This shameful rebuff disguised as respect for the law

The Home Secretary's response to the Law Lords' ruling on the 12 foreign nationals held under anti-terrorism laws was welcome on several grounds. It was welcome, first, because a response from the Government to such a swingeing condemnation was long overdue. It was welcome, second, because it showed that Charles Clarke recognised the primacy of the judiciary - something that had not been at all apparent from the initial response of the Prime Minister. It was welcome, third, because Mr Clarke addressed at least some of the more glaring injustices identified by the Law Lords: the discriminatory treatment of foreigners and their judgment that indefinite detention was disproportionate to the threat the men were deemed to pose. They should now be released - although they will in no sense be free.

Which is where our approval jerks to a halt. Mr Blair has always made a point of saying, that the 12 could choose to leave the country at any time - but this was no choice at all if they faced persecution or death at the end of their journey. Their options now are only marginally improved. They may choose highly conditional freedom, which will be a perversion of the word if it amounts to house arrest, with no telephone, no internet and strict curbs on association. Or they may be deported - if the receiving country agrees to waive the death penalty,, among other conditions. Oh yes, and in a nod towards equality before the law, British terrorist suspects could find themselves subject to similar treatment.

The essentials of their plight, however, remain unchanged. Individuals legally resident in this country will still be deprived of their freedom not because of any crime they have committed, but on the mere suspicion that they might pose a threat in the future. They will still be excluded from the presumption of innocence, from habeas corpus, from the right to know the evidence against them and from the right to a fair trial - from all the rights, in fact, that the rest of us take for granted and which form the bedrock of our laws. Mr Clarke used nicer words than others have used and showed greater deference towards their Lordships. But he has not answered their most principled objections - not by a disgracefully long way.