This is a bad law and a dangerous precedent

Editorial

The Independent

13 March 2005

The debate about counter-terrorism law has been poisoned by the suspicion that last week's crisis was about politics rather than the threat. The Prime Minister was guilty of "playing daft games", which is what he accused Michael Howard, the Conservative leader, of doing with what is now the Prevention of Terrorism Act.

It is true that time was tight. There were three months between the Law Lords' ruling that the previous law, under which the Belmarsh detainees were held, was unlawful and that law's expiry at midnight tonight. But three months is plenty of time for the Government and the two main opposition parties to reach agreement on a matter as serious as this which ought to be above party politics. It is impossible to believe that the imminence of the general election was not a factor in Tony Blair's attempt to rush the Bill through the Commons in six hours, without prior consultation. He wanted the Conservatives to be caught on the "wrong" side of an issue on which - as our opinion poll showed two weeks ago - the instincts of the electorate are authoritarian. In this, despite Mr Howard's inevitable claim that it was Mr Blair who "blinked first", the Prime Minister has succeeded. He has managed to put a law on the statute book that breaches fundamental principles of human rights - without having to set out a persuasive case that such a breach is necessary.

The concessions that the Government made in order to get the Bill through were not as great as the protracted sound and fury suggested, nor as great as the Opposition pretended. It will be a judge rather than a politician who imposes control orders - except in cases of "urgency" when the Home Secretary will make the decision. And - surprise, surprise - it was Charles Clarke who signed the first 10 orders this weekend under this urgency provision. Nor is the promise of a chance to amend the law in 12 months' time an adequate safeguard. Once a law such as this has been passed, a populist ratchet will ensure that any attempt to make it less arbitrary will be portrayed as being soft on terrorism.

Ultimately, it must be right that the will of the elected House should prevail, but the issue is so important that the Conservatives would have been justified in persisting in their attempt to force further concessions. Yet there were two crucial points on which they gave up without a fight.

The first was the standard of proof required to justify the imposition of a control order. The Liberal Democrats wanted this raised from having "reasonable grounds" for suspecting that a person was planning terrorist acts to being satisfied "on the balance of probabilities" that they were. To its credit, Charles Kennedy's party continued to vote against the Bill in both Houses to the very end, for this reason. It was only because Tory peers abstained that the Bill was passed.

The second was the power to impose the more extreme control order amounting to house arrest - indefinite detention without a normal trial. This is the most obnoxious power, and it would require Britain to suspend part of the European Convention on Human Rights. What is extraordinary is that Mr Clarke says he does not need the power at the moment, which is why the Belmarsh detainees have been released - coincidentally at the same time the new law comes into effect. But if he does not need this power against people who we are assured are dangerous, because they can safely be tagged and kept under curfew, why and when would he need it at all? Surely the power to detain terrorist suspects for 14 days without charge, backed up by the power to impose such extremely restrictive control orders as have been imposed in the present cases, would be sufficient?

It is little wonder that Mr Blair's motives are capable of the worst possible construction. It would be foolish to suggest that he is motivated solely by electoral considerations. There is a genuine problem in a very few cases where evidence of a terrorist threat has been acquired covertly and cannot be used in court. But Mr Blair may be the last person who could expect to be trusted in this matter. It may be a cheap shot to say that we have heard it all before when he tells us the security services advise him that this law is necessary. But he has shown that he does not always bring a sceptical judgement to bear on the alarmist tendencies of the secret state.

This is a bad law. We are in the remarkable position of urging the Conservatives not to back down next time: repeal it if they win the election and strive to amend it next year if they do not.