Michael Kennedy QC

by | Jul 17, 2017 | Interview, Legal profession and judiciary | 0 comments

How would you describe your religious identity and beliefs?

I was brought up as a Catholic, Scots parents, probably on the conservative side and conventional. And I was educated by the Benedictines, prep school in Sussex and Downside. I went into a regiment for my National Service, what you might call an upper class regiment when I was out in Malaya. But they for an army regiment were very community minded in a quiet sort of way, then I went to Cambridge, then I took the Bar Exams. Throughout all of that I was quite a conventional Catholic and very attached to the liturgy, probably my Benedictine upbringing. I wouldn’t pretend to have had any questioning crisis in my teenage years. Now that I am older and a bit better educated, I am enjoying having it now. I still attend and perform and have the same standards, but I ask a lot of questions and I don’t let people think that everything which the Vatican says I should eat for breakfast is what I should eat.

Do you think that Great Britain is an equal and tolerant society, especially in relation to religion and belief?

I believe that in theory it is and if you can talk about it having a communal will it probably wants to be, but you have years of history to get over. So the views of Christians about Jews in this country, although much politer, is one of instinctive reaction; of Christians to Catholics is a bit the same. I get teased, which is good for me. Now you have got much nearer the surface, you don’t need recent events in Tower Hamlets to teach you that recent arrivals in the UK can be every bit as corrupt as the Norman barons, and if you step back, always the question one has to ask is what are your personal values and what you do about promoting them. That has to do with Human Rights and my concept of Justice as well as everything else.

Are there any challenges to you living in accordance with your faith?

The main problem I have is that I have lived in one community in Lewes in Sussex where everybody talks about burning people. My reaction is a humorous one, I will not take these differences too seriously, with some quite dramatic results. All I can do is to say that Catholics in Lewes are very much part of the community. The small fringe that pretends they don’t like Catholicism now are only historically taking on the views they formed about the Anglican church, long before the Catholic hierarchy returned to this country, which is very interesting. But now, alongside the law courts, there is a little passageway in the High Street called Pope’s Passage. People teased me about renaming it when I retired. One lady in our parish asked me how I felt about acting the part of Caiaphas in a Passion play, a very serious lady who sings in one of our choirs, I couldn’t restrain myself from saying that Caiaphas is a very interesting character. She looked a bit shocked, so I have to be conscious about saying or doing things which will get reactions from people I regard as friends. Not easy, but gently I get on with it. Even our parish priest knows that I ask questions.

How do you regard human rights in Great Britain? Has Catholicism contributed to them?

I am aware that when human rights legislation is being promoted, we became aware that the Catholic Church’s attitude was not altogether positive. As a lawyer we undertook training in Human Rights, my former Chambers organised training and exchanges and the first time we went Italy it was on human rights. The lady in Italy organising it said, that in Italy they didn’t have Human Rights. She was a teacher of English rather than an academic lawyer. The first lecture was attended by all of the local dignitaries and a very courageous young advocate who was also an academic gave a talk on Italian performance, they had brought in HR legislation by a presidential decree, and their record in Strasburg was almost as bad as the UK. What courage of him to tell all of these Italian officials how bad their record was. I don’t pay much attention to people, including the occasional judge, who say that the behaviour of the ECtHR is an embarrassment. People should accept the principles, see that they are sensible and get on with it.

Do you think that human rights which apply to everyone in British society are a good thing?

Of course, absolutely.

And do Catholic voices and campaigners have a practical influence on human rights in contemporary Britain?

They do all try, but I think in particular our ecclesiastical leaders, whatever they may think personally are still having to deal with the Church’s pronounced or official views on things. That is why I set a lot of confidence on the way in which our present Pope is approaching things, which is how you relate to people. He is very good at that. It isn’t just the rules it is how you deal with it, leading not preaching.

Do you think that human rights are generally respected by the government and other public bodies?

