There is good reason to fear Mr Clarke

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The Independent Online

In a small town in the south of Turkey, about 15 years ago, there was a demonstration in favour of human rights. In the course of it, a policeman was unfortunately killed. The police and their families then got up a counter-demonstration of their own. They paraded around the town carrying a banner which bore the message: "Death to Human Rights." This sentiment neatly summarises the attitude of the Government generally and of Mr Charles Clarke in particular towards the subject in question.

In a small town in the south of Turkey, about 15 years ago, there was a demonstration in favour of human rights. In the course of it, a policeman was unfortunately killed. The police and their families then got up a counter-demonstration of their own. They paraded around the town carrying a banner which bore the message: "Death to Human Rights." This sentiment neatly summarises the attitude of the Government generally and of Mr Charles Clarke in particular towards the subject in question.

Last Wednesday, Mr Clarke introduced into the House of Commons, in necessarily imprecise form - for legislation is some way off - his latest ideas on the treatment of suspected terrorists. They were no longer to be locked up in Belmarsh (or in two other similar establishments) without charge, without trial and without knowing the evidence against them; locked up, possibly, for ever. Instead, they and perhaps their families also were to be subject to assorted forms of house arrest of varying degrees of severity.

They would share the same ignorance of the reasons for their detention as they had previously. There were, however, several differences between the old dispensation and the new, quite apart from the difference in hardship: for, when you come down to it, it is preferable to be locked up in your own house - assuming you have one - than in some grim pile in South-east London.

One difference was that we were all of us, citizens of the UK, to be liable to the Clarke treatment, and not merely foreign nationals. The other difference was that the decision was to be taken not (as it had been) by a specially constituted judicial body, however unsatisfactory it may have been, but by Mr Clarke himself. There is, however, to be a somewhat shadowy appeals procedure. That, I hope, is a fair summary of what the Home Secretary had to say.

Introducing an item about these stirring events on that evening's Newsnight, Mr Jeremy Paxman said they had been brought about by "criticism" of the earlier regime as "unjust". I do not know whether Mr Paxman wrote these words, which lack his customary acuity. They may have been put together by some younger person in the studio, anxious to follow the BBC's post-Hutton policy of refraining from causing unnecessary or even, perhaps, necessary offence to HM Government and all who sail in her.

They certainly gave an inadequate account of what had happened before Mr Clarke's statement. Anyone would think there had merely been a few troubled leaders in the Prig Press and a meeting of protest at the South Place Ethical Society, if it still goes on. As well say that Dr Harold Shipman had gone too far in his zeal for easing the passing of his elderly patients!

What had happened was that the House of Lords, in its judicial capacity, had rejected the Government's previous position, of which Mr David Blunkett was the architect or, at least, the brickie, by a majority of eight to one. Usually, only five law lords pronounce or, in exceptional cases, seven: so they or the Government or both must have considered this case very exceptional indeed.

To summarise their lordships' opinions (as they are called, even though they are really judgments) would take up the rest of this column or even of this paper. In brief: the Lords decided that the Government's purported opt-out from the European Convention on Human Rights - for the Government admitted from the beginning that it was breaching the appellants' human rights - was invalid. It was so because it discriminated between UK citizens and the rest. It was invalid for another reason as well. It showed a lack of proportion: the threat was not commensurate with the drastic means which had been adopted to meet it.

The Attorney General had tried to argue that the courts should choose to occupy a subordinate position to the legislature. The law lords were having none of that: not because of Brussels and the European Union (as The Daily Telegraph, the Daily Mail and the Tory party mendaciously or, perhaps, ignorantly try to make out from time to time), but because of the Strasbourg Convention of 1949, which predated the Treaty of Rome.

The Human Rights Act, which incorporated the convention into UK law, was the handiwork of Lord Irvine. Before its enactment, our citizens could seek redress in Strasbourg, as the French could not: for France is more chauvinist than we are, and cheerfully breaks any rule she does not like. Even so, we had one of the worst European records for breaching human rights, but one of the best for putting the breach right afterwards, with as little publicity as possible. The difference which the new Act makes is that it is now possible to do in the UK courts what previously meant a trip to Strasbourg.

But the new state of affairs looks different. We really do feel now that Parliament is being overruled. Perhaps it is; and perhaps it is right that Parliament - in reality, two men in a ministry - should be overruled from time to time.

Immediately after the Lords decision on 16 December, Ms Hazel Blears, a continuation by other means of Mr Blunkett (who was then preoccupied with other matters), certainly chose, Blunkett-like, to interpret it as an impertinent challenge to the elected legislature. Ms Blears is highly regarded in New Labour circles, though she seems to me to be about as bright as a 25- watt bulb. But then, the quality for which she is esteemed is her loyalty to the Central Committee. She is reminiscent of the Communist delegate who was still applauding J V Stalin's speech not only 10 minutes after it had ended but long after he had left the hall for a drink. So it was on this occasion. Our beloved leader was father to his people and would protect them from nasty terrorists, come what might.

Mr Clarke has, in the modern manner, made an apology which is more a justification. He is trying to get round the ruling by making the old regime applicable to all of us but in more clement conditions. Well, people ask, what would you do? I reply in the words of one of The Times's greatest editors, J T Delane, in 1852:

"We cannot admit that its [a newspaper's] purpose is to share the labours of statesmanship or that it is bound by the same limitations, the same duties, the same liabilities, as that (sic) of the Ministers of the Crown. The purpose and duties of the two powers are constantly separate, generally independent, sometimes diametrically opposite."

It is certainly not the purpose or duty of any paper to support the greatest accretion of ministerial power since the abolition of general warrants in the 18th century.

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