Ministers need guidance on anti-terror legislation, but can judges properly give it to them?


Senior judges should talk to ministers about confronting terrorism, according to Charles Clarke. The former home secretary's comments, quoted here two weeks ago, seem to threaten the traditional separation between the executive and the judiciary. But they deserve a closer look.



In December 2004, just a day after Clarke became home secretary, the law lords delivered the famous 'Belmarsh' judgment, holding that indefinite detention of foreign terrorist suspects was incompatible with their human rights.



What was the new home secretary to do with suspected terrorists who had been detained since 2001? He could not send them back to their own countries for fear they would be tortured on return. They could not be prosecuted here because of insufficient evidence. And yet they could not be allowed to walk the streets because of the perceived danger to public safety.



The only answer, it seemed, was to impose restrictions on their movements and contacts. But how restrictive could these controls be without infringing their human rights?



Clarke had access to excellent legal advice - but no lawyer could be sure that the courts would uphold his detailed controls. So he sent a message to the senior law lord, inviting Britain's leading judges to pop round to the Home Office for a cup of tea.



That was early in 2005. Speaking to me later that year at Gray's Inn, Lord Bingham recalled his response: 'I said: "What is the purpose of this meeting?" because it is quite clear that there are some matters it would be quite inappropriate for the law lords to discuss. "I can't believe," I said, "that it is intended to be a purely social meeting."



'The answer I was given was that it was to be a purely social meeting. One was, perhaps, a little sceptical. Whether sceptical or not, I took the view, having discussed it with at least one of my colleagues, that it was very unwise for such a meeting to take place, for the first time ever, at that juncture.'



So it never happened. It was certainly naive of Clarke to have thought that the country's senior judges would ever have given him legal advice. But the home secretary's fears were to prove well-founded.



Parliament passed the Prevention of Terrorism Act 2005 and Clarke issued the first control orders. In August 2006 the Court of Appeal quashed orders putting six suspected Iraqi terrorists under house arrest for 18 hours a day. The restrictions were invalid because they breached article 5 of the Human Rights Convention, which prohibits detention without trial.



Clarke's successor, John Reid, was told he could impose less restrictive orders - but the judges offered him no guidance on what length of detention would be permitted. He settled for 12 hours.



Reid then appealed to the House of Lords, losing by a narrow majority last October. Lord Brown, one of the three judges who rejected an 18-hour curfew, said that 16 hours would have been acceptable - though the others declined to be drawn.



Speaking before the law lords' ruling last year, Clarke attacked the Court of Appeal for leaving ministers in the dark. Reid had been left to 'take another stab with no guidance whatsoever as to how the highest courts would view the legality of his complicated and difficult decisions'.



Clarke was firmly against talking to the judges about 'particular cases'. But he regarded 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'.



Any lawyer reading Clarke's evidence to the House of Lords Constitution Committee would instinctively regard his demand for judicial guidance as utterly unrealistic. Surely it all depends on how the case is argued in court? How could any judge specify restrictions in a vacuum?



But that was precisely what Lord Brown managed to do in concluding that a 16-hour curfew simply 'restricts the suspect's liberty of movement rather than actually deprives him of his liberty'. It was wrong, the law lord implied, to leave the home secretary 'guessing as to the precise point at which control orders will be held vulnerable to... challenges'. And Lord Brown remained 'unrepentant' about specifying a period, against the view of his colleagues.



On the other hand, the law lords could hardly have discussed all this with Clarke over tea and crumpets. As the Lord Chief Justice, Lord Phillips, said in a speech last year, 'judges must be particularly careful not even to appear to be colluding with the executive when they are likely later to have to adjudicate on challenges of action taken by the executive'.



The Constitution Committee struggled last year to find a way of answering Clarke's concerns. It rejected a system of 'abstract review' - under which the courts might examine new legislation, in the abstract, to see if it complied with constitutional requirements. But peers saw rather more merit in the idea of advisory declarations - granted after test cases brought under normal procedures, with all the appropriate parties represented before the courts.



Even so, ministers would still be left waiting for two or three years before the law lords gave a definitive judgment on new anti-terror legislation. There must be a better way of obtaining a prompt and authoritative ruling on whether new proposals - such as 42 days' pre-trial detention - are lawful. I shall suggest one in my next column.



joshua@rozenberg.net