Terrorism directed at innocent civilians is an affront against every norm of every society. Certainly, we need laws that deal determinedly with terrorist networks and can track down and imprison terrorists, and British law rightly gives our security and intelligence services powerful instruments with which to discharge this vital responsibility. They can arrest and question suspects on the basis of intelligence information. They can put their networks under surveillance, tap phones, and examine every detail of the lives of suspected terrorists and their contacts. Suspects can be detained for up to 14 days and, once evidence has been secured, they can be brought before a court to secure further detention under a wide array of potential charges.
Where to strike the balance between the need for a tough framework to protect citizens from terrorist attack and the need to respect individual justice has always been hotly contested territory. But an inviolable principle has always been that no British citizen should be denied liberty without the promise of the evidence against him or her ultimately being tested in court.
In one of the toughest ever anti-terrorist measures taken in Britain, the former Home Secretary held foreign terrorist suspects in Belmarsh without trial or knowledge of the evidence against them. He was rightly condemned by the Law Lords. Tomorrow, the government will try to wriggle free from this hook. David Blunkett’s successor, Charles Clarke, will attempt to reframe the law with ‘control orders’ and give himself the power to order the indefinite house arrest of any British citizen suspected of terrorism on the advice of the intelligence services. There will be no need for the evidence ever to subjected to the scrutiny of a trial.
Mr Clarke inherited an incredible mess from his predecessor, who seemed never to comprehend that the rule of law was an indispensable component of a free society. Those who cared about such questions were condemned. But Mr Clarke’s initial compromise – to release the detainees but subject them to de-facto house arrest – in no way improved the situation.
Even worse is the Prime Minister’s argument that there is no greater civil liberty than to live free from terrorist attack. It is comic in its misrepresentation of the issues. Labour election strategists concerned about disillusion in Labour’s base should look no further than such asinine and debasing justifications. Yes, the right not to be killed is fundamental, but so is the right not to be deprived of one’s freedom on evidence that will never be subject to the independent scrutiny of a court.
The Prime Minister’s attempt at clever paradox traduces generations of Western politicians, philosophers and lawyers who have strived for political rule that maintains liberty and security.
The new compromise – that the government will undertake to have its decision validated by a judge at an early stage in the process – does not allay our fears. Judges can make mistakes and, like politicians, have only the untested evidence provided by the intelligence services to go on. This, we know all too well, is variable in quality. Indeed, it says much for the corruption of our political culture that the brave parliamentary critics of control orders consider settling for so little to give their consent to a deeply flawed and illiberal bill.
What is now needed, following the judgment of the Law Lords, is adoption of the principle that any form of detention must be followed by the requirement of a trial. Monday’s vote is crucial – for civil liberties and for the rule of law. Labour is on the wrong side of this argument and has to be opposed.