Conrad Russell: Don't give terrorists the gift of bad laws

Draconian acts do not deter extremism - on the contrary, they encourage it

Terrorism, even more than war, is a continuation of politics by other means. It is usually undertaken in pursuit of political objectives where legal means either are not open to its practitioners, or do not yield results that satisfy them. Like the politics of threat, it is designed to change political results by changing opinions.

The struggle against terrorism thus always has a political as well as a military dimension. The political dimension contributes to the ultimate result in such vital areas as the willingness to provide intelligence to the security forces, or to give the terrorist a safe haven. Chairman Mao's classic description of the guerrilla as hiding in the civilian population like a fish in water assumes a sympathetic civilian population. Measures that increase or diminish the sympathy of the civilian population which is the terrorists' base for their activities thus often contribute more vitally to the ultimate result than any military victory. The IRA's abandonment of its bombing campaign on the London Under- ground in the 1970s is a classic case. That campaign could have produced military victory at very short notice, yet it was alienating the London Irish population at such a rate that the IRA decided the losses were more important than the gains. Anyone who attempts a key counter-stroke against terrorism must ask first whether he is hurling a boomerang.

It is far from clear that all the anti-terrorist measures put forward in Britain and the US now pass this test. This is why the alleged choice between civil liberties and effective measures against terrorism is regularly less simple than it seems. Nothing does more to breed terrorism than the closing of the normal political and legal channels, and injustice against which there is no legal remedy is perhaps the biggest present we can offer to any terrorist organisation. It is now widely admitted that internment was one of the best recruiting sergeants the IRA ever had. Because I prefer defeating terrorists to relieving my feelings, I have no wish to make that mistake again.

In this light, some of President Bush's proposed anti-terrorist measures could have been designed strictly for the benefit of Osama bin Laden. Mr Bush proposes that everyone who is not a US citizen and is suspected of terrorist activity be tried by a special military tribunal. In this, he repeats two of the mistakes made by the English in their dealings with the gunpowder plot – errors for which we are still paying in Northern Ireland. First, by enlarging the target group, he presents the terrorists with a crowd of involuntary allies. That is not clever. Second, by taking suspicion for proof, he shortcircuits the legal requirements of due process. Seventeenth-century English lawyers knew that they should not imprison on suspicion, so they decided it was all right to detain people if they were "vehemently suspected". One can see the Americans making just the same mistakes with similar consequences for the loyalty of American Arabs.

David Blunkett's Bill, though it is a bad Bill, is nothing like as bad as this. Indeed, the House of Lords' main complaint is that much of it is not a terrorism Bill at all. Civil servants react to an unexpected opening in the legislative programme with the same eagerness with which political activists react to the news that an MP with a large majority is retiring at short notice. Part three of the Bill, which allows the Inland Revenue and other public authorities to disclose information to each other, was aimed at all crime, not just at terrorism. One of the Lords' amendments would restrict these powers to terrorism only. I do not think this amendment will handicap the fight against terror.

The same is true of the additional police powers, including those which allow them to demand the removal of face-coverings. The concern of Islamic peers with the possible effects of this power is intense.

The section of the Bill on incitement to religious hatred may well be needed, but it is the sort of thing that needs very careful drafting. It should not be rushed through under an accelerated procedure as part of a response to an emergency. If it is to be done at all, the drafting will have to make very clear that its object is to stop incitement to breach of the peace, and not to restrict freedom of thought. The present drafting method, by attaching religion to the clauses on race in the Public Order Act, comes nowhere near achieving this. If this measure is to be introduced at all, the present draft must be thrown away and the whole process begun again. If the Lords should insist on this, I do not believe we will be impeding the fight against terrorism.

Some parts of the Bill, especially that dealing with money-laundering, have received general praise, and are likely to emerge having suffered little damage. The key anti-terrorist section of the Bill is part four, which deals with asylum applications from people suspected of terrorism. The Home Secretary is not bound, under Article 33(2) of the UN Convention Relating to the Status of Refugees of 1951, to give asylum to those who constitute a threat to the security of this country. On the other hand, under Article 3 of the European Convention on Human Rights, from which no derogation is allowed, he is not allowed to return them to a country where they are likely to suffer death or torture. That is the Home Secretary's problem. It is what Sherlock Holmes might have called a three-pipe problem.

It is real enough, but the solutions are not adequate. A power of detention will have to exist, but it must be targeted at real offenders, and it must be under proper judicial oversight. There is no need for the power in clauses 34 and 35 to disapply the UN convention, unless the Home Secretary intends to use his power of detention against those who are not a threat to the security of this country. Those clauses must go.

The Home Secretary has agreed to confine his power of detention to those who are "reasonably" suspected and not merely to those who are suspected. This is, in fairness, a significant improvement.

The Government has provided an appeal to the Special Immigration Appeals Commission which is entirely to its own satisfaction. There are two major lines of objection to this proposal. The first is that there will be no examination of the applicant's claim to asylum. This means that it will be impossible to assess the proportionality of the Home Secretary's certificate of terrorism. This means there is no way of meeting what has become known as the "Nelson Mandela point". If terrorism is the continuation of politics by other means, it is a less grave offence in those to whom no political means are open. It is for that reason that I remain proud of the hospitality this country gave to members of the African National Congress during the days of apartheid. If this Bill makes that impossible for the future, that alone is good reason for condemning it.

The second objection is the exclusion of judicial review. That rests on the principles of natural justice, which are not merely older than Parliament, but also the means judges use to decide the intention of Parliament. If Parliament can get away with overruling these, it will do it, not once but again, and again and again and again. Elective dictatorship will be one degree closer than it is.

Mr Blunkett tells us that "on the Anti-Terrorism Bill, I am absolutely clear – whatever it takes I am going to do it''. This invites the Clintonian response that it depends what "it" is. If he wants an Anti-Terrorism Bill, he will have it. If he wants an Anti-Terrorism Bill with considerable resemblance to this one, he will have it. If he thinks he can get the whole Bill, he risks being very disappointed.

Lord Russell is professor of history at King's College, London, and a Liberal Democrat peer