Terrorism: Cold War or Bad Law?

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This is the 2008 annual Gray's Inn Reading.

Other Gray's Inn Reading lectures can be accessed here:
    2013 - 2013 Gray's Inn Reading by The Rt Hon The Lord Goldsmith QC
    2012 - Privacy and Publicity in Family Law - Their Eternal Tension by The Rt Hon Sir Nicholas Wall
    2011 - Beanstalk or living instrument? 
               by the Rt Hon the Baroness Hale of Richmond
    2010 - The creation of the supreme court by Lord Hope of Craighead LLD FRSE
    2009 - Sisters-in-Law by The Hon Michael Beloff QC
    2007 - Access to Justice: Keeping the doors open by Michael Napier CBE QC
    2006 - The International Dimension of Judicial Review
               by The Rt Hon Sir Stephen Richards
    2005 - Family Law: Rights and social consequences 
               by The Hon Dame Joyanne Bracewell DBE
    2004 - Tackling Cross border crime by Clare Montgomery QC

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TERRORISM: COLD LAW OR BAD LAW?

 

Lord Carlile of Berriew QC

 

I am honoured to have been asked to deliver the 2008 Gray's Inn Reading in Barnard's Inn - the distinction and quality of previous readers is intimidating.  I am neither a full-time judge, nor a professorial academic.  My approach to my chosen subject is, I hope, judicious; nevertheless, inevitably, it is coloured by my involvement over the past quarter century in a sometimes tense, but practical combination of law and politics, in which, from time to time, the separation of powers has had to be conducted mostly in my head.  It has also been coloured by 6.5 years as the Independent Reviewer of terrorism legislation.

It is fitting that a reading crossing the politico/legal grey areas should be delivered in this historic setting of Barnard's Inn.  Though an Inn of Chancery, Barnard's Inn enjoyed its skirmish with the political, and indeed with civil liberties, during the Gordon Riots, which took place in June 1780, when the hall was damaged.  So much glass was broken that the Government paid them compensation of £3,250, which was an enormous sum of money, and several of the residential chambers were destroyed.  60,000 people at the time were marching on the House of Commons to protest against an Act of Parliament, the Catholic Relief Act.  That was an interesting statute, because it was one that some saw as enhancing civil liberties, giving the right to Catholics to join the British Army, and others saw as the contrary, enticing impoverished Catholics to an early death in the self same Army.  However, as I've illustrated, it created genuine political differences, enflamed them to breaking point, and national security was brought into the argument.  National security, as it was seen then, was protected - and here is a cautionary tale - when John Wilkes ordered George III's Army to fire on the crowds outside the Bank of England, and 290 protesters were gunned to death, and 25 of their leaders were summarily hanged.  In an ironic twist, perhaps reminiscent of some investigations of recent times, though I will leave that to you, their ringleader was acquitted of treason and was released and nothing happened to him?

So, a reading that touches on the right to express radical opposition to Government, the limits of such opposition, and the interference of the law in such activity, in my view, sits quite comfortably in this historic hall which has had its skirmish with civil liberties.

I am very conscious of the honour done to me by my peers as it were of asking me to do this reading.  My credentials for giving it arise from my 6.5 years, to date, as Independent Reviewer of terrorism legislation.  That is a mostly statutory role, arising from four Acts of Parliament, though it has added to it one non-statutory role, relating to the Security Service.  As it happens, I was appointed at about 11 o'clock on the 11th September 2001, though a few hours before the events in New York that have placed the numerical conjunction 9/11 permanently in contemporary history.  The following day, the Anti-Terrorism Crime & Security Act, the so-called Belmarsh Provisions, were introduced.  At about five past three that afternoon, I received a phone call from the Home Office saying that they wanted me to review the new provisions to imprison foreign terrorist suspects, some in Belmarsh as it turned out, subject to a system of law. I said, 'How long have I got to decide?' and the Private Secretary said, 'Oh, about twenty minutes.'  When I asked why, I was told that Mr Blunkett was about to introduce the Bill on the floor of the House.  He was going to make a concession, and I, as it were, was it.  So my introduction to being Independent Reviewer of terrorism legislation started with an assertion that it would only take just a few days a year, but it became something quite different within the first 36 hours.

