Guilty! Senior judges accuse politicians over terror laws

Senior judges have accused politicians of seeking to subvert the rule of law in attempts to impose tough new anti-terror measures

Their uncompromising stance comes after a series of clashes with the Government and opposition MPs. Yesterday, Michael Howard, the Tory leader, accused judges of "aggressive judicial activism" and of blocking the will of MPs over the fight against terrorism. Tony Blair recently warned judges he will renounce part of the European Convention on Human Rights and have "a lot of battles" with courts if they block the deportation of extremists.

The judges reacted angrily to the combined force of politicians' criticism, calling Mr Howard's foray into the debate ill-conceived and populist. Lord Ackner, a former law lord, accused Mr Howard of going too far. He added: "He is jumping on the bandwagon."

Senior judges also told the Government they will fight "root and branch" any move to undermine their independence and warned MPs that, if they put pressure on courts to abandon independent judgment to do their bidding on terrorism, the move would backfire.

Lord Carlile of Berriew, a deputy High Court judge and senior QC, warned the Government that it would be "foolish" to undermine the judiciary, warning the judges could bite back if their historic independence is threatened.

"If the Government under-mines the judiciary then the judiciary might be tempted to undermine the Government," he told The Independent. " Politicians ought to keep off making criticisms of the judiciary. The record of the judiciary in handling extremely difficult issues such as judicial review in relation to human rights legislation is very good. If we get into that state of affairs we undermine democracy. That is something the judiciary won't do, and the Government would be foolish to do it."

Lord Donaldson of Lymington, a former master of the rolls, said: "It is dangerous to attack judges ... people will say they can't trust the judiciary."

He was backed by Lord Clyde, a former law lord, who said: "The importance of the independence of the judiciary ... is beyond question. The function of the judiciary is to uphold the constitution. If a judge, with his independent approach, considers the constitution and the Human Rights Convention is in peril, he must act accordingly. This is vital for democracy. One has seen recently in the Constitutional Reform Act an open statement that the judges are to be independent."

Lord Ackner said: "The judiciary will oppose attempts to undermine its independence. These suggestions that we [politicians and judges] are all a team and should pull together is such rubbish that the judiciary will ignore it."

The Government has made it clear that the battle against terror may require tough new measures to kick extremists out of Britain. The Tories have indicated their support for reforming the Human Rights Act, although the Liberal Democrats have signalled they would oppose such a move.

Michael Howard wrote to Lord Falconer of Thoroton, the Lord Chancellor, yesterday asking for clarification about the anti-terror proposals. While expressing his continued support, he said he was keen that the measures be properly considered, so that "we can achieve consensus" wherever possible on the best way to tackle the terrorist threat.

Tony Blair's crackdown, which includes new laws tightening anti-terror measures, will rely heavily on the co-operation of the courts.

But senior lawyers said it was the judiciary's duty to point out threats to human rights. Lord Goodhart, a senior human rights lawyer, said: "If, under pressure of events, politicians introduce laws to protect public safety which restrict civil liberties to an unnecessary extent, then the judges have not only a right but a duty to say so."

Former law lords denied they had the power to force the Government to change the law. They said judges had historically acted with deference to Parliament. "The judiciary cannot decide an Act is unlawful. All they can say is that we think that it is inconsistent with what is in the charter [of human rights]," said one former law lord. "The judges are bound to accept the supremacy of Parliament."

One judge said the "opaque" statement by Mr Blair needed to be closely scrutinised to see if it was workable. He signalled that some proposals, including a new offence of condoning or glorifying terrorism - required further scrutiny.

Government v judiciary

Curfew zones

The issue

The High Court demolished a key plank of the Government's policy against yob culture last month by ruling it illegal for children to be forcibly removed from curfew zones. There are 400 such zones in England and Wales, created under the 2003 Antisocial Behaviour Act.

What the judges said

Lord Justice Brooke found in favour of a 15-year-old boy from south-west London who claimed that the antisocial behaviour powers amounted to a breach of his human rights. Under the Act any unaccompanied under-16s going into a curfew zone while the ban was in force - between 9pm and 6am - faced a police escort home, whether or not they were suspected of bad behaviour.

