NS Interview - Matthias Kelly

The chairman of the Bar Council wants to scrap the Lord Chancellor and bring the Queen under the rul

Matthias Kelly has just got back from court, where, sitting as a recorder, he sent a second-time burglar down for four years. Obviously the barristers' leader is not a soft touch. Except, that is, in the eyes of the Home Secretary. David Blunkett's speech to the Police Federation conference on 14 May included some judge-battering, but that is normal. His attack on Kelly was the extraordinary bit.

This is what he said: "I have a message for Matthias Kelly, who runs the Bar Council. If you think your job is to take me on, to take on the police service, to take on victims, to take on the community, you have lost the plot. Your job is to protect the innocent and convict the guilty."

It is not even as if Kelly fits the stereotype Blunkett sketched recently of a patrician legal establishment confronting a "working-class boy from Sheffield". As one of eight children of a pig farmer who worked 20 acres in County Tyrone, Matt Kelly's plebeian credentials are at least as authentic as the Home Secretary's. There the similarities expire. The dispute began shortly before Kelly took office in January, when he described Blunkett as "profoundly illiberal". Little has happened to change his mind, but still this month's public diatribe astounded Kelly.

Does he have a message back?

"I think it's really sad, and deeply regrettable, that the Home Secretary, who holds one of the great offices of state, finds it necessary to resort to personal abuse, Clearly, he is rattled by the reasoned arguments we are putting forward [against measures in the Criminal Justice Bill]. This [attack] speaks volumes about the Home Secretary. I would remind him that large numbers of backbenchers . . . and many in the House of Lords share our concerns. It's very damaging for his reputation. If the Home Secretary is in the business of engendering respect for the law and the criminal justice system, this is just about the worst way he could go about it."

Blunkett wars might seem enough for a Bar chairman. Instead, Kelly is also engaged in a duel with Derry Irvine over the Lord Chancellor's powers and the future of the silk system for barristers. No controversy seems too great, and no institution or individual sacrosanct. The country's top Queen's Counsel even wants Her Majesty brought under the law.

We start with the Criminal Justice Bill, which is passing through Parliament on 21 May. Kelly has already spoken out against curtailing trial by jury, revealing previous criminal history (a recipe, he thinks, for miscarriages of justice) and allowing murder suspects to be retried. The bill and its late amendments, including mandatory terms for murder, have had scant Commons scrutiny, in his view. His hope is that the upper chamber will throw out measures constituting "nothing which we as lawyers in Britain, or in any other mature democracy, would recognise as justice".

"I passionately believe in the independence of the judiciary and the legal profession . . . In effect, what he [Blunkett] is saying is: 'I'm the politician. I've got my hands on the lever of power, and I'm not really interested in listening to anybody else.' I understand why a Home Secretary would find it difficult that judges might call his actions to account, but everyone is subject to the rule of law. You can't do what you want just because you are Home Secretary."

Does Kelly think any of Blunkett's tougher predecessors, Michael Howard included, would have dared to try to impose mandatory terms for murder? "I think previous home secretaries might have given a great deal of thought as to what the long-term consequences might be."

Making the sentence fit the crime means, in Kelly's view, more flexibility, not less. "There is a very strong argument for not having a mandatory life sentence for murder," he says. Judges, for whom murder terms are the latest challenge, "feel very weary. There has been a whole series of events where the judiciary has come under fire - at times very abusive fire, and very ill-informed."

While Kelly is no mouthpiece for a body bound by constitutional omerta, it is fair to think that his views may harmonise with those aired in the Strand. "Murders are of an infinite variety, and part of the problem [now] is there is only one sentence: life. Also, people change. Are you to say that a very young person, no matter how reformed they are, or likely to be a useful member of society, must be locked up for ever? Clearly there are some offences so horrible that life must mean life, but not all."

Kelly thinks Blunkett's obduracy on sentencing and other measures is partly informed by insecurity. "Ministers who deal with opposition by rubbishing it and hurling abuse [are], in my experience, people who are not totally confident of their own argument . . . I have never met David Blunkett, despite having offered on several occasions. It's an outstanding invitation which, for whatever reason, David has never been able to take up." The non-listening Home Office is "certainly not into liberal values . . . It's actually very depressing to see a government constantly trying to take more and more power from ordinary people."

If Blunkett were to squeeze time for an encounter with Kelly, he would discover a rather Prufrockish man of 49, whose self-effacing manner belies a dazzling career. Married to an adult literacy teacher, the father of two teenage children, and a long-standing member of the Labour Party, Kelly has no trace of acquired snobbery or arrogance. His stridency as chairman of the Bar Council derives from his passion that the law should be a vehicle for social justice and improvement.

His mantra, that the rule of law must be obeyed, marks the terrain in which the trouble with Derry Irvine began. Kelly thinks the job of Lord Chancellor should, in its current form, be scrapped. Separation of powers decrees that Irvine should renounce his right to sit in court and appoint other judges. "He can't sit in the cabinet and be head of the judiciary," Kelly says.

The recent Glidewell report also recommended that an independent commission should pick judges, in line with erstwhile Labour Party policy, and that the Lord Chancellor should devolve choosing QCs to an external body. The Bar Council, which set up the inquiry, endorsed its findings. Then, earlier this month, Lord Irvine fired a bombshell in return. In a speech to newly appointed QCs, he announced his suspension of the 2004 "silk round" pending a review that might see the elite rank scrapped.

Kelly "was astonished", he says. So now he has embarked on a campaign to save the rank of Queen's Counsel. Whether or not you believe (and Kelly does not) that barristers are overpaid and undercompetitive, surely the QC label is anomalous in a modern justice system? Why not call them senior counsel, and leave the royal appointment linkage for Beefeaters and HP Sauce? "Because we live in a monarchy," Kelly says finally. "The monarch is said to symbolise the state."

I wonder whether, in the light of collapsed trials of royal butlers, he considers it appropriate that Her Majesty should hold supralegal status. "I believe in the rule of law; that no one, no matter how mighty or how weak, is above the law." Would that include the Queen? "As a matter of logic, I think it must."

As he points out, even Bill Clinton enjoyed protection from frivolous actions. "I do think there is a role for immunity, but it has to be very carefully watched, because the basic proposition has to be that the law applies to everybody." I ask whether he thinks the Queen, while not compellable, should be judged competent to appear as a witness, if required. "I think that must be the position. I start from the proposition that every single one of us is competent to give evidence."

A reformist wish-list extending from the Lord Chancellor's Department to the monarch's legal position contrasts with the lack of progress Kelly sees. "Yet another criminal justice bill," he grumbles. "They steamroller this stuff through parliament, don't enact half of it, and the other half doesn't work." On Derry Irvine's decision to consult over getting rid of wigs and gowns, Kelly is also scathing. "It's a smokescreen. Young women barristers tell me that [traditional court dress] provides some anonymity, and courts are increasingly dangerous places."

And so, some might conclude, is the office of the Bar Council chairman. As Matt Kelly fights on two fronts, some council members will judge him by whether he can see off the Lord Chancellor and keep the QC title. For the defendants and victims in whose name he opposes the Home Secretary, there are more vital issues at stake.

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