Don't blame the judges

If you listen carefully, you can hear the sound of Mr Justice Mitting having his name scratched off Christmas card lists and invites to garden parties across the land. His offence is not a legal one but rather one against the received wisdom of the media and perceptions of the commentariat.

The nub of the furore is that despite branding Abid Naseer and Ahmed Faraz Khan as people "who posed and still poses a serious threat to the national security of the United Kingdom they could not be deported to their native Pakistan because there was a risk that they would face torture, something that would contravene their rights under Article 3 of the ECHR.

Almost immediately, there have been calls to review the Human Rights Act 1998 which is the piece of legislation which embodies the ECHR in law in England and Wales but this is to slightly miss the point. Nobody can seriously contest that a prohibition on torture - yes, even that of Al-Qaeda members - is in itself wrong. Equally, it is empty to try and argue that whilst we may not sign up to torture in the UK, it is acceptable to put someone currently in the care of the authorities in a position where there is an appreciable chance that they may be tortured.

Rather, this is an opportunity for us to look at what we do when we are faced with the, none too rare, event of someone who is a danger to the UK but who originates in a country to which they cannot be deported; we should be looking at the alternatives rather than trying to rewrite what is broadly the right thing in statute.

The options are slim. As Shami Chakrabarti argues in today's Times one of the options is to charge Naseer and Khan with offences under the Terrorism Act 2000 and, if found guilty, they would then serve custodial sentences thus mitigating the need to worry about extradition. On the face of it, this is attractive and would certainly be the right thing in normal circumstances, but that's not the case here. The SIAC judgement makes it clear that the evidence was strongly in the direction that the appellants were 'guilty' of being involved in terrorism. The problem is that this conclusion could only be reached after assessing the body of evidence which was closed; ie information from MI5 and the Police that was so sensitive it couldn't be made open in court.

That means that any prosecution along Shami Chakrabarti's lines, could not go ahead; no evidence could be brought before the court upon which a judgement as to guilt or innocence could be made.

So we're left with something akin to a Control Order as an alternative, something that the House of Lords have signalled they are unhappy with as a mechanism to deal with these things, or release of known Al Qaeda members into the community - equally undesirable. So where do we go now?

The first thing we don't do is waste time worrying about the HRA 1998 and any possible improvement via a British Bill of Rights; both are valid points, but not for today. Natural justice dictates that Mr Justice Milling was right in his conclusion about the impossibility of deportation but that same natural justice requires the point about the appellant's danger to the UK to be addressed by judicial authorities. Look at it this way; the rights of the appellants are satisfied by not being deported, the rights of the wider public to expect protection from people such as the appellants now needs addressing.

There are examples, such as the Court of Protection and even the High Court sitting in camera in relation to the recent 'jury nobbling trial' where Courts can impose a raft of restrictions upon their openness and upon who exactly can see evidence related to the issues. None of these are perfect; all have lacuna's of fairness and gaps in openness and accountability. But when that is balanced against the alternatives; acknowledged terrorists, free to walk the streets, it seems a price worth at least investigating.

Longer term, we need to properly look at the situation regarding disclosure of evidence from the Security Services in cases such as this. They now need to look at their own balancing act; if they were able to disclose more of their evidential case in court, they could secure the prosecution - a la Shami Chakrabarti's argument - of terrorist suspects. If they don't, we are back where we are now.

We need to review how we handle these cases but the answer probably rests more in evidential barriers and systems of holding hearings in camera, rather than the more headline grabbing ideas connected with the Human Rights Act.

The Right Result

Without doubt, the strangest election in years. It took nearly a week from polling day for us to get a result, but fortunately that result turned out to be the right one. It was right, not just for the parties concerned but for the country as well and also right for politics in Britain and maybe, dare I say it, even right for the Labour Party and for Gordon Brown.

Mr Brown's resignation was dignified and swift, in the end. He didn't depart before throwing that last roll of the dice; opening talks with the Lib Dems and post dating his resignation. But in the end, when it was obvious the curtain was falling, he took his last bow and went in a becoming and decent manner. How sad that that is probably the most positive thing people will remember him for but it is a fact that nothing became him so much as the manner of his departure.

Last night, Dave and Sam - the latter looking more excited than her husband - entered Number 10 for the first time, ending 13 years of Labour government and ushering in our first peacetime coalition government in over 70 years. More later on the programme for government - which seems to be a genuinely good combination of the best from both party's standpoint - but it's hard to miss the historical importance of this change.

New Labour is dead. Labour MP's are already talking about what will amount to a lurch to the left during their leadership election. Right wing Conservative anti-Europeanism has largely been finished; it is now a matter of constructive scrutiny, hard to argue with that. Don't expect good old British political ding dong to come to an end, but we're likely to see more consensual politics for sometime; also, no bad thing. And government will be less intrusive, the era of the 'enabling government' - 90's speak for nanny state - looks over.

There are tough times ahead but there are more good auguries than bad; if it weren't a reminder of a more divisive past, it would be tempting to say 'Rejoice, rejoice, rejoice!'

A Question of Democracy

Make no mistake, we are now in completely uncharted waters. Five days on from the general election, we still don't have a government; the Prime Minister has resigned, though with the caveat that he is staying in place until a new leader of the Labour Party can be elected,in September and the Labour Party continues in government, despite having lost 91 seats and achieved a mere 29% of the vote.

