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So declared one Law Lord today as the highest court in the land voted to over-rule the Government's policy to hold foreign terror suspects indefinitely without trial.
They said it called into question the very existence of Britain's most ancient liberties.
Tonight then, the Government's domestic security policy is in tatters: hardly the best first day at work for the new Home Secretary Charles Clarke.
He insisted the foreign detainees were security risks and would remain behind bars - their lawyers warned of a constitutional crisis if they weren't released.
The body blow to the Government was delivered by the Law Lords in their traditional setting of Parliament's second chamber.
There was virtual unanimity. Eight agreed, only one dissented.
At stake was the fundamental right to liberty:
"Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford"
Lord Nicholls of Birkenhead
The Law Lords found the Government had wrongly denied it to nine north Africans, among others who remain locked up indefinitely in places like Belmarsh Prison, without trial.
It was in this room, .with the backdrop of Moses handing down the tablets of stone, that the Attorney General tried to lay down the law as written by his Government.
In front of the nine Law Lords he argued it was for Parliament, not them, to determine the scale of threat and the necessary measures needed to protect the security of the state.
But in the Lords judgement Lord Hoffman pointed out,
"The real threat to the life of the nation, in the sense of a people living in accordance with its tradition, comes not from terrorism but from laws such as these”.
Lord Hoffman, Law Lord
At the heart of the detainees’ case was the simple notion of equality.
That these anti-terror measures, brought in on the back of immigration laws, could only be applied to foreigners not British nationals.
Discrimination is not a legal remedy against the threat.
Lord Walker said in the judgement,
"It is not suggested that the Secretary of State or any of his officials has given misleading or disingenuous reasons for their actions. What is said is that they have asked themselves the wrong questions, and have reached irrational and disproportionate answers"
Lord Walker of Gestingthorpe
"By acting as judge, jury and jailer the Government have flouted the very values it claims to defend. It must now act and charge or release all those currently held without delay."
Shami Chakrabarti, Liberty
The new Home Secretary revealed no such intention:
"It is ultimately for Parliament to decide whether and how we should amend the law...provisions will remain in force until Parliament agrees the future of the law. Accordingly, I will not be ... releasing the detainees, whom I have reason to believe are a significant threat to our security"
Charles Clarke, Home Secretary
Only hours after the ruling, the wife of one detainee, Mahmoud Abu Rideh, was off to the Special Immigrations Appeals Commission to hear lawyers argue that her husband be granted bail.
There was no decision today.
Belmarsh was once dubbed Britain's Guantanamo.
Of the original 17 detained from 3 years ago, 11 remain who from today are unlawfully imprisoned.
The Government has gone out its way to publically criticise the United States for refusing to set up a proper judicial process for those held in Camp Delta.
But at home it's fought tooth and nail to preserve its powers to certify any foreigner as having terrorist links and to detain them without trial.
This is David Blunkett's legacy - a legislative nightmare.
He long held the detainees were linked to Al Qaeda and described as extraordinary even the prospect of granting one of them bail.
But now the Government's choices are severely limited.
If it's to respect the rule of law it must release them, or put them on trial.
INTERVIEW WITH HAZEL BLEARS, HOME OFFICE MINISTER
Jon Snow :Why aren’t you ordering the release of the detainees tonight?
Hazel Blears : We have evidence from the security services and the intelligence that we have been considering for a long time, that these people still continue to pose a significant security threat to this country.
But you are acting illegally…
No, what the House of Lords have decided today is that in their opinion the provisions that we passed some time ago are incompatible with the European Convention on Human Rights. Now, what happens to the law is a matter for Parliament, and Parliament has to consider its position. It does not mean that the current law is not effective. The law remains in place. The certificates and the detention are perfectly lawful and these people will remain in detention until Parliament decides what to do about this situation.
People are going to find this absolutely extraordinary. Here is the highest court in the land that says you are in breach of the European Human Rights Act and furthermore, that you are in breach of just about every tenet of English law. They have said they are unequivocal about this, that eight to one they have said you are in the wrong, that these men should be freed…
Our overriding responsibility is to protect the security of this nation, and we have intelligence and evidence that these people pose a significant threat, it is very difficult to get the balance right between liberty and security, and that is what we struggle with all this time. But we still feel that these people are a threat, and in those circumstances, it's for Parliament to decide what to do in the light of the House of Lords judgement.
You do not address what Lord Hoffmann says: "The real threat to the life of a nation in a sense of a nation living in accordance with its traditional laws and political values comes not from terrorism but laws such as these".
That's one point of view. We also think people who pose a significant threat as told by our security services, where we are right to view them as terrorists, we consider it right to make sure that they are not allowed to wander the streets of this country freely and to do the horrific damage that might result.
The judges say you are acting disproportionately, the level of threat is absolutely not consistent with what you are doing to these men, they have been incarcerated for three years, are you happy for them to die in custody?
That's not the case. The position is that a High Court judge in a Special Immigration Appeals Commission, who had access to all the intelligence...
Come on...who?
… had access to all the intelligence, confirmed they were a threat, the Court of Appeal...this is the highest court in the land…the Court of Appeal a few months ago unanimously decided our position is right.
The House of Lords has made their judgement, that it's incompatible with the European judgement, and Parliament must decide what to do.
You have named three lower courts below the House of Lords. You are choosing to ignore the highest court…
Its actions are a matter for Parliament properly in the terms of the European Convention to decide what action to take, and our overriding concern is the future protection of this nation, to make sure that the people stay safe.
So you, as a minister, have decided to ignore this judgement by the House of Lords, yes or no?
I don't think you are listening to me...
I am listening to you and I do not hear you addressing today's judgement
I said it was a matter for Parliament to decide, and when this law was passed, it was made very clear to Parliament, that it had a number of options, where there is a declaration of incompatibility with European law, it's a matter for Parliament to decide what action to take in relation to that law, and that law being passed by Parliament, remains valid until Parliament decides what action to take.
The judges are saying unequivocally you are in breach of the law, it does not matter about Parliament or anything else, the fact is that you are in breach of this law, these men should be freed…
I think it does matter what Parliament thinks, not ministers, but what parliament thinks in these circumstances, and Parliament will decide.
Why do we bother with the House of Lords then, should we get
rid of it?
The House of Lords is a very, very important factor in our constitution, it is very important to our democracy and these are very, very serious issues indeed, that is why we will be considering
the judgment extremely carefully indeed.
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