The law lords have usurped the right of the British people to defend themselves

There is one reason to welcome the law lords' ruling on the detention of foreign terrorist suspects. It should precipitate a long-overdue debate on the nature and philosophy of law. The Government, which distrusts philosophy, would prefer to improvise some means of saving as much as possible of the status quo before their lordships' onslaught. That will not be enough. This is one of the most important judgments in British legal history. It raises basic questions as to why we have laws and who should make them. Those of us who disagree with the law lords are not taking issue with a single ruling but with the dominant influence in modern British law.

There is one reason to welcome the law lords' ruling on the detention of foreign terrorist suspects. It should precipitate a long-overdue debate on the nature and philosophy of law. The Government, which distrusts philosophy, would prefer to improvise some means of saving as much as possible of the status quo before their lordships' onslaught. That will not be enough. This is one of the most important judgments in British legal history. It raises basic questions as to why we have laws and who should make them. Those of us who disagree with the law lords are not taking issue with a single ruling but with the dominant influence in modern British law.

The problem is easy to summarise: human rights. By the end of the last war, the legal systems of much of continental Europe had been corrupted. Those countries decided to rebuild them by reference to internationally accepted standards. We assisted. British lawyers helped to draw up the European Convention on Human Rights (ECHR) and the UK signed it. At the time, hardly anyone in Britain argued that we needed an ECHR to remedy our laws' deficiencies. We signed out of unfocused benevolence ­ and a few decades later, we realised that we had signed up to a foreign appeal court which could overturn our laws.

At that moment, we should have repudiated the ECHR. It would have been possible to make the case that Britain had much the best record on human rights of any major power and that we did not need a foreign court to override our judges and to introduce uncertainty into our legal system. But no politician, not even Margaret Thatcher, was prepared to stand up for parliamentary sovereignty at the risk of being caricatured as an opponent of human rights.

Instead, it was argued that Britain could solve the problem of uncertainty by incorporating the ECHR into British domestic law. The critics of this proposal made the obvious point. If you elevate a vague, Protean doctrine of human rights into a supreme legal principle, to be adjudicated by a supreme court, you will end up with a politicised judiciary: see America. But in 1997, the new Labour government was not interested in listening to objections or in thinking through its position. "Human rights, good: traditional British way of doing things, bad". That was their mantra. As so often, they legislated in haste, to repent at leisure.

At a journalists' lunch early in his days as Home Secretary, David Blunkett said that incorporating the ECHR into British law had been the most foolish action of Labour's first term. Given recent events, he is unlikely to have changed his mind. But it would not be enough to repeal the incorporation. Without it, the detainees might have found a way to appeal to Strasbourg. If we want to restore our ability to make our own laws, we need to get rid of the ECHR, root and branch.

Those who think like that are not opposed to human rights. Nor do they regard law as the mere handmaiden of order. On the contrary: in any civilised legal system, great and growing attention will be paid to the rights of the individual. But these must include the right to order, for no right, including the right to life, can be securely enjoyed in its absence. Human rights do not just mean that individuals should have maximum freedom in their private lives. That is of little use unless they can feel safe in their homes and safe while travelling. No freedom is of any value unless people can stay alive to enjoy it.

This is where the rights of the British people come into conflict with the rights of the detainees. Their lawyers maintain that they should not be imprisoned without due legal process. The security services believe that their freedom would endanger this country. Coming down on the side of the detainees, the judges aligned themselves with an abstract, ahistorical concept of human rights and ignored the primacy of the right to order.

They also ignored the primacy of the liberties of the British subject. Lord Hoffmann said: "Freedom from arbitrary arrest and detention is a quintessential British liberty, enjoyed by the inhabitants of this country when most of the populations of Europe could be thrown into prison at the whim of their rulers." But that is only partially true. Lord Hoffmann is conflating the rights enjoyed by British subjects with the position of foreigners resident in this country.

During the last war, large numbers of foreign nationals were arrested and detained in the most arbitrary manner, because their nationality might have made them a threat to this country. It took months of protests before some them were released to do what they wanted: join up and fight Hitler. Indeed, the detainees at Belmarsh enjoy one right denied to the foreigners interned during the war. The men in Belmarsh can leave this country whenever they choose. Their refusal to exercise that right does not oblige us to grant them the right to endanger this country.

Lord Hoffmann addresses that point. "I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive al-Qa'ida."

No doubt? It all depends what is meant by survival. Suppose al- Qa'ida were to acquire weapons of mass destruction? Apart from the loss of life, even one dirty bomb in London could do enduring damage to the economy. The same security services which provided recommendations that Lord Hoffmann wishes to override have managed to prevent a number of planned al-Qa'ida attacks from reaching these shores. If this judgment stood, it would be impossible to detain al-Qa'ida operatives unless there were sufficient evidence to convict them, and the work of the security services would be hampered.

The is a further objection to Lord Hoffmann's comments. When he starts opining about the threat from al-Qa'ida, he is no longer speaking as a lawyer. He is talking like an historian, a political analyst ­ or even a politician. His views as to the threat from al-Qa'ida may command respect, but they are not entitled to the force of law. Yet that is what happens when doctrines of human rights are given precedence over the legal system and the parliamentary process.

One can understand why many people will instinctively sympathise with Lord Hoffmann. This is an illiberal government, which has shown itself insensitive to legal niceties and uninterested in human rights, except as a political slogan. In a host of areas, the Government has shown itself to be far keener on encroachments on the liberties of the subject than in protecting them. Yet that is not a sufficient reason for disregarding its assessment of the Belmarsh detainees. In dealing with them, it is trying to defend the right of the British people to live in freedom and security. Sometimes, even this set of ministers can be right about human rights.