Times Online : Terror law clash 'threatens constitutional crisis'

Terror law clash 'threatens constitutional crisis'

by Times Online and agencies | June 29, 2006

The Government's clash with the judges over its anti-terror legislation is threatening to spiral into a constitutional crisis, a senior Labour MP warned today.

John Denham, who chairs the home affairs select committee, demanded urgent talks between politicians and the judiciary, saying that public safety was at risk with possible "life and death" consequences.

Yesterday, High Court judge Mr Justice Sullivan undermined one of the main pillars of the government's anti-terror policy, by ruling that control orders made against six foreign terror suspects were unlawful as they were in breach of human rights law.

The Government has lodged an appeal against the ruling, insisting that the controversial orders are crucial to prevent terrorism in Britain. The appeal will be heard on Monday.

Mr Denham told the BBC: "There is a constitutional crisis emerging here I think about the way in which the judges and the courts are approaching these issues.

"When many of us, as I did, supported the Human Rights Act and indeed still support it, we thought that on great matters of state of this sort, if the elected Parliament had taken a careful view of what was in the wider public interest that would be given considerable weight by the courts.

"That doesn’t seem to be what’s happening at the moment and that’s why I don’t think it’s over the top to talk about an emerging constitutional crisis.

"We have got to have a serious discussion between law makers in Parliament, ministers and judges about the way through here. Before we get into too big a conflict, sensible people have got to get round the table and explore the way in which this is going to be handled."

John Reid, the Home Secretary, was said to be furious at Mr Justice Sullivan's ruling and has indicated that he will seek to overturn the judgement on appeal.

If the Appeal Court decides on Monday to uphold the High Court decision, human rights lawyers say that the control order legislation will be in tatters.

Mr Denham said he could see no alternative to the orders.

"If effective control orders are struck down...I think that probably means that the people go back into the pool of people we are concerned about and the security services will take very difficult decisions about who not to keep an eye on, and let’s just hope they choose the right people and not the wrong people."

The MP said judges in the rest of Europe gave greater weight to public policy that had been "properly considered and endorsed by parliament".

He added: "This is not a battle between Government and the judiciary; this is between the elected parliament and the judiciary.

"We now know, from last year’s London bombings, that the police and security services are taking life and death decisions about who to keep under surveillance. And if you don’t have mechanisms of this sort for people you believe to be dangerous then it is difficult to protect the security of the public in the way we want."

But Michael Mansfield QC, a leading barrister, rejected Mr Denham’s "crisis" warning, insisting that judges were simply doing their job.

"We are not on the verge of a constitutional crisis; what we are on the verge of is recognising at long last that the courts are performing the role they were always there to do.

"Although the Government has been elected, the elected democracy has put in place a judiciary whose job it is to monitor the extent to which legislation is incompatible with human rights.

"That’s exactly what the judges are doing and as soon as they do their job then in comes the Government and says ’oh we don’t like this, we wish to lock up people we think are suspects and subversive’. We can’t tolerate a society in which a Government is allowed that view untrammelled."

The six men, who must not be identified, were all Iraqi nationals whose claims for asylum have been rejected yet to be determined. They were arrested under the anti-terrorism laws but then released without charge.

Instead, control orders were made against them. One was allowed to live in his own home but the others were required to live at designated addresses away from their home areas.

They were obliged to remain indoors for 18 hours a day, between 4pm and 10am, and were subject to other severe restrictions, such as bans on using mobile phones or the internet, or on meeting or talking to anyone who had not been vetted and approved by the Home Office.

The judge ruled the restrictions were so severe that they amounted to a breach of Article 5 of the European Convention on Human rights and the men were "rather like a prisoner in his cell" and their liberty "non-existent for all practical purposes".

In April the same judge also found the 2005 Prevention of Terrorism Act - under which control orders are made - "incompatible" with the European Convention on Human Rights because "controlees" had not received a fair hearing.

Both cases are now expected to come before the Court of Appeal next Monday.

Discussions could also take place to consider whether the case should leapfrog the Appeal Court and go straight to the House of Lords.