DAVID BLUNKETT HAS FLOATED A RAFT OF TOUGH IDEAS TO TACKLE TERRORISM.

BUT LAWYERS TELL RACHEL ROTHWELL THAT THEY ARE ALARMED AT THE POTENTIAL THREAT TO CIVIL LIBERTIES

When Home Secretary David Blunkett announced his ideas for the trial of terrorists - on a train from Delhi to Phillaur in India - many lawyers thought he had gone off the rails.

The government may have secured the release of five of the nine British terror suspects being held without trial at Guantanamo Bay in Cuba, but some of the measures being considered on this side of the Atlantic seem barely more in tune with the normal principles of justice.

Lowering the standard of proof, basing convictions on secret intelligence evidence that the defendant cannot hear, security-vetting judges who will sit without a jury - those were just some of the proposals; however there were signs of a rapid backtrack in the consultation paper published by the Home Office last week.

Mr Blunkett was reported as saying he had been 'bulldozed' by civil liberties groups and lawyers into not including the ideas explicitly in the paper, and challenged them to put up their own ideas to combat terrorism.

Such measures as he originally floated may sound Orwellian, but in fact some are already in place for the 16 foreign nationals currently being held in England under existing terror laws.

Detained without trial, they may contest their detention before the Special Immigration Appeals Commission, but neither they nor their defence lawyers are permitted to hear the evidence against them.

Their cases are argued by specially vetted state-approved advocates, who cannot take instructions directly from the client.

In fact, the UK had to derogate from the provisions in the European Convention on Human Rights (ECHR) on the right to a fair trial before it could put the 'special advocates' system in place.

Gazette human rights columnist Stephen Grosz, a partner at leading London civil liberties firm Bindman & Partners, says: 'We are the only country in Europe that I know of that has internment without trial.

Each anti-terrorism measure erodes our rights a bit more, and the internment of international terrorists without trial is the biggest leap so far.

'The government has not learned any lessons from the [Northern Irish] Diplock courts and the internments that occurred in Northern Ireland, which were regarded as a failure.

The intelligence relied on was extremely poor - we are learning from Iraq that you can't rely on intelligence.'

Daniel Machover, another human rights specialist and partner at London firm Hickman & Rose, agrees.

He says: 'Huge resources are spent detaining those against whom there is not enough evidence to go to trial.

If there is not enough evidence, it would be better to put them under surveillance.

But it's not correct for the state to deny them their liberty based on intelligence.

It devalues the liberty of the individual.'

He adds: 'There are increasing numbers of people being locked up in immigration centres and prisons, and assaults against prisoners are growing.

The police often leave it to prisons to collect evidence, which is effectively giving a green light to what goes on.

We are lowering the threshold of how to behave to detainees of all kinds.'

Neglect of the usual standards of justice may not seem to some to be so reprehensible when those on the receiving end are foreigners suspected of terrorist crimes.

But experience shows that such measures are unlikely to stop there.

There have been suggestions of extending the special advocacy measures to British terror suspects, not just foreigners, and Prime Minister Tony Blair recently hinted that a drop in the standard of proof could come in handy for tackling organised crime.

As Louise Christian, a human rights specialist and partner at London firm Christian Khan, says: 'Measures that are originally proposed as just for terrorism have a habit of creeping into other areas that are nothing to do with terrorism at all.' And any sort of 'temporary' tag should not fool anyone, the lawyers say - after all, the Prevention of Terrorism (Temporary Provisions) Act 1974 was in force for 26 years until it was replaced by a new Act in 2000.

Leading prison law expert Simon Creighton, a partner at London firm Bhatt Murphy, is already seeing special terrorism measures seeping into other areas.

He says: 'I am dealing with a parole-review case at the moment, involving evidence that the witness does not want to be disclosed to the prisoner - and so the special-advocates system is being imported into a new arena.

The High Court has held that it is lawful.'

He warns: 'We could end up with a situation where defendants do not know the evidence against them, not just in extreme cases, but whenever a victim or witness refuses to co-operate unless the evidence is kept secret.'

Anti-terror measures are the most obvious threat to civil liberties, but other legislation raises issues as well.

Highly controversial proposals to take asylum cases out of the realm of judicial review - replaced instead with a single tier of appeal - have many solicitors in uproar.

Ms Christian says: 'The ouster clause [in the Asylum Bill] will remove asylum decisions from the supervision of the courts, even though Home Office decisions are often found to be flawed.

Asylum cases are some of the most important, because they can lead to a person losing their life or being subjected to torture.

'The minute you move a public authority away from judicial review, you are removing a body of law from the supervision of the courts.

You can shrug - but it's the thin end of the wedge.'

The Lord Chancellor, Lord Falconer, recently took up the cudgels of explaining the government's rationale on these issues.

Addressing a joint meeting of the Law Society and Human Rights Lawyers Association, he emphasised the need for a human rights culture, helped along by the use of litigation where necessary but a much wider concept than just that.

