He apparently complained about the fact that the Court of Appeal, in its latest judgment, had ruled “without discussion” that some of the control orders imposed on terrorist suspects under recent legislation http://www.raybani.com/ were in breach of the article 5 Convention right. He was upset that Law Lords refuse to discuss with ministers how to deal with terrorist suspects, saying this is not just “incredible”, but “disgraceful”. He thinks they should give ministers better guidance.
He’s reported as saying this left him as Home Secretary in a difficult position:
“What I strongly dislike is flailing around in a cloud of views of senior lawyers with different opinions and the difficulty of getting to a firmness of accuracy in that situation.”
I have not the slightest sympathy or respect for this view; in fact, I think it’s an idiotic outburst. Do you really have to be this dim to be Home Secretary? What does he think a judge’s job is?
If any Law Lord were to debate with ministers publicly about this, he or she would instantly be accused , by ministers, of making inappropriately political remarks, and if a case came before him or her relating to that subject, ministers would complain of bias. Or, if the judge has said thing supportive of government policy, then the terrorist suspects and their lawyers on the other side would complain. The judge’s task, of determining specific disputes impartially and being seen to do so, would be compromised.
So is Clarke suggesting this “discussion” and “guidance” should be private? In that case, unelected judges would, without any transparency or Ray Ban outlet accountability have a secret yet highly influential role in legislation, and cases they decided subsequently relating to that legislation would be prejudiced, too.
The fact is, both Clarke’s whingeing and his proposals are sheer nonsense. Judges are not there to give legal advice to any party who may come before the courts; they are there to determine disputes impartially, and must stick to that.
As for Clarke’s “flailing around”, my heart bleeds not a bit. Doesn’t he realise that every business and every citizen involved in any legal dispute must “flail around” in the same way he did? As Home Secretary, he has available to him legal advice from the Home Office’s own lawyers, standing Treasury Counsel, any independent barrister he wanted to instruct, and, if he was in any need of achieving “firmness of accuracy”, the Attorney General, who, while unable (like any lawyer) to give a definitive ruling in the sense of predicting with absolute certainty the judgment of the courts, would give him clear and authoritative legal advice. Doesn’t he realise this? He flailed around much less than any other litigant does.
And if he’s trying to imply that he put forward the control order legislation without realising the legal risks, or appreciating that control orders requiring a suspect to stay at home for 18 hours a day might be held in breach of article 5 – then I simply don’t believe him. I think his lawyers must have told him of those risks repeatedly – that’s their job – and that he and the government of which Occhiali Da sole Ray Ban outlet he was a member took those risks knowingly. I don’t criticise them for that; but I do criticise him for blaming judges when the policy runs into forseeable difficulties.
Policy is made by the executive; law, by Parliament. Unelected judges have no role in this at all, nor should they. And I think it’s sad when a former minister is so frustrated by his own inability to develop sustainable public policy that he wants to give up, and hand the responsibility over to judges.
It also shows he’s unfit for high office in the future.
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