Small sops to freedom can't hide what Labour has stolen

For the first few minutes of Gordon Brown's speech on liberty, I was ready to walk down the aisle with him, compose sonnets in his honour, extend to his tired shoulders the benefits of my celebrated neck massage. Here at last was a Prime Minister who reads books and who has a knowledge of the long struggle for liberty and rights so well told in AC Grayling's book, Towards the Light

But then the clouds of suspicion began to gather as I watched the Labour commentariat, their expressions resembling nothing so much as the empty rictus of halloween pumpkins. Surely they see what Brown and Straw are up to. Both men were members of the Blair cabinet which mounted the greatest attack in peacetime on the people's rights and liberties. Having taken what was ours, they now offer it back to us - reduced and compromised - but as though it was somehow their beautiful gift to the people.

They are repackaging our liberty and selling it to us as a new bill of rights and duties. Nobody points out that the only reason we are now discussing a new bill of rights is because Labour's villainous laws have made it a political necessity for Brown to win back voters' confidence. Few question the addition of responsibilities - or 'duties' - to a code of rights. Many of our duties as citizens are already established in law and a Labour government, least of all Jack Straw, has no business defining our responsibilities to each other or, more odiously, to the state. And let us not forget that duty is primarily a matter of conscience, not coercion.

It seems Labour cannot give something away or, in this case, return a small portion of what was ours without imposing conditions. Putting Jack Straw in charge of the consultation process on a bill of rights is like turning over a campaign against prostitution to the head of an escort agency. Such a man can only see a bill of rights as political tool and a way of further entrenching the powers of government and the executive.

He presents his case with the persuasive rhetoric of balance - balancing rights with duties, balancing public safety with individual freedom - yet it must be evident that Straw, who only two weeks ago announced a further attack on freedom of speech with proposed laws against the incitement of hatred of gays, is hardly the man, as Brown has suggested, to 'investigate the idea of freedom of expression audit for future legislation'.

Ask yourself where he stood as Foreign Secretary on rendition. We heard not a peep out of him as Blair attacked jury trial, habeas corpus, the right to silence, the exclusion of hearsay evidence from court proceedings, double jeopardy, the principle that a man cannot be punished without a court deciding the law has been broken. Ask yourself who was speaking but did nothing when Walter Wolfgang was hauled out of a Labour conference. Now he comes to us burbling about constitutional renewal and the 'relevance of rights'.

True, there were some welcome measures announced in Brown's speech - on demonstrations in Parliament Square, the abuse of Section 44 of the Terrorism Act 2000, the abandonment of steeper charges on freedom of information requests and protecting a person's home from entry by bailiffs and police.

It is clear that he has been listening. But there so much hedging and havering; too much review and consultation. He could immediately wrap all these up in a single repeal bill, as Nick Clegg has suggested. The right to demonstrate in Parliament Square could be restored tomorrow without any fuss. And if he really wanted to reinvigorate the House of Commons, he would reduce the power of the whips to appoint the chairs of Commons committees.

The tailend of Brown's speech gave the lie to its beginning where he evoked the reluctant ghosts of Milton, Locke, Churchill and poor old Orwell, who is always dragged in on these occasions. He made no concession on ID cards, except to say that the database would be subject to greater supervision. Then on pre-trial detention, he said this: 'The police and others, including the independent reviewer [on terror laws] Lord Carlile... suggest that in future 28 days may not be enough.'

The first thing to say is that Lord Carlile should limit his activities to reviewing the operation of terror laws rather than suggesting new policy which allows the Prime Minister to argue for an increase in the state's arbitrary powers. But the point that shrieks from the page is that someone who supports ID cards and an extension beyond 28 days cannot present himself as champion of liberty. Only last month, his government used secondary legislation under the Regulation of Investigatory Powers Act to give hundreds of government agencies the power to look into a person's phone records without their knowledge.

That's all you need to know about this government: dropping names from the history of liberty does not alter the essential truth that the Prime Minister only wants to work at the margins of the problem.

In a new paper, Roger Smith, the director of Justice, puts his finger on an important part of the government's culture. 'A single thread links together matters as apparently diverse as the Iraq war, Asbos and the Legislative and Regulatory Reform Bill. That thread is an impatience by ministers with due process, either in the legislative process of policy or its execution.'

Brown probably shares that impatience, even though intellectually he grasps the force of the argument from liberals. It is true that a little power may be returned to the individual and to Parliament, but I suspect that is as far as it will go. For the Prime Minister has found a clever way of reconciling his support for ID cards and pre-trial detention while saluting the traditions of British liberty. That is to put in place systems of supervision and of greater accountability.

But accountability will not stop the gross intrusion of the ID card's National Identity Register database, nor will it prevent the injustice of holding people for as much as two months before charges have to be brought or they are let go (56 days is the favoured maximum).

If we preach democratic values and the rule of law, we must abide by them. Smith's unsparing analysis reminds the government that respect for the rule of law is actually very arduous and requires enormous self-discipline. But it is in this that our freedoms are currently and rather shakily guaranteed.

Pre-trial detention is the greatest possible offence to the rule of law, whatever the threat we face from terrorists, which I do not in anyway underestimate. Peter Kosminsky, the director of two interesting films called Britz, to be shown on Channel 4 next Wednesday and Thursday, explores the issues of control orders and pre-trial detention with the unwavering conviction that they act as stimulants to terrorist recruitment rather than making us more secure.

Last week, he reminded me that he used to stand outside the South African embassy in London during apartheid protesting against the 90-day detention without trial which Pretoria used as a form of internment. With him were some notable members of the current cabinet, Peter Hain and no doubt Jack Straw, who was last week boasting to the House about his credentials as a protester.

Why can the Labour government not see now what they saw so clearly saw then? And if they can't see it, why would we entrust them with piloting a new constitutional settlement?

henry.porter@observer.co.uk