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March 2 2005

http://www.timesonline.co.uk/newspaper/0,,172-1506868,00.html

Mr Clarke bumbles his way to a grotesque travesty of justice

Simon Jenkins

He looked like the Manchurian Candidate. The figure at the dispatch box was massive, unshaven, confused and bumbling. This was not the Charles Clarke of old, of nutritious school food, more homework and fewer truants. He had changed. Something had got at his brain.
The Home Secretary wants to “derogate” from human rights. He demeans the British judiciary as unsound on terror. He writes mad letters to the Opposition. He demands that the Commons pass a Bill he no longer wants as law. On every side he cries threat, danger, emergency. Everyone is in uproar. So who is controlling Mr Clarke? Is it the mad cackling laugh that we hear echoing down the ravines of Bora-Bora and out over the Kandahar plains? Does Osama bin Laden still have Her Majesty’s Government on the run? In order to get the latest Prevention of Terrorism Bill through Parliament, Mr Clarke offered what he called a concession. It was that a judge rather than himself would countersign an intelligence file imposing house arrest without trial on a suspect. On the radio yesterday Mr Clarke trivialised the concession. It would, he said, make the Bill “no less effective”.

He is right. The concession applies only to upper-tier control orders which he has already said he will not use at present, as they require a special vote in Parliament disregarding the European Convention on Human Rights. Lower-tier orders, for tagging and curbs on contacts and movement, were powerful enough. Yet the concession duped sheep-like Labour MPs to pass what was no longer a Bill but merely a vote of confidence in Mr Clarke.

What should the Lords do? They should reject the Bill out of hand — and have no truck with last night’s Tory desperation to appear “tough on terror” by conceding its essence. The addition of a judge to any part of the control order process merely co-opts the judiciary, indeed the High Court, as accessory to authoritarianism. To add a judge’s name to that of the Home Secretary on a secret file of hearsay intelligence (possibly gathered by torture overseas) makes little difference. A judge is nothing without due process of law, implying at a minimum the hearing of both sides of a case and the testing of evidence. The High Court is invited to become the Lord Falconer Commission for Home Office Decision Laundering. What a humiliating comedown for the judicary.

The rottenness of this Bill is in process not persons. British citizens are to be labelled terrorists and deprived of their freedom without knowing what they have done wrong, who accuses them or even whom they are thought to be. They cannot be properly defended if the material brought against them is secret. Anyone who knows intelligence knows, to put it mildly, that it can make mistakes. The biggest is often one of identity. Nor will these powers be temporary, whatever Mr Clarke says. Home secretaries never surrender discretionary powers. The travesty of justice could hardly be more grotesque.

Is there any version of the Bill that a generous Parliament might offer Mr Clarke instead? No. Britain’s law and order regime has upheld the security of the state for half a century without sacrificing the rule of law. On Monday it caught and convicted a terrorist shoe-bomber. The police, the intelligence services and the courts deserve not just thanks and congratulations but also confidence in their ability to do their job without infringeing civil liberty. If new criminal offences are needed, such as “preparing” an act of terrorism, then create them.

The spin from ministers is that their opponents want terrorists “to roam free to kill thousands of innocent people”. This is rubbish. The Government has anti-terrorism laws aplenty on the statute book, including two added since 9/11. The police have powers to detain suspects for 14 days and remand them in custody pending investigation for months if not years. Were the present Bill’s control orders regarded as bail conditions pending a trial, few would object.

From the 1970s into the mid-1990s Britain was targeted in a series of concerted and often lethal bombing campaigns. That the bombers were not “suicidal” made little difference to the death toll, which far outstripped anything perpetrated (or reputed) by Islamic extremists today. If Mr Blair really thinks terrorism undermines British society and wants to hang tough, why did he release all IRA bombers from prison, scot free?

The IRA campaigns yielded emergency measures and special powers by the score. Their story is instructive. Internment without trial, as wanted by Mr Clarke, lasted from 1971-75 and was an unmitigated disaster. Merlyn Rees, a former Secretary of State for Northern Ireland, wanted “no other footnote in history” than that he ended it. Internment did not stop the bombing and killing, quite the reverse. It produced a towering resentment in the “victim” community and gave Sinn Fein a political status that has blighted the Province ever since.

Internment was followed by the Diplock court system, used to try terrorist cases without juries, which were considered untrustworthy in Ulster’s divided community. These courts were regarded as a necessary evil, but were effective and came near to breaking the IRA in the late-1970s, albeit at the price of questionable interrogation.

That said, Mr Clarke would be better advised to try using the Diplock route of judges sitting alone, perhaps in camera, to try terrorism cases rather than go down a route that seems certain to fall foul of judicial review. His refusal is explicable only by the aside he gave in the Commons on Monday. He was fed up, he said, at “being patronised by lawyers”. From the start of this sorry affair he, like his predecessors, has shown his political machismo by heaping contempt on the judiciary.

Britain can defend itself against al-Qaeda, whatever that name means these days. Throughout history there have been anarchists and ideologues, psychopaths and maniacs out to kill other human beings. I am not convinced that they are uniquely different today from the killers sponsored by Libya or Syria or Iran in the past, or that they possess such an awesome new armoury that Britain must sacrifice civil liberties to meet them. Baroness Scotland of Asthal parroted the government line on Monday that this is “the most serious threat in all of our lives”. More than the Third Reich or the Soviet nuclear arsenal or even the IRA? This is not grown-up talk. It is political scaremongering.

I am sure that if we were sufficiently careless, as were the Americans before 9/11, we might suffer another bombing outrage. But nothing so far experienced, or even rumoured, from the Muslim community justifies Mr Clarke’s “state of emergency”. Nobody who heard the Prime Minister take Britain to war against the imminent menace posed by Saddam Hussein will credit his “several hundred people” out there trying to “ destroy our whole way of life”. Did the Pan-Am bomb, the Air India bomb or the Madrid bomb destroy a way of life? Such language is disproportionate, alarmist and no guide to sensible policy.

Indeed the one thing that does appear different about terrorism today is the feebleness of the government response. Politicians hurl themselves behind a wall of authoritarianism, terrified lest a bomb explode and the media hold them to blame. Terrorists have found the soft-underbelly of democracy, fear. Regimes that claim they can handle drug barons, gangsters, separatist guerrillas and domestic terrorists turn to jelly at the mention of the sons of Saladin. Mr Blair ignores Roosevelt’s maxim that all democracy need fear is fear itself.

The Islamist cells have discovered how to make a British government afraid and how to turn that fear to political account. They have unleashed the dark forces of illiberalism that surface in any society when ministers fail to give a courageous lead. Terrorism’s latest triumph was the spectacle of Mr Clarke at the dispatch box on Monday night. He shook and looked miserable as he laboured against the clock to do Osama’s bidding, to dismantle British liberty from within.