The government is one thing, other public bodies are another. The government is composed of politicians and they are all the time having to look over their shoulders, particularly at an election time. I can’t give you a reaction on individuals. But I know a lot of very sensible things I have read and heard said about members of the government and former members of the government, I am fairly optimistic about government attitudes as a whole.

Would you say that public authorities get the level of intervention in the lives of individual’s right?

I have just chaired a hustings in Lewes, there wasn’t a single question on what I would call HR, Freedom of Religion or Freedom of Speech, all very current popular issues. The LAs apply what they regard as the law, they go to statutory requirements, they have enough problems trying to understand and apply them that their personal views don’t impinge much.

When should public authorities intervene in the expression of religious or ideological convictions?

I have been reading some articles about Free Speech and Charlie Hebdo. When I first heard about that my reaction was that the right to speak freely carried with it a responsibility to behave with restraint and respect. It is a very difficult balance. What you say about what the government does has all to do with respect, understanding but not agreeing with. Respect means understanding and allowing it to be expressed, but that carries a responsibility to reply. Allowing people to say whatever they like and not showing approval or disapproval is chickening out.

Would you say that living in a Parliamentary democratic society makes it easier or harder for you to live in accordance with your faith? Would you prefer another form of government?

There is a new book ‘Who Governs Britain’ we say we live in a democracy, I don’t think we do. We live in a civilised kind of country governed by commercial interests and so forth, rather than our government or Parliament. But we think that we live in a democracy and that makes us behave biter. But the present state of affairs, call it democracy or not, allows me to live out my years quite comfortably, I can say what I like when I like and sometimes to do things which I know I should have been doing years ago, like stopping to talk to the beggar in the street. It is how people treat people. Parliamentary democracy is to me an arguable term. I don’t want to be governed by saints, they can be quite unliveable with, and I’ve known a couple.

Does your Catholic faith mean that you feel that you have a responsibility to vote?

No question, of course I do.

As a former member of the judiciary, would you say it is a good or a bad thing that Parliament is the final law making body? Would you like to see the British judiciary empowered in a similar way to that of other European countries?

No, definitely not. I think that our judiciary over the last century has steadily grown up and come away from being part of the Establishment, and the lower judiciary which used to be local interests and corruption (with a number of good men involved as well I’m sure) is professional, magistrates are trained. They still have some pretty bizarre views I’ve come across, but leaving that aside, I think that the judiciary is being steadily crippled by financial restrictions and cuts, but I think basically the position of the judiciary is in balance between applying the law and wanting to find way of misapplying what they instinctively think is unacceptable. It’s a very difficult thing….awful, but they won’t miss us until they lose us, like pubs and bus routes. The judiciary are undoubtedly getting fed up, they are under stress and shouldn’t be pushed too hard. I am convinced now that a lay Lord Chancellor is a disaster, I am sorry I am not saying that he is wicked man who doesn’t love his mother, but he does not have the instinctive respect for the Rule of Law and what is needed.

Is the understanding of democracy as the will of the majority problematic for minorities? Do some groups struggle to participate?

That depends on two things, the first is chance, because it depends on how the election turns out. You will always have people who are minorities, for me what matters is how the population as a whole regards and treats them. This is not an argument about whether they should all learn English, it is much deeper, it has to do with how you deal with refugees, people drowning in the Mediterranean , it has to do with your idea of justice. You can’t mend it by altering your Parliamentary or voting system, it has to be a change of mind and heart in the population. That imposes a great burden on everyone. Look what they have had to do in Northern Ireland to come to terms with each other. We have to do the same thing.

Do you think that it is problematic that the House of Lords is not elected?

Maybe, I am not convinced because I have not studied the behaviour of the House of Lords but I am aware that there are a number of members who are highly, qualified and assiduous in their duty. If they provide a revising and balancing force then that is exactly what you need. Despite the impressive work of Parliamentary Committees the Commons do not have time to look at things properly, if in the House of Lords they can, the question is how to get the best people into it. Appointment would work if they are appointed for the right reasons, and not just as a force to get through the policies of a particular government.

Do you think that Lords Spiritual have a place in parliament?

