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Thursday, March 24, 2011

Ministers and judges: contempt of courts

Ministers and judges: contempt of courts

Ministers should never shirk their own legal duty so they can attack the judges for setting out law that is politically unpalatable to them

The foreign prisoners' row of April 2006 was one of the low points of Tony Blair's third term. The revelation that more than 1,000 foreign prisoners had been released into the community after serving their sentences without being considered for deportation – and had reoffended in some cases – rocked the reputation of the Home Office, sent panic waves rippling around a struggling government and effectively destroyed the career of the home secretary Charles Clarke. Predictably, it also triggered an authoritarian policy lurch, in which Mr Clarke and his successors began to operate a much tougher regime on potential prisoner deportees in the hope of reassuring public opinion. "Let us deport all those people," was how Mr Blair himself put it.

The problem with the old policy was that it was incompetent. The problem with the new one was that it was unlawful. From at least 1991, home secretaries had a published policy of only detaining potential deportees as a last resort. After the furore, Mr Clarke and his successors immediately adopted a diametrically opposite approach. Instead of a presumption of liberty they instituted a presumption of detention, even for those who had served their criminal sentences, with a few exceptions on compassionate grounds. Unlike the former policy, however, the new approach was kept secret.

Yesterday, the UK supreme court struck that policy down on the grounds that the home office took a "near blanket ban" approach, which it concealed and was contrary to its public policy. This was a very important verdict, not simply because the secret policy was a serious abuse of power over detained potential deportees, but also because the government's lawyers and the home office must have known that it was. And yet, even while knowing it, they went ahead with the secret policy. As Lord Dyson sharply put it in his lead judgment yesterday: "For political reasons, it was convenient to take a risk as to the lawfulness of the policy that was being applied and blame the courts if the policy was declared to be unlawful."

Judges are not beyond criticism. But this is a timely warning. Ministers of all parties have developed an unattractive and growing taste for judge-bashing. Yet ministers' duty to uphold the rule of law is set out on page one of the ministerial code. Sometimes, of course, the courts will find they have failed – that is what the highest courts are there to decide. But ministers should never contrive situations in which they shirk their own legal duty so they can attack the judges for setting out law that is politically unpalatable to them. Such a tactic takes the ministerial judge-bashing instinct even further, and with even less justification.

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