After last July's bombings in London it should have been relatively simple for the government to toughen up our anti-terror laws, especially given the opinion polls showing that the vast majority of the British public backs a firm stance.
Yet efforts to change the law have brought ministers nothing but grief. Last November plans to detain terrorist suspects without charge for up to 90 days were defeated in the Commons. Earlier this month the Lords threw out the new offence of "glorifying terrorism". And now the Lords have taken issue with the banning of the radical Islamic groups Hizb ut-Tahrir and al-Muhajiroun.
What has gone wrong? The trouble goes back to a press conference called by Tony Blair on 5 August to announce a 12-point plan for new anti-terror measures. Coming barely a fortnight after the second, failed round of bomb attacks, it took everybody by surprise, including the Home Secretary, Charles Clarke, who was on a whale-watching trip off the US coast when he took a call from the Prime Minister to say that "the rules of the game were changing".
Point by point, Blair's back-of-the-envelope plan has been unravelling since then, and a high-level exchange of official e-mails seen by the New Statesman dramatically exposes the extent of the problem. It seems clear that Charles Clarke him- self has expressed grave doubts about the wisdom of banning some Islamic political groups, and suggested "that the government would lose the case for proscription".
The confidential e-mails also show the Foreign Secretary, Jack Straw, at odds with the intelligence services and "isolated" over the issue. And, crucially, they make it clear that the head of MI6, John Scarlett, and his opposite number at MI5, Eliza Manningham-Buller, declined to throw the weight of their organisations behind a change of policy on Islamist groups, despite pressure from the politicians. Though the security chiefs did not oppose banning the organisations on principle, they would not let the politicians use their intelligence to justify a ban - a sign that they may have learned the lesson of the Iraq conflict, when their assessments were used to support the case for intervention.
Paradoxically, it is Scarlett, the man at the heart of claims that the government "sexed up" Iraq intelligence, who is reported by a Foreign Office official as saying he "sees this as a political issue and a matter for the Foreign Secretary". A separate e-mail summarises the position of the intelligence agencies in a single sentence: "They do not oppose proscription but oppose reliance on their assessment to justify what they see as a change of policy, not fact."
The series of e-mails describes a revealing conversation between Clarke and Straw on 28 August last year, minuted by civil servants. Irfan Siddiq, a private secretary in Straw's office, quotes Clarke as describing Straw as "isolated" in his view that the political wings of the Palestinian group Hamas and Hezbollah, the Iranian-backed Shia organisation, should be banned. The Home Secretary adds, however, that he would be "happy in principle" to include them in the overall ban, but only "if the Foreign Secretary could square the agencies" - MI5 and MI6. It was after this that the agencies were asked to clarify their positions.
The Home Secretary's doubts about banning Hizb ut-Tahrir are detailed in one highly sensitive e-mail. This reads: "Clarke said he would prefer putting off proscription of HuT until after the proposed amendments to the current legislation: it would, for example, be much easier to argue that HuT met the criteria of 'justifying and glorifying violence'. Clarke said his fear was that the government would lose the case for proscription and so wanted to act cautiously."
Additional e-mail exchanges between two Foreign Office officials, Robert Tinline, head of the multilateral and terrorist financing section of the counter- terrorism department, and David Richmond, director general of defence and intelligence, will further embarrass a department that has suffered a series of leaks in the past months. The disclosure in last week's NS of a secret Foreign Office memo on illegal "rendition" flights forced Straw and Tony Blair into making urgent public statements.
For the government the most damaging aspect of this latest leak is that - coming as it does from the heart of the security establishment - it questions the case for banning Hizb ut-Tahrir, a group that is active in Britain (see panel below) and committed to creating an international Islamic caliphate.
Foreign Office officials provide a long list of countries in which "HuT" is active, including Egypt, Jordan and Syria in the Middle East, the central Asian Islamic republics of Azerbaijan, Kazakhstan and Uzbekistan, as well as Turkey and Pakistan. But the memo includes a devastating passage: "There is no apparent case to proscribe HuT because its activities abroad include involvement in terrorism. Indeed it is not entirely clear whether they would be caught under a future criterion of 'justifying or condoning violence'. Much of their literature explicitly rejects the use of violence."
So why has the government been so keen to ban Hizb-ut-Tahrir when, by its own admission, a legal challenge would have a high chance of success? One intriguing answer, as put forward by Straw in the conversation of 28 August, is that the legislation could be used to flush out supporters of the banned organisation by identifying the people who challenged the ban.
In discussing al-Muhajiroun, the offshoot of HuT led by the controversial cleric Omar Bakri Mohammed, Straw suggests banning the organisation even though it had already disbanded in the wake of the 7 July terrorist atrocities and its leader had fled to Lebanon. "The Foreign Secretary added that he felt that we should in any case move against AM. If it was no longer functional, there would be no problem, and if the move was challenged it would prove that AM was no longer defunct and would help identify those associated with AM."
The government, it is clear, has yet to convince even itself that such organisations can be better controlled by a ban than under existing hate laws. These already outlaw anti-Semitism and other statements that could be construed as incitement.
The real issue that the documents expose is government on the hoof. The e-mails obtained by this magazine show that, even on an issue as grave as anti- terror legislation, the Prime Minister has been prepared to make it up as he goes along, without due consultation. Now, as parliament dismantles the legislation piece by piece, Blair is paying the price for another example of cavalier policy-making.
To see the full document log on to: www.newstatesman.com/antiterror
12 points, then 11, 10...
7 July 2005 London bombings kill 52 people and injure more than 700. Tony Blair declares: "We will not be changed"
8 July Home Secretary Charles Clarke, speaking on the BBC, makes no mention of a need for new laws. "I don't think any of us want to live a life where we have to go through security checks every moment of our lives, and so we have to find the right way to move forward"
5 August At a special Downing Street press conference Blair unexpectedly unveils a 12-point plan to fight terrorism. It promises: "We will proscribe Hizb ut-Tahrir and . . . al-Muhajiroun"
15 September After government efforts to build an all-party approach fail, a draft bill based on the 12-point plan is published
9 November Blair is defeated on his proposal to detain terrorist suspects for up to 90 days, 49 Labour MPs voting against
15 December Ministers abandon the proposal to close extremist mosques - part of the 12-point plan
17 January 2006 The Lords throws out "glorification of terror" offence
This week The Lords debates the plan to ban radical Muslim organisations