we need to do
better in getting it right in a wide variety of different ways.
When I was Home Secretary there was a terrible killing that arose
as a result of proper procedures by probation not having been
followed and these are very bad states of affairs. I think to
say that the media is behaving unreasonably in highlighting these
is not fair; I think the media are behaving reasonably in doing
that. As you put the question, it is certainly the case that the
media are not explaining well what the whole process is, but it
just illustrates again the point I am trying to make throughout,
that judges operate in the media spotlight which is effectively
a public spotlight; politicians do; Parliament does. In those
circumstances we would do a lot better to talk about how we deal
with these questions rather than not doing so.
Q154 Lord Morris of Aberavon:
In 2002 Lord Irvine said that "in a democracy under the rule
of law it is not mature to cheer the judges when a win is secured
and boo them when a loss is suffered". You know that parliamentary
rules under Erskine May forbid reflections in debate on the conduct
of judges except by way of substantive motion. How do you reconcile
that with some of the comments that have been made? Howard, Reid
and you, yourself, have said some rich statements. You have already
made the point this morning that you do not comment on a particular
judgment but let me single out one of them. You have accused judges
of not taking proper consideration of the wider public interest
in the fight against terrorism. Is there a risk that sustained
public criticism of judges by senior ministers—we had one
by John Reid the other day—will undermine public confidence
in the legal system?
Mr Clarke: Yes, there is, and there is a risk
that sustained judicial criticism of ministerial positions can
undermine confidence in politics as well. Both are true. The quote
you gave was simply the rephrasing of what I have been saying
here instead of the Evening Standard piece. I do not think
I have made criticisms of particular judgments. I am subject to
correction on that, but I do not think I have; I certainly would
not have wished to do so. What I believe—and I believe it
very, very strongly—is that the judiciary has to acknowledge
that it is taking its decisions in the modern world as well as
every other part of the state and it needs to do that. In answer
to your implication, should politicians or ministers in particular
not criticise particular judgments, I would agree, they should
not.
Q155 Chairman:
Do you think the Ministerial Code could be usefully amended to
cover this sort of situation?
Mr Clarke: Not really. What you have here is
one group of people saying that ministers should not criticise
judges and another group of people saying that judges should not
criticise ministers. I do not think that that is a very helpful
state of affairs. I think that getting the codification of this
into a better situation is not the answer. I think the answer
is to get a better common understanding of the common purposes
which is upholding the rule of law in this country. That is what
needs to be achieved in my opinion. The idea that judges are above
criticism is one that I could not go along with. I can go along
with the idea that government ministers should not criticise judgments
but the idea that the judges are a group of people who are so
distinguished and so eminent and so right and so deep in their
knowledge of British life that they are beyond criticism is one
I just could not go with.
Q156 Chairman:
There is a problem with the terms of trade because ministers are
used to the harshest personal criticism and that comes with the
territory. There is probably a difference, is there not, between
criticising decisions and the judiciary and the sort of knockabout
that politicians take for granted?
Mr Clarke: There is, but again I say—and
perhaps I have not been clear enough—the consequence of
the Human Rights Act in the atmosphere (as Lord Rowlands has highlighted)
of post 9/11 events mean that it is difficult in my opinion for
the senior judges simply to stand aside from that overall climate.
I think it would be better if there was an understanding which
meant that that did not happen.
Q157 Lord Smith of Clifton:
Following on from that, Mr Clarke, how do you think section 3
of the Constitutional Reform Act of 2005—which places an
express statutory duty on all ministers to "uphold the continued
independence of the judiciary" and on the Lord Chancellor
to "defend that independence" will affect the way that
ministers approach relations with the judiciary?
Mr Clarke: I do not think it will change it
a lot because I think that ministers, as far as I am aware, broadly
accept today the terms of the Act which you just read out and
I think they have done over a long period of time. There may occasionally
be deviations from that of the type that were raised earlier,
but fundamentally I think ministers accept the independence of
the judiciary in the ways you have just set it out.
Q158 Lord Smith of Clifton:
When you were Home Secretary what advice did you seek or receive
from the Lord Chancellor about making public comment on particular
judgments or the role of the courts in general? How well did these
arrangements work, and how could they be improved?
Mr Clarke: I did not because it was my practice
not to seek to make comment on particular judgments and so the
issue did not arise. I had a good relationship with the Lord Chancellor
and we used to talk about a lot of things generally. I think that
was as it should be. I suppose, if there were a practice to emerge—which
is implied by the questions you have been asking—that ministers
did make comments on individual judgments, some kind of procedure
and protocol of relations between different government departments
would need to evolve, but I think it would be better not to go
down that course by discouraging comments on particular judgments
rather than establishing protocols for the way in which such comments
should be made.
Q159 Lord Lyell of Markyate:
Can I just say that the fact that you did not comment was very
refreshing. Do you think that the removal of the Law Lords from
Parliament which is going to come in October 2009, when the new
Supreme Court starts work, will help or hinder relations between
the judiciary, Parliament and Government?
Mr Clarke: I do not think it will change it.
I am not a student of the history of this aspect of things, but
I assume that at some point in the past the membership of the
House of Lords of the Law Lords was actually an active and vital
thing in the sense that debates took place in Parliament in which
the Law Lords participated. In my recent experience—I am
sure Lord Woolf can put me straight on this—the general
disposition of the Law Lords was not to use their position to
comment on legislation that went through for the reasons that
have been argued here and so to formalise that, as this change
will do, I do not think will change things very substantially.
It was irritating to me when I was Home Secretary that former
Law Lords—I recall Lord Ackner when he was alive doing this—commented
a lot with great apparent authority on what the Government was
doing in these areas as a very senior former Law Lord, but I do
not think that will be changed by this particular aspect. I do
not think this change will actually change very much because I
think current practice has been—again I am open to correction
on this—that Law Lords do not really participate in the
debate very much and I cannot see this changing in any great direction.
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