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Praise the Lords

(Filed: 13/03/2005)

On Friday evening, the Labour Government finally squeezed its Prevention of Terrorism Bill through both Houses of Parliament. British citizens suspected of involvement in terrorism can now be placed under indefinite house arrest without trial, and without having been fully informed of all the details of the allegations against them.

Habeas corpus has been suspended in the name of protecting the security of the British people. Whatever view is taken on whether the security threat in fact justifies that drastic step, there can be no doubt that the issue is as serious and important as politics get. The spectacle of the two main parties resorting to trading insults, rather than engaging in reasoned debate, has been deeply depressing. It suggests that they do not regard the issue as a critical question affecting the public good, but simply as another weapon in the political war of words.

We have the House of Lords to thank for improving what was, in its original form, an extremely ill-thought out piece of legislation. The Government had started by insisting that it could not possibly compromise on the principle that it alone has ultimate responsibility for Britain's security: only the Home Secretary should be able to say who would be detained without trial. Opposition in the Lords forced the Government to abandon that idea. In the Bill as passed, it is a judge, not a minister, who will decide whether an individual poses so great a threat to the safety of the public that he must be "preventatively detained".

This was a crucial concession, and it was far more important than the "sunset clause" that the Conservatives tried, but eventually failed, to get into the Bill. The Prime Minister and the Home Secretary had tried to imply that the Bill as originally worded had the full support of the security services. Mr Blair's history of exaggerating the claims of the secret intelligence services - the episode of the notorious dossier on Iraq is still fresh in people's minds - did not encourage confidence that he was accurately reporting the views of MI5. The grounds for scepticism on that point were reinforced when he later suggested that MI5 was opposed to the insertion of a "sunset clause" - a claim that Lord Falconer was forced to withdraw in the House of Lords.

The security services have always preferred - as the example of internment in Northern Ireland shows - that judges, rather than ministers, should be responsible for detention orders: they believe the independence of judges from politics means that they take better decisions.

Judicial control is not without its problems. Judges are not democratically accountable, and if a judge refuses to uphold a recommendation from the security services that a man is so dangerous that he must be placed under house arrest, there is no elected institution that can hold him to account should his decision prove to have catastrophic consequences. The pronouncements of the Law Lords when they upheld the appeals of those detained in Belmarsh prison also do not suggest that they are fully aware of the seriousness of the threat such men pose. On the other hand, the record of the judges who have sat on the Special Immigration Appeals Commission, scrutinising the cases against those held without trial, shows that judges can take the evidence presented by the security services very seriously.

Judicial control has the critical advantage of retaining at least some elements of due process. The prospect that British citizens could be locked up (or freed) simply on the say-so of a home secretary summoned up the prospect of untrammeled executive power. Indefinite detention without trial on the word of a politician is not compatible with the rule of law as it is understood in our legal and political tradition. It was that, rather than the bare fact of the suspension of habeas corpus, that made the Bill as originally framed so objectionable.

The Government is furious that it suffered so many defeats in the Lords. The rest of us should be grateful. While New Labour has spent hundreds of hours discussing how to reform the content of the House of Lords, it has yet to begin to address the question of what powers it should possess. The Prime Minister is certainly going to confront that question now. We fervently hope that he is prevented from emasculating the Lords' power to force amendments to imperfect legislation.