Exposed! This Home Secretary is more liberal than we like to think

This must be the best-kept secret of politics today: Charles Clarke is a relatively liberal Home Secretary. It may not be the obvious conclusion to draw after the week in which he introduced the Prevention of Terrorism Bill. A Bill so unpopular that it provoked the fifth-largest rebellion of Labour MPs - one that could have defeated the Government if Charles Kennedy and his Liberal Democrat colleagues had managed a full turnout. So unpopular that it united right-thinking liberal opinion against the principle of indefinite detention without trial. So unpopular, in fact, that it prompted the esteemed founder of this newspaper, Andreas Whittam Smith, to declare that he would take to the streets in protest.

This must be the best-kept secret of politics today: Charles Clarke is a relatively liberal Home Secretary. It may not be the obvious conclusion to draw after the week in which he introduced the Prevention of Terrorism Bill. A Bill so unpopular that it provoked the fifth-largest rebellion of Labour MPs - one that could have defeated the Government if Charles Kennedy and his Liberal Democrat colleagues had managed a full turnout. So unpopular that it united right-thinking liberal opinion against the principle of indefinite detention without trial. So unpopular, in fact, that it prompted the esteemed founder of this newspaper, Andreas Whittam Smith, to declare that he would take to the streets in protest.

I can see why so many people might believe the worst of this Government. When Tony Blair says the security services tell him they have been tracking people who are "up to something", and tell him "you must do something, otherwise our security is at risk", we can feel the chill wind of the police state. When the Prime Minister, or the Home Secretary, accuse their opponents of wanting to "do nothing" about the special threat from al-Qa'ida terrorism, it is a cheap debating tactic. When Blair or Clarke say they must have this law because, if a terrorist atrocity happened, they would be blamed for not doing everything they could, they slide from ends to means with alarming ease.

There should be no dispute that indefinite detention without trial is odious. It is a fundamental breach of human rights, which is why the British Government had to grant itself an exemption - a "derogation" - from the European Convention on Human Rights when the Anti-Terrorism Act was passed after the planes hit the towers in 2001. But this is where the criticism of Clarke becomes confused. When the 2001 Act was passed, it was used to lock up 17 suspected terrorists, who were held in Belmarsh and other prisons without knowing when they would be released. They were not allowed to see all the evidence against them, or to be represented by their own lawyers in the semi-secret tribunals hearing the case for their continued detention.

What Clarke now proposes to do is to release the seven remaining detainees. The derogation from the European Convention will no longer be required. British law will come back into conformity with the fundamental principles of human rights law. Yet Liberty, the civil rights pressure group, has failed to take out full-page advertisements in the press to congratulate the Home Secretary, because he wants to keep the power of indefinite detention in reserve for the future. It is true that this may still be undesirable, but the practical effect of Clarke's decision is a definite step in a liberal direction. People are being held indefinitely without trial; now Clarke says he sees no need for it.

Certainly, the looking-glass world of our liberal-authoritarian Home Secretary has its curiosities. Until next Sunday the Belmarsh detainees are so dangerous that they must be under lock and key. On Monday 14 March it will be safe to release all seven of them, provided only that they are under control orders tagging them or restricting who they might meet or their use of telephones or the internet.

The explanation for this change of status was put to me in complex legal language by one Downing Street official: "They have been banged up for so long they are no use to anyone now." That was callous, when the Belmarsh regime has driven at least three of the detainees mad, but at least it is over, for the moment. We liberals said all along that if the evidence against the detainees was not strong enough to convict them in a court of law, the state should release them and keep them under surveillance. That is precisely what Clarke now proposes.

He has also conceded that a judge, and not the Home Secretary, should impose indefinite detention. No doubt this week he will concede a judge's role in the lower-level control orders. That will silence those who don't like the idea of a politician imposing restrictions on individuals, even if the judges won't like doing their dirty work for them.

Clarke's balancing act is of a piece with his record at Education. When he published his five-year plan last summer, the Conservative press carried headlines about a return to uniforms and the house system. The only trick Clarke missed was to encourage the playing of quidditch. However, anyone who studied the substance of the policy would find, beneath the nostalgic top-dressing, that it was an attempt to find new ways to fulfil the progressive ideals of comprehensive education, of more balanced and inclusive school intakes. At the Home Office, Clarke is not only in effect ending the opt-out from the European Convention on Human Rights, he has quietly dropped David Blunkett's ideas for non-jury terrorist courts and lowering the standard of proof in such cases.

Not that, on terrorism law, the Government is simply playing a political game of acting liberal while sounding authoritarian. Because no one denies that there is a special threat that requires special measures. But this week's issue comes down to whether the Government should or should not have a reserve power of house arrest without trial. Which is not exactly "without trial", because there is a semblance of judicial procedure to oversee it. I envy those who are absolutely sure that such a power can never be justified. Whatever one's doubts about the "if you knew what I knew" style of argument, Blair and Clarke are not making it up when they say that we face an unusual threat from people who are prepared to commit suicide to carry out apocalyptic atrocities.

Alex Carlile, the former Liberal Democrat MP, is the best witness to call in Clarke's liberal defence. Lord Carlile is the independent reviewer of the Government's anti-terrorism legislation. Maybe he has gone native because he has been allowed to see secret documents and talk to the security services. But his reports read like those of a thoughtful and liberal man. He says the laws have prevented terrorist attacks, and that there are a very few cases that cannot be tried in normal courts because the evidence has to be kept secret. He thinks that some covert evidence, such as telephone intercepts, could be used in court but that some has to remain secret. And he says quite emphatically that, in the proposed control orders, "the Home Secretary has not produced an astounding new principle".

It may not be new, but the principle of indefinite detention without a full trial is offensive. It has applied to 17 people, currently applies to seven and will apply, if Clarke has his way, to none. The question is whether it should be available to the Government as a limited option for the future. Anyone who says "absolutely not, on principle" had better be on very sure ground. Much surer than most of the opponents of the legislation seem to be so far.