In Scotland and the UK the law has evolved to allow closed door trials, non disclosure of evidence, security vetted advocates, state appointed counsel, police execution, stop and search, de-badged police and trial without jury. Aamer Anwar says that solicitors have a duty to uphold the law we thought we had.

After World War 2, Members of the European Community signed into law obligations to protect individual, inalienable rights.   

Amongst those rights were the right to freedom from arbitrary arrest and imprisonment  without trial, the rights to a fair trial, freedom from torture, inhuman and degrading treatment, the guaranteed right to life, rights of association, freedom of speech, religion and freedom of discrimination.

With this background, Scotland’s legal system has entered the 21st Century, jealously guarding its independence, considering itself superior to England’s and therefore the best system of justice in the world. 

But in December 2001 the then Home Secretary, David Blunkett, told the Council of Europe that there was a national emergency threatening the UK so extreme,  that we would need to withdraw from its treaty obligation, specifically that no individual could be detained without trial.

Our Home Secretary said that we were facing a threat of the kind only encountered in war or civil war, and that the threat came from Al Qaeda. Of course no other country of the 40 plus states thought it necessary to do so.

Since 2005, we have seen detention extended to British nationals and extended as a ritual on an annual basis, from 14 days to 28 and demands for 42. What is surprising though is that in our so called enlightened Scottish jurisdiction, there was no resistance to such laws, although it impacted us directly.

Meanwhile Govan Police station quietly became the Scottish Terrorist Centre in preparation for the War on Terror. One only needs to take a look at Scotland largest Police force’s list of priorities; tackling muggers, drugs, and serious crime is not at number one, but counter-terrorism is.

History suggests that injustice becomes a rallying point for extremists and terror-recruiters and makes it less likely that minority communities will report their reasonable suspicions to the police.

Blair’s slogan  ‘the rules of the game have changed’ in July 2005 unleashed London’s finest to shoot down innocent Brazilian Jean Charles de Menezes. Five hollow-point bullets – designed to pour all their force into a victim without coming out the other side – went into the back of his head, one blasted into his neck and another into his shoulder.

The media and political establishment closed ranks following his death and treated the killing of Jean Charles de Menezes as ‘a regrettable but unavoidable incident’.

It was a disgrace that the execution of an innocent man was dealt with as a health and safety issue. Meanwhile we were to learn that police officers trained to kill had been operating for some time in Scotland, without any input or reaction from the democratic process.

The recent death of Ian Tomlinson at the G20 protests came after weeks of police chiefs ratcheting up the rhetoric about “violent” protesters descending on the city of London. Commander Simon O’Brien from the metropolitan police even told the press, “we’re up for it and we’re up to it.”

Of course the police should be held to account for their actions, but once again there was back patting from our own Scottish Police forces, who claimed that their policing of G8 was a model of excellence.

Anyone who was present in Edinburgh or Gleneagles during the 2005 G8 summit would have seen it was nothing of the sort: badge numbers removed, excessive violence and no accountability as thousands of peaceful protestors across the country felt for the first time the illegitimate use of new powers.

Not one police officer faced prosecution for his actions at Gleneagles G8.

In June Ministers announced that Scotland’s counter terrorism officers are to be increased by 50% in the wake of the Glasgow Airport attack two years ago.

Post-Glasgow Airport we saw much congratulations for ‘Have a go baggage handlers’(police officers nowhere to be seen?),  but little analysis of why our intelligence and police failed us so badly in the first place, just demands for more resources in the interests of National Security. 

Legal assault after legal assault has been backed up by public spectacles to create a climate of fear and suspicion, but the government has not won its war on terror, because fear continues to stalk our streets

This government has exploited the politics of fear by bringing in tougher anti-terror laws, cracking down on asylum seekers and allowing the prison population to soar. Stop and search has placed tens of thousands of innocent people under suspicion, young Asian males are stopped, searched, abused, accused of membership of Al-Qaeda or even beaten up.

In many communities, there is a growing climate of fear; underground stations, airports and bus stops have become places where police and immigration officers stop everyone whose skin colour or accent marks them out as a suspect. It creates a climate of fear, required to subjugate society into accepting ever more extreme restrictions on all our liberties in the face of a supposed ever increasing threat.

It is little wonder that the drip, drip effect of daily Islamophobia in our media produced a rash of BNP councillors up and down the country and now two MEPs. In liberal Scotland they received 27,000 votes alone.

Despite the fact we claim to be a tolerant rainbow nation, the reality is very different. Our Muslim youth do not mix or engage on anything other than a superficial level. Cut off from their western peers, the anger and frustration grows, turning to religion they grow disillusioned in fearful ‘apolitical’ mosques.

I do not want to see our young people attracted to the politics of hate, of twisted ideologies, to become suicide bombers, but Gordon Brown needs to recognise that war in Iraq, Afghanistan and the double standards in Palestine could provide fodder to fill the ranks of twisted suicide bombers.

It is only with troop withdrawal and stopping the double standards, that such arguments will fail to find a resonance amongst thousands of young Muslims being groomed in backrooms, on the internet, outside the walls of our mosques. 

