If the judges don’t do what we tell them, we’ll declare a state of emergency and detain people without trial to get our way. No, this is not Putin’s Russia or the generals’ regime in Burma. This is Britain 2007 under New Labour. Home secretary John Reid has declared that if judges uphold earlier judgements about the rights of terror suspects then the government will have no choice but to abandon the law altogether. Reid is appealing against a decision that 18-hour curfews imposed on suspects without charging them are illegal. If the ruling goes against, he will seriously consider the "nuclear option" of opting out of the European human rights framework and take the power to detain suspects – that means anyone of any nationality – without trial.
Reid’s road to open dictatorship comes after three suspects subject to control orders disappeared. His plans represent a further abandoning of the rule of law by New Labour since it came to office. Helena Kennedy QC wrote about this in her book Just Law. Its name comes from the remarks of a minister who, when she objected to another attack on basic rights, was told not to worry because it was "just law". In her view, the rule of law means, in the area of crime for example, having clearly defined laws, access to lawyers, circumscribed police powers, an open trial process, rules of evidence, the right of appeal and the presumption of innocence. But under New Labour, which enacted more than 700 new criminal laws, the state has assumed greater and greater powers at the expense of defendants. There are severe limitations on the right to silence, repeated efforts to reduce trial by jury, an acceptance of the retrial of those already acquitted and allowing the disclosure of any previous convictions during a trial. There are mandatory sentences set down by ministers and control orders imposed by government officials. The presumption of guilt runs through the Terrorism Act 2000, enshrining as it does a reversal of the burden of proof. Detainees and their legal representatives are excluded from any part of the hearing which deals with the alleged intelligence on which the detention order has been made.
One of the judges set to hear Reid’s appeal is Lord Bingham, the most senior of the law lords and a former chief justice. Last October he gave a lecture on the rule of law at Cambridge University. In setting out his views, Bingham said that the "law must afford adequate protection of fundamental human rights". He added: "In the past the convention was that ministers, however critical of a judicial decision, and exercising their right to appeal against it or, in the last resort, legislate to reverse it retrospectively, forbore from public disparagement of it. This convention appears to have worn a little thin in recent times, as I think unfortunately, since if ministers make what are understood to be public attacks on judges, the judges may be provoked to make similar criticisms of ministers, and the rule of law is not, in my view, well served by public dispute between two arms of the state… There are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live." Let's hope he and his fellow judges find the backbone to stand up to the New Labour jackboots.
Paul Feldman, communications editor