Blair and co in the dock

Just Law
March 19, 2004

Oliver Popplewell admires a spirited lawyer's call to protect our civil liberties

Helena Kennedy QC is a formidable advocate, and this book, which is subtitled The Changing Face of Justice and Why it Matters to Us All , is a powerful polemic against injustice in general and against Tony Blair's government in particular. With her leftwing background, her criticisms have added force. Although some of her targets have been extensively considered over many years, she has identified with refreshing candour what she describes as "the catalogue of inroads into our liberty".

The introduction sets the tone for the rest of the book. There we find some 20 provisions that the government either has introduced or intends to introduce. They make a frightening list of encroachments on our freedoms. Among the most significant are the removal of judicial review in asylum cases, cuts to legal aid in criminal cases and attacks on the independence of the judiciary.

The chapters on the abolition of the lord chancellor's office and on the independence of the judiciary are among the most interesting and best-reasoned chapters in the book. As everybody now knows, the office of lord chancellor, in existence for some 1,000 years, was simply abolished one day, without anything to replace it. It is said that the lord chief justice was not consulted and was not aware of the impending change, nor was the Queen, and that Lord Falconer QC himself was alerted to his proposed elevation only a short time before it was announced. The position of the lord chancellor has been the subject of much debate over many years.

There are strong arguments for separating his various functions but, like most parts of the British constitution, the role has simply evolved over the years and, above all, it has worked. It has worked because the great lord chancellors saw their primary role in the exercise of their judicial function in the broadest sense. It was only when Lord Irvine took such a prominent political role that latent criticisms found voice.

This whole sequence of events has given rise to confusion. What is more, the replacement of the lord chancellor by a minister in the House of Commons is likely to lead to an erosion of the independence of the judiciary. Kennedy traces the efforts by ministers (by Lord Irvine himself and by the home secretary in particular) to criticise decisions of judges with which they disagreed, and of what can only be described as a campaign to denigrate particular judges who had the temerity to strike down ill-considered and ill-drafted legislation. Lord Falconer recently observed that judges should be accountable. What does this signify, except an attempt to take control of the judiciary? The defence of the independence of the judiciary should be compulsory reading for all those who value the rule of law. In this context, she refers to my exchange with the home secretary, but to describe me as "retiring" may raise some eyebrows.

The method of appointing judges and the Queen's Counsel system come in for much criticism. These are familiar targets for radical lawyers. Kennedy's arguments against the system are well worn but engagingly deployed. The future of the appointment of juniors to the rank of QC is very much in doubt. Lord Irvine announced last Easter (naturally, without any form of consultation) that he was not proposing to make any further appointments.

Sensibly, there have now been consultations, and Lord Falconer is due to make an announcement in the foreseeable future. The ethnic Bar, in particular, has argued that its members are at the point where they would have a confident expectation of being appointed if the system continued, and that, given the difficulty they have experienced in reaching that position, it would be grossly unfair if they were deprived of the opportunity of advancement.

These appointments have hitherto been made by consultation between the lord chancellor's department, the judges and representatives of the Bar. In the case of High Court judges, the department has a list of those whom it regards as having the potential to be appointed. The department then consults all the judges, ranging from those in the House of Lords, down to judges of first instance and representatives of the Bar. It thus gets a wide cross-section of contemporary views. It has to be remembered that members of the Bar, who have practised against each other for some 30 years, have a much better appreciation of the qualities of their opponents than can possibly be obtained from any sort of interview. So far as applications to take silk are concerned, very much the same process of consultation takes place. It is, however, this familiarity that lies at the heart of the criticism of the system. The argument is that the Bar has been drawn from the ranks of public school, white middle-class men and the result has been that, when appointments are made by white middle-class men, they will tend to appoint white middle-class men. No doubt this was true some years ago, but the stereotype thus presented is a vanishing breed. It is true that the number of women appointed to the bench has been disappointingly low, and the same applies to the ethnic community. But things have changed. Reverse discrimination, which does occur, however, is a mistake from which nobody benefits.

Kennedy also suggests that academics have a part to play in the judicial process. Because of the structure of the Bar and the judiciary, it has been customary for judges to be appointed from the ranks of the Bar. Most recently, and with success, a number of solicitors have also been appointed. Not so academics. While there may be an argument for such an appointment at the highest level, the experience of the Bar in the conduct of litigation is immensely important when one comes to try cases as a judge. To have been, as it were, at the coalface is an essential ingredient in exercising judgement, particularly when witnesses are involved.

The suggestion by the home secretary that juries should be abolished in certain cases comes in for particular criticism. The book makes a strong plea for the retention of juries as part of the democratic process and as a bastion against authoritarian actions of government. The cases of Clive Ponting, who leaked documents about the Falklands war, and of Lord Melchett, who destroyed a field of genetically modified crops, both of whom were acquitted by a jury, are cited. I recall that it was said that Mr Justice Stable once told a jury: "There is no defence in this case, but there is no appeal against a jury's verdict of not guilty." But can we really be happy about the acquittal of Michael Randle and Pat Pottle, who accepted that they had helped the spy George Blake (whose treachery caused the death of a number of people) to escape? It is a strange way to observe the oath that the jury took, namely "to give a true verdict according to the evidence".

If we did not have juries, whose origin goes back many centuries (but which then performed a different function), would we now invent them? Kennedy obviously believes not merely that they perform a useful function but that their verdicts generally have merit. It is difficult, because of secrecy, to find out how they operate, but apocryphal stories tend to suggest that the verdicts are often arrived at without much regard for the evidence. She is very critical of a phrase used by Blair: "It is perhaps the biggest miscarriage of justice in today's system when the guilty walk away unpunished." But little is said about the damaging effect of perverse acquittals. Those who are involved in the criminal law, whether on the bench or at the Bar, are very concerned at the high proportion of cases in which juries' perverse verdicts of acquittal occur. Many are high-profile cases and the damage to the criminal justice system is immense. To ignore this is to do a disservice to the rule of law.

Kennedy's pleas on behalf of the disadvantaged have a special force coming from somebody with her background and experience. Asylum seekers come in for a special mention, which is wholly appropriate, given the legislation promised by the home secretary. The criminalising of the poor gets a chapter to itself, as does the behaviour of the press in "naming and shaming". If there is a criticism to be made, it is that no argument for the defence in any of these chapters is seriously put forward. Thus, what is called "the great prison scandal" repeats the arguments that because we have the highest prison population, we are the most punitive country. Those statistics relate to the number of prisoners per head of population. The true statistic is to relate the proportion of those sent to prison with those charged with an imprisonable offence. The absence of such statistics makes a nonsense of the other figures.

However, these are minor criticisms of what is a powerful and well-reasoned attack on the failure by the Blair administration to maintain our essential democratic and human rights. By identifying various inroads into our liberties, Kennedy has performed a most valuable service and her book should be required reading not only for lawyers but for all who are concerned with the rule of law.

Sir Oliver Popplewell is a retired High Court judge and the author of Benchmark .

Just Law: The Changing Face of Justice and Why it Matters to Us All

Author - Helena Kennedy
Publisher - Chatto and Windus
Pages - 318
Price - £20.00
ISBN - 0 7011 7506 0

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