Judges 'have become whipping boys to hide ministerial failings'

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The Independent Online

Relations between judges and ministers are close to breaking point, The Independent has been told by a very senior source close to the judiciary.

A series of government attacks on judges' rulings, amid allegations that the courts are obstructing the fight against terrorism, is also threatening to undermine the rule of law.

The source claims that judges have become ministerial "whipping boys" in a deliberate attempt to deflect attention from the Government's own failings. Expressing views that The Independent understands are shared by a growing number of judges the source said: "I don't think relations between the judiciary and the executive have ever been so poor.

"There is now a real lack of confidence in the Government's commitment to the rule of law ... if the executive has a lack of confidence in the judiciary then I think that lack of confidence is reciprocated."

He added: "Whenever there's an opportunity to stand up to the lynch mob, the opportunity is missed. More often than not, you find ministers behind the lynch mob egging it on."

Last week, Tony Blair repeated his threat to bring in new laws to curb the power of the judiciary after a High Court judge declared the Government's anti-terror legislation to be incompatible with the Human Rights Act. That prompted the former Home Office minister John Denham to warn of a " constitutional crisis".

The source, who only agreed to speak on condition of anonymity, said: " To describe the situation as a constitutional crisis and blame the judges for being responsible is a construct. I think it's a displacement action to deflect attention from ministers' own failings on to someone else. It helps to direct attention away from perfectly legitimate criticism of defects in the Prevention of Terrorism Act 2005.

"It would not be too difficult to enact a Prevention of Terrorism Act that was convention compliant if only ministers were prepared to trust the courts to make the necessary decisions."

On Monday the former home secretary Charles Clarke continued the attack, accusing judges of not taking proper consideration of the wider public interest in the fight against terrorism.

At the centre of the dispute are the new control orders used by ministers to place suspected terrorists under conditions of house arrest. The source said: "Frankly, I find it quite bizarre that although a judge and jury will decide what is a criminal act in a criminal trial it is the executive who decides whether similar criminality is or has been taking place when imposing control orders. I don't think it's appropriate that the Home Secretary should decide whether a particular individual is or has been involved in what is effectively criminal activity.

"We would all be outraged if the Home Secretary could imprison us by order without a trial. Are house arrest for 18 hours, stringent controls during the remaining six hours of 'freedom' and right of police entry 24 hours a day, so very different? No one denies the threat of terrorism but it should not be used as an excuse for repressive legislation. Instead we should reaffirm our commitment as a society to freedom under the law otherwise the terrorists really will have gained a victory."

In a separate move, a High Court judge, in an interview with The Independent last week and before Charles Clarke made his intervention, urged ministers to refrain from unhelpful criticism of court rulings. Mr Justice Smith said: "Politicians shouldn't be making points that are not really constructive criticism." Sir Peter Smith, the first High Court judge to speak openly about the relationship between ministers and judges since tensions came to a head, conceded that the judiciary has to face up to the reality of being in the public eye.

He said: "I don't see why judges should not be subject to criticism by members of the public or politicians if it's appropriate... Judges now have a responsibility for administering the courts and while that administration can be criticised, constructively, it won't help in the overall pattern of affairs if one arm of the executive is criticised by another arm in a way which is not constructive."