Just Law, by Helena Kennedy

Human rights and wrongs

Helena Kennedy has long been a heroine of mine. But when she accepted a Labour peerage in 1997 I was dismayed, thinking she was on a similar trajectory to other New Labour politicians who founded their political careers on supporting civil liberties but had barely another word to say on the subject once in sight of political power.

Kennedy quickly proved me wrong when she mounted a brave and principled opposition to the proposals for the removal of the right to trial by jury mooted first by Jack Straw and then by David Blunkett. It is no exaggeration to say that without her the partial victory won so far on stopping these proposals would not have happened. Originally, it was proposed to remove jury trials for a large category of offences at the discretion of a magistrate. Now, it is only for cases where jury tampering has occurred, although the removal from fraud cases is still in the statute, subject to a further vote in parliament. Kennedy's passionate and well-argued book is modest on the crucial role she played in the House of Lords in securing this outcome.

This is a book not just for lawyers but for anyone who cares about the boundaries between the state and the individual. It is hugely accessible and readable - a gripping and detailed indictment of promises betrayed by a Labour government whose main 1997 manifesto commitment on the law was to pass the Human Rights Act. It is fuelled by outrage at the transgressing of Kennedy's own bottom line of principle - exemplified when she was told by a Government whip that her concerns were out of touch with voters for whom it was "just law - nothing serious like health or education or the economy."

Kennedy argues that law matters; it is the glue that holds together the constituent parts of our society - the foundation of moral consensus and social wellbeing. She lists a roll call of 17 measures that have made fundamental inroads into the constitutional principles upholding our liberty. From the abandonment of safeguards for accused persons, to cuts in legal aid and the removal of judicial review rights for asylum seekers, our unwritten constitution is under attack. This is all done in the name of "third way" ideas about community that perpetuate the modern myth of the benign state.

New Labour has been influenced by the ideas of US communitarian thinkers, but the adverse response to human rights in the US has arisen from its lack of "second wave rights": the US has not had to master that balancing act when rights conflict. Human rights discourse in the US is as much about the right to have a gun as a fair trial, and the continued imposition of the death penalty even against minors is a scar on humanity. The grafting of bits of other people's legal systems onto our own is not workable.

The headline concerns of the response to terrorism, the erosion of the presumption of innocence and the growth of the Big Brother state are explained lucidly. The chapter on terrorism dissects the unfair process for keeping foreign nationals detained without trial in this country and the response to Guantanamo Bay. (As the solicitor for some of the detainees there I was interested to read that when she wrote this book, Kennedy was expecting seven of the British citizens - not five - to be brought back here.) Since it was written, Blunkett has published a consultation paper on his plans to remove yet more protections for the accused in terrorist trials and even to extend indefinite detention without trial to British citizens.

The book also explains why less well-known measures such as the European arrest warrant and the new treaty with the US on extradition will lead to miscarriages of justice. The erosion of the rights of the accused in criminal trials - the allowing of double jeopardy and of evidence of previous convictions - is carefully described, with interesting references to the "hard cases" relied on by the Government to justify the changes. (Hard cases, as any lawyer knows, make bad law.)

All this is put within the context of a law and order auction in which Labour and Tories seek to outdo one another, and enlivened by anecdotes, case histories and well informed analysis. We learn that in her youth, Kennedy accompanied to a Socialist Workers Party meeting one of the government-vetted "special advocates" cleared to receive secret information against foreign detainees. The risk to civil liberties of DNA record collection is graphically illustrated by the story of Bill Clinton's bodyguard buying the glass from which he drank beer at a village pub to prevent his DNA from falling into the wrong hands.

Apart from civil liberties generally, one of Kennedy's main concerns has always been the treatment of women within the criminal justice system. The chapters on sexual violence and victims contain illuminating reflections on whether it is reasonable to expect the system to contain differential standards to reflect gender difference, or whether the arguments put forward by women's groups for measures to secure more convictions in rape and domestic violence cases have allowed them to be co-opted for the purpose of removing protections generally.

One of the most interesting chapters is on "criminalising the poor"; it details some of the ways in which the welfare state has become an instrument for punishment instead of relief. The tally of nearly 700 new criminal laws and more than 100 new policy initiatives under New Labour extends criminal law into social engineering and control of "antisocial behaviour". In recent weeks, the Prime Minister has advocated random drug testing in schools; head teachers have refused to use new powers to levy on-the-spot fines against parents of persistent truants, and Westminster Council has used new laws to arrest and take DNA and fingerprints from street beggars. Not only are most of these sort of measures utterly ineffective, they are also expensive. Antisocial behaviour orders cost £5,000 each and achieve little, while treatment for drugs, alcohol and mental health problems have been starved of resources. Meanwhile, the consequence of Government tough-talking has been a prison population soaring out of control, giving the UK the highest prison population per capita in Europe and higher than Australia, Canada and even Libya.

Although this book catalogues mercilessly the many ways in which New Labour has turned its back on human rights thinking, it does not quite explain why. There is reference to "Labour's warm embrace of the market" and a critique of the notion that the criminal justice system can be remodelled to give more power to the "customer" - identified solely as the victim. But the book fails to examine closely the ways in which privatisation and the supremacy of the market may preclude the realisation of human rights. Significantly, there is no consideration of employment rights, but job insecurity and starvation wages are accepted as a fact of life, and trades unions who want otherwise "are too often stuck in old ways of negotiating". Similarly, while there are several passages about the shameful treatment of asylum- seekers, this subject fails to merit a chapter on its own so that the consequences of global capitalism, arms dealing and war on human rights are not explored.

These are, however, small criticisms. This is an excellent, courageous and compelling howl of outrage from an insider who has refused to be intimidated by party control or tempted by the government office that undoubtedly would have been hers, had she renounced her principles. It should be required reading not only for ministers, but also for those in Parliament whose votes sustain them and for the judges on whom we now increasingly rely to stand up to the politicians.

Louise Christian is a human rights lawyer who acts for three of the British detainees at Guantanamo Bay