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Debate on the Address

My Lords, in the last throes of the Legal Services Bill a week last Thursday, I said this: "““The independence of the judiciary is under attack in a number of places in the world. The most senior chief justice in Pakistan is supported by independent lawyers, who have taken to the streets to defend this principle. It is so important that I regret that those on the””—" Conservative— "““Benches next to me are resiling from it””.—[Official Report, 25/10/07; col. 1150.]" That, of course, was before last weekend’s events. Pakistan today is a perfect illustration of what can happen if the rule of law is abandoned. All dissent can be ignored; there is no remedy for arbitrary arrest and false imprisonment. Opponents of the military dictatorship are silenced and the only answer is street protest, rapidly descending to violence. In Pakistan, more than 60 judges out of a total of 97 have declined to take the oath under the new regime. As a result their homes have been placed under strict security and the courts have been closed, with barbed wire denying access. Mr Andrew Holroyd, the president of the Law Society, said today that the rule of law is nothing without lawyers. He said:"““I can think of no starker demonstration of this commitment to the law than the extraordinary courage, fortitude and bravery of the lawyers we see in Pakistan. They have rightly demonstrated against the government measures. The suspension of the Constitution, the denial of fundamental rights and repeated attacks on the judiciary removes any semblance of a just and civilised society””." Geoffrey Vos QC, the chairman of the Bar Council, has written similarly to the Pakistan High Commissioner. Mr Ifath Nawaz, chair of the Association of Muslim Lawyers, has strongly urged the Government of Pakistan, "““to end emergency rule, respect judicial processes, reinstate the judiciary, adhere to the rule of law and return to governance in accordance with the constitution””." How are we supporting the judiciary and the legal profession in Pakistan? The noble Baroness, Lady Taylor, in opening this debate, referred to a demand for the release of political prisoners and added, ““including … the judiciary””. I suppose barristers can rot, but at least she has given the judiciary some support. The world is looking to see whether the United States and Britain will place co-operation with a discredited military dictatorship armed with nuclear weapons in the so-called ““war of terror”” over and above the vital necessity to make a stand for democracy and the rule of law. I recall the sustained attacks of Mr David Blunkett against the judiciary, both in and out of office. He did not restrain his language: "““Our justice system is a sick joke””." He said: "““It’s time for judges to learn their place””." He referred to judges as, "““bewigged menaces who make the law look like an ass””," and said that power without responsibility undermines our democracy. We have no democracy if we do not have law to regulate, for example, the misuse of executive power and even the electoral process itself. Pakistan should make the anti-lawyer faction in the ranks of the Government thoroughly ashamed of itself. On counterterrorism, we were told on Monday that the threat emanating from core al-Qaeda based in the tribal areas on the Pakistan and Afghanistan border remains the number one concern for the security services. It was said also that other regions of the world, such as Somalia and Iraq, are increasingly sources of training and planning for terrorists. Mr Jonathan Evans, the head of MI5, stressed that terrorist attacks in this country are the visible manifestations of a deeper problem whose root is ideological, and that combating the ideology requires a much broader strategic effort across government. It is conceded that the Government are struggling with the problems of radicalisation of youngsters in this country down to the ages of 15 or 16. It is quite wilful to suggest that the threat is not caused or increased by the foreign policy of this country. But it is not only foreign policy that has to be addressed. Your Lordships will forgive me if I move into my more familiar home affairs territory, as I shall not be here on Monday for the appropriate debate. The fairness with which members of minority communities in this country are dealt with is crucial. Alienation from mainstream British society can be exacerbated by injustice. This Government have nurtured a new and dangerous offspring in the criminal justice system. Across the globe and across the centuries, criminal justice has been concerned with the detection and punishment of a crime that has been committed. In the common law world, the pursuit of that goal is tempered by well known safeguards under the heading of ““due process””. We know what they are: fair trial following a fair and principled process of investigation. However, the goalposts of the criminal justice system are being moved, so that the emphasis of new criminal legislation brought forward by this Government is not to detect and punish a crime that has been committed but to prevent it. They use the criminal law as a tool to try to manage risk. I am reminded of Brutus’s soliloquy in Shakespeare’s ““Julius Caesar””, where he suspects that Caesar if crowned may turn into a tyrant. He says: "““So Caesar may. Then, lest he may, prevent. And, since the quarrel Will bear no colour for the thing he is, Fashion it thus; that what he is, augmented, Would run to these and these extremities: And therefore think him as the serpent’s egg Which hatch’d, would, as his kind, grow mischievous, And kill him in the shell””." That was precisely the rationale for Mr Blunkett’s favouring of detention without trial. No criminal offence could be proved by those subjected to Belmarsh prison, so he favoured locking up the alien serpent’s egg in Belmarsh in case it grew mischievous. Locking people up in a police station without charge is simply a continuation of the same policy. Twenty-eight days’ detention is too long, as we have always argued, and a further extension of detention will be an intolerable burden, leading to further radicalisation of potential terrorists. In parallel, we have seen the steady advance of civil orders, obtained without due criminal process—for example, the ASBO, which is obtained with a lesser burden of proof, sometimes by a council official simply quoting anonymous sources, and which criminalises conduct that is a nuisance but not an offence. Then the Government brought forward control orders, which are civil orders with similar use of hearsay evidence, hitherto concealed from the defendant. The control orders may contain restrictions, including house arrest and bans on internet access and unauthorised visitors. Fortunately, the Law Lords have in the past two weeks overturned the ruling that allows intelligence-based evidence to be withheld from suspects and their lawyers. We recently saw introduced the serious crime order, a civil order that again gives rise to criminal sanctions and imprisonment. The Criminal Justice Bill referred to in the gracious Speech will continue the process by the imposition of violent offender orders, which are to be imposed if the offender has acted in such a way as to give reasonable cause to believe that it is necessary to protect the public. Again, the order may contain such prohibitions, restrictions or conditions as the court thinks necessary. The common thread of these developments is that each person who is subjected to an ASBO, serious crime order, control order or the new violent offender order is put in a bubble; they have their own criminal code. They can be convicted of a criminal offence if they go to the pub, because it is against the order. If they go to a shopping centre or if, as happened in one case, a young lady comes to the door in a bikini too often, an ASBO can be imposed. One criminalises people for their behaviour in this way. We shall approach with scepticism these fresh inroads into basic freedoms that appear in the legislation that is shadowed in the gracious Speech.