I am not the first Independent Reviewer, and I am all too conscious of the more reserved approach of my several distinguished predecessors, concerned as they were, almost entirely, with Northern Ireland.  However, 9/11 and the later events in July 2005 in London, inevitably raised the public exposure of the Independent Reviewer's role and, in my view, of the desirability of public participation in the Reviewer's activities. 

Now, though it is obviously that I should think this, I have no doubt about the value of independent reviews.  There is an interesting and important debate about whether those I conduct could be performed differently or better.  I certainly think that there is room for the sophistication of the reviewer's process.  It is beginning to be almost impossible for it to be done by one person part-time.

There is a naïve assumption in the minds of some that an Independent Reviewer is an angel of mercy when he or she gives the Government of the day a good kicking, and a devil of complicity when he or she agrees with the Government.  Some assume that I should only be there to give the Government a hard time, a job done well by civil liberties groups.  Others assume that I am there to support Government.  Both are wrong.  I am there to give what I hope is a considered and independent view.  It may be right, and it may be wrong.  At the present time, I am all too conscious of those ephemeral problems when they arise. 

Indeed, I am so fed up with hearing about Magna Carta that I generally carry a copy of it with me, if only to prove to those who refer to it that its sexist, racist and classist.  It gives no guarantee other than that there will be a system of law in place if freedom is removed in any respects, and I am absolutely confident that Liberty, on whose management board I used to be at the time of the Miners' Strike by the way, would be marching down Whitehall in protest at Magna Carta if anything even remotely like it was being enacted at the present time.  I prefer a serious debate to emotional outbursts, wherever they come from, about Magna Carta.

During the course of this Reading, I propose to address four main points: first, what is the nature of the current level of risk and threat from international terrorism; second, how should we characterise that risk and threat - has it replaced the Cold War as the major threat to international order, or is it merely a new sub-set of crime requiring a more restrained response; third, is our domestic response to the risk and threat generally proportionate; and fourth, are there any issues arising from the present situation about the relationship between the Executive and the Judiciary. 

In that context, and at least to keep the judges present here until the end of the Reading, I should trail my conclusion.  My conclusion on that fourth point is that, without threatening the separation of powers, we could effect an improvement, and a needed improvement in my view, in the relationship between the Judiciary and Government.

So, I turn to the question of risk.  I find it necessary to deal with this basic question because there is a tendency to view the effectiveness of the policing and disruption of terrorism in this country as evidence that there is not much of a problem.  This is not a view you come across if you talk to people in the streets of Burnley or Berriew, but it does seem to be more of a problem in the couple of square miles around where we are standing, including the Palace of Westminster.  There seems to be a view that terrorism could be dealt with as a species of crime, like robbery or burglary, and that Al Qaeda and their associates are inept and easily accessible.

Let us not forget a few facts:  9/11 resulted in the deaths of almost 3,000 people, and the destruction of a substantial vertical part of New York's Financial District.  Since 9/11 Al Qaeda and it associates have carried out numerous attacks in several countries.  Noteworthy among these are the following: on 12th October 2002, they killed 202 young partygoers at a club in Bali; on 19th August 2003, Al Qaeda attacked the United Nations Headquarters in Baghdad, killed 22 and injured 200; on 11th March 2004, they killed 191 and injured 600 in Madrid and, beyond any doubt, changed the course of the impending Spanish General Election, which was the most alarming incident in Europe so far.  On 7th July 2005, they killed 52 people on public transport in London, and injured 700, a figure that is sometimes forgotten.  This was followed by the failed attempts on 21stJuly in which at least as great a number might have been similarly affected.  On 9th November 2005, Al Qaeda killed 60 people and injured 115 in suicide attacks on Western hotels in Jordan.  On 11th April 2007, they killed 33 people and injured 222 in simultaneous attacks on public buildings in Algiers.  On 29th and 30th June 2007, two car bombs, which allegedly were intended to explode in London failed to do so, and a suicide terrorist, a highly qualified engineer called Dr Kafeel Ahmed, smashed a vehicle into an entrance to Glasgow Airport's terminal, with the intention of causing the death of whoever could be caught in the consequences.  Dr Ahmed died 33 days later, in Scotland, without regaining consciousness.  These are but examples of widespread international violent Jihadism. 

