When the Law Lords ruled last month that the indefinite detention of nine foreign nationals under the Government's anti-terrorism provisions was unlawful, their judgment proceeded from the highest of judicial principles. By an eight to one majority, they found that imprisonment without limit or charge was a repressive measure that contravened Britain's human rights laws. They especially deplored the de facto creation of one law for citizens of this country and another for foreigners residing here. As Lord Hoffman expressed it with particular trenchancy: "The real threat to the life of the nation ... comes not from terrorism but from laws such as these."
Now, hitherto secret documents disclosed by The Independent today, show that it is not just the most elementary principles of justice that this application of the anti-terrorist laws has flouted, but the practice of justice, too. At least part of the evidence presented in support of the detentions was based on intelligence that has been discredited. The examples would be almost comical had the inferences drawn not been so serious for the fate of these individuals. They included a men-only weekend in Dorset which was - wrongly - interpreted as a conclave called to elect a terrorist leader, and a shopping trip during which some of the suspects seemed unusually security-conscious. These were people, remember, who may not be deported, because their lives are deemed to be in danger in their home countries.
It also appears that an allegation against at least two of the detainees assumed guilt by association - alleged association, that is, with Mozzam Begg, one of the Britons still being held, indefinitely and without charge, at Guantanamo. Evidence relating to the supposed discovery of firearms at an Islamic bookshop turned out to be wrong - there were none - as did claims that some of the suspects were raising funds for terrorist causes. Among the causes for which the funds had been raised were an orphanage, and a mobile phone for an imam.
These details, of course, relate to only part of the evidence presented to the Special Immigration Appeal Commission in support of keeping the suspects in prison. And law officers and ministers might object that it is only the weakest and most discredited evidence that has come to light. The rest, they might argue - the material that is most conclusive - will remain strictly under wraps for sound security reasons. To this we would respond that the errors and flimsiness of what has been uncovered cannot but raise doubts about the quality of the rest. And the closed nature of the judicial process that relates to foreign terrorist suspects means that this evidence may never be subject to outside scrutiny. This secret evidence might be conclusive; then again, it might not.
Which is the nub of the issue. If the evidence that these men are dangerous is so persuasive, why should it not form the basis of criminal charges and be presented to a court? To hold people in detention without giving them details of the evidence against them, and the nature of their offence, is as patently unjust here as it is at Guantanamo, and contrary to all the values this country holds most dear.
We trust that the new Home Secretary, Charles Clarke, will not delay the review of the anti-terrorism laws he promised immediately after the embarrassment of the Law Lords' judgment, though we are hardly optimistic. In his BBC interview yesterday, the Prime Minister seemed disturbingly unworried by the Law Lords' ruling. "I understand the civil liberties argument against it," he said of the anti-terrorism legislation. "I hope people understand the security argument for it."
He gave the impression that, in a difference of opinion between ministers and the country's most eminent judges, the two views were of equal standing; that he could somehow take or leave their lordships' verdict as he pleased. If ever there was an argument for the speedy and total separation of powers between legislature and judiciary, this government's indifferent response to the Belmarsh ruling by our highest court is it.