27th November 2004
There is private, political glee in government circles that the raft of illiberal measures announced in the Queen's speech has seen the Tories well and truly scuppered. It is now impossible for Michael Howard to find a set of sustainable policies to the right of Tony Blair. As a Labour peer of recent vintage explained to me, "politics is about winning". Principle is a second-order issue.
Labour governments have always had to prove that they are as financially astute as Conservatives, that they can run the military and are not afraid of war. When it comes to law and order, they really have to show their mettle - not so much taking no prisoners as taking lots of prisoners. As a result, many have interpreted the last seven years of Home Office policy merely as an expression of New Labour's desire to show it is not a party of spineless social workers.
In the early days of New Labour, I too used to think that the government was simply anxious to show that it could play hardball. I now think something more complex is taking place.
Globalisation generates intense feelings of vulnerability. People are easily alarmed by the idea that barbarians are at every gate, in the form of terrorists, asylum seekers and criminals. They are prepared to sacrifice a significant level of freedom and privacy in exchange for greater security.
Governments, meanwhile, increasingly see citizens as consumers, to be listened to through the marketing device of focus groups. This government-as-product-supplier pursues market share, redesigns the brand, and purveys policy on a "what works" basis rather than on principle.
But there are some areas of our lives - including the justice system - where a reliance on economic drivers or populist desires creates distortions, injustice and outcomes that take no account of the common good. Justice is not a commodity.
New Labour's warm embrace of the market, and its endeavour to thin out the role of the state in the delivery of public services, calls upon it to chart new waters. In New Labour's post-state vision, criminal justice can look like another aspect of state provision that is ripe for rebalancing, giving more power to the consumer - identified here as the victim. The problem is that the accused and detainees are also consumers of the criminal justice system; the system is in fact a social good belonging to all of us.
In government rhetoric, the criminal process is disingenuously described as a contest between the citizen-victim and the criminal. What is actually taking place is the rebalancing of power towards the state. In a culture where we are all encouraged to think of ourselves as potential victims of criminals or terrorists, we easily forget that the state is capable of victimising us more effectively.
The mistake government ministers make is that they think they are "the state" and, since they are all nice folk, any concern about "thin ends of wedges" is dismissed as intemperate. The myth is that the modern state is benign: dictatorial methods are deemed unsustainable in western democracies and we should therefore be prepared to revisit legal principles created when democracies were more fragile. By the same logic, civil libertarian objections are seen as outmoded, the product of a different political reality.
Debates about "new legal regimes" have been gaining momentum since the 1980s. Authoritarians in the US and here believe that the criminal standard of proof is too high, that an accused should be required to prove his or her innocence, that juries are inefficient, uneconomic and irrational. The conviction rate, they argue, should be the measure of success, even if there is some collateral damage in the form of wrongful convictions. Pre-emptive detention should also be possible where there is risk of offending. In many of these areas of possible change the US is inhibited by its constitution, but the UK knows no such restraint.
Former Conservative ministers say that these ideas would regularly emerge when the Irish Troubles were rife but were rejected as unsellable to British people. What has changed since then is the global context. The anxiety that globalisation brings has been crowned by fear-inducing rhetoric about international terrorism.
The public are always sold the erosion of civil liberties on the basis that decent citizens have nothing to fear. And we, the citizens, can easily feel the current move is all about the "other" - terrorists, paedophiles, anti-social yobs, Muslims, young blacks, the mentally ill. We always think it is other people's liberty that is being traded, which somehow makes it all right. We do not realise that liberty is not divisible in this way.
Anti-terror laws cannot be vacuum packed; they seep into the policing culture and create new paradigms of state power. During a visit to India this spring, the home secretary suggested that governments may have to consider whether the burden of proof might have to be lowered from "beyond reasonable doubt" to the civil test of the "balance of probabilities" in terrorist trials. Two days later, the prime minister agreed that such a change should be considered, and he went further, suggesting that the lower standard might also apply to other serious crime.
What is introduced today for terrorism almost invariably enters general usage shortly thereafter. The right to silence was first emasculated in terrorism cases in Northern Ireland in 1988, but the erosion of the right was extended into all domestic law in the UK in 1994. The proposal to lower the standard of proof is now part of the new "pre-emptive" civil order proposals for terrorists, coming before parliament in the next session.
Fundamental shifts are taking place in our justice system with barely a whimper of opposition. On June 18 2002, the prime minister claimed that the "biggest miscarriage of justice in today's system is when the guilty walk away unpunished". In that statement he sought to overturn centuries of legal principle and the approach to justice that every mature democracy in the world respects, whereby the conviction of an innocent man is deemed the greatest miscarriage of justice. For Tony Blair there is no such thing as legal principle, as we saw in the rejection of international legal principle in relation to the Iraq war. For him, everything is negotiable.
However, just law matters. It is the mortar that fills the gaps between nations, people and communities, creating a social bond without which the quality of our lives would be greatly undermined. If we fritter away the principles that underpin law, if we pick them out of the crannies of our political and social architecture, restoration will be impossible. The US supreme court justice, Louis Brandeis, got it right 75 years ago: "Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself."
· Baroness Helena Kennedy QC is the author of Just Law: the Changing Face of Justice www.helenakennedy.co.uk
© The Guardian
Respect for rights in the penal system with prison as a last resort.