The international evidence available across a wide spectrum of open sources supports Professor Philip Bobbitt's view that Al Qaeda remains, as he describes it, 'a sophisticated operation, with a sophisticated propaganda machine based in Pakistan, a secondary but independent base in Iraq, and an expanding reach in Europe.'

One clear conclusion one draws from those incidents under discussion, and I have only described some, is that it is less aimed at targets than numbers.  It can strike anywhere and even simultaneously.  Blackfriars or Blackpool or Bury are equally at general risk, depending on where the terrorists believe that they can have the most dramatic effect in numbers in terms of loss of life.  They value soft targets. 

I am not just making this up.  In November 2007, Jonathan Evans, the current Director General of the Security Service MI5 said, and the words are important, 'The violent Jihadist threat has yet to reach its peak.'  At the time MI5 had actually identified 2,000 individuals who pose 'a direct threat to national security and public safety' and warned that the number of potential terrorists living in this country could run to 4,000.  So there are 2,000 identified, and possibly another 2,000 estimated.  The number of identifiable plots on their radar was at least 200.  He said that the information that MI5 have is that Muslim children as young as 15 are being recruited by Al Qaeda to wage a deliberate campaign of terror in Britain, and Mr Evans warned that Islamists were 'radicalising, indoctrinating, and grooming young, vulnerable people to carry out acts of terrorism' - again, these are all his words.

If you want to read good evidence of this, and it is well worth reading - indeed, I think it is required reading - Ed Husain's book, The Islamist is excellent.

Some, including distinguished lawyers and journalists, have suggested to me that that is all very well, but it is really just a moderate risk.  They say that before adjusting the balance between civil liberties and specific counter-terrorism legislation, we should realise that the risk of injury from road traffic accidents is higher.  In other words, greater numbers of people are killed in road accidents than have died as a result of terrorist activity, and we should not get so excited about terrorism.  This was put to me recently, and seriously, by a leading journalist from the Economist.  Well, quite apart from what I regard as the patent illogicality of the comparison, I would simply remind anyone who is of that view that in order to reduce the number of road traffic accidents, we remove from thousands of people every year the right to drive a motor vehicle by disqualification from driving after what are sometimes a series of minor administrative infractions.  The same critics do not question preventative action of that kind in relation to motoring, and I could cite other examples of preventative legal measures that limit freedom of action and choice for the protection of the majority, some of those measures with permanent effect, and affecting large numbers of people.  

When we consider counter-terrorism legislation, we should look at it as part of law in the round, in my view, and we should look at the evil of terrorism, which is founded on mass fear.  It poses not only an unpredictable and sometimes large scale threat to individuals, in completely unpredictable places of public aggregation.  It also presents a threat to the very capacity of a democratic government to govern, as is shown by the effect of the Madrid bombings on the 2004 Spanish General Election, which brought about the election of a Government which had little prospect of being elected one week before. 

Terrorism also presents a threat to the capacity of conventional diplomacy and foreign policy.  If you compare it to conventional diplomacy, in which, for example, British and other diplomats are engaged in constructive dialogue with countries as diverse as Syria, Libya, and The Lebanon, and the ambition of Hizb-ut Tahrir, to establish a single Caliphate across the Middle East, which would involve the removal of those very countries, then you see how it is impossible to negotiate in a normal diplomatic environment where terrorism is involved.

So my conclusion on my first question is that the risk is very high.  I see absolutely no evidence to contradict Jonathan Evans, and as Independent Reviewer, I have heard the same assessment from his predecessor, and, above all, from those police officers who are most experienced and involved in counter-terrorism work, and from academics who have taken the trouble to survey the risk.    For example, the extensive writings of the acknowledged non-lawyer expert on terrorism, Professor Paul Wilkinson of St Andrew's University, supports this view.

