THE GOVERNMENT and the judiciary can co-exist, but only as long as they accept each other’s good faith. For most of the past decade, that mutual trust has been absent. First Michael Howard, and then David Blunkett, repeatedly clashed with the top judges, each side provoking the other to more intemperate comments. Since taking over as Home Secretary six weeks ago, Charles Clarke has sought to lower the temperature. Yesterday’s statement on terrorist suspects is at heart a challenge to the judiciary to respond positively.

Relations have deteriorated for two interrelated reasons, both of which have surfaced in the case of the dozen foreign nationals detained without trial. First, the Human Rights Act 1998 has given the judges new powers, not to annul legislation but to put considerable pressure on governments if the courts state that any Act is incompatible with the European Convention on Human Rights.

Second, the emergence since the 9/11 attacks of a threat of terrorist atrocities that could kill thousands has highlighted the dilemma of security versus liberty. At the same time, the prospect of a separate supreme court (although with the same legal powers as the current law lords) has reinforced the judges’ sense of themselves as defenders of the constitution.

The politics of human rights involves a balance. Mr Blunkett was correct to highlight the terrorist threat, as Mr Clarke did again yesterday when emphasising the continuing “state of public emergency threatening the life of the nation”. Yet Mr Blunkett was impatient with the judges and brushed aside human rights concerns. A lot of grief could have been avoided if Mr Blunkett had responded more favourably to the sensible alternatives to imprisonment offered by the Newton committee of Privy Counsellors in 2003, rather than dismissing them out of hand.

So the law lords were in determined form six weeks ago when, by a margin of 8-1, they rejected the section of the Anti-terrorism, Crime and Security Act 2001 on detaining foreign nationals without trial. They concluded that these powers were discriminatory since they applied only to foreign nationals and were not proportionate to the terrorist threat. The judgment was persuasive, particularly as presented by Lord Bingham of Cornhill, the senior law lord.

Yet some of the law lords talked in more extreme terms, failing to accept the new constitutional responsibilities they now have, along with their new powers. Lord Scott of Foscote indulged in adolescent sloganising when comparing the key section of the 2001 Act with “France before and during the Revolution, with Soviet Russia in the Stalinist era”. The detention of seventeen people over three years under strict safeguards may be legally wrong, but it is grossly offensive to put it in the same category as the Terror or the gulag.

His own fitness to be a law lord has anyway been thrown into doubt by his public criticism of the Hunting Act which he regrets “hugely” and disagrees with “in principle”. I happen to agree with him, but it is not for judges, however senior, to say whether or not they agree with a law. That is Parliament’s job. It is for judges then to interpret the law. Lord Scott has rightly said he will not sit on any hunting case. But he has shown a contempt for the law which he has sworn to uphold.

A parallel absence of judicial restraint has been displayed by Lord Hoffmann. His assertion that the “real threat to the life of the nation comes not from terrorism but from laws such as these” sounds impressive but is, in reality, hollow. He is probably correct that “we shall survive al-Qaeda”, but the State’s duty is to reduce the risks and threat to its citizens.

That is the argument that Mr Clarke confronted yesterday. By accepting the law lords’ judgment over the 2001 Act, he recognised that action against terrorists should be compatible with human rights. But that in no way diminishes the threat posed by al-Qaeda and associated groups. The question is, rather, how to deal with this threat in a different way.

Mr Clarke has removed one problem by creating another. He has ended discrimination against foreign nationals by including British citizens suspected of terrorism in the scope of his new powers — “a very substantial increase in the executive powers of the State”, to use his words. The combination of deportation of foreigners with assurances and control orders is in itself highly controversial, as the strong criticisms of the Law Society, as well as civil liberties groups, showed. House arrest will be challenged in the courts and may require a new derogation from the European Convention.

In America, there is much more agreement about the existence of a terrorist threat, however many differences there are about the response and especially the heavy-handed Patriot Act. In Britain, apart from the challenge to the 2001 Act, the response has generally been more measured, but the existence of the terrorist threat has been more questioned.

The failure to find weapons of mass destruction in Iraq has made the public much more sceptical of official claims about intelligence. But the two are different. It is not a question of taking ministers on trust. Even if Saddam did not have WMD, international terrorism is a reality, as the attacks in Bali, Madrid and Istanbul have shown.

Mr Clarke wants an open debate about the balance “between the rights of individuals and the protection of society” involving Parliament, the legal system and the media. That means the judges. They rightly want to defend individual liberties, but they also need to recognise the threats to it from terrorism. As Vernon Bogdanor, of Oxford University argues, we may be moving towards a constitutional state in which the role of judges becomes more important. But, at present, ministers through Parliament remain the ultimate guarantors of our rights.

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