How many Scientologists are there in the House of Lords? We have a Judicial Service in Lewes, and used to have one for every assize at least twice a year. There was a wonderful occasion when I was still a judge, when a school teacher came up to a senior judge and said how wonderful it was to see the Establishment at prayer. The visiting High Court judge was Jewish, the Deputy High Court judge was Catholic, the senior Circuit Judge was a very High Anglican and I was next. My suggestion at the next lunch for the judges, was to end the traditional performance to satisfy the “blue rinse society”, we should take the Dome in Brighton and have a Spiritual Meeting and invite all faiths including the Scientologists (with whom I was very successfully at war as a barrister). They all looked at me as though I was mad. Spirituality should not be seen as the preserve of the Establishment.

Is establishment working for the benefit of society?

Establishment has got so many consequences, for the monarchy, succession, everything you can think of. Disestablishment would only work if enough people understood what it involved and also saw the sense in getting rid of it or altering it all. It is an educational process, and people in pubs don’t want to be educated.

Do you feel represented by the Church of England bishops?

Not in the least. I am sure that they are all lovely, but several of them don’t believe in God.

Do you think that public authorities try to respect the democratic voice of citizens as expressed by Parliament?

Public bodies would say that they didn’t ignore legislation out of ill will, but because of financial necessity. My wife is an expert teacher of children with Special Educational Needs, and she is magical at it. I therefore quite often took an interest in cases of children who undoubtedly had a problem and difficulty in getting support from the LA. It was entirely finance driven. If you didn’t take them to court you got nowhere, if you took them to court they would fight a rear-guard action. It had nothing to do with the merits of the case, or the law which said that children should have support, it had to do with finance, and they hadn’t got the money. With local government increasingly that is a more important driver than anything else, if they cannot do something they find reasons not to do it.

Some of my students would say that the judiciary comes across as more Europhile than the mainstream society or the political class? Would you agree with that?

Quite possibly, because we apply the law. When we get it right we are rather better at applying EU law than most European nations.

What in your view are the best mechanisms for keeping people who wield power in society accountable for what they do?

It really is a question to which I am not sure I have an answer. Your personal values ought to inform everything you do; if that is right there will be a natural balance. Those who govern will govern mostly for the people the govern, not to stay in power. Commercially, whilst any commercial activity does have to make enough money to survive, all the rest of it needs to be generosity. When you look at people like Bill Gates, who I believe happens to be a Catholic. Some people who make money can’t give up the habit. People who have got a lot of money should be giving it away, that is perfect, and I believe it is in Mark’s Gospel. I know that is the right answer. How does that translate into an answer to your question? I can’t answer.

Would you say that Roman Catholic voices are proportionally represented in public life?

RC voices used to be the voice of Rome; RC voices are no longer the voice of Rome, certainly in this country they have quite widely divergent views on a number of matters which are not subject to dogma and infallible answers. Where there is not an infallible answer there are very different Cathoic views on a number of subjects. We have quite a lot of friends who are homosexual and more than one of them have put themselves into the position of saying that they are married to other homosexual people. The Catholic church is trying to find a way of working towards how to cope with the gender thing after century after century of assuming that there was only one answer. In my view, I approach it from the other end. Human beings have only one real function if you believe in the existence of God, to steer yourself towards the gap, like steering a boat in a coral island. You’re not going to do that unless you genuinely have love for other people, unless you see the spirituality of others as every bit as good as yours provided they are trying to do the same thing. I know homosexual people and couples who have an intense desire for a spiritual relationship with God. I reject the idea that despite the coming of Christ and accepting the three essentials of Christianty (the existence of God, the divinity of Christ and the Resurrection as a fact) once you’ve got those on board how you deal with the gender or genital question? If you think of it in those terms, to rule out the possibility of any truly spiritual relationship between couples of the same sex, heading for the gap in the coral reef in an outrigger as opposed to a canoe. It must be wrong. An example of the sort of thinking that a pretty observant Catholic produces? And it simply doesn’t fit in with the attempt of some of our bishops to conceal the fact that, underneath their robes they are still wearing hobnail boots. That is an example for you, what is the Catholic voice? There isn’t just one view of Catholics.

