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Monday, April 14, 2008 

This is how an MP's mind fails to work.

You really would have thought that an MP would understand something as basic as the separation of powers, but it seems that Denis MacShane seems to have skipped that constitutional lesson. In fact, let's be fair here for just a moment: MacShane knows quite well the difference between the judiciary and parliament and why they're independent from one another, it's just that a little thing like that would get in the way of his argument. After all, just what sort of person who believes in democracy and not the obvious usurpation of power by unelected judges indulging in activism could fail to be angered by the three decisions of last week where the government's decision to stop the SFO inquiry into corruption in the Saudi-BAE al-Yamamah deal was torn to shreds, with the added embarrassments of not being able to deport Abu Qatada and soldiers being protected by the HRA adding to the beetroot-like pall of ministers' faces?

Let's for half a second then indulge MacShane's argument, or as it could be more accurately painted, obscurantism. His flourishing finish is thus:

I am no defender of ministers or of any untrammelled right to government to interpret the law in a way which may be illegal. But am I alone in wanting parliament to decide our law, elected politicians not unelected judges to execute them, and when judges are called upon to interpret the law an obligation that they listen to the will of parliament, not the passions and prejudices which they like all of us are not immune to?

Surely if MacShane had put slightly more thought into this he would have realised the very first sticky problem with his plea. The SFO inquiry into the BAE slush fund was not stopped by an elected politician; it was halted after the head of the SFO gave into the demands of Lord Goldsmith, the very much unelected attorney general, who himself was heavily lent on by the prime minister, who most certainly has no right whatsoever to decide which investigations should be continued and which should not, regardless of his being elected. Perhaps further evidence of MacShane's disconnection with reality is provided in this previous statement:

Thus when a British prime minister says he believes that national security may be threatened if a political-judicial process continues why must he be disbelieved?

It's difficult to know which metaphor to adopt in response to how easily it would be to mock this. Taking candy from a baby? Shooting fish in a barrel? Putting six past Derby County? It would of course be wonderful to be able to believe that a prime minister would be honest with us over such a matter, but when such a prime minister has such a dismal record of just that, and when the government as a whole has a reputation for using the security argument to justify almost anything, it makes it all the more difficult. It would have been easier to believe also if the person who delivered the threat wasn't the self-same man alleged to have been the one to have received £1bn in payments from the company being investigated. Then again, perhaps we're all just being shockingly cynical.

This is the closest MacShane presents to the will of parliament being involved in the SFO decision:

Parliament has endlessly discussed and debated the Saudi deal since it was first negotiated on the basis of mammoth commissions paid to Saudi princes back in the 1980s. Sir Ming Campbell has brought up the issue regularly in the Commons. The Commons has listened to him with respect as a QC who defends the primacy of lawyers and judges but have not agreed that an elected government does not have the right to decide that a prosecution should not proceed.

The government or indeed parliament though would never dare to interfere with criminal investigations and the decision to proceed in those cases if it involved a member of parliament, regardless of the severity of the crime. This is half the reason why the concessions over 42 days are so feeble - parliament has no business to be deciding whether someone should continue to be held beyond 28 days when they're still in custody. Parliament makes the law - it does not then decide whether or not that law should be applied. When faced with such an obvious conflict of interest with the Saudis and BAE both demanding that the investigation be called off, the government ought to have told both to get their tanks off their law and said that they simply couldn't interfere with the course of justice, as the judges' themselves said in their ruling. Instead they gave in to open blackmail, setting a terrible precedent.

MacShane's argument is equally threadbare on the other two cases. As he admits, the HRA is to be openly interpreted by judges as they see fit. Indeed, they're the best possibly placed to make such a decision, having heard all the relevant evidence and weighed up the opposing arguments, as well as the precedents set by other rulings. You can't have it both ways: you can't set the law and then demand it solely be interpreted in the way you demand, or in your best interests at the relevant point of time; some complain that the HRA and the ECHR are ambiguous, but almost all such documents are. Even the fabled American constitution, the one which set the standard for all that have followed, is being debated and argued about right down to now over exactly what the Second Amendment means and provides for.

Besides, even if all of the above were put to a vote, if MacShane would presumably prefer, how is he so sure that the position he sides with and advocates would be the winning one? The SFO inquiry would probably be stopped if put before the houses, or at least the Commons, as the Conservatives would support the government. On the other two though it's most uncertain: both David Davis and Chris Huhne called for Qatada to be tried in this country rather than deported, and both Lib Dems and Conservatives supported the decision over the soldiers' equipment. With backbench Labour support hardly to be solid on either, the government might well face defeat. It might be easier to take MacShane's point if Labour had been elected by something approaching a majority of the electorate, but it wasn't: only 22% voted for the current government, something that it ought to remember in everything that it does. Instead it continues to hardly govern by MacShane's own high-minded principles, forcing through such unpopular measures as 42 days while continuing to big up the terror threat.

The well-used, moth-eared, almost cliched quote by Orwell is that in times of universal deceit, telling the truth becomes a revolutionary act. Would it be too much to request that this government, its ministers and clingers-on actually propose doing the "decent" thing rather than blaming the judiciary and moaning about how parliament is being ignored and emasculated? How about putting Qatada on trial, equipping soldiers properly when you send them out on such unpopular missions, and not giving in to blackmail from those who have grown rich and fat on the money provided by the taxpayer and British companies involved in corrupt practices? Would that really be so difficult? For MacShane and much of New Labour, it seems easier to just blame everyone other than themselves.

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