From that conclusion follows, I hope, the logical corollary that it is a high duty of Government to take proportionate action to protect the public from that level of risk, but of course that involves a difficult balance between law and Government.  It includes reminding ourselves too that nobody is guilty unless proved to be so to the standard required by law.  Arbitrary action is unacceptable.  It remains the duty of lawyers to test the sometimes untestable, to support the occasionally unspeakable, and to be fearless in our advocacy of civil rights and individual freedoms.  Questions of genuine doubt must always be resolved in favour of the individual, however few individuals are involved, if there is a real question of arbitrariness or disproportionate State action. 

In striving for that balance, we should not lose sight of what I suggest is a real, but under-emphasised civil and individual liberty of every citizen: that liberty is the right of each citizen to national security.  When I proposed that right in a previous lecture, I was attacked strongly by some commentators and correspondents.  This criticism from people whose views I respect and with whom I would often align myself instinctively has caused me anxiously to examine my position on this issue.  However, my confidence in the statement of that important right of national security has been provided with reassurance recently by the imprimatur of perhaps the leading political philosopher and theorist of our day, David Selbourne, the author of 'The Principle of Duty'.  In choosing whether that individual liberty of national security should be part of the balance between law and liberties, I agree with Mr Selbourne that, as he puts it, 'Without such security, we cannot be considered free.'

The risks to civil liberties cannot be considered seriously without proper emphasis on that right, and so I turn to the characterisation of the threat.  Until 1989, we understood well the nature of the principal threat to our political order.  It came from the Soviet Block.  Missiles were pointed at each other.  Their attack on our society was a combination of the nuclear threat, espionage, which, incidentally, seems to be returning, and occasional disruptive activity of a broadly, and sometimes clumsy, political kind - the murder of Mr Markov and so on.

When the Berlin Wall was dismantled in an unexpected, but irresistible, tide of Velvet Revolution, riding upon what I still regard as the heroic vision of Lech Walesa and the reformist vigour of Mikhail Gorbachev, many imagined a new world order of general peace and harmony, secured by that global police officer, the United States.  But within a short time, the hegemony of the United States was seen as offering as many questions as answers.  What the United States hoped would be a period of peace and stability under their influence barely materialised.  They had not read their Greek and Roman history, and the history of all other empires from the beginning of time, and we did not have to wait very long for the new threat to world order to emerge. 

9/11 was far from the first manifestation of global terrorism.  For example, in 1993, you may recall, there was an attempt to blow up the Twin Towers, evidentially and clearly linked to Al Qaeda, and resulting eventually in trials in the United States.  On 7th August 1998, Al Qaeda killed 212 people and injured 4,000 at the United States Embassy in Nairobi, and, in a simultaneous attack, 11 lives were lost and 85 people were wounded in the US Embassy in Dar es Salaam.   On 12th October 2000, the USS Cole was attacked in Aden Harbour, and 17 sailors lost their lives.  These are only examples.  In fact, there have been nearly 5,000 terrorist incidents, largely linked with Al Qaeda, worldwide, between 1996 and the present.  Their worldwide context and the consistency of their purpose does in fact echo the Cold War. 

Whilst I am unenthusiastic about the use of the phrase 'the war on terror,' what we are facing actually is just as threatening.  Leaving aside the phraseology, the threat is ubiquitous, it is ever-present, and it used informal systems.  Those informal systems, compared with political or military conflict, make it very asymmetric, and therefore very difficult to deal with.  By this I mean that states find it very difficult to deal with terrorists because they do not do normal war-like things like wear uniforms so you know who the enemy combatants are.  Furthermore, as I mentioned in relation to Hizb-ut Tahrir, the potential for political resolution is negligible, which is quite different from the history of terrorism in Ireland.

