Free On Liberty by Shami Chakrabarti Page A

counterparts. A policy of interning foreign nationals only is irrational and discriminatory; it cannot therefore possibly be ‘strictly necessary’.
    I would add that discrimination, as much or more than any other profound injustice, results in a festering resentment that recruits more terrorists than it can ever prevent. In any event, the majority of Law Lords found the Belmarsh policy unlawful for its irrational and disproportionate discrimination, and my friend Gareth Peirce printed the Hoffmann quote that so riled the government on a T-shirt for my toddler: ‘Dignity, equality and fairness and the greatest of these is equality.’
    Their Lordships having opined, the ball was quite firmly in the government’s court. And as I pointed out earlier, the Lords’ ‘declaration of incompatibility’ under the Human Rights Act in respect of the Belmarsh legislation could only be moral andpersuasive: it had no binding force. The declaration of incompatibility was reliant on our still sovereign Parliament to do the right thing and change the law.
    The new Home Secretary, Charles Clarke, was lumbered with the quandary of how to respond to the Lords’ declaration. For a while rumours, doubtless in the form of Number 10 briefings, abounded that Her Majesty’s government might offer two fingers instead of an olive branch to her judges. While still in the Home Office, I had had the pleasure of advising Clarke when he was a Home Office minister of state and before his first elevation to the cabinet as Education Secretary. He was, I knew, smarter than to dismiss the judges’ ruling out of hand – and so it proved. Instead, he despatched officials to recommend a new policy, one less offensive to the Law Lords’ concerns of discrimination and disproportionality. Sadly the resulting legislation was a triumph of form over substance, as if a response to an intellectual puzzle with little to do in any real sense with either liberty or security.
    Back in 1997, in the months after the general election when ‘things could only get better’, New Labour had drafted a new Crime and Disorder Bill in which the concept of anti-social behaviour first took legal rather than colloquial shape. Anti-social behaviour orders, or ASBOs, were championed in some progressive circles as a civil order offering a last chance for petty criminals to stay out of the criminal justice system. They could equally and more accurately be sold as a gung-ho means of summary punishment with no need for charges, evidence or proof.
    ASBOs involved a definition of bad behaviour far vaguer and more sweeping than that provided by the criminal law: ‘conduct which caused or is likely to cause harm, harassment, alarm or distress’. The police or local authority could apply for an ASBO and, if a magistrates’ court was satisfied that this low threshold of concern had been met, it would grant an injunction with a wide range of conditions, breach of which constituted a criminal offence punishable with imprisonment.
    ASBOs could create a bespoke and arbitrary criminal code for people who had never been proved to have breached the ordinary criminal law of the land. In the words of the Prime Minister, outlining his ‘five-year plan on law and order’ in July 2004: ‘We asked the police what powers they wanted and we gave them to them.’
    But in the copy and paste world of policy and legislation by numbers, the circumvention of criminal due process with civil orders was to find an even more chilling apotheosis. In 2005, the ASBO was crossed with the secret administrative procedure that was SIAC to produce the mutant creature that became the ‘control order’. Now punishment without charge or trial would not even be based on hearsay and a magistrate’s view of what might or might not constitute nuisance, but on secret intelligence and the Home Secretary’s suspicions alone.
    Control orders would apply to Britons and non-nationals alike, in an attempt to meet the Law