Until late yesterday, it appeared that the talks between the Lib Dems and Conservatives were bearing fruit and that a deal was imminent. Even when David Laws, not unreasonably, announced that his party were seeking clarification from the Tories as to certain funding issues, the option still seemed to stay in play.

Gordon Brown's announcement that he was stepping down - albeit in a postdated sort of way - was almost inevitable; the Lib Dems were never going to give truth to the Tory attack that if you voted Lib Dem on May 6th, you got Brown. It was a measure of the turbulent political waters we're in that the Prime Minister's resignation was the least important of the two things he said. That Labour were now entering formal talks with the Lib Dems was the big issue.

Let's be clear about this; ignore the politics, look at the maths. A coalition between Labour, Lib Dem and assorted minor parties is neither stable, nor in many cases, a majority. Policy would be gridlocked, progress on the deficit almost impossible. Another election couldn't be far off and the electorate would take their vengeance on those who propped up a government rejected by the electorate.

For that is the nub of the matter. Nobody won this election, but Labour clearly lost it. Any attempt to keep them in power would fly in the face of the electorate's wishes. Think of it this way; more people cast first preference votes for the Conservatives than for Labour - proportionately, a coalition without the Conservatives would lack democratic strength, especially as the next Labour Prime Minister wouldn't even be someone chosen by the public.

It is perfectly acceptable for Nick Clegg to seek talks with Labour to understand the lie of the political landscape but in a sense it is wrong, as even many Labour MP's are now saying, for Labour to do so. Decency dictates they should quit the field as any Labour participation in government would lack legitimacy in the eyes of the electorate. Arguments that there is a progressive majority are flawed; 51% of people voted Lib Dem and Labour; that doesn't mean 51% of people voted for them to form a coalition; people vote for myriad different reasons and this suggestion works on the presumption that all Labour and all Lib Dem voters chose opposition to the Conservatives.

More people voted for change, either of the Liberal Democrat or Conservative variety than for the status quo; therein rests the democratic answer to this question.

Not everyone is acting in the National interest

Much has been written over the last few days about the commendable way in which all three party leaders have conducted themselves in light of Thursday's inconclusive election result. The press and the media have generally behaved in a similar way; most commentators have written and reported thoughtfully and carefully about the issues facing messrs Clegg, Cameron and Brown.

Not everyone though. Today's Observer carries a hugely misleading story entitled 'Tory-Lib Dem coalition threatened by secret hardline memo on Europe.' I know a lot of Sunday papers' scoops don't contain a lot of beef, but this one takes serious liberties with the truth. Firstly, you have to read to the end of the story before being told that "This is a draft paper, drawn up by FCO officials on their own initiative as part of the civil service's normal and private contingency planning...the document was not shown to any representative of the Conservative party... "

So quite how this can be a 'draft letter by William Hague', as the article headline states, isn't clear. Secondly, despite some tangential suggestions about general Lib Dem policies on Europe and some criticism of Gordon Brown by John Mann MP, there is no comment from the Lib Dems, so it's hard to find anything to back up the assertion that they are spooked by this in any way.

When an article states two definite propositions; one that a memo is from the Conservative party when it isn't and two; that the talks between the parties have been threatened by said memo when they haven't, there is a strong argument that the article shouldn't have been run.

Under normal circumstances, you could just put this down to the usual Sunday paper inflation of gossip. Under current circumstances, there is a serious question over what sort of editorial propriety allows such a vacuous piece to be run at such a sensitive time with the only apparent aim being to force a breakdown in talks. Someone at the Observer should take a long hard look at their journalistic integrity.

Gordon goes home?

Apparently Gordon Brown has gone back to his constituency in Scotland after the VE day celebrations in Whitehall. Given the news that Clegg and Cameron had an amicable face to face meeting tonight, it may be that even in the depths of the Brown bunker, there are dawning thoughts that a Tory-Lib Dem arrangement seems to be progressing. If that is the case, who could blame Brown if he decided to go back to his constituency to gather his thoughts.

Lets be honest, Labour will want to see signs of fracture between the Lib Dems and Tories; disagreement between the blues and the yellows would, after all, mean room for Brown. If Clegg and Cameron are meeting in person, that tends to suggest that at the very least, things are not progressing badly. Why would they meet if their senior teams were not finding some room to suppose this might come together? As Clegg and Cameron come together in London is the Prime Minister's trip to Scotland a prelude to exile?

And the winner is....?

So the public have voted - most of us anyway, if we assume the irregularities at some polling stations to have been an aberration - and for the first time in over 30 years, we have no clear outcome. Or do we?

While we have no clear winner in a traditional way; no party can form a majority, we can see that Labour has lost and that the overwhelming majority of people voted for change. Those of us who voted Tory did so directly to get rid of a discredited and bumbling Labour government. Those who voted Liberal Democrat did so to get rid of that same Labour administration, but to replace it with a different form of change, one aimed at picking up some of the strings of the current administration but in such a way as to make significant changes to the country in which we win.

So we can see there is a majority in favour of change, it's just not clear what sort of change. So the task for those parties on the 'winning' side of the national argument is to distil their arguments into a central programme of change, compromising certainly, but focussed on fundamental change to the government of Britain. Yes, that means looking seriously at electoral reform, for it's own sake as much as to allow a programme of change to be formed, but it also means a change to our collective political mindset.

If Nick Clegg and David Cameron can arrive at a situation where they focus on the importance of change, they can each look to where Tory-Lib Dem coalitions have delivered change - Birmingham and Bradford for example - and turn this conundrum of uncertainty into a productive government able to deliver what the people of this country have called for; change.