I do not mean that we must appeal to Al-Qaeda but to Bin Laden’s young constituency that exists from Glasgow to Kuala Lumpur, from New York to Baghdad.  There is still time to win their hearts and minds before we lose another generation to hatred.

This Government has eroded fundamental human rights, the rule of law and the independence of the judiciary. We now regularly deport people to countries with a history of torture or place them under control orders. We are not facing a national emergency of the type claimed by our government. It is the new laws that represent a true risk to our national security.

The problem we now face is how to achieve fair trials for men and women accused of terrorism, who are demonised by the society from which their judges and jurors are drawn.

This is not just a problem for England. Scotland has been wholly complicit in obtaining the product of sustained interrogation and torture by allowing CIA flights to land its Rendition flights with its gagged and shackled prisoners at Prestwick Airport. The Home Office adopts the same dangerous justification of the means justifying the end, proposing trials based on evidence that will never see the light of day, the abolition of juries, substitution by judges, and a reversal of the burden of proof so that suspicion is enough.

What is this “intelligence” and why does it ask to be heard in secret? Whilst our Government publicly sheds crocodile tears for the British detainees in Guantanamo Bay, it has emerged only recently that British intelligence agents have been there, and in Afghanistan’s Bagram airbase, interrogating those detainees.

For all the talk of justice and the rule of law, young people are not being sentenced for what they have done or even planned to do; rather they are being sentenced for their thoughts. When similar laws are passed under totalitarian regimes like those in Iran or Zimbabwe, we hear a clamour of voices denouncing these regimes.

Why even the Law Society wrote to the Pakistani Authorities to support freedom of speech and condemn the Pakistani State’s attacks on Lawyers who dared to speak out, yet anyone raising their head above the parapet in Scotland is told by those in power ‘this is not the way we do things in Scotland’.

If we take a short step from the issue of ‘Terror’ to that of ‘Race’ and look for people of colour in our 21st century legal system, there are little or none. Count on one hand how many law firms are run by ethnic minorities in Scotland?  In 2009 not one High Court Judge is from an ethnic minority in Scotland and only one in the Sheriff Courts.

The words I read on the steps of Glasgow High Court in 2000 at the end collapse of the second Chhokar trial are as valid today.

‘There are two systems of justice at work in this country, one for the rich and a very different one for black people and the poor. The legal system in this country is run like a Gentleman’s colonial club surrounded by its vanity of gowns and wigs, shrouded in secrecy, relatively unchanged for over 400 years, all white and unaccountable..’

Scotland, moved swiftly on from Stephen Lawrence and Surjit Chhokar to business as usual and no one has ever dared to raise the issue of institutional racism again.

People from ethnic minority backgrounds are more likely than white people to be victims of crime and are likely to receive much harsher penalties than their white counterparts.

Surely in a country that leads with lurid headlines on paedophiles and demands for action on child abuse, we must be doing something right. Sadly there is a frightening trend of criminalising and locking up children – who are often disturbed or in distress – rather than offering them support and help.

The past several months have seen a moral panic being stirred up in the press following a number of horrendous crimes involving knives and guns committed by children. 

Young people in custody face strip searching, violent restraint and solitary confinement at the hands of the state. If this treatment happened outside prison walls it would be considered child abuse.

Meanwhile Scotland is at the bottom of the league table for child welfare in Europe and fails to satisfy the minimum requirements of the UN Convention on the rights of the child and the number of children we lock up are the highest in Europe.

Of those in custody and of school age, over one in four has literacy and numeracy levels of an average seven year old. Over half of under 18s have been in care and almost half have been permanently excluded from school. Of prisoners aged 16-29, around 85 percent show signs of a personality disorder and 10 percent exhibit signs of psychotic illness such as schizophrenia.

Over half of 16-20 year olds who are locked up say they were dependent on drugs or alcohol in the year prior to imprisonment. One in three girls have been subjected to sexual abuse, and one in four have experienced violence at home.

Prison act as holding pens for the most poverty stricken, mentally ill, illiterate and abused children in our society. 

With all of this in mind, can Scotland really consider itself a 21st century legal system fit for purpose?

 “In a society founded on respect for the rule of law lawyers fulfil a special role. Their duties do not begin and end with the faithful performance of what they are instructed to do so far as the law permits. Lawyers must serve the interests of justice as well as those whose rights and liberties they are trusted to assert and defend.....the existence of a free and independent profession...is an essential means of safeguarding human rights in face of the power of the state and other interests in society.

“Solicitors have a duty not only to act as guardians of national liberties, but also to seek improvements in the law and the legal system.  This duty extends beyond the issues of freedom and liberty, through the entire system of law, to the day-to-day legal services provided by solicitors.”

These fine noble words are taken from the Law Society of Scotland’s Code of Conduct for Solicitors.

When was the last time that anyone remembers those from our legal system speaking out against the passage of draconian legislation, renditition, police violence, racism, or even Islamphobia?

Maybe it is time that as lawyers we recognised the ability to speak one’s mind, to challenge the political orthodoxies of the times, to criticise the policies of the government without fear of recrimination, to fight fearlessly on behalf of one’s client, no matter what crimes he is accused of.  That is the essential distinction between life in a free country and in a dictatorship.