There is no doubt that this is a different threat from that of the Cold War.  In many ways, it is more immediately threatening, more personally dangerous to each citizen, because not many individuals in this country, for example, thought the Russians would get them, even during the Cuban Missile Crisis.  But it is not merely a wave of increased criminality of a political kind.  It is not like the regrettable upsurge in gun and knife crime in our cities.  It is more widespread and it is global.  If it is not a new Cold War, it has replaced the Cold War as a, if not the, new focus of international tension, and it has had a dramatic effect on the world economy. 

If I am correct that there is a major international dimension - a view with which many international commentators, such as Wilkinson and Bobbitt, agree - then that is something that should inform our judgement of how we deal with terrorism in domestic law.  Consistent with this, numerous international treaty obligations, accepted by the UK in the context of the United Nations and the Council of Europe, have recognised a shared zero tolerance approach to terrorism wherever it occurs.  If you will forgive the double negative, that does not mean that we should not be restrained in our response.  Old-fashioned notions of internment of course should be rejected out of hand because, irrespective of the issues of principle, which answer themselves, there is a repeated evidence of the practical failure of measures of that kind.  However, the response of the State to an international threat that may well last for a generation needs to be studied and specific, because we're talking about something which is quite different to normal crime in its character.

That brings me to my third question, the proportionality of our domestic response.  There are numerous topical aspects to this question worthy of a long debate in themselves, but before I come to the 42 days question, I want to deal with some other areas of particular concern, and there are four of those areas.  These are things that rarely interest the newspapers, but affect large numbers of people.

The first area of concern is that of port stops and questioning under Schedule Seven of the Terrorism Act 2000.  These have undoubtedly proved a useful intelligence tool, and occasionally better, in the prevention and detection of terrorism.  For example, information on the travel patterns of suspects is an especially useful form of intelligence and evidence and is often gleaned from port stops.  However, in my view, the intelligence-led model, coupled with behavioural analysis, is to be preferred from the random, or as it is sometimes called intuitive, stop by police officers at ports of entry.  I commend the success of some intuitive stops but I am sure there could safely be a reduction of 50% in the number of people stopped at ports of entry.

Secondly, I refer to stop and search for terrorism material without suspicion, under Section 44 of the Terrorism Act 2000.  This is really important because it affects a lot of people every day.  It may have happened to you recently, as it does to many people daily, for example, outside tube stations in London.  This is a subject that has come before the courts from time to time.  As Independent Reviewer, I see all the authorisations, routinely.  I recognise that there are areas and assets that require the kind of protection that Section 44 provides.  However, there are some serious inconsistencies of application.  In Scotland, they barely use it at all.  The Scottish Police say that we do not really need it.  In England and Wales, some Chief Officers of Police seek Section 44 authorisations for sites such as airports, whereas in other areas, almost identical airports are not the subject of these extraordinary powers.  It almost seems sometimes as though having a Section 44 is a macho exercise for a Chief Officer.  Surely, the use of powers to search citizens without suspicion should be regarded as exceptional when there exist other powers to search in the context of public order, misuse of drugs, and generally on suspicion of crime.  I receive many complaints from the public about what appear to them to be random searches.  Sometimes I receive allegations of decent members of the public having the impression that terrorism law is being used randomly and not for counter-terrorism purposes.  This brings me to an adage, which I use fairly often, which is that it is absolutely essential for its credibility that counter-terrorism law should only be used for counter-terrorism purposes.  That is not always realised.  I have emphasised this week, in my report on the operation of the Terrorism Act 2000 and 2007, that I hope that during the next six to twelve months we shall see a considerable reduction in the authorisation and use of Section 44.  I shall be disappointed if Section 44's use is not cut by a half.  In the tens of thousands of searches under Section 44 quite a lot of criminals are found.  Indeed, I caused a Section 44 near Southampton the other week because they demonstrated it to me, and the first person who entered the road block had a large amount of cocaine and tens of thousands of pounds in cash.  But in my view, a reduction in the use of Section 44 by a half would not, in any way, prejudice national security.