How do you think that the exercise of power by Parliament should be regulated?

The power of Parliament is more to be respected the more professional it is. I start in the 17th/18th century and you look at the television and you see them behaving like children in a nursery school playground. If you make your Parliament rather more professional, less members better paid, higher standard. Then you ought to have a body which ensures that it has the time to do the job properly. If you had that they would command respect. The second part of the work is to educate the public in Parliament and its functions. Parliamentary elections are a series of bribes, worse than Hogarth getting people drunk and putting them on a wagon. I will not look at any more literature making me an offer. I am just not interested.

Have you been involved in any campaigns in a private capacity, to try to change government policy?

I don’t think so. I was trying to think of the things that the Catholic Union puts out, I have increasingly felt that this is the party line, I don’t necessarily disagree but I think that there are more important things to think about and do. I don’t believe I have.

In your personal interactions with public bodies, do you feel that your personal spiritual needs have been met and respected?

The only people I have come across have been educational, I have been on various things to do with universities. I haven’t had any difficulty, but I don’t know if they regard me as a barmy old nutter, or whether they take my views seriously. On the whole, I was chairman of a CAB, I had a lot to do with a funding question about a legal help desk at a prison, and I found everyone I dealt with first rate. But I have always wondered whether people are nice to me because I am a judge.

Is it important to you always to act in accordance with secular law?

Lecturing law students in one of our local universities I tried to explain what a judge does and doesn’t do; they were a very varied group, several from African countries. People have a very wrong concept of what judges do and what you shouldn’t expect them to do. I asked whether they expected a judge to always obey the speed limit? Several hands went up, so I said that I was sorry to disappoint, but you don’t have the same view of judicial character as I do. If you are a good man you will be a good judge. I have never, apart from speeding, that I can remember, deliberately disobeyed the law, but there must be laws, especially regulatory laws which I don’t necessarily regard as realistic. I very often drive slower than the speed limit because it is unsafe not to, but if I am on an open motorway on a good day I will go up to 80 or 90 and don’t feel that I need to confess it the following week.

My attitude to the law would be that if I can’t behave better than the law demands there is some way of improving my behaviour. The law is a backstop. It isn’t really a high standard if you are half a Christian.

Do you believe that it is important for all citizens to speak out against injustice?

Oh, yes, but it depends on your definition of Justice. As a judge I couldn’t speak out, so now I can if I want to, but other things have absorbed my interest, such as my definition of Justice and how you apply it.

Would you say that the Rule of Law is applied equally to everyone, or do some groups experience either prejudicial or preferential treatment?

Preferential treatment I have never given, but I don’t know how other people would perceive it, or whether the sights of those perceiving are correctly zeroed in. It’s all perceptions. Two reports from Lewes prison, one was that they were terrified of me and the other that I was Father Christmas. I don’t believe either.

What about access to justice?

When I was with the CAB I tried to organise some of our volunteers to come down to court to help people, especially women who were victims of what is called domestic violence, to help them fill in forms and hold their hands. The volunteers were scared and felt that they couldn’t undertake it. There are other examples, dyslexia, I nearly locked a builder up in a civil dispute for failing to bring his documents and get them in order. He explained that his accountant was on holiday. In the end I understood that he couldn’t read the documents. If I hadn’t been married to a teacher who knew all about these things I mightn’t have sensed it. If you know that somebody has got a problem, an incapacity you deal with it. You take a practical step. A mother came in one early morning for an emergency application, a Spanish woman who didn’t speak English. Her son was with her, aged about nine, and I asked him to help. I had him sworn as a juvenile interpreter, he was the best interpreter I have ever had, direct, nothing added. My clerk brought me some headed note paper and several court stamps and I gave him a document telling him he was the best interpreter. That was a practical solution.

What do you think about the general tendency to increase State and police powers?

