In the name of freedom, separate law and politics

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Politicians make laws and independent judges enforce them. That basic principle is a fundamental protection against arbitrary and oppressive rule, easily understood, yet never fully observed. We British have tended not to be rigorous in maintaining the distinction between the spheres of politics and the judiciary, partly, perhaps, because the basic precepts of freedom under the law were developed by muddling through. Such complacency is dangerous, however.

Politicians make laws and independent judges enforce them. That basic principle is a fundamental protection against arbitrary and oppressive rule, easily understood, yet never fully observed. We British have tended not to be rigorous in maintaining the distinction between the spheres of politics and the judiciary, partly, perhaps, because the basic precepts of freedom under the law were developed by muddling through. Such complacency is dangerous, however.

Looking back, we can now see with greater clarity what a self-contradicting nonsense it is that the Government should receive legal advice on the state of international law from one of its own members. The refusal to publish the Attorney General's advice on the legality of the Iraq invasion is all the more remarkable because if he, a minister in Tony Blair's Government, was at all equivocal, the case must have been weak indeed.

Looking forward, we should see the dangers of giving another minister, the Home Secretary, the power to put people under indefinite house arrest. The proposals in the Prevention of Terrorism Bill, to be debated in the House of Commons tomorrow, complete an extraordinary reversal. The Leader of the Conservative Party, who had a reputation 10 years ago as one of the most illiberal home secretaries of modern times, finds himself defending the fundamental principles of justice. As the Tories once taunted Labour for opposing the annual renewal of the emergency provisions of the Prevention of Terrorism Act, Michael Howard is reduced to telephoning newspaper editors to protest that he is not "soft on terrorism".

Once again, we are forced to rely on the unelected House of Lords to defend basic human rights. After he has made Mr Howard squirm in the Commons, Mr Blair must amend the Bill to get it through the Upper House. There is no reason why he should not remove the politicians from the process of making control orders altogether. If the security services want to put someone under house arrest, they should seek a judge's approval first. That would satisfy the Liberal Democrats and preserve the vital principle of the separation of powers. The idea of indefinite detention without trial, even if the detainee is not in prison, is not one with which any democratic society can feel comfortable. And control orders that fall short of house arrest still smell suspiciously like the banning orders of apartheid South Africa.

It may be that such exceptional powers are required in a very few cases to protect against the exceptional threat of al-Qa'ida-type terrorism. The essential safeguards must be that the evidence against individuals should be subject to independent judicial scrutiny.

It seems extraordinary that a Labour Home Secretary should be so keen to give himself police powers. Perhaps that view is naïve. This is, after all, the Government that strained every political sinew to make a tenuous legal case for the war in Iraq. Imagine what would have happened if Mr Blair had been required to seek independent legal advice on the position in international law - the overwhelming consensus was that the invasion was illegal. As Menzies Campbell, deputy leader of the Liberal Democrats, argues, it is time to end the dual role of the Attorney General as both a minister and the Government's legal adviser. As a nation, we should be vigilant: freedom in a democracy requires the maintenance of a clear separation between politics and the law.

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