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Comment: Michael Portillo: Just like that: Clarke pulls a police state out of the hat

Identity cards would be political suicide, said the lord chancellor, and would constitute a first step towards a police state. Don’t hold the presses. Charles Falconer was performing at a charity event taking the role of the hapless Jim Hacker in a Yes, Minister sketch written a generation ago. Having Falconer deliver the line was a good joke.

But George Churchill-Coleman, a former head of Scotland Yard’s anti-terrorist squad, was not kidding when he said last week: “I have a horrible feeling that we are sinking into a police state.” He was responding to the home secretary’s proposed power of house arrest for terrorist suspects.

The government is in a mess. After September 11, 2001, it found a few people living in Britain with possible links to political organisations that use terror. It would have liked to be rid of them. But if these people pose a threat it is probably mainly to the dictators in their own countries, who would torture or kill them given the chance. Our international obligations forbid us sending them home.

So the government has detained them without charge or trial. I suspect it has also exaggerated the threat that they may pose to Britain. It has used immigration legislation that is inappropriate for indefinite detention, and it has sought derogations from human rights legislation that cannot be justified except in the short term.

In December the government had a bit of luck. It was offered the opportunity to start again. The law lords’ ferocious judgment against detention coincided with David Blunkett’s resignation. The new home secretary could have reviewed the existing cases and unveiled new safeguards.

But Charles Clarke made mistakes from the beginning. On hearing the law lords’ judgment, instead of biding his time he declared that the government was right to go on holding the suspects.

His new proposals are highly paradoxical. By violating the human rights of British citizens too, he will address the finding that the law discriminates against foreigners. The new power will apply house arrest to everyone. Worst of all, it will be wielded by a politician, the home secretary.

One good reason not to trust the government with such powers is that its justifications are so inconsistent. When the Home Office decided in 2001 to use immigration legislation to hold foreign suspects it argued in a memorandum that “while it would be possible to seek out other powers to detain British citizens . . . it would be a very grave step. The government believes this would be difficult to justify”. Amen to that.

Last week Clarke told the Commons that “the need to protect ourselves against the threat justifies the changes”, although he acknowledged that he was proposing “a very substantial increase in the executive powers of the state in relation to British citizens who we fear are preparing terrorist activities”. The suggestion that we need extra powers to lock up Britons was produced like a rabbit from a hat.

There is no new threat from British suspects and no new deficiency in the government’s powers. Clarke is changing the law because he cannot deport the foreigners and fears to release them. This government is tossing away the liberties of British citizens using spurious arguments.

There have been other inconsistencies. The foreign suspects are said to pose a threat. Yet one of them was escorted under guard to Paris where he was freed, and not re-arrested by the French. Washington argued similarly that the British detainees in Guantanamo Bay were too dangerous to set loose. Yet now they are at liberty in Britain. If the Americans exaggerate the risk are we not justified in fearing that the British government does too?

Clarke oozed insincerity when he claimed that if his new powers of house arrest had been in force he might have detained the four released by the Americans last week. But why then did the British government argue for their return, knowing that it lacked the power to hold them?

The home secretary was merely seeking to give some “cover” to our American allies who had detained for three years four people that Britain was happy to release after 24 hours. Fortunately he does not yet have the power to detain them. If he did he would now be under intense US pressure to use it.

That illustrates why politicians cannot be trusted to decide whether a person should be deprived of his liberty. The government hates judges because they cannot be relied on to do what it wants. That is precisely why judges alone should decide. Ministers do not weigh evidence. They measure political risk. There is little in detaining too many, but a lot in deciding to release.

Political risk should not be confused with threat to the nation. Politicians have a vested interest in talking up threat levels. They use a circular argument. The threat justifies the detentions and the detentions offer “proof” of the threat. How can we believe ministers’ claim to have good intelligence on suspects when intelligence on Iraq’s weapons of mass destruction was wrong and spun by the government?

In any case, I doubt that most ministers have either the competence or the time to consider the evidence fully. By declaring within 24 hours of becoming home secretary that the detentions were justified, Clarke demonstrated that he had not reviewed the cases himself. He was relying on advice. The government’s main consideration may not have been justice but rather protecting Blunkett’s reputation. Having detained a person for three years it would be hard for the government to release him, even if the intelligence were faulty.

As a former defence secretary I understand that in some cases it can be difficult to bring evidence in court. However, those difficulties are easily overplayed, and they must be rigorously tested by independent people. Those who have seen the dossier on each foreign detainee readily admit that the suspicions “vary in degree”.

It is an ominous phrase. Clarke says that since only 11 people are detained the powers have clearly been used sparingly. It proves no such thing, if some are held on flimsy grounds.

If the government were obliged to make a choice (as the Law Society urges) between charging people or releasing them it would concentrate the mind marvellously. As Lord Nicholls said in his judgment: “Indefinite imprisonment without charge or trial is anathema in any country that observes the rule of law.” Ian McDonald QC, who resigned as an advocate for the detainees, talked of “an odious blot on our legal landscape” that offended principles going back to Magna Carta.

What we have at present is the worst of all worlds. The evil of entrusting our liberty to politicians is compounded by a lack of independent safeguards or transparency. Clarke boasted to the Commons that the Special Immigration Appeals Commission had upheld the government’s “judgment” that the suspects posed a significant threat. But that body has no authority to deal with matters of evidence or proof. It sits in secret. The accused are not told why they are held and therefore cannot contest the suspicions against them.

A committee of privy counsellors chaired by the Tory peer Lord Newton of Braintree said it was “concerned that there has not been a sufficiently proactive, focused, case management approach to determining whether (suspects) should continue to be detained . . . Nor did it appear that alternative ways . . . are under active consideration”.

The government wants us to take many things on trust but it has no trust to call on. It asks us to believe that it knows of a threat from some foreigners so serious that their indefinite detention is justified. Now the executive’s power must be extended over Britons too. If the government is right it has no reason to fear removing ministers entirely from the judgment process. It should establish courts run by judges, with special rules of evidence, to consider each case and then at intervals to review it. The general conclusions should be reported openly.

Churchill-Coleman is right to be concerned. His comment shows that even those who have fought terrorists worry about the threat to our liberties. A country where a politician can order detention without charge and without limit is indeed a police state. And that is no joke.