I can’t tell, I haven’t looked at the detail enough. I looked at the Hebdo argument and it is the same thing, how do you react to terrorist behaviour? I think that you simply treat them like any other criminals, and if you need extra powers to detect and deal with it then you have to have them. But you don’t want powers which can be used later for other purposes.

Are there any laws which you find restrictive?

We do have a planning problem in our village, and the problem is not the law which is quite good, but resources so that cases can be dealt with quickly. I know how long it takes to get a decision in India, and I shudder because a large percentage of people die before their case gets to court. The main problem is not what the law is, now that the death penalty has long gone. When we had defended divorces, as a senior barrister I said to my clerk that I wasn’t prepared to do contested divorces involving Catholics. How many uncomfortable pieces of legislation can you not deal with in a sensible way? For me because I have the knowledge and enjoyed a level of local tolerance I was able to cope without too much discomfort.

Is there anything which you would like to add?

The definition of Justice, our parish priest entirely agrees with me, which is a danger sign! How would I tell people what Justice is so that you can compare injustice, it’s not what most people think of when they say that they want Justice, when they want revenge or fairness like a little child complaining ‘it’s not fair, daddy’. Hamurabi made me think, I got the impression that his Law Code was a tariff of penalities, where is the Justice in a shopping list, saying what you must pay or suffer for doing something? I haven’t studied him but that is my impression. So I moved forward to Aquinas and the Summa, and found that he was quoting Justinian ‘the anxious desire to ensure that every man receives his due’. Justinian wasn’t that nice chap and it is amazing that he produced this. I have never found a better starting point for a definition of Justice; it is not a question of results but attitude. “Every man receives their due….” their due is not just what they want, or deserve but what they need. Now there is a definition of Justice, how do you as a Christian apply it? Who is my neighbour? Everybody. I also take Ghandi…..”unless you can see God in the next person you meet, you waste your time looking further”. Do you stop to talk to the beggar in the street? Why not stop looking for reasons why you shoulnd’t or needn’t but get into the habit? We live in a village where it is easy to be nosy, but I know the difference between sharing information and gossip. There are times when lying is preferable to telling the truth. A neighbour asks if your daughter has been raped; she has and you know that she cannot cope with everyone knowing. You lie because your neighbour has no right to ask. You can’t easily injure people you love, you want to be generous towards people you love. If your attitude is one of generosity, you should love God first, giving not asking, that is difficult. So justice should not be setting rules or limits, a lot of law is setting limits, but laws can’t make people be good. Only you can do it, so Justice means your attitude towards the next person.

Michael’s roots are Scottish, though he was born and brought up in England. Benedictine education (North and Downside); National Service Malaya; Cambridge, for modern languages and law. Common Law Chamber, practising at first mostly in Sussex, Oxford and London. A QC in 1979, Circuit Judge in 1984, finally (following New Civil Procedure Rules) initiated by Lord Woolf (in charge of civil courts in Sussex); on retirement two years as Deputy Circuit Judge in Canterbury; a Deputy High Court judge in Civil and Chancery when required.

Moving to Sussex in 1980, his four children completed school there, then university. One is a teacher in Dorset, one who now lives in Bauff and organises antique and collectable/vintage sales. One is a wine negociant in Bordeaux. One teaches drama, acts when work is available and lives nearer to him. Seven grandchildren. Elizabeth, his wife, for 52 years has cared for their family, taught children with special educational needs and used her Russian (LMH Oxford) to help set up a charity and is still a trustee, supporting vulnerable children and their families in Ukraine, Moldova and Russia/Bellarus. They live in a Sussex farming village, with a lively church.

He indulges himself-occasionally with Elizabeth-in singing, benignly neglecting a large garden, mending machinery and various country pursuits. Michael has for many years helped at two Sussex universities (moots, for example), on their local CAB, Opera Company (New Sussex Opera) and now, the patients’ groups at the local surgery, at a time of planning the reorganising of their medical services in and around Lewes. Retirement is, as many can prove, a fraud.


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