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 Bad laws won't stop the bombers

The real trouble with ministers is not that they want to be despots. It is that they are terribly, terribly spooked

Andrew Rawnsley
Sunday March 6, 2005
The Observer

In Madrid this Friday, with at least one British Minister in attendance, they will be commemorating the first anniversary of the train bombings in the Spanish capital which were instantly labelled Europe's 9/11. This atrocity is a key to fathoming the psychology behind the government's flailing struggle over the terrorism legislation which will reach its furious climax in parliament this week.

Someone who has dealt closely with Charles Clarke tells me that the Home Secretary mentions Madrid at their every meeting about his proposed new laws. That outrage wasn't prevented even though Spain, like Britain, had long experience of domestic terrorism. The bombings happened on the eve of an election which the government, led by a close ally of Tony Blair, was pretty universally expected to win comfortably. That government then lost.

Ministers speak frankly - well, at least in private they speak frankly - of their nightmares about a Madrid-style horror, and possibly something 10 times as cataclysmic, happening in Britain. It is the big and terrifying unpredictable about the time between now and election day. Public opinion might rally to the government. Or it might swing angrily against Ministers. No one knows. Not knowing petrifies them. This is driving a panic not to give anyone any reason to be able to point a finger of blame that the government didn't prevent an avoidable atrocity.

There is more to this than just electoral calculation. Dread has stalked the corridors of power ever since the attacks on the Twin Towers and the Pentagon. One minister who has been intimately involved with trying to keep us safe - and planning what to do if they fail - told me some time ago of his agonies on the train or in the theatre whenever he spots an unattended bag.

Does he raise the alarm and look like an utter fool when the theatre is cleared or the train stopped and the bag turns out to be entirely harmless. 'You can imagine the headlines,' he groans. Or does he say nothing and pray he is being over-paranoid. This minister is believable when he says that it gives him sleepless nights.

As his old friend Neil Kinnock once put it, Charles Clarke puts the bull into bullish. But from the day that he took over as Home Secretary, he has been surrounded with people whose job it is to jangle his nerves. In the words of one former minister who has had intensive dealings with the police and intelligence services: 'They always err on the side of the worst-case scenario.' As they also err on the side of demanding ever more powers.

There is something to be said in favour of ministers being so terrified of terrorism. Better that they are alert than complacent about what is a real and present danger. The trouble is that fear is a very bad midwife of legislation.

None of the main parties came out of last week's great Commons uproar looking fantastic. Missing from the action were more than enough opposition MPs, both Liberal Democrat and Tory, to have defeated the government on a crucial amendment. Even so, Tony Blair's huge majority crashed to just 14.

The government did not need to be in this sort of mess. Both David Davis, the shadow home secretary, and the Liberal Democrat's Mark Oaten acknowledge that there is a gap in the law to deal with people who cannot be brought to trial for terrorist offences at the moment but do pose a threat. They read the opinion polls that suggest that security figures much higher as a priority with most voters than civil liberties.

The opposition parties have wanted to be co-operative, so much so that they are more sympathetic to the dilemmas faced by ministers than many Labour MPs. Attempting to bulldoze the legislation through with pathetically inadequate time for proper scrutiny hasn't helped convince that the executive can be trusted with new powers to deprive British citizens of their liberties which the government itself has previously described as 'draconian and difficult to justify'.

Among the MPs voting against the government were all three of the privy counsellors on the Newton Committee which reviews terrorism legislation. Another striking voice raised against has been David Trimble, the former First Minister in Northern Ireland, an Ulster Unionist whom not even the most desperately electioneering minister could try to scorn as soft on terrorism.

A great deal of argument has rightly raged about the compromising of fundamental rights of presumption of innocence and habeas corpus: Magna Carta and all that. Mr Trimble is one of those also asking whether the 'control orders' desired by the government will actually work. Though the Home Secretary says he doesn't currently plan to use the most severe measure of 'house arrest', he would still acquire a panoply of extraordinary powers that could be wielded against any British citizen without charge or trial. Your life as you know it would end and you would be branded as a terrorist suspect.

This would be at the cost of alerting someone who really is involved with terrorism that the authorities are on to him. It reduces the incentive for the police to build proper cases against suspects when they can go for a control order rather than work towards prosecution. And it is freighted with a large risk of false accusation.

One senior politician with great experience of dealing with the intelligence services says: 'They always agree with me when I say that too many ministers regard intelligence material as ironclad proof when it is rarely as reliable as the front page of a newspaper. That's because of the sourcing.'

Some of the intelligence will come from abroad, quite possibly the product of torture. Some of the intelligence will be harvested from informants who may be motivated by greed or malice. There will be - this is a sure bet - cases of mistaken identity like the Guantanamo detainee who was accused of training with al-Qaeda in Afghanistan when he was actually working at Currys.

This week, the House of Lords will demand that ministers should have to apply to a judge for approval of all levels of control orders. Charles Clarke will almost certainly have to concede that if only because it is unlikely that the Home Secretary will be able to get this legislation through the Commons if he doesn't. Senior judges are anxious, in the words of one former law lord, that this will turn them into a 'rubber stamp' for politicians, a bewigged figleaf for executive fiat.

The heart of the problem with what the government wants to do is that the accused will not know the evidence against them. They may have no idea at all why they are being stripped of their liberties. The authorities might believe that on 6 March 2005 you were in London plotting an atrocity. They might, by their own lights, have excellent reason to believe that. Unless you know that's what you are suspected of, you won't be able to respond that you were actually in Edinburgh at the time and have 20 witnesses of good character to prove it.

The Liberal Democrats and, after some confusion about their intentions, the Conservatives say that their peers will insist that the evidence against someone has to be better than mere suspicion and those accused should know of what they are accused.

The Director of Public Prosecutions worries aloud that the government wants to take us to a point 'we could live to regret'. Tony Blair would be wise to think again about his rejection of the Tory suggestion that an expiry date be put on this legislation so that parliament is forced to revisit it later in the year.

There is only one thing worse than making complex, sensitive and unprecedented law in a rush of fear. That is doing it in a pre-election panic as well.