Writ large

A lesson for Blair and Clarke on the rule of law

I wish Tony Blair and Charles Clarke had been at the annual conference of the bar on Saturday. No one has yet been able to make them understand why the rule of law matters and why most of the anti-terrorist laws they are trying to rush through (and some already passed) are wrong, bad, misguided, counter-productive, and won't have the effect desired. Perhaps, had they listened to the inspired speech by Albie Sachs, a judge of South Africa's constitutional court, their wall of stubbornness might have developed a crack or two.

It wasn't that Sachs was in any way discussing terrorism in Britain; I don't think he even mentioned it. And he was certainly not trying to advise the British government or the judges. He talked about the South African experience, and how the constitutional court had interpreted the nation's bill of rights - the equivalent of our human rights act.

Mr Blair and Mr Clarke - had they paid attention - would have learned two important principles. These are not soft, wishy-washy bleeding-heart mantras but realistic conclusions based on history and hard experience.

First, human rights are not just there for good, law abiding people. They are standards of basic humanity, a mark of civilised behaviour. A nation's level of civilisation is to be judged not by the way it treats the majority of its citizens but what it does to its minorities, its criminals, its troublemakers, its misfits.

Second, you cannot defend and promote a democratic system by taking away the very freedoms that made it a democracy in the first place. All that happens is that the country becomes unfree and unpleasant - and probably still unable to resolve the terrorism problem it started off with.

I might as well continue with the fantasy that Mr Blair and Mr Clarke had come to the bar conference, with - a necessary condition - an open mind. They, together with Charlie Falconer, the lord chancellor, would have attended a session on trial by jury. It is clear to me that the government's attempts to take away an accused's right to jury trial for serious fraud cases is not based on whether or not jury trial delivers justice, or at least significantly better justice than a judge on his or her own would do - which is what the test ought to be. Instead, the government wants fewer jury trials for two main reasons: it will save money, and it will lead to more convictions, so that the government can boast that more criminals have been punished. Sure, cutting down on juries saves money; so does the government's madcap scheme to allow the police to hand out Asbos like confetti, without the bother of going to court.

That doesn't mean it's right. B, C and F would also have learned - from the Northern Ireland example - that conviction rates don't necessarily rise if a trial is by a judge rather than a jury.

There is one respectable (though not persuasive) argument - that we should remove the jury from cases, mainly fraud, which are so long and complex that juries can't be expected to understand them, or to sit for many months in court. Except that, as even a former attorney general admitted on Saturday, the trials are long and complex usually because of the incompetence of the prosecution and/or the judge, who have failed to present the case to the jury comprehensibly.

Lord Falconer ought to concentrate on remedying that, rather than wrongly blame juries for not understanding the workings of financial chicanery.

I would like to end on a lighter note but there weren't many laughs at the conference. The barristers Blair and Falconer would have found most of their former colleagues somewhere between depressed and angry. They would not have received a warm welcome. It's all to do with money. The fat cats earn huge amounts, some of it, indefensibly, from publicly funded legal aid, both criminal and civil; but there is genuine distress at the young end of the profession. In criminal cases, a day's work might bring in less than £50, and fees for many kinds of work have not risen for the past eight years.

Hence the current barristers' strikes - more accurately, individual decisions not to accept briefs - which I don't expect to last much longer. There's now an inquiry, under Lord (Patrick) Carter, which is likely to recommend a redistribution of legal aid fees, the top earners getting a lot less so that the workers can afford to eat.

I'm telling you this because I'm occasionally accused of contributing to the stereotype of the wealthy, greedy lawyer. There is another side.

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