19 December 2004
No one should pretend that striking the right balance between the freedom of the individual and the Government's obligation to protect people from terrorism is easy. It is not enough simply to condemn the Government's anti-terrorism laws as being illiberal and to demand the release of prisoners who are being held indefinitely. It must be accepted, for example, that, though some of the so-called Belmarsh 12 may be either innocent or harmless, others among them are almost certainly dangerous.
But the law lords who ruled against the Government last week are not some extremist civil liberties group. Their judgment is careful, weighty and important. In tone and reach - from Magna Carta via the 1628 Petition of Right - it is appropriate to the dignity of the highest court in the land and to the seriousness of the moment. It does not require the Government to release the prisoners, or to take any specific action. It merely declares that the law under which they are detained, the Anti-Terrorism, Crime and Security Act 2001, is incompatible with the European Convention on Human Rights. Tony Blair and the new Home Secretary, Charles Clarke, are obliged to respond.
We should pause, too, to acknowledge Mr Blair's achievement in passing the Human Rights Act that inscribed the European Convention in British law. It is only because of this constitutional innovation that the law lords are able effectively to strike down a law passed by Parliament.
The Prime Minister's sincerity has been called into question because the Government had to repudiate an article of the European Convention to allow it to detain foreigners indefinitely. But the majority of the law lords, led by Lord Bingham, supported the Government's right to repudiate part of the Convention. Lord Bingham made his scepticism clear, but he accepted that it was Parliament's right to define what constituted a "public emergency threatening the life of the nation".
All of which makes the ruling against the Government the more devastating. Despite exempting itself from parts of the European Convention, the Government has still managed to breach other rights. The law lords ruled that the Anti-Terrorism Act discriminates against foreigners and is "disproportionate". The Government claims that terrorist suspects are so dangerous that they must be detained indefinitely - but not if they are British citizens and not if they leave the country.
Fortunately, a compromise should be possible. It must be possible to release the detainees to tagging or house arrest under surveillance. There is no good reason why evidence against the detainees obtained by spying should not be tested in court. And there is no good reason why the prisoners' mental welfare could not be handled more sympathetically.
How Mr Clarke responds to these challenges will be a defining test not just of his character but of the whole nation's commitment to human rights.