Thirdly, I want to say briefly a word about something that has been before the Court of Appeal fairly recently - the use of the term 'glorifies' in the Terrorism Act 2006.  I have absolutely no difficulty with the prosecution of inchoate terrorism crimes, and the evidence from courtrooms is that juries are ready to convict of inchoate and rather unspecific terrorism crimes.  However, the discretion to prosecute must continue to be exercised in a way that does not stray into prosecuting the foolish and misguided for their thoughts alone.  Though the 2006 Act is clear that thoughts alone can not constitute a crime, the rhetoric surrounding the legislation requires continuous reassurance to emphasise the point.  It is better by far to explain the errors of the radical heresies that give rise to violent Jihad than to prosecute for not a great deal more than merely thinking about them.   Equally, imams and others having influence over impressionable young people must recognise their public duty, at least to their congregations, to explain the errors of such theologically unsound and un-Islamic religious beliefs.  No leader of the opinion of young people can legitimately escape that responsibility, and we have got to be quite robust about this I think.  The duty of those who shape the opinions of the young must include cultural acceptance, and that cuts both ways.  Diversity requires cultural acceptance of Islam in this country, but equally, it requires those who influence young Muslims who might be inclined to radicalism not to regard, for example, young women at Tiger Tiger, the nightclub that allegedly was nearly bombed in Haymarket, as being worthy of murder because they dress in what some regard as outrageously short skirts.

Fourthly in this section, I do turn to the 42 days proposal currently before Parliament.  In my view, the debate on this subject has generated more heat than light.  For the first time in about fifteen years, probably since I was a Member of the House of Commons, I was heckled last week when I spoke about this subject, and at a private dinner in the Dorchester Hotel at that!  I was heckled because I suggested in a speech that part of the debate in the House of Commons on the 42 day proposal might have been founded on considerations of politics rather than on the merits of the issue.  I took the trouble to say that I have been a Member of the House of Commons and I understand MPs kicking at Government when it is down - I have done it, it is what you do in the House of Commons - but you need to recognise that it does not always make a contribution to an intelligent debate.  I fear that I was right and the hecklers were wrong!  For me, as a Liberal Democrat, and as a former Liberal and Liberal Democrat MP, taking that Party's Whip in the House of Lords as I do, and occasionally obeying it, life would have been easier and pleasanter if I simply agreed with my colleagues in my own Party and joined the chorus of critics of the Government's proposals.  Unfortunately, I cannot do that for the sake of expediency, when, having looked at terrorism so closely for 6.5 years, I believe it to be wrong empirically.  It would be dishonest and irresponsible of me to disregard the powerful material I have seen that lends conviction to my view. 

In summary on this issue, I believe that there is a very small number of cases, but of the greatest importance, for which the provision for detention for more than 28 days before charge would prove fair, useful and necessary in the public interest.  The reasons for extending the existing maximum to some point beyond 28 days have been rehearsed repeatedly by proponents from the Prime Minister downwards.  Those with the strongest working focus on terrorism cases, including the most operationally engaged Police, support the proposal as necessary.  Of course, I would be opposed to it if there were not proper protections; however, concessions, which were always going to be made, including closer judicial scrutiny, have been made, which would result, in my view rightly, in some suspects, who in the past have been held for between 14 and 28 days, being held for a shorter time than hitherto.  Leaving aside the parliamentary debate, greater protections are proposed for this piece of legislation than for any other intervention by the Police in people's lives. 

What I cannot accept, in any event, is that this proposal is the end of civil liberties as we know them.  The spectre of a politician who supports capital punishment being supported with charged fervour by civil liberties lobbyists on this issue seems to me strange, especially when it is in tandem with others who have consistently opposed significant social changes to keep our society up with the times - for example, the introduction of civil partnerships.  In considering the proportionality of the proposal, we should not lose sight of the balance between the proposal and the right I mentioned earlier, to national security.  At most, the 42 day proposal would affect a handful of people over the next few years.  If its benefit is to help the authorities to complete a counter-terrorism operation to the extent of enabling the capture and prosecution of the full range of participants in a huge terrorism plot, I suggest that its use, with the protections, would be entirely proportionate.

