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I never thought I'd say this, but thank you to the Lords, the Libs and the law

Simon Jenkins

I MUST RETRACT a prejudice. The three strongest bulwarks against the abuse of state power in Britain at present are three institutions I most often deride: the law, the Liberal Democrats and the House of Lords. Thank God, this Christmas, for them all. Nobly do they share an initial with liberty. How depressing the past month would have been without them.

The decisions of the law lords and of the defence QC, Ian Macdonald, to stand up for habeas corpus and fair trial at Belmarsh prison have reinvigorated Magna Carta. The opposition of the Liberal Democrats to identity cards has been a beacon in a bleak Parliament. The House of Lords, an increasingly bold restraint on executive arrogance, now stands alone on both issues against the Government, with just months to go before an election. All strength to their arms.

Charles Clarke, the new Home Secretary, produced not one good reason on Monday for Britons to be compelled to hold an identity card linked to a nationally accessible data register. He said that the cards would be no more intrusive than birth registration. Yet he pleaded that they would help banks, benefit offices, tourists, fraud investigators and video rental firms, not to mention untold “wider benefits”, to justify the cost of the massive investment. He was unable to explain how a card meant to stamp out identity fraud will not be vulnerable to such fraud, nor how it would fight terrorism when most terrorists (so we are told) make no use of false identity. One MP after another stood up to parrot that “9/11 changes everything”. Like Reds under the bed, this slogan has become a catch-all for any restriction on civil freedom. Mr Clarke should offer Osama bin Laden asylum and his own desk in the Home Office, such an aid is this man to his department’s advancement. Bin Laden has even driven the hapless Tory spokesman, David Davis, into a humiliating U-turn, followed by half his MPs who were told that they dare not be outflanked by Labour in matters of repressive extravagance. Eighty Tories defied their two-line whip, yet only ten of these bothered to turn up to vote against the cards. So much for “principled opposition”.

Three hundred and eighty-five MPs voted for national identity cards, after a debate in which the argument went overwhelmingly against them. They cannot have believed in what they were doing and simply voted at their party’s call. It was left to the Liberal Democrats to confront the new “9/11 authoritarians”. Mark Oaten asked how the cards would forestall any known terrorist outrage, and got no answer. Simon Hughes asked how a card that need not be carried on the person could help the police during a manhunt. Critics demanded to know what real benefits would accrue from a register more intrusive than in any Western democracy. All they were told was that “the police say they want it”. What the paranoid State wants it must apparently get. When a politician has abandoned the goddess of reason, he soon takes comfort in the demons of terror.

The prime mover for identity cards is the Home Office, embodiment of institutional illiberalism. This is under heavy lobbying by suppliers responding to the Government’s disastrous addiction to mainframe information technology. Added to this is daily pressure from the security services and the police. Both are avid, like any government organisation, for more power and an expanding empire. The police welcome any kit that boosts budgets and staffing, anything that keeps them in smart offices and off unpleasant streets. These are the same pressures that have given the Americans in Iraq the most advanced bombers in the world and the most unprotected and ineffective infantry. It is classic top-down counter-terrorism.

Already the Cabinet has blown £6 billion on an unwanted NHS computer. Now it is exposing taxpayers to between £2 billion and £20 billion — probably the latter — on cards that nobody claims will lead to a step-change in British security but may merely “help”. Ministers are not naturally anti-liberal. Yet we see the likes of Patricia Hewitt, Peter Hain and Jack Straw lining up with authoritarians such as John Prescott, Gordon Brown and Mr Clarke to rush through measures they would have abhorred in their youth. Ms Hewitt actually once wrote a book called The Abuse of Power which makes ironic reading today. All are victims of their own ambition and No 10’s retreat into the bunker of terror.

We expect MPs to be guardians against such pressures. The present House of Commons is not. It must be the most supine in living memory. It is the first to have voted for an unprovoked and illegal war of aggression, the first to have voted for imprisonment without trial and the first to have voted for compulsory identity cards in peacetime. Only the Liberal Democrats, to their credit, stood out against the administration.

Meanwhile, the lawyers have raised their own challenge to the “9/11 changes everything” ethos. The law lords’ judgment on the Belmarsh imprisonments was devastating, as was the contempt shown towards it by Tony Blair and Mr Clarke. Why, I wonder, did they bother to sign the European Convention on Human Rights? By a majority of eight to one, the Lords concluded that the Government had failed to make a case for the imprisonments. This conclusion was reinforced at the weekend when Mr Macdonald, QC, resigned from the defence team at Belmarsh, calling the arrangements under which he worked “an intolerable distortion of the rule of law” and “completely contrary to our fundamental notions of justice”.

The crucial Belmarsh ruling came from Lord Hoffmann. He questioned not just the basis of the imprisonments but also the nature of the threat to which they were the answer. To him, a minister citing “secret information about a threat to Britain” cannot justify infringing civil liberty unless that threat is palpably overwhelming, as in war. Now it is not. Bin Laden is not so powerful as to threaten the life of the nation, as did Napoleon or Hitler or possibly the Soviet Union. The most that modern terrorists might pull off is a Madrid-style killing, a threat needing the most assiduous policing but not a threat to the stability or continuity of the State.

The Belmarsh inmates are not weapons of mass destruction any more than was Saddam Hussein. Mr Blair’s claim on Monday that they could not be brought to trial because to do so “could endanger Britain” is absurd. A threat to Britons is not a threat to Britain. Nor should such scaremongering become the standard justification for continuing indefinitely with the 2001 Anti-Terrorism Act. As Lord Hoffmann said, the menace to Britain’s collective liberty comes “not from terrorism but from laws such as these”.

The Government’s present exercise is political and, some might say, cynical. It is trying to exaggerate an ongoing threat to the State in order to accrete more power to the State with the support of the electorate. This is the oldest trick in the political book — one for which the Tories appear to have fallen. It can be studied in the Weimar Republic and in McCarthyite Washington. It is, as Lord Walker remarked last week, national security as the last refuge of tyrants.

Which brings me to the House of Lords. It has shown itself a doughty champion of freedom against the executive, in cases as diverse as planning law, regional democracy, control of the police, foxhunting and judicial appointments. The Government hopes to use the 9/11 defence to introduce some half dozen measures on law and order between now and a possible election next year. All are to be introduced by Mr Clarke.

The Lords is on its mettle. Its constitutional role stands undiminished by the chaotic attempts at its reform. It is to reconsider and, if necessary, delay measures sent to it by the Commons, which means by the Government. This role has never been more sorely needed. The Lords has just five months to work ahead of it, to fight more fiercely for civil liberty than ever before.