Our judges must check the home secretary's authoritarian instincts
Tuesday October 23, 2001
Appeasement is a stinking jibe. Two ministers, Adam Ingram and Hilary Armstrong, gnomes of power, throw it in the face of any politician who criticises the present shape of the anti-terror campaign. But appeasement isn't the only echo that resonates from Hitler's war. Something more useful needs recalling, before the target for political attack extends beyond MPs and reaches to the judges. David Blunkett hasn't yet directed the A-word at them. But his shows of disrespect for the legal process loom larger, though the danger facing Britain is less than it was in May 1940 when the Nazi invader was at the gates.
In that month, a man called Robert Liversidge, aka Perlzweig, was sent to Brixton prison as a threat to public safety. The home secretary, Sir John Anderson, gave no reasons. Under recent emergency legislation he needed only to have "reasonable cause" to believe Liversidge was a person "of hostile associations". Up to and including the court of appeal, Liversidge's lawyers could find no judge willing to contest this interpretation of unlimited wartime executive power to detain without trial. There were 1,426 people in the same predicament.
In the final court, the House of Lords, the verdict was the same. The minister, they said, merely had to think he had a reasonable case. He did not have to prove it. The test was subjective, by the politician, not objective by due legal process. "Those who are responsible for the national security must be the sole judges of what the national security requires," said the majority. Any discussion of the evidence was "obviously" undesirable.
The judge who has lived in history, however, was the one who rejected this, Lord Atkin. He said the plain meaning of the test was that it should be objective. Even in an emergency, the minister could not exercise arbitrary power. Atkin deplored judges who "when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive". They had adopted arguments "which might have been addressed acceptably to the Court of King's Bench in the time of Charles I". From being lions under the throne, another judge later wrote, the Lords majority had "reduced us to mice squeaking under a chair in the Home Office".
For such scorn Atkin was ostracised by his colleagues. Fellow law lords wrote to newspapers to attack him. But successors, from right to left, have conceded that his reasoning both about the law and about the role of judges was correct. They've applied his arguments in analogous cases. The majority, said Lord Diplock, were "expediently... wrong". Lord Bingham, the present senior law lord, has written of his pride that "even in that extreme national emergency" there was one voice ready to assert the role of the courts "as guarantor of legality and individual right".
Mr Blunkett, one may safely say, is not an Atkin man. He probably hasn't heard of Liversidge v Anderson. At the party conference, he derided the role of judges as agents of democracy or freedom, and attacked "triumphalist" lawyers who used Labour's own Human Rights Act, brought into force only a year ago, for the benefit of their clients. He seemed utterly unaware of this self-defeating paradox. His latest display of panicky authoritarianism is to announce seven-year jail sentences for anthrax hoaxers, applicable from midnight last Saturday, before parliament has passed the law: another violation of the HRA, which bans retrospective legislation.
Not everything he has in mind in response to global terror is unreasonable. The tougher financial controls, and stricter reporting obligations on banks, will be welcome. More effective cooperation between EU countries on police and legal issues makes sense anyway. Because of the uniquely generous opportunities English common law offers to asylum seekers and extradition-resisters to string out their cases, the new special immigration appeals commission may turn out to be a satisfactory way of accelerating the court process.
But that depends on respect for the Atkin principle, a respect that neither David Blunkett nor Tony Blair can be relied on to do more than mouth. Mr Blunkett piously talks about being determined to "strike a balance", but shows no sign of accepting the discomfort this might mean for a conspicuously executive-minded minister whose most prominent judgment on lawyers is contempt.
Two issues stand out. First, much of the new legal regime is a way of tightening the rope around "suspected terrorists". If there's evidence against them, such people deserve no judicial mercy, and no haven of legal procrastination. But who will determine the membership of this category? By whom "suspected", and against whom "terrorists"? Without a judicial process - maybe even held partly in camera - this will become a conveniently fluid group,