Judiciary

Tom Griffin (London, OK): In order to get the the Counter-terrorism Bill through the Commons in June, the Government promised a parliamentary vote if it was necessary to extend the detention of terror suspects temporarily for up to 42 days.

That proposal has been systematically taken apart today in a report from the House of Lords Constitution Committee which warns that Parliament is 'institutionally ill-equipped' for the role which is being thrust upon it.

John Jackson (London, Mishcon de Reya): At the end of her judgement in the BAE case one of the law lords, Lady  Hale, said “- - I would wish that the world was a better place where honest and conscientious public servants were not put in impossible situations such as this - - -“. I would wish that too. I would also wish that people and nations did not seek to advance their interests by violence or the threat of violence. If that were so there would be no need of armaments industries and questions of national security could be dealt with in a more open and satisfactory way.

The impossible situation to which Lady Hale referred was the dilemma confronting the Director of the SFO in deciding, with incomplete information, whether, to quote Lord Bingham, “the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens”. The incompleteness of information available to the Director is the link to my second wish and my remark about how questions of national security are dealt with.

John Jackson (London, Mishcon de Reya ): Doubtless some, perhaps many, will be disappointed by the unanimous decision of five law lords to overturn the judgement delivered, and probably crafted, by Lord Justice Moses in the Serious Fraud Office’s BAE case. And those disappointed will include some who have convinced themselves that the Blair government acted cravenly to protect the commercial interests of BAE - a large employer and taxpayer - or even that this all fitted in with a longer term plan by Blair himself to grease his passage, post-premiership, to a position from which he could enjoy the trappings of international office and advance the interests of his friends in the United States in the maintenance of oil supplies from the Middle East.

John Jackson (London, Mishcon de Reya & Unlock Democracy): There is an astonishingly muddled article by Tom Winsor in today's Finanical Times on the High Court's decision in the SFO/BAE case. Firstly, he has not grasped that clause 40 of Magna Carta ("To no man will we sell, deny or delay right or justice") was a promise by the king as to how his judges would behave in administering royal justice - hardly a definition of judicial independence, as he claims! Though the promise is, nevertheless, an important component of the rule of law.

John Jackson (London, Mishcon de Reya & Unlock Democracy): An important part of the context of Mr Justice Collins' ruling today, that sending a soldier into a battle inadequately equipped may be a breach of his or her human rights (thereby implying that the courts might have to say what “adequate equipment” is), is one of the more stark assertions by Lord Justice Moses in the BAE / SFO case. He opens paragraph 126 of the courts judgment (opens pdf) with the words “the principle we have identified is that submission to a threat is lawful only when it is demonstrated to a court that there was no alternative course open to the decision-maker.”

John Jackson (London, Mishcon de Reya & Unlock Democracy): The High Court judgement delivered today, that the Serious Fraud Office acted unlawfully in ceasing to investigate an allegation that BAE had resorted to bribery in obtaining Saudi arms contracts, repays careful reading which you can do here in full. It should not be welcomed with enthusiasm by democrats whatever the motives of the British government.

Moderator: This is a response to a comment left on John Jackson's previous post, which disagreed with his contention that English common law cannot be made superior to Strasbourg.

John Jackson (London, Mishcon de Reya & Unlock Democracy): Initially it was not clear to me what Richard is "completely" disagreeing with. But his follow up comment suggests that he is defending the deep rooted concept of parliamentary sovereignty - the notion that our parliament can do anything it wants, pass any legislation it likes.

John Jackson (London, Charter88): I sympathise with the views of John Denham reported by Anthony Barnett.

Andrew Blick (London, Democratic Audit): I’ve just come from the Grimond Room in Portcullis House, where the Commons Constitutional Affairs Committee had a session with senior members of the judiciary and the Lord Chancellor/Secretary of State for Justice, Lord Falconer. If Gordon Brown is looking for an example of how not to carry out constitutional reform, this is it.

Daniel Leighton (London, Power Inquiry): When will the constitution really matter? Only when citizens are shot in the street, according to the Guardian’s Martin Kettle. Then he backtracks, a little. (Could it be the nervousness of a Blair groupie entering the age of Brown?) To his credit, he does take on a major story that the rest of the press ignores. This Tuesday will see crucial session of Alan Beith’s constitutional affairs select committee. It will consider whether the independence of our judiciary is under threat from the new Ministry of Justice, produced by John Reid like a rabbit out of a hat before he himself disappeared (see Geoffrey Bindman’s post in OurKingdom). Evidence will be taken from the Chief Justice Lord Philips saying there is a grave threat and the Lord Chancellor Charlie Falconer saying there is not. The heart of the ‘independence of the judiciary’ concerns whether the government is subject to the rule of law. When the executive has the power to subordinate the courts to its will it is a step towards dictatorship. Must we get to this point before we express alarm? Kettle grants that the issue is "a big one". Then has a slap at all those liberal types who are talking about “a far reaching constitutional crisis”. According to Kettle: “A constitutional crisis about judicial independence is what they have in Pakistan… which culminated in 41 deaths on the streets of Karachi”. Well, thanks a bunch. Falconer came to a privately negotiated ‘concordat’ with Lord Woolf, Philip’s predecessor, which supposedly secured the independence of the judiciary. Has it broken down? We will see if Beith’s committee can bring this hugely important issue clearly into the public realm.

Geoffrey Bindman (London, BIHR): Gordon Brown has praised the golden thread running through British history of the free individual, standing firm against tyranny and defending the human rights of others. Inextricably tied into this thread is equal access to justice. When it comes to this, two outgoing Ministers, John Reid at the Home Office and the Prime Minister, declared the need to dissect the Home Office into two and create a “Ministry of Justice”. This move also abolishes the Department of Constitutional Affairs. The creation of such a new Ministry would seem to demand careful thought and preparation. Yet the changes were announced by Mr Reid on 29 March and, without any public consultation or even a parliamentary debate, were implemented on 9 May. A few days before I was told by a senior official involved that it was not clear whether after 9 May the office of Lord Chancellor would still exist and if so whether it had any continuing functions. Lord Falconer, who until 9 May was Lord Chancellor and Secretary of State for Constitutional Affairs, became on that date Secretary of State for Justice. Apparently he remains Lord Chancellor, but that ancient office after nearly 1000 years is reduced to little more than a figment of the imagination. But the important questions about the reform of judicial administration are not about the fate of a medieval office which simply symbolises the impact on the independence of the judiciary. Section 1 of the 2005 Act declared that the Lord Chancellor’s constitutional role in relation to the rule of law was preserved: he and other ministers were under a duty to uphold the independence of the judiciary and ensure judges were adequately supported. But can a Minister of Justice, with added responsibilities for prisons and probation, safeguard the integrity and independence of the court service and the judiciary? It is hard to see the new Minister of Justice as any kind of bridge between the executive and the judiciary as he is so firmly lodged within the executive camp. Has a crucial filament of the golden thread of liberty been snipped?