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A hasty, illiberal act with unknown consequences

Daily Telegraph, 23 February 2005

The Government got itself into a mess by holding foreigners in Belmarsh prison without trial, under a law brought in by David Blunkett three months after the outrages of September 11, 2001.

The Law Lords ruled last December that this was unlawful. So the Government decided to make a virtue - or a vice - of necessity and bring in legislation that provides for house arrest of British citizens, as well as foreigners, on the say-so of a politician.

This is a piece of passive aggression, as if the Government was saying: "All right, if you won't let me do what I wanted, I'll do something that is nasty for all of us." Specifically there are three things wrong with the Prevention of Terrorism Bill that Charles Clarke launched yesterday: it will take away essential liberties, its passage will be rushed, and it will have unintended consequences.

Britain is certainly in danger from terrorists; this must be faced. But that does not mean we should surrender the very rule of law of which terrorists wish to rob us. Hard won liberties, from Habeas Corpus onwards, must not be carelessly suppressed by ill-considered legislation.

The principle is clear: the executive, mere ministers, should not put citizens in detention. Under the constitution that is a power reserved to the courts.

This is no rhetorical flourish. Under the new law, anyone whom the Home Secretary suspects "on the balance of probabilities" of some connection to terrorism could be put under house arrest, without even being told what he is accused of, or on what evidence.

In outlining the Bill, Mr Clarke rejected calls for judges to be put in charge of making such control orders, saying that national security was the Government's "responsibility". In reality, bringing in laws is the responsibility of the Government; exercising them is the business of judges.

Mr Clarke assures us that a judge will decide within seven days if the Home Secretary had a prima facie case for imposing house arrest. Why shouldn't a judge decide in the first place? Police already have powers under terrorism laws to hold suspects for 14 days, so a suspect need not roam free before a judge could act.

Then why is this Bill being rushed through, with a single day allocated to the committee stage which is meant to carry out a line-by-line examination of the legislation? Such haste practically guarantees a bad law. At the same time we are told that, though house arrest would require a derogation from article 5 of the European Convention on Human Rights, Mr Clarke does not intend to seek a derogation now. So he doesn't seem in such a hurry on that. Nor, he admitted, do the security services think that house arrest is needed at present. So, again, why the rush?

An unspoken, unpleasant defence of the new law is that only certain kinds of British citizen would suffer its rigours. Those citizens would tend to be dusky, with unEnglish names. Such thinking reflects a real problem. If Britain is at war with terrorism, it is not a war against a whole sector of its community. If some Muslims were put under house arrest, their coreligionists would feel all the more like a suspect people. Such detention would be a recruiting sergeant for political Islamist extremists, just as internment was for Irish republican extremists.

The most Draconian measures leave untouched terror cells that no one suspects, and so, God forbid, a big terrorist outrage might indeed hit Britain tomorrow, perhaps, or next year. What then? Mr Clarke's Act is all the less likely to be used with care by a Home Secretary eager to look tough in response to public distress and anger.

Trusting ministers' good intentions should not come into this. Of all governments in recent decades, this is the last one that should expect our trust. Instead we need to get this law right.