'Yes, terrorists have rights, but so do the rest of us,' he told the meeting.

'Some rights can be limited or derogated from when the circumstances demand it.

We judged - after a careful study of the facts - that the situation, post 9/11, constituted an emergency justifying special measures under the ECHR.

'I say "under the ECHR" because some of the language used forgets that the right to derogate is in the ECHR, subject to the conditions set out there.

Derogation is not "the end of the rule of law"; it is within and under the rule of law.

It is because of the rule of law.'

He added: 'My position on terrorism is simple.

There are no options we should refuse to consider, but it must be within the framework of the rule of law and our international human rights obligations.'

On the ouster clause, Lord Falconer pointed out that the ECHR does not demand multiple levels of appeal or review.

'What is required, is access to an independent authority with powers to provide effective redress.

That we are providing.

The single tier of appeal will be an independent judicial tribunal.'

He said the tribunal can review any decision on the grounds that there may have been an error in law, while judicial review will remain for habeas corpus challenges and for those who have exhausted their appeal rights to make a further claim, because they have not produced new grounds for doing so.

Referring to Mr Blunkett's suggestions, Lord Falconer said they both wanted a full and public debate.

'Here is a golden opportunity to raise awareness of what human rights really means.

Not some legal icing on the cake, to be quarrelled over by the few, but the cake itself.

'I hope that we will see a constructive and meaningful engagement as we saw over the Civil Contingencies Bill, and are seeing in relation to the Asylum Bill.'

The Civil Contingencies Bill, finalised in January, has also got lawyers talking.

It sets out emergency government powers to be invoked during catastrophes - and those include the right to make laws that cannot be questioned by the judiciary.

Mr Grosz says: 'Under the Civil Contingencies Bill, the government will be able to amend primary legislation through secondary legislation.

It will be able to pass a statutory instrument to amend an Act of Parliament, denying courts the opportunity to strike down secondary legislation.'

But the Civil Contingencies Bill is not a complete wash-out for human rights - a full consultation with campaigning organisations led to a much narrower definition of 'emergency' than originally planned.

To qualify, an event must threaten serious damage to human welfare, the environment or the security of the country.

But the definition will not include threats to political stability, which means that a future government will not be able to invoke the powers to protect itself.

Lord Falconer said the various changes to the Bill showed what could be achieved through 'constructive engagement'.

The Criminal Justice Act 2003, which received Royal Assent in November last year, raises yet more concerns for those who care about civil liberty.

It has already stretched the time that suspects can be detained without charge from 24 hours to 36, and allowed police to take and keep DNA records of anyone arrested for an offence, even if they are never charged.

More importantly, it curbs judicial discretion by setting out tough mandatory sentencing rules.

After the European Court of Human Rights ruled that the home secretary's involvement in sentence tariffs was unlawful, Mr Blunkett has now written stricter tariffs into legislation.

Life will mean life imprisonment for multiple murders, or the murder of children or police, and the minimum murder tariff will start at 15 rather than 12 years.

Mr Creighton says: 'The mandatory sentencing rules are worrying, because judicial discretion is taken away.

When tariffs are raised, there is a knock-on effect as all other sentences get dragged upwards.

It upsets the balancing role of the criminal law between the protection of the public and the rights of the accused.

'The tone of the Criminal Justice Act is removing the protection of the state for people who are being investigated.'

In April this year, the Act will chip away at the double-jeopardy principle by allowing the prosecution to appeal a conviction for murder or rape if there is compelling new evidence.

That could be DNA evidence, but it could also be non-scientific evidence such as a witness who has changed his or her story - and it will apply retrospectively.

A little further into the future, by 2006 the Act will permit prosecutors to reveal a defendant's previous criminal convictions in court, subject to the 'interests of justice'.

Much will depend on the way judges interpret the legislation - they will be able to suppress evidence of previous convictions if to reveal them would make proceedings unfair.

Janet Arkinstall, criminal justice policy director at lawyers' civil liberties group Justice, says: 'We do not like this new provision at all - it goes completely against the principle that the prosecution needs to prove that an offence has been committed every time.

It does not help the culture of rounding up the usual suspects, and it does not help former criminals who want to change their ways but find themselves rounded up.'

But solicitors can be relieved that one of the most controversial of the Act's provisions - a restriction on the right to trial by jury for complex fraud cases - has effectively been blocked.

While it appears on the statute books, a last-minute deal with the House of Lords means that it cannot be implemented without a resolution passed in both Houses of Parliament.

The current raft of legislation could leave the impression that civil liberties are less valued than they have ever been before.

The war on terror and immigration fears have led to a climate where draconian measures can seem justified.

But Mr Blunkett is clearly already struggling to get his way.

As Ms Christian says: 'If Mr Blunkett tried to put all of those proposals in place, there would be immense opposition from the legal profession, including at a senior level.

It would be opposed by many law lords and judges, who recognise the importance of the rule of law.'