The Home Secretary who is above the law

Michael Howard knows when the courts will reprimand him. But he doesn't care - public opinion is what counts
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The Independent Online
It is deplorable, if not always surprising, that the Home Secretary is regularly in the headlines for breaking the law. Every few months we read that he has been fundamentally unfair, or he has circumvented his obligations, or he has disregarded a contract of employment, or failed to follow correct procedures, or abused his powers. How can it be that the Home Secretary himself, responsible as he is for large parts of the criminal justice system, frequently acts unlawfully? I sometimes wonder if he is a bit like President Nixon's Attorney General at the time of the Watergate scandal, John Mitchell, who likewise knew the law, held an office that was responsible for it, yet found himself on the wrong side of it.

My picture of Michael Howard is this. A question comes before him, say, regarding his powers to regulate the prison sentences of convicted murderers. Recently it was the case of the boys who killed the toddler, James Bulger. Mr Howard is not one of those ministers who arrive in office wholly ignorant of the work of his or her department - he was a practising barrister for a long period. The Home Secretary perfectly well understands the principles of the law. He reads in an informed way the excellent legal advice at his disposal. He listens likewise to his civil servants when they warn him of any risks he faces in embarking upon a particular course. Of one thing, therefore, we can be sure. The Home Secretary is not the least bit taken aback when the courts reprimand him. When asked for his reaction by TV reporters, we see him relaxed, smiling, not a care in the world. Mr Howard is not an Ian Botham, genuinely amazed at losing in the High Court.

Mr Howard can live with these setbacks to his plans. It is obvious that he is much more concerned by the judgement of a less formal tribunal - the court of public opinion. For the very action that earns him a judicial reprimand can bring him support in the tabloid press. The judge who ruled that the Home Secretary had unfairly forbidden the Rev. Sun Myung Moon, founder of the Moonies, from entering the United Kingdom was attacked by the Daily Mail for having attended a Communist summer school in his youth. The Daily Express denounced "the sickness sweeping through the senior judiciary - galloping arrogance".

Indeed the letter from the Home Office to the boy murderers of James Bulger conveying the Secretary of State's decision to raise the minimum period they would spend in prison specifically mentioned "the public concern about this case which was evidenced by the petitions and other correspondence". Never mind that the judge's original decision took into account the need for public confidence in the system, that the petitions may have been unfairly conducted, that after the minimum sentence fixed by the judge has been served, the Home Secretary of the day could in any case forbid release and reconsider the situation later - these are academic points to Mr Howard. I believe he does not mind that the new Master of the Rolls should describe his actions as a departure from standards of fairness required; he will have seen that coming. What counts much more is tabloid applause and the politics of law and order.

If this were the sum of it - the Home Secretary's handling of the dreadful Bulger murder, the notorious Rev Moon and one or two similarly high-profile cases - one could limit one's comments to being worldly wise. Home Secretaries are ambitious politicians near the top of the greasy pole. Politicians commonly put party advantage ahead of the national interest and confuse the two.

This explanation, however, does not fully explain Mr Howard. He goes much further. When he decided, for instance, to sack the head of the prison service, Derek Lewis, it must have been clear from the contract to which the Home Office is party what the compensation should be, or that it could be negotiated. But poor Mr Lewis is forced to go to court to compel the Home Secretary to pay up. To take another example, Mr Howard is under pressure to cut his department's expenditure. He decides to reduce the compensation paid to the victims of crime by changing the regulations. It is inconceivable that his officials failed to point out that Parliamentary approval would be required. But presumably the Home Secretary did not fancy explaining this measure to the House of Commons so he announced it on his own authority. Would anybody notice his omission?

As it happens, the trades unions representing people who risk violence at work (fire-fighters, prison officers etc.) did so, they sought judicial review and they won the case. The Master of the Rolls said that the "Home Secretary, by implementing the tariff scheme, has acted unlawfully and abused his prerogative or common law powers." He must submit his proposals to Parliament.

Mr Howard is not just your average naughty politician, a Westminster wide boy. He is more than that. His attitude to the law is deeply cynical. He seems to say to himself, "I may be Home Secretary but I'll still see what I can get away with." I don't believe there has been a more dangerous holder of this great office of state in the past 30 years.