CHARLES CLARKE will have to modify his anti-terrorism proposals if he is to get them through Parliament and see off any legal challenge.

Since announcing his package last Wednesday, Mr Clarke has barely had a supporter in the press, and among lawyers. To most critics, fundamental British liberties are at stake in his proposal for “house arrest”.

Part of the problem is that the control orders are misunderstood. “House arrest” is intended only as the rarely used top end of a range of controls, including limits on movement and access to telecoms, curfews and tagging.

This range is preferable to imprisonment without trial (rejected by the House of Lords), not least because it would allow flexible controls to match the seriousness of the threat. Not all the Belmarsh detainees have posed the same danger.

Mr Clarke insists that there “remains a public emergency threatening the life of the nation”. His critics argue that, whatever horrors may be perpetrated by terrorists, they cannot put the State or the future of society at risk. Al-Qaeda will be survived, like the IRA. Hence, many current measures, from armed police to “house arrest”, are a victory for the terrorists, as well as exaggerating the threat.

However, everyone I know who has seen the intelligence believes there is a genuine danger and that terrorist attacks in Britain have been prevented. Just because the claims about Iraqi weapons of mass destruction were wrong does not mean that the threat elsewhere is false, as bombings in Spain, Saudi Arabia, Turkey and Indonesia in the past year have shown. So precautions can save lives.

The critics argue that, even if there is a threat, the right to a fair trial is more important. Mr Clarke maintains that current terrorists are different, both in the scale of damage they can do and in their operations. So not only is it the Government’s top responsibility to protect the public, but crucial evidence cannot be used in court without compromising secret sources. So it may be impossible successfully to prosecute a suspect. But should someone believed to be a serious threat to the public be allowed to walk free? As Mr Clarke has argued, this balance between security and liberty needs to be more fully debated. He is firm that allowing the use of intercept evidence would not produce significant benefits. But he needs to explain why new offences, such as actions preparatory to terrorism, cannot be introduced.

The key issue is who decides about a control order. Under Mr Clarke’s plan, the Home Secretary would decide on the advice of the Security Service. Only afterwards would there be independent judicial scrutiny about an order and any variation in it.

However, some objections would be answered if a judge were involved before an order is made, as John Denham, a former Home Office minister, and Edward Garnier, a Tory lawyer, have argued. The Home Secretary could apply to the courts for an order. A judge could then consider the evidence and whether a case could be prosecuted.

Mr Clarke has so far resisted surrendering his and the executive’s responsibility for security to the courts. But a preliminary judicial hurdle may both provide reassurance against abuse of power and help to get the Bill through.

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