22 March 2004
Baroness Helena Kennedy has long been a champion of the downtrodden. Now, the never-less-than-radical QC has added another cause to a crowded list of good causes: lawyers. Not just any lawyers, you understand – and certainly not the over-paid bunch presently well represented in Government – but her kind, the kind she has worked alongside throughout her career at the criminal bar.
“These are the lawyers who have chosen to be advocates for the poor, the disadvantaged, those on the margins, those who are least well-served by the law,” the barrister says in her new book Just Law: the Changing Face of Justice – and Why it Matters to Us All. “At different times they have been called different names – poor man’s lawyers, radical lawyers, alternative lawyers, civil liberties lawyers.”
Kennedy, a member of Doughty Street Chambers, is celebrating the adviser at the Law Centre helping the client through “the mire of welfare benefit entitlements”, the family lawyer committed to domestic violence cases and the defence solicitor representing “the frightened, hopeless and downtrodden”.
“They work in offices and chambers up and down the country with long hours and for far less money than the sums bandied around in the press,” she writes. “And I am tried of hearing them traduced.”
When The Lawyer catches up with Baroness Kennedy of the Shaws, she has just returned from lunch with the Queen as one of 180 women high-fliers invited to Buckingham Palace (as well as being a Labour peer, Kennedy is chair of the British Council and chair of the Human Genetics Commission). But this is no time for the barrister to be forgetting her roots.
“I have spent my life working with people who entered the law not because they want to become rich fat cats, but because they really did think that they could make a difference,” she says. These are the people that she believes have been “defamed” by her own government.
Kennedy’s new book amounts to a blistering attack on New Labour’s track record on civil liberties, law and order and, more generally, the “retreat from law” over the past few years. The title derives from one of many “depressing and wretched disagreements” the peer has had with her own party. In that instance, the dispute was over jury reforms – when Kennedy was called to book for voting against the government by one of the whips. He told her that her concerns were completely out of touch with those of voters for whom it was “just law” as opposed to anything serious, such as health or education.
There is a genuine anger bubbling not far beneath the surface of the book. It starts with what amounts to a charge sheet or, as Kennedy puts it, a “catalogue of inroads into our liberty”. She lists 18 separate instances where she believes the Government has undermined the rule of law, including internment without charge for non-citizens suspected of terrorist offences, attempts to cut back on jury trials and the removal of judicial review in asylum cases.
How has the book gone down with her colleagues in the Labour Party? “It gives voice to concerns shared by a large number of people in the party and beyond,” she replies. “The point comes where you have to decide where your loyalties are and, of course, you are allowed to have a different opinion, but they don’t like you to express it.”
It is a book which is absolutely of its moment, as was vividly demonstrated by the news coverage in the week of publication: Kennedy’s colleagues in the Lords had just booted the Government’s constitutional reform programme into the long grass, the four Britons detained in Guantanamo Bay returned to the UK, and Lord Woolf manned the judicial barricades predicting that Government plans to remove judicial review in asylum cases could bring “the judiciary, the executive and legislature into conflict”.
Life peer Kennedy voted in the Lords with the Government on constitutional reform, but remains ambivalent about the proposals.
“We need a balancing voice in the Cabinet to counter all the noise about law and order,” she says. “We need someone talking about justice and legal principles to match the exigencies of the Home Office. I’m afraid we are, without thinking hard enough about it, engaging in processes that are weakening the checks and balances.”
Kennedy is concerned that ministers will swap the constitutional role of the Lord Chancellor, with “its weight and significance”, for that of “a low-level cabinet minister”. “Will that person ever feel the gravitas of their role?” she asks. “Especially if they’re still ambitious for other political positions and looking over their shoulder at the next election for their constituents to vote for them.”
The first chapter of Just Law opens with a quote from the Prime Minister which sets the scene for Kennedy’s attack on the Government’s track record. “It is perhaps the greatest miscarriage of justice in today’s system when the guilty man walks free,” argued Tony Blair, in a speech where he trailed his Government’s criminal justice reforms and talked of “rebalancing” the system towards the victims of crime.
It isn’t hard to see why the statement resonated so disturbingly with the campaigning lawyer, who made her name in a string of high-profile cases such as the Guildford Four appeal. Kennedy argues in the book that the single sentence summed up “a complete reversal of the approach to justice that every mature democracy in the world respects”.
“We’re seeing something serious taking place: a reframing of principles that have come out of the law over time,” she argues. “So [the PM] was giving voice, probably without even thinking about it, to what is the first instinct of the man on the Clapham Omnibus, which is, ‘Well, why shouldn’t we occasionally lock up the wrong people and make the odd mistake’. That’s the shameful shift that is taking place, but it is not just around individual principles, it is happening across the board.”
The justice system ‘relies on memory’, and so she asks in the book how come events that seared our national conscience (such as Guildford, the Birmingham Six, Stefan Kisko and Judith Ward) have been forgotten so quickly. “I thought that we learnt that liberty mattered,” she writes. “Where was Jack Straw? Or David Blunkett? Did Tony Blair read those columns in the newspapers? Surely as Shadow Home Secretary from 1992 to 1994, Tony Blair received the same letters I received from people in prison explaining urgently that something has gone badly wrong.”
So what is driving this collective case of “wilful amnesia”, as Kennedy puts it? The silk has a big theory. She argues that the Government’s erosion of civil liberties isn’t just about “feeding the monster of tabloid newspapers” or a response to any new terrorist threat. Instead, it is “a levelling down which is a facet of globalisation where there has been a search for a greater harmony across legal systems,” she argues.
“There’s no reason why you can’t have common values – that’s why we have universal human rights and conventions – but when you seek to create common denominators, you invariably level down,” the barrister continues. “We should be proud enough to recognise that the standards we have set in the common law system and which we have developed here are good values. And ones we should maintain even in the face of threats such as terrorism.”
Kennedy reads significance into David Blunkett’s decision to announce yet more anti-terror proposals – including lowering the burden of proof – when he was recently in India. As she sees it, the Government is trying to stir up feeling about the common law as part of a wider international debate.
She is not only concerned about the damage being done to the law, but also about the harm done to the reputation of the profession.
One chapter of the book on how lawyer-bashing became an acceptable part of the political culture (‘Kill all Lawyers’) should be required reading for all legal aid lawyers in need of a morale booster.
Kennedy imagines the former Downing Street director of communications Alastair Campbell “deep in the bowels of Whitehall” coaching on ministers how to fight off critics on their line on civil liberties. Firstly, he tells them all reforms are necessary “in the interests of the victims” and, secondly, “the opponents are all lawyers who are all in it for the money”. Certainly, many lawyers will raise a heartfelt cheer to Kennedy for nailing the hypocrisy of a government that routinely damns legal aid lawyers as ‘fat cats’ and pays an hourly call-out rate for duty solicitors that is “less than would be paid in McDonald’s”.
Kennedy has another compelling theory as to why lawyer-politicians have such a low opinion of their fellow professionals. It is a form of snobbery whereby the “caravan of commercial lawyers” that now “inhabits the corridors of power” regard other lawyers as “lesser mortals”.
“For them, no one would be a criminal lawyer by choice when the financial rewards are so much higher elsewhere in the law,” she argues. “Some of these men, although very familiar with financial deal-making, would not recognise a civil liberty if it jumped on them.”
|Extracts from Just Law|
On a government of lawyers: “The caravan of commercial lawyers who now inhabit the corridors of power grandly think that those who practise criminal law are lesser mortals. For them, no one would be a criminal lawyer by choice when the financial rewards are so much higher elsewhere in the law. Some of these men, although very familiar with financial deal-making, would not recognise a civil liberty if it jumped on them.”
On lawyer-bashing: “The new element of lawyer-baiting is that the assault now comes from politicians, even lawyers. Lord Falconer is a commercial lawyer, a very rich commercial lawyer, as is the Attorney General Lord Goldsmith and the former Lord Chancellor, Lord Irvine. All three were up there in the million pounds-a-year bracket before the call of government. These men have not yet had the privilege of knowing the lawyers I have known, both solicitors and barristers, who chose law not for the money, but because they believed that they could made a difference to people’s lives.”
On civil liberties: “Criminal practitioners, who prosecute and defend, know why civil liberties matter… If you live by opinion polls and focus groups, they will tell you that there is too much crime, the system is soft on criminals and something ought to be done. There is nothing new in the public holding those views. But the risks attached to following the majority are precisely why protections and safeguards have to exist. Majorities can demand the death penalty, the majority resisted votes for women, the majority once thought that slavery was no bad thing. What is new is for a Labour government to mount such a wholesale assault on the underpinnings of the rule of law.”
On constitutional reform: “The sad truth is that Lord Irvine failed the test. He could have reformed his own role by simply removing the Lord Chancellor’s right to sit as a judge and he could have created an independent judicial appointment, so that he no longer appointed judges. But it was largely his alarm at the militant tendencies of the Home Office which made him resist the inevitable.”