Lawyers must take a back seat to policy-makers when it comes to counter-terrorism, the Lord Chancellor is expected to argue today.
"In overcoming terrorism, policy must come first and the law second," Lord Falconer is expected to tell a conference on politics and terrorism. "While the responses must be lawful, it is the policy-makers and not lawyers who must determine that response."
His comments may be seen as a warning to judges who have sometimes ruled against the Government's anti-terrorism laws. In the so-called Belmarsh case, the law lords decided in December 2004 that detaining suspected foreign terrorists without trial was disproportionate and discriminatory ? and therefore incompatible with their human rights.
As a result, the Government introduced control orders, restricting the activities of suspected terrorists. These, too, have sometimes been overturned by the courts.
Since only extracts from the Lord Chancellor's planned speech were issued to reporters last night, it was impossible to tell whether he was throwing down a gauntlet to the judiciary or stating the obvious. His remarks referred to "lawyers" ? who merely argue cases for their clients ? but the term could have been intended as a deniable synonym for "judges".
If Lord Falconer is merely saying that laws should be proposed by policy-makers, approved by Parliament and implemented by the judges, his comments are unexceptionable. But if his message is that judges should approve whatever policy-makers propose, regardless of whether it complies with the Human Rights Act or other legislation, then his remarks will be regarded as revolutionary. The chances are that he wants to say one thing and imply the other.
Officials said the Lord Chancellor was likely to urge a "pragmatic" approach to anti-terrorism measures that were "neither tough nor soft, but which get it right".