The judges must protect us from the politicians

Governments cannot take advantage of panic to introduce repressive laws.

In the wake of 11 September 2001, still reeling from the horrifying events, I received a telephone call from an American friend – a passionately liberal New Yorker – whose first words to me were, "To hell with civil liberties". It was a carefully designed curse because we both knew that surrender of such a household god could not come easily. However, in the face of such a devastating assault upon ordinary, decent people in her city on such an incredible scale, she wanted no truck with the cool reason of law and rights. She wanted every young Arab on the turnpike rounded up and she boldly declared she was not averse to a bit of cruel and inhumane treatment if it drew intelligence of future attacks.

In the wake of 11 September 2001, still reeling from the horrifying events, I received a telephone call from an American friend – a passionately liberal New Yorker – whose first words to me were, "To hell with civil liberties". It was a carefully designed curse because we both knew that surrender of such a household god could not come easily. However, in the face of such a devastating assault upon ordinary, decent people in her city on such an incredible scale, she wanted no truck with the cool reason of law and rights. She wanted every young Arab on the turnpike rounded up and she boldly declared she was not averse to a bit of cruel and inhumane treatment if it drew intelligence of future attacks.

In debates about civil liberties, the emotional power is always with those who are suffering. Advocacy for the victims of crimes is the easier part of any discussion; audiences can readily see themselves being victims. It is much more difficult to imagine what it might be like to be a young, law-abiding person of Arab background, falsely arrested; easier to imagine the smoke filling our lungs, the heat of the flames on our skin, the crushing fall of masonry, the leap from skyscraper heights, or Bali nightclubs, bombed into oblivion.

The problem for civil libertarians is that authoritarians always have the best rhetoric. They claim the songs, the flags, the pictures of the dead and the dying. They claim the role of protector and patriot. They promise a comforting paternalism to which we can surrender and they persuade us that the sacrifice of liberty is worth the warm blanket of security. They will not allow us to become victims. With the taste of fear in our mouths, murmurings about dirty bombs, and headlines about poison gas on the Tube, who are we to mount a challenge?

Arguing the cause of civil liberties requires more time than the allotted sound bite. Talking about rights can seem cold, abstract and legalistic. But that, of course, is precisely the purpose of the law – to introduce reason and rationality into the passionate stuff of human existence. It can, however, leave the arguments bereft of the empathy factor, that is unless you are a young suspected Arab or Muslim or his mother. The prosecution case is the one that captures the headlines – woman raped in her own bed, child abducted, old lady robbed, wedding party bombed.

One of the reasons why it is so hard to engage popular support for the protection of civil liberties is that we are losing our historic memory about the need for such safeguards. In the main, middle-class white people in the West have not for a generation had anything directly affecting their lives to create the visceral feel for what those protections mean. For Jews and the Irish, for black people and other minorities there may still be some sense of what it is like to be powerless and marginalised, at risk of being caught up in a backlash where the law is your only shield. But even minorities who have in the past been at the receiving end of state abuse have been drawn into the warm embrace of "us" as distinct from "them". The Sixties generation which so vociferously campaigned for civil rights and liberties is often itself the author of many incursions, no longer able to identify with those at the receiving end, perhaps because they seem particularly alien. American hegemony seems preferable to Islamic fundamentalist hegemony at any price.

The rule of law has marked each faltering step towards the civilising of the human condition. A structure of law, with proper methods and independent judges, before whom even a government must be answerable, is the only restraint upon the tendency of power to debase its holders. History is dogged by the tragic fact that whenever individuals, political parties or countries become too powerful there is a temptation to refuse to subordinate that power to wider and higher law.

The important thing for all of us to remember is that the rule of law is not simply what a government says it is: obeying rules that you have formulated yourself is no great discipline. Even in recent months the Italian parliament has passed laws that will have the practical effect of preventing the Prime Minister, Silvio Berlusconi, from being prosecuted for criminal charges, and there is profound concern that the rule of law is being held up to ridicule, with a premier and his party passing legislation for their own protection. Rule of law is not the same as rule by law.

Preventing terrorism, combating crime and securing justice for victims are a clear moral imperative, and arguments about civil liberties and human rights are vulnerable to dismissive accusations of unreality and vagueness when compared with the tangible effects of violence on the lives of real people. Yet law's purpose is to provide us with sets of rules that should apply when powerful emotions are unleashed. As the philosopher AC Grayling points out in his book The Reason of Things: "One of the chief benefits of due process is that it safeguards individuals against arbitrary arrest and interference by government or their servants. It thus interposes an impartial considered process between citizens and the sources of power in society."

The whole function of law is to provide an effective regime for the resolution of conflict, whether between nations or individuals or between individuals and the state. Ill-considered laws introduced in the face of subversion or clamours about perceived levels of crime (crime levels are going down) can be seriously counter-productive in that they help to keep alive and in some cases exacerbate distrust among sections of the community. However, in periods of perceived emergency it is all too easy for the government to use its control over a legislative chamber – particularly when a nation is in the grip of shock and panic – to introduce repressive laws. It is very easy for politicians to translate their views into law with little challenge, through the liberal use of government whips and curtailed debate. A climate can be created where any dissent is deemed to be unsupportive, soft on crime or terrorism, even unpatriotic.

In times of high political fever it is the judiciary and lawyers who have the control function. The judges have to curb governmental excess; they are the guardians of the rule of law, and it is crucial that they do not allow themselves to be co-opted by the government. Detention without trial can become punishment and only judges should be able to punish.

Sometimes, judges can be unwittingly collusive in the erosion of the rule of law by allowing themselves to be appointed to quasi-judicial bodies that adjudicate in camera on issues that should be in the public domain. There is scant regard for the principles that are the muscle within the rule of law. Or they can identify too readily with the interests of the state or government of the day. In doing so they provide a veneer of legitimacy to processes that fall short of international standards of human rights.

Fortunately the best judges do not do that.

Democratic societies display their commitment to the rule of law in different ways. When it comes to crime, this is done by having clearly defined laws, circumscribed police powers, access to lawyers, an open trial process, rules of evidence, right of appeal and an onerous burden of proof shouldered by the state. The accused is presumed innocent. In international dialogue, adherence to such due process is urged upon every nascent democracy. As I travel the world in my role as chairwoman of the British Council I am conscious of the way in which Britain and the United States are looked to as model states where the rule of law is paramount. That is why it matters so much when we are cavalier with the principles of justice and due process, because every embryonic democracy sees parallels that would justify their abandonment of principle and process too.

Baroness Helena Kennedy became a QC in 1991 and received a life peerage in 1997