What the Government said

The ruling is a blow to the campaign against so-called yob culture. The Home Office said: "We believe that the police should be able to use reasonable force to take children home, otherwise the police are not able to do anything if a child refuses to be taken home."

Outcome

Many observers believe the Home Office and police have overstepped their authority and distorted the law to set up wide-ranging curfew zones. Despite the knock-back, the Government is determined to continue its targeting of antisocial behaviour and is expected to fight this decision and have it overturned.

Sentencing

The issue

A dispute over the introduction of mandatory sentences, and automatic jail terms for multiple burglary and drug offences - the "three strikes and out" approach. The Criminal Justice Act 2003 imposed mandatory and minimum sentences, and reduced judges' discretion to fit a punishment to a crime.

What the judges said

Judges say they want to retain discretion to ensure a punishment fits a crime and they want an end to mandatory life sentences for murder. They believe mandatory prison terms could force them to impose sentences that are unfair in some circumstances. In December last year, Britain's most senior judge ended the most recent clash with new guidance that halves the discounts killers can win by pleading guilty.

What the Government said

David Blunkett, the former home secretary, criticised judges' proposals that murderers, as with other offenders, could win discounts of one third with a guilty plea, and immediately indicated that such guidance was contrary to what Parliament had intended.

Ministers favour tighter control over sentencing and have outlined a guideline tariff with starting points from 15 years.

Outcome

This issue is at the heart of the dispute about the dilution of the role and power of the judiciary. Judges also believe it reflects the determination of successive home secretaries, from Michael Howard to David Blunkett, to appear "tough on crime". The mandatory sentencing regime is leading to an explosion in the prison population.

Control orders

The issue

New "control orders", or house curfews, were introduced after existing anti-terror laws were ruled unlawful by the Lords. The Prevention of Terrorism Act 2005 allows the Home Secretary to restrict individuals' liberty on suspicion of involvement in terrorist activities.

What the judges said

Peers have demanded a tougher burden of proof before control orders can be imposed on terror suspects and have criticised the minimal oversight available by the judges. After fierce opposition from the Lords and opposition MPs, the Government compromised and the interim orders must be referred to a judge within seven days for confirmation.

What the Government said

Government says control orders are needed to restrict the movements of terror suspects who cannot be prosecuted in courts. Ten of the controversial orders were imposed on foreign terrorist suspects held in Belmarsh and Woodhill prisons as soon as the Prevention of Terrorism Bill became law in March. Has promised future debate on the law, and gives an opportunity for it to be changed next year.

Outcome

Tony Blair gets the principle of anti-terror control orders on the statute book, and wins the battle over the burden of proof. The opposition will have a chance to amend the law when new anti-terror proposals are put forward, but there is no guarantee that they would stand any chance of success.

Public inquiries

The issue

The Inquiries Act 2005, which restricts the independence of judges appointed to chair inquiries, allows ministers to decide what evidence is given in public and to block the disclosure of evidence. It enables the relevant minister to impose restrictions at any time before the inquiry ends.

What the judges said

Lord Woolf, the Lord Chief Justice, wants final say over whether judges should chair any public inquiry, and over which judge. He said: "I take the view that this provision makes a serious inroad into the independence of any inquiry. It is likely to damage or destroy public confidence in the inquiry and its findings, especially in any case where the conduct of the authorities may be in question."

What the Government said

Lord Falconer, the Lord Chancellor, says final say should rest with him. The Bill is designed to modernise rules governing the establishment of public inquiries. A spokesman for the Department for Constitutional Affairs said: "It is highly unlikely that the Lord Chancellor would appoint a judge against the wishes of the Lord Chief Justice. Judges are free to decide for themselves whether to accept positions as inquiry chairs."

Outcome

Many lawyers believe it is the latest attempt in a long struggle by the executive to limit the role of judges and marginalise their influence. This change can only add to the suspicion that the Government is trying to manipulate or influence the outcome of controversial inquiries and will damage public confidence in any findings.