Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 140 - 159)



  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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