For New Labour it's 'just law'
Review by Paul Feldman
Scarcely a week passes without a further attack on democratic rights by the New Labour government. The arrest on May 27 of Muslim cleric Abu Hamza, a British citizen, was the signal for the government to implement a treaty signed with the United States in March 2003, which was agreed without consultation or warning.
This treaty allows the removal of suspects from Britain to the US without the American authorities first having to make out a case for extradition in this country's courts. Abu Hamza faces extradition merely on the basis of the indictment drawn by the US Attorney-General. When he signed the treaty, Home Secretary David Blunkett did not even bother to ask for reciprocity when it comes to US citizens who might be wanted in Britain.
This is merely one of many examples of the descent into an authoritarian state under New Labour. In area after area - from whittling away the rights of defendants in criminal cases to the detention without trial or charge of alleged terror suspects - this government has undermined the limited liberties that have come to be associated with capitalist democracy.
The story of how this happened is recounted by Helena Kennedy QC, a New Labour peer who after a brief flirtation with the Blair government, suddenly realised that it was trampling all over the principles she held dear. In Just Law*, she takes New Labour to task for a "wholesale assault on the underpinnings of the rule of law".
By the rule of law she 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. "It stands for the fundamental principle that every state actor must conform to certain basic requirements of acceptable behaviour set down not by the actor itself, but by some independent body," she maintains. But under this government, which has enacted more than 700 new criminal laws in eight years, the state has assumed greater and greater powers at the expense of defendants.
Kennedy, a criminal lawyer herself who defended people in many "terrorist" trials, explains how safeguards for the accused have been whittled away. There are severe limitations on the right to silence, repeated efforts to reduce trial by jury, retrial of those already acquitted and the allowing of the disclosure of any previous convictions. This is done, says the government, to "rebalance" the criminal justice in favour of the victims.
Kennedy remarks: "The rhetoric of 'rebalancing the system' as between victims and the accused disingenuously presents the criminal trial as a contest between these two parties, thus denying the central role of the state. We are beginning to see a semi-privatisation of the criminal justice process, with the victim, the private individual, being used to disguise the reality of the powerplay."
She demonstrates how the presumption of guilt runs through the Terrorism Act 2000, enshrining as it does a reversal of the burden of proof, with accused persons having to show beyond reasonable doubt that they did not have items for terrorist purposes. Suspected terrorists can now be stripped of their citizenship, a move that Abu Hamza was challenging through the courts before he was arrested on the extradition warrant.
New Labour's anti-terror laws also deny the right to proper representation by lawyers. A detainee can appeal to a tribunal against the Home Secretary's decision that he or she is a threat to security. But 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.
"If they are denied sight of the reasons for the Secretary of State's decision and cannot test whether the decision is reasonable, the process cannot be just," writes Kennedy. "Nor can there be real legal representation if lawyers are not given access to the evidence against their clients."
Kennedy analyses how New Labour has engaged in a "law and order auction", whipping up people's fears to court the right-wing press, how the government punishes the poor in social and legal policy, its attacks on the judiciary and lawyers and why Britain now tops the European league for people in prison. The emphasis in Blair's Britain is on retribution not rehabilitation.
She attacks the plans for ID cards and the right given to the police to take and retain anyone's DNA, a power so draconian that not even the US authorities have been able to introduce it. Kennedy is ruthless when it comes to exposing the illegality of the invasion of Iraq.
There is real concern on Kennedy's part about the implications for society but she has limited understanding of why this shift to authoritarian rule is taking place. In her view, "unless we are prepared to revert to the continuous use of force, law is the supreme regulator". She adds: "Whether nationally or internationally, it is the glue that holds together the constituent parts of society, a civilising force. Law is what makes the centre hold, the mortar that fills the gaps between people and communities, creating a social bond without which the quality of our lives would be greatly undermined. Just law is the invisible substance which sustains social well-being, moral consensus, mutuality of interest and trust. If we interfere with the principles… restoration is impossible."
This is an accurate description of the role of law in a democratic capitalist society, where it has evolved as a mediating force between classes, between the ruled and their rulers while preserving the status quo of bourgeois property rights, class and ethnic bias. Kennedy is right to warn about the implications of its dismemberment by New Labour and other regimes. For what she describes represents yet another nail in the coffin of the parliamentary democratic system of rule as a whole.
From time to time, Kennedy refers to the globalisation process dominated by transnational corporations and the changes that have resulted in the way people live. She notes: "Law is seen as an encumbrance to liberal free marketeers, save in the ways it protects commercial transactions, provides remedies for default and makes the world safe for global capitalism. The minimalist state wants minimalist law."
But she fails to connect this directly with New Labour, preferring instead to see the Blair government as a curate's egg, doing some good things and some bad. She berates New Labour for its populist attitude, summed up in the remarks of one minister when reproaching her for not supporting yet another inroad into democratic rights. He told her that her concerns were completely out of touch with voters for whom it was "just law".
The fact is that New Labour is not a "prisoner" of right-wing opinion when it comes to setting the agenda, as Kennedy claims. It is the new right-wing, transformed from the reformist party that Kennedy joined into a capitalist party that has a myriad of links to big business and the state.
She bemoans the passing of the post-war "consensus" on the rule of law, probably the only period in capitalist history when this framework was applied. The termination process began with the Thatcher regime and has, she acknowledges, been deepened by Blair. The coincidence of this change with global capitalist economic transformation, from monetarism under Thatcher to the rule of the major corporations under Blair is significant. As Kennedy herself points out, the corporations demand a state that frees them from constraint and cracks down on the discontents and victims. These range from asylum seekers, petty criminals, the poor through to those who have turned to terrorism as a crude response.
The "consensus" cannot return and the rule of law is fast becoming a thing of the past precisely because there is a new world disorder. Capital cannot uphold the very rights that it struggled against the feudal order for, such as a fair trial based on explicit charges. To maintain these rights and advance the struggle for a whole range of social rights excluded or ignored by the legal system, requires a concept of a new society and state, one based on democratic ownership and control in place of the increasingly authoritarian status quo.
1 June 2004
*Just Law, Helena Kennedy. Chatto & Windus £20.00