Few Labour home secretaries keep their liberal credentials intact for very long, and Charles Clarke has turned out to be no exception. He has ridden into a barrage of criticism over plans for the house arrest of potential terrorists.
Clarke's proposals are designed to overcome the law lords' December ruling that the detention provisions of the Anti-Terrorism, Crime and Security Act 2001 discriminate against foreign nationals. By applying control orders to everybody, regardless of nationality, Clarke hopes to overcome that legal hurdle.
In the face of such opposition, it is surprising that Clarke has chosen to rule out the obvious alternative: allowing intercept intelligence to be placed in front of the courts, so that proper criminal trials of accused terrorists can be held. It's a policy that now unites the Conservatives, Liberal Democrats and left-wing Labour MPs. The new Metropolitan Police commissioner, Ian Blair, supports it, and so do most of the civil liberties groups who have spent years opposing phone-tapping powers. It is backed by the director of public prosecutions, Ken McDonald, and even by Javier Solana, the EU foreign policy chief. So why won't Clarke do it?
There have been five reviews of this subject in the last ten years, and reform has been rejected every time. It's a safe bet, therefore, that the security services have got some strong grounds for resisting change. In his statement to parliament, Clarke outlined what these were. To begin with, he argued, intercept material only provides part of the evidence against suspects, and usually does not stand alone. As Gwyn Winfield, publisher of Resilience, a global defence magazine, has said: "Telephone tapping is among the lowest forms of intelligence available. It always has to be backed by something else—usually human intelligence in the form of a mole who could explain what the people are talking about and who they are."
Supplementing intercept intelligence to strengthen a case could therefore put the lives of sources at risk. It could also compromise national security by revealing the methods or identities of agents in the field. In addition, as Clarke argued, it might damage relationships with foreign powers and their intelligence agencies, presumably because the material might reveal sensitive activities or indicate that British agents were operating in ways judged to be inimical to other countries' national interests.
The security services also cite the time and effort needed to prepare evidence for court cases. Why should they tie up precious resources putting evidence together when they should be deploying agents in the field to counter the terrorist threat?
It is hard for ministers to override the operational concerns of their security services. The home secretary may refuse to sign a warrant for a phone tap if he is unconvinced by the arguments in a particular case. But putting operational advice to one side on the core surveillance business of the security services is a different matter. It takes a brave politician to do that.
Furthermore, few politicians have any experience of security service activities. Many have been barristers or solicitors and can talk with authority about the law. But former MP and novelist Rupert Allason aside, politicians don't usually have any knowledge of the world of spooks. Older generations of political leaders could draw on wartime experiences, but the current cadre was schooled in student anti-war demonstrations, not the world of spies. Unlike the former teacher who runs the education department, the home secretary cannot test official advice against real world experience.
Yet the current law leads to bizarre anomalies. Tapes from conventional bugs which are not attached to phones can be used in court and so can conversations recorded on internal telephone networks. But a conversation between a suspected terrorist and a third party on a mobile or a landline cannot be adduced as evidence.
Similarly, phone tap evidence marshalled in Britain can be put before the courts in the US but not vice versa. French material can be used in British courts but evidence from our security services cannot.
Britain and Ireland stand alone among the major western democracies in disallowing the use of intercept evidence to support criminal prosecutions. Yet it stretches credulity that the operations of our security services are really so different as to require unique protection. Moreover, it is simple enough to amend court procedures to ensure that sensitive material is not publicly disclosed.
Clarke has said that he is ready to listen on the issue. A Downing Street summit is being held between the party leaders to seek consensus on the terror laws. The spooks' case will get severely tested. If it comes to a choice between overruling official advice or standing out against a widespread consensus and sacrificing hard-won civil liberties, even a post-9/11 Labour government may find that it has to back down.
