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Wednesday, February 16, 2011 

An appalling slur.

One of the absolute worst traits of the last government, of the many to choose from, was the way it characteristically over a number of years responded to judgements which went against it. A mixture of posturing verging occasionally on the bullying, both David Blunkett and John Reid during their periods as home secretary fulminated against the judiciary when they dared to suggest that they should reconsider the legal consequences of their policies, both on criminal justice and anti-terrorism. Blunkett at one point all but dared the judiciary to find fault with elements of what would become the Terrorism Act of 2006, while Reid's blunderbuss approach ultimately ended up with him being hoist by his own petard, unable to live up to the populist image of himself presented in the tabloids.

The attorney general Dominic Grieve said at the weekend that we're about to experience "what I suspect is going to be the least populist period of government that you have had for many a year". In many respects, he may well be right: Ken Clarke's prison policy has marked an end to the "incarceration works" consensus of almost the past two decades, while Nick Clegg's freedom bill will roll back many of the authoritarian measures introduced by Labour. While the latter plays better with the Daily Mail than it does with the likes of the Sun, both are little short of furious over the former. Add in how certain Conservative backbenchers have long played a happy role providing quotes to the tabloids over the latest human rights outrage, benefits scandal or prisoner privileges' passing frenzy and it's obvious that something has to give, regardless of what the Liberal Democrats think.

Hence it's time to once again beat up on the judges for interpreting the law as they see it. Last Thursday saw the Commons effectively engage in a four-hour long orgy of European Court of Human Rights bashing, with many muttering darkly, aided by a spectacularly badly researched and argued Policy Exchange report, that it's about time we disengaged ourselves from the court we created after it rather meekly suggested that we reconsider our "disproportionate" ban on all prisoners being denied suffrage. Cameron previously had ascended to new heights of hyperbole in claiming that even the thought of doing so made him feel "physically sick", surely meaning that the nausea must rise the moment he makes almost any decision about anything. That perhaps could be expected in response to a ruling emanating from "Europe", where madness is mandatory; far more disgraceful is that both Cameron and Theresa May today referred to the decision of the supreme court from last April that those convicted of sexual offences should have a right to appeal against indefinite inclusion on the state register as "appalling", and one which they would take the "minimum possible approach" to.

In fact, the "minimum possible approach" amounts to making the conditions of being on the register even more onerous, apparently out of nothing more than spite for the case being brought and for the judges who every step of the way agreed that there should be some sort of system of review in place. Those travelling abroad for even a day will now have to report their movements to the police, down from the 3 days currently in statute. Few (including myself) will quibble with 15 years having to pass before anyone can appeal against their permanent inclusion on the register, as all those sentenced to longer than 30 months' imprisonment for a sexual offence are automatically, but the police hardly seem the best agency to make an impartial and independent ultimate decision on the matter. Lord Philips in the ruling wrote "that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified." The police don't even begin to fit that description.

While it's easy to complain about such potentially devious and depraved individuals as the paedophile in the popular imagination being given a state sanctioned opportunity to return to their wicked former ways, it's worth remembering that one of the two who brought the case was convicted of his offence as an 11-year-old boy. As terrible as his crime, the rape of a 6-year-old was, it is surely right that he should be able to challenge at some point the restrictions he will otherwise face for the rest of his life. We don't expect those convicted of other crimes before they are 16 to be ultimately paying for their offence until their dying day, unable to prove that they can be trusted to live without informing the authorities of their every significant move. Is it really so appalling that three separate sets of judges said that the government should think again?

Apparently it is. Theresa May even resorted to the same kind of argument constantly wheeled out by the likes of Blunkett and Reid, stating "[I]t is time to assert that parliament makes our laws, not the courts, that the rights of the public come before the rights of criminals and, above all, that we have a legal framework that brings sanity to cases such as these." The courts of course have never even began to make the law: the supreme court's ruling is not binding, nor does it strike down the current system. Martin Kettle summarised the position best when commenting on the Belmarsh ruling back in 2004:

The first is that neither judicial review nor the development of human rights law is a judicial invasion of the legislature's turf. Executive action has always had to be lawful, and it has always been for the courts to decide what is lawful and what is not. Judicial review, as Lord Irvine said in the House of Lords in 1996, promotes the rule of law. It rules only on the legality of a decision, not its correctness.

Again, like with New Labour much of this sabre-rattling is doubtless for show rather than out of real genuine conviction, or at least one would hope so. How sad however that a government which on the whole has attempted to make a clean break from the previous administration's stance on civil liberties and criminal justice finds itself so soon resorting back to the failed populist politics of the past, with the Liberal Democrats not even raising a whimper in protest.

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Perhaps those making the demagoguic comments about the ECHR might recall why the UK passed the Human Rights Act in the first place - to stop appeals on rights going out of the UK with no input from our courts. The other point about new legislation is the effect it will have on the Scotland which explicitly enshrines the Human Rights Act in its provisions. It seems unavoidable for the Scotland Act to be amended which will open up the whole area of devolution again.

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