In the name of freedom, separate law and politics

Share
Related Topics

Politicians make laws and independent judges enforce them. That basic principle is a fundamental protection against arbitrary and oppressive rule, easily understood, yet never fully observed. We British have tended not to be rigorous in maintaining the distinction between the spheres of politics and the judiciary, partly, perhaps, because the basic precepts of freedom under the law were developed by muddling through. Such complacency is dangerous, however.

Politicians make laws and independent judges enforce them. That basic principle is a fundamental protection against arbitrary and oppressive rule, easily understood, yet never fully observed. We British have tended not to be rigorous in maintaining the distinction between the spheres of politics and the judiciary, partly, perhaps, because the basic precepts of freedom under the law were developed by muddling through. Such complacency is dangerous, however.

Looking back, we can now see with greater clarity what a self-contradicting nonsense it is that the Government should receive legal advice on the state of international law from one of its own members. The refusal to publish the Attorney General's advice on the legality of the Iraq invasion is all the more remarkable because if he, a minister in Tony Blair's Government, was at all equivocal, the case must have been weak indeed.

Looking forward, we should see the dangers of giving another minister, the Home Secretary, the power to put people under indefinite house arrest. The proposals in the Prevention of Terrorism Bill, to be debated in the House of Commons tomorrow, complete an extraordinary reversal. The Leader of the Conservative Party, who had a reputation 10 years ago as one of the most illiberal home secretaries of modern times, finds himself defending the fundamental principles of justice. As the Tories once taunted Labour for opposing the annual renewal of the emergency provisions of the Prevention of Terrorism Act, Michael Howard is reduced to telephoning newspaper editors to protest that he is not "soft on terrorism".

Once again, we are forced to rely on the unelected House of Lords to defend basic human rights. After he has made Mr Howard squirm in the Commons, Mr Blair must amend the Bill to get it through the Upper House. There is no reason why he should not remove the politicians from the process of making control orders altogether. If the security services want to put someone under house arrest, they should seek a judge's approval first. That would satisfy the Liberal Democrats and preserve the vital principle of the separation of powers. The idea of indefinite detention without trial, even if the detainee is not in prison, is not one with which any democratic society can feel comfortable. And control orders that fall short of house arrest still smell suspiciously like the banning orders of apartheid South Africa.

It may be that such exceptional powers are required in a very few cases to protect against the exceptional threat of al-Qa'ida-type terrorism. The essential safeguards must be that the evidence against individuals should be subject to independent judicial scrutiny.

It seems extraordinary that a Labour Home Secretary should be so keen to give himself police powers. Perhaps that view is naïve. This is, after all, the Government that strained every political sinew to make a tenuous legal case for the war in Iraq. Imagine what would have happened if Mr Blair had been required to seek independent legal advice on the position in international law - the overwhelming consensus was that the invasion was illegal. As Menzies Campbell, deputy leader of the Liberal Democrats, argues, it is time to end the dual role of the Attorney General as both a minister and the Government's legal adviser. As a nation, we should be vigilant: freedom in a democracy requires the maintenance of a clear separation between politics and the law.

React Now

Latest stories from i100
iJobs Job Widget
iJobs General

Recruitment Genius: Sales Executive - OTE £45,000

£18000 - £45000 per annum: Recruitment Genius: A Sales Executive is required t...

Recruitment Genius: Test Development Engineer

£35000 - £40000 per annum: Recruitment Genius: Are you inspired to bring new a...

Recruitment Genius: Trainee Motor Engineer

£14000 - £18000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: Technical Administrator

£15000 - £18000 per annum: Recruitment Genius: This company are a world leadin...

Day In a Page

Read Next
Kennedy campaign for the Lib Dems earlier this year in Bearsden  

Charles Kennedy: A brilliant man whose talents were badly needed

Baroness Williams
Nick Clegg (R) Liberal Democrat Leader and former leader Charles Kennedy MP, joined the general election campaign trail on April 8, 2010  

Charles Kennedy: The only mainstream political leader who spoke sense

Tim Farron
Syria civil war: The harrowing testament of a five-year-old victim of this endless conflict

The harrowing testament of a five-year-old victim of Syria's endless civil war

Sahar Qanbar lost her mother and brother as civilians and government soldiers fought side by side after being surrounded by brutal Islamist fighters. Robert Fisk visited her in Latakia
9 best women's festival waterproofs

Ready for rain: 9 best women's festival waterproofs

These are the macs to keep your denim dry and your hair frizz-free(ish)
On your feet! Spending at least two hours a day standing reduces the risk of heart attacks, cancer and diabetes, according to new research

On your feet!

Spending half the day standing 'reduces risk of heart attacks and cancer'
Liverpool close in on Milner signing

Liverpool close in on Milner signing

Reds baulk at Christian Benteke £32.5m release clause
With scores of surgeries closing, what hope is there for the David Cameron's promise of 5,000 more GPs and a 24/7 NHS?

The big NHS question

Why are there so few new GPs when so many want to study medicine?
Big knickers are back: Thongs ain't what they used to be

Thongs ain't what they used to be

Big knickers are back
Thurston Moore interview

Thurston Moore interview

On living in London, Sonic Youth and musical memoirs
In full bloom

In full bloom

Floral print womenswear
From leading man to Elephant Man, Bradley Cooper is terrific

From leading man to Elephant Man

Bradley Cooper is terrific
In this the person to restore our trust in the banks?

In this the person to restore our trust in the banks?

Dame Colette Bowe - interview
When do the creative juices dry up?

When do the creative juices dry up?

David Lodge thinks he knows
The 'Cher moment' happening across fashion just now

Fashion's Cher moment

Ageing beauty will always be more classy than all that booty
Thousands of teenage girls enduring debilitating illnesses after routine school cancer vaccination

Health fears over school cancer jab

Shock new Freedom of Information figures show how thousands of girls have suffered serious symptoms after routine HPV injection
Fifa President Sepp Blatter warns his opponents: 'I forgive everyone, but I don't forget'

'I forgive everyone, but I don't forget'

Fifa president Sepp Blatter issues defiant warning to opponents
Extreme summer temperatures will soon cause deaths of up to 1,700 more Britons a year, says government report

Weather warning

Extreme summer temperatures will soon cause deaths of up to 1,700 more Britons a year, says government report