The devastating Law Lords ruling against New Labour's anti-terror "laws", together with David Blunkett's resignation as Home Secretary, express a profound and growing crisis within the state. The self-evident divisions are not confined to the judiciary but include the military, police and intelligence services.

These tensions are the result of the streamlining and overt politicisation of the state by New Labour, a process that began with the previous Thatcher governments. For the Blairites, old-style bourgeois democratic processes are considered outmoded and not fit for the modern world. These processes most definitely include the rule of law, which has its origins in the Magna Carta of 1215.

New Labour's ideal "modern world" consists of a free-market economy, where the demands of the global corporations come first. These giant firms stand above national and even international law. They pay little in taxation and their operations ignore borders and local customs, as well as the impact on the environment. New Labour's role is to manage the state in a similar fashion, choosing expediency over tradition, history and democratic rights where it suits.

Blunkett and Blair saw no problem in declaring a permanent state of emergency and then opting out of the human rights laws to lock up foreign nationals indefinitely without charge or trial. All on the say-so of intelligence reports neither the detainees nor their lawyers are allowed to see. The same Blunkett also thought he could use the state to deliver favours to his lover - a high Tory as it turned out. A bad case of the "L'état, c'est moi" syndrome.

In the process of merging government with state machine, New Labour has inevitably come into conflict with institutions and civil servants with a different tradition and history. Many do not share Blair's disdain for process and transparency. This was clear over the illegal invasion of Iraq. Several lawyers quit the Foreign Office in protest while large sections of the intelligence service resisted the spin put on their reports to justify war. By all accounts, the majority of army officers continue to oppose being in Iraq because of the legal issues as well as the day-to-day conflict with Iraqi civilians. Many senior police officers are said to be unhappy at the political orders that emanate almost daily from the Home Office.

New Labour's dismissal of the rule of law - where individuals are guaranteed due process by being charged and brought to court - was summed up by Lord Goldsmith, the Attorney-General. His infamous legal advice - never published - gave a veneer of legality to the Iraq invasion. During the Lords hearing, Goldsmith devoted some time to trying to persuade the judges that they were unelected and undemocratic and had no right to interfere. This was a favourite "argument" - more like bullying - trotted out by Blunkett.

In other words, the executive in the form of the state can make whatever laws it wants and the judiciary, or anyone else for that matter, has no right to question their legitimacy. This is dictatorship by any other name. No wonder Lord Scott compared the detention of alleged terror suspects in Britain to Stalin's Russia, where the knock on the door led to disappearance and often death. Sixteen Muslims have been detained under the anti-terror legislation, with 10 still held in Belmarsh, south-east London, and Woodhill, Bucks, and one in Broadmoor mental hospital. They are certified as "suspected international terrorists".

Lord Hoffmann said the case was one of the most important decided by the House of Lords in recent years. "It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention," he wrote, and went on to say that the detentions posed a greater threat to the nation than terrorism. "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these," Lord Hoffmann wrote. "That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."

The seven other judges who ruled against the government said the decision on whether a public emergency existed was for the state to take. But they ruled that indefinite detention without trial was unlawful because it was a disproportionate interference with liberty and with equality. Lady Hale said: "It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely. Only the courts can do that and, except as a preliminary step before trial, only after the grounds for detaining someone have been proved. Executive detention is the antithesis of the right to liberty and security of person. Yet that is what the 2001 act allows."

Lord Bingham, the senior law lord, said in his judgement: "The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. "The attorney general is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic."

New Labour's arrogant response is characteristic. Charles Clarke, the new Home Secretary, has declared that the suspects will continue to be locked up, despite the judgement. He is to bring forward new legislation that will no doubt add to the state's powers of surveillance and monitoring.

No judge, however senior, nor dissident civil servant by themselves can halt this process or guarantee our rights. The capitalist state is being transformed before our very eyes into a dictatorial machine. Democratic rights and liberties are secondary to the agenda of the market state. The defence of the rule of law and the extension of our democratic rights into areas of work, for example, require a new state, one that is not beholden to corporate and financial power. The Movement for a Socialist Future has set out proposals for an alternative, truly democratic state in A World to Win, published recently. Read about these proposals and use them as a basis for building a movement that can sweep the Blair regime and the market state aside.

Movement for a Socialist Future
17 December 2005