And so I turn to my final point, which I could not resist on an occasion like this, because I know that there are some very distinguished judges here: it is the relationship between the Executive and the Judiciary.  I do it with some, perhaps uncharacteristic, trepidation because of the presence of judges here tonight.

Were it needed, which it is not, I would be the first to urge judges not to be pressured, let alone bullied or intimidated, by the Executive.  To adapt a celebrated remark of Edmund Burke's: judges should be pillars of what is right and lawful rather than weathercocks of the often opaque opinions of Ministers.  I do have to warn you, however, that that is a dangerous quotation to use.  Burke used it in a by-election, saying that MPs should be pillars of what is right and not weathercocks of public opinion, and promptly lost the election!

By way of example of the tension that has crept into the contemporary relationship between the Executive and the Judiciary, I would mention in passing, but without comment on the merits, two cases that are currently the subject of appeal: the first is the Abu Qatada Jordan extradition case, and the second is the BAE Systems corruption case.  Without, as I say, making any comments on the merits of cases that are still before the courts, they are nevertheless illustrations of very different situations in which the actions of the Executive in relation to national security and the public interest have been rejected by the courts, and comparable issues have arisen in the area of terrorism in some of the control order cases. 

What I would say, I hope without sounding too nostalgic, is that over my years in law and politics, there is no doubt that the relationship between the Judiciary and the Executive has changed.  When I was first elected as a Member of Parliament in 1983, for the county of Montgomery, Drefaldwyn, the Attorney General of his time had his chambers in the law courts.  Indeed, the last Attorney General I went to see in his chambers in the law courts, pretty recently, was Paddy Mayhew.  The Attorney was thus in daily contact with the Judiciary, at least at an informal level.  There was a danger of course of cosiness, but there is no doubt that there was a more everyday exchange of views and concerns, and a greater understanding.  

Generally too, the Home Secretary was a senior lawyer, a Queen's Counsel, albeit often a political Silk.  Although not physically situated in legal London, Home Secretaries tended to be associated closely, in the social sense, with judges. Certainly, there was not the sense of tension between them that I have detected in the first 6.5 years, especially from the side of Ministers. 

Of course I acknowledge that the world of 2008 is a more complicated place.  I recognise that an outburst of informality would probably excite a justifiable storm of criticism and possibly even the investigative skills of Commander John Yates.  However, it seems to me that there is no forum where Ministers and a range of judges at a senior level are able to engage, even formally, these days in a way that produces a greater sense of mutual understanding and approach.  Whether through the Judicial Studies Board's regular seminars for the senior judiciary or in some other collegiate way, in my view, from my aspect as Independent Reviewer, it seems that the Executive and the Judiciary are in dire need of a greater level of understanding, each of what the other does. 

We have every reason to be proud of our system of judicial review, the most developed in the world, and of the independence of our Judiciary, the most independent in the world.  However, I believe that the Judiciary and Ministers and senior officials test each other's patience more than is necessary by their sometimes inadequate mutual understanding.  This is not specific to terrorism.  Indeed, my comment is probably more germane to the activities of the Executive involving foreign policy and negotiations with foreign states than to domestic terrorism issues.

This, as you will have gathered, has not been an academic treatise.  Rather, I have tried to illustrate and provoke discussion of problems of current concern in the space in which I work as Independent Reviewer.  I recognise of course that there are some I will never persuade.  My plea to them, as someone with access to occasionally alarming material not in the public domain, and especially on the most controversial issues facing us today, is that they should be prepared to recognise, in a real and serious debate, that it should be illuminated by knowledge and reason, not by emotion.  Serious people can disagree seriously about serious issues, and these are very serious issues.

 

 

 

©Lord Carlile of Berriew QC, Gresham College, 26 June 2008

This event was on Thu, 26 Jun 2008

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Lord Alex Carlile of Berriew QC

Lord Carlile of Berriew is a British barrister and crossbench member of the House of Lords.

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