A lovely little chat with Ken.....

It's been a while since my last post but a lovely little chat with Ken has prompted my return to the Blogsphere. Sorry, I'm getting slightly ahead of myself. Ken is of course Ken Clarke, Minister for Justice and Lord Chancellor who strode into the grand surroundings of Freshfields Bruckhaus Deringer LLP for a "Conversation" with Roger Smith, Director of JUSTICE.

I had seen Mr Clarke a couple of times before in Nottingham (his constituency), in the foyer of my university law school. Whilst he has something of a reputation for being engaging and commands respect from both sides of the House of Commons, he was fairly unassuming on these occasions and did not have the entourage that one might expect (even for an opposition/back-bench MP, as he then was). Even as he settled into his seat at FBD he only appeared to have been accompanied by a couple of aides.

Now that I have finished the BPTC, touring the speaking events is as good a way as any to pass the time whilst I search for gainful employment and I always go hoping that I might witness something eventful/newsworthy for myself rather than reading it in the papers. The obvious need for his questioner to maintain a diplomatic approach, despite the strident criticism of JUSTICE to many of the government's policies from Legal Aid to Closed Material Procedures, allowed the Minister to effectively hold court with charm and self-depricating humour. Needless to say, I was a little disappointed, it all seemed a little too cosy - not for long.

I knew things would get more interesting when he explained that in his view, it was the responsibility of the Lord Chancellor to protect judges from political criticism. "I am against political influence on the judiciary [and ] it is "undesirable for ministers to denouce judges in public".

On legal aid, he was at pains to stress that he was a "strong advocate for cuts". Legal aid had become the single fastest growing area if public expenditure demanding a drastic approach. In his view, the UK had taken legal aid areas that other countries do not provide for and it was "time to get back to basics". He went as far as suggesting that the lobbyists resisting legal aid cuts did not "have vulnerable clients at their heart".

As if all of that were not bad enough, conditional fee arrangements, where the level of fees recoverable by a lawyer is dependent on whether or not they win the case (a.k.a. no win, no fee) had helped spawn a whole industry of expert witnesses and provided lawyers with yet another "nice little earner".

On government proposals under the Justice and Security Bill to allow for Closed Material Procedures in civil cases engaging national security, this was "plain, obvious, common sense" and those that opposed it were the ones who favoured total silence and injustice as the government would be forced to settle cases that it would otherwise defeat in court.

As far as human rights are concerned, he also claimed that he had always been a supporter of the European Convention on Human Rights and was a "convert" to its incorporation into domestic law under the Human Rights Act 1998. He also lamented the hostility that surrounded human rights discourse in this country amongst much of the general public.

Now, I don't know about you, but I'm confused. If Clarke is against the public castigation and polticisation of the judiciary and is an ardent support of the ECHR and the HRA, then why is it that both he and senior government colleagues from the Prime Minister and Home Secretary down, consistently and deliberately misrepresent the role of the Strasbourg Court and its judgments? When I put this to him, he simply blamed poor media reporting, which quite frankly is just insulting. Perhaps I should have reminded him about the continued filibustering over prisoner-voting, he suggestions that the government should simply ignore the Strasbourg ruling that Abu Qatada could not be extradited to Jordan and send him their anyway or the Home Secretary's attempt to re-codify Article 8(2).

The representation of those that challenge government policy that undermines access to justice as simply chasing a quick buck was rightly decried by one audience member and volunteer from the National Centre for Domestic Violence as "an outrageous slur" on public-sector lawyers who earn anything but a nice pay day, not to mention the thousands of volunteers who help support them, but it is nothing new. The conflation of Legal Aid and CFAs is all part of the same narrative. This is despite the fact that not only are the two separate but CFAs have played a vital role in enabling those who would otherwise be unable to pay for legal advice gain access to justice in those areas that already were not covered by legal aid and for which the State does not have to pay (unless of course, it is a defendant). Even before legal aid reform, CFAs were under-attack and the effect of the Jackson proposals, put forward by the last government, will mean that these too will become a rarity.

There is a cruel irony here given that this and successive governments have been desperate to champion the cause of London as the commercial legal centre of Europe. Libel tourism has been embraced and foreign litigants welcomed despite arguing cases that have little at all to do with the UK courts. Indeed, just last week, it was announced that London would be home to one of the new Unified Patent Courts. Whilst Clarke could not see the link ( or simply refused to acknowledge it) the message could not be clearer, justice is for those that can pay for it. That the expansion of legal aid into areas not provided for elsewhere is a cause for derision simply underlines the point. We will go beyond traditional boundaries in the interests of commerce but not in the interests of justice.


Much of what the Justice Secretary had to say underlined the reality all too well know to many, spending cuts go far beyond deficit reduction and seek to personify traditional ideology. The Conservative Party is the party of big business and small State. Ideology is one thing but can